COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 45
(By Senators Fanning and Chafin)
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[Originating in the Committee on Energy, Industry and Mining;
reported March 26, 2009.]
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A BILL to amend and reenact §22-6-1 and §22-6-7 of the Code of West
Virginia, 1931, as amended; and to amend and reenact §22-11-3
and §22-11-8 of said code, all relating to authorizing the
Secretary of the Department of Environmental Protection to
sign National Pollutant Discharge Elimination System permits;
and correcting antiquated language throughout.
Be it enacted by the Legislature of West Virginia:
That §22-6-1 and §22-6-7 of the Code of West Virginia, 1931,
as amended, be amended and reenacted; and that §22-11-3 and §22-11-
8 of said code be amended and reenacted, all to read as follows:
ARTICLE 6. OFFICE OF OIL AND GAS; OIL AND GAS WELLS
ADMINISTRATION; ENFORCEMENT.
§22-6-1. Definitions
Unless the context in which used clearly requires a different
meaning, as used in this article:
(a) "Casing" means a string or strings of pipe commonly placed in wells drilled for natural gas or petroleum or both;
(b) "Cement" means hydraulic cement properly mixed with water;
(c) "Chair" means the chair of the West Virginia Shallow Gas
Well Review Board as provided for in section four, article eight,
chapter twenty-two-c of this code;
(d) "Coal operator" means any person or persons, firm,
partnership, partnership association or corporation that proposes
to or does operate a coal mine;
(e) "Coal seam" and "workable coal bed" are interchangeable
terms and mean any seam of coal twenty inches or more in thickness,
unless a seam of less thickness is being commercially worked, or
can, in the judgment of the department, foreseeably be commercially
worked and will require protection if wells are drilled through it;
(f) "Director" means the director of the division of
environmental protection as established in article one of this
chapter or such other person to whom the director has delegated
authority or duties pursuant to sections six or eight, article one
of this chapter.
(f) "Department" means the Department of Environmental
Protection;
(g) "Deep well" means any well other than a shallow well,
drilled and completed in a formation at or below the top of the
uppermost member of the "Onondaga Group";
(h) "Expanding cement" means any cement approved by the Office
of Oil and Gas which expands during the hardening process,
including, but not limited to, regular oil field cements with the proper additives;
(I) "Facility" means any facility utilized in the oil and gas
industry in this state and specifically named or referred to in
this article or in article eight or nine of this chapter, other
than a well or well site;
(j) "Gas" means all natural gas and all other fluid
hydrocarbons not defined as oil in this section;
(k) "Oil" means natural crude oil or petroleum and other
hydrocarbons, regardless of gravity, which are produced at the well
in liquid form by ordinary production methods and which are not the
result of condensation of gas after it leaves the underground
reservoirs;
(l) "Owner" when used with reference to any well, shall
include any person or persons, firm, partnership, partnership
association or corporation that owns, manages, operates, controls
or possesses such well as principal, or as lessee or contractor,
employee or agent of such principal;
(m) "Owner", when used with reference to any coal seam, shall
include any person or persons who own, lease or operate such coal
seam;
(n) "Person" means any natural person, corporation, firm,
partnership, partnership association, venture, receiver, trustee,
executor, administrator, guardian, fiduciary or other
representative of any kind and includes any government or any
political subdivision or any agency thereof;
(o) "Plat" means a map, drawing or print showing the location of a well or wells as herein defined;
(p) "Review board" means the West Virginia Shallow Gas Well
Review Board as provided for in section four, article eight,
chapter twenty-two-c of this code;
(q) "Safe mining through of a well" means the mining of coal
in a workable coal bed up to a well which penetrates such workable
coal bed and through such well so that the casing or plug in the
well bore where the well penetrates the workable coal bed is
severed;
(r) "Secretary" means the Secretary of the Department of
Environmental Protection as established in article one of this
chapter or such other person to whom the secretary as delegated
authority or duties pursuant to section six or eight, article one
of this chapter;
(r) (s) "Shallow well" means any gas well drilled and
completed in a formation above the top of the uppermost member of
the "Onondaga Group": Provided, That in drilling a shallow well,
the operator may penetrate into the "Onondaga Group" to a
reasonable depth, not in excess of twenty feet, in order to allow
for logging and completion operations, but in no event may the
"Onondaga Group" formation be otherwise produced, perforated or
stimulated in any manner;
(s) (t) "Stimulate" means any action taken by a well operator
to increase the inherent productivity of an oil or gas well,
including, but not limited to, fracturing, shooting or acidizing,
but excluding cleaning out, bailing or workover operations;
(t) (u) "Waste" means: (I) Physical waste, as the term is
generally understood in the oil and gas industry; (ii) the
locating, drilling, equipping, operating or producing of any oil or
gas well in a manner that causes, or tends to cause a substantial
reduction in the quantity of oil or gas ultimately recoverable from
a pool under prudent and proper operations, or that causes or tends
to cause a substantial or unnecessary or excessive surface loss of
oil or gas; (iii) the drilling of more deep wells than are
reasonably required to recover efficiently and economically the
maximum amount of oil and gas from a pool; (iv) substantially
inefficient, excessive or improper use, or the substantially
unnecessary dissipation of, reservoir energy, it being understood
that nothing in this chapter shall be construed to authorize any
agency of the state to impose mandatory spacing of shallow wells
except for the provisions of section eight, article nine, chapter
twenty-two-c of this code and the provisions of article eight of
said chapter; (v) inefficient storing of oil or gas: Provided,
That storage in accordance with a certificate of public convenience
issued by the federal energy regulatory commission shall be
conclusively presumed to be efficient; and (vi) other underground
or surface waste in the production or storage of oil, gas or
condensate, however caused. Waste does not include gas vented or
released from any mine areas as defined in section two, article
one, chapter twenty-two-a of this code or from adjacent coal seams
which are the subject of a current permit issued under article two
of said chapter: Provided, however, That nothing in this exclusion is intended to address ownership of the gas;
(u) (v) "Well" means any shaft or hole sunk, drilled, bored or
dug into the earth or into underground strata for the extraction or
injection or placement of any liquid or gas, or any shaft or hole
sunk or used in conjunction with such extraction or injection or
placement. The term "well" does not include any shaft or hole
sunk, drilled, bored or dug into the earth for the sole purpose of
core drilling or pumping or extracting therefrom potable, fresh or
usable water for household, domestic, industrial, agricultural or
public use;
(v) (w) "Well work" means the drilling, redrilling, deepening,
stimulating, pressuring by injection of any fluid, converting from
one type of well to another, combining or physically changing to
allow the migration of fluid from one formation to another or
plugging or replugging of any well;
(w) (x) "Well operator" or "operator" means any person or
persons, firm, partnership, partnership association or corporation
that proposes to or does locate, drill, operate or abandon any well
as herein defined;
(x) (y) "Pollutant" shall have the same meaning as provided in
subsection (17), section three, article eleven, chapter twenty-two
of this code; and
(y) (z) "Waters of this state" shall have the same meaning as
the term "waters" as provided in subsection (23), section three,
article eleven of this chapter.
§22-6-7. Water pollution control permits; powers and duties of the secretary; penalties.
(a) In addition to a permit for well work, the director
secretary, after public notice and an opportunity for public
hearings, may either issue a separate permit, general permit or a
permit consolidated with the well work permit for the discharge or
disposition of any pollutant or combination of pollutants into
waters of this state upon condition that such the discharge or
disposition meets or will meet all applicable state and federal
water quality standards and effluent limitations and all other
requirements of the director secretary.
(b) It shall be is unlawful for any person conducting
activities which are subject to the requirements of this article,
unless that person holds a water pollution control permit therefor
from the
director secretary
which is in full force and effect, to:
(1) Allow pollutants or the effluent therefrom, produced by or
emanating from any point source, to flow into the water of this
state;
(2) Make, cause or permit to be made any outlet, or
substantially enlarge or add to the load of any existing outlet,
for the discharge of pollutants or the effluent therefrom, into the
waters of this state;
(3) Acquire, construct, install, modify or operate a disposal
system or part thereof for the direct or indirect discharge or
deposit of treated or untreated pollutants or the effluent
therefrom, into the waters of this state, or any extension to or
addition to such the disposal system;
(4) Increase in volume or concentration any pollutants in
excess of the discharges or disposition specified or permitted
under any existing permit;
(5) Extend, modify or add to any point source, the operation
of which would cause an increase in the volume or concentration of
any pollutants discharging or flowing into the waters of the state;
(6) Operate any disposal well for the injection or reinjection
underground of any pollutant, including, but not limited to,
liquids or gasses, or convert any well into such a disposal well or
plug or abandon any such disposal well.
(c) Notwithstanding any provision of this article or article
seven, eight, nine or ten of this chapter to the contrary, the
director
shall have secretary has the same powers and duties
relating to inspection and enforcement as those granted under
article eleven of this chapter in connection with the issuance of
any water pollution control permit or any person required to have
such permit.
(d) Any person who violates any provision of this section, any
order issued under this section or any permit issued pursuant to
this section or any rule of the director secretary relating to
water pollution or who willfully or negligently violates any
provision of this section or any permit issued pursuant to this
section or any rule or order of the director secretary relating to
water pollution or who fails or refuses to apply for and obtain a
permit or who intentionally misrepresents any material fact in an
application, record, report, plan or other document files or required to be maintained under this section shall be is subject to
the same penalties for such the violations as are provided for in
sections twenty-two and twenty-four, article eleven of this
chapter: Provided, That the provisions of section twenty-six,
article eleven of this chapter relating to exceptions to criminal
liability shall also apply.
All applications for injunction filed pursuant to section
twenty-two, article eleven of this chapter shall take priority on
the docket of the circuit court in which pending, and shall take
precedence over all other civil cases.
(e) Any water pollution control permit issued pursuant to this
section or any order issued in connection with such permit for the
purpose of implementing the National Pollutant Discharge
Elimination System established under the federal Clean Water Act
shall be issued by the chief of the office of water resources of
the division in consultation with the chief of the office of oil
and gas of the division secretary and shall be is appealable to the
Environmental Quality Board pursuant to the provisions of section
twenty-five, article eleven of this chapter and section seven,
article one, chapter twenty-two-b of this code.
ARTICLE 11. WATER POLLUTION CONTROL ACT
§22-11-3. Definitions.
Unless the context in which used clearly requires a different
meaning, as used in this article:
(1) "Activity" or "activities" means any activity or
activities for which a permit is required by the provisions of section seven of this article;
(2) "Board" means the Environmental Quality Board, provided
for in article three, chapter twenty-two-b of this code;
(3) "Chief" means the chief of the office Division of Water
resources and Waste Management of the division Department of
Environmental Protection;
(4) "Code" means the Code of West Virginia, 1931, as amended;
(5) "Director" means the director of the division of
environmental protection or such other person to whom the director
has delegated authority or duties pursuant to sections six or
eight, article one of this chapter;
(5) "Department" means the Department of Environmental
Protection;
(6) "Disposal system" means a system for treating or disposing
of sewage, industrial wastes or other wastes, or the effluent
therefrom, either by surface or underground methods, and includes
sewer systems, the use of subterranean spaces, treatment works,
disposal wells and other systems;
(7) "Disposal well" means any well drilled or used for the
injection or disposal of treated or untreated sewage, industrial
wastes or other wastes into underground strata;
(8) "Division" means the division of environmental protection;
(9) (8) "Effluent limitation" means any restriction
established on quantities, rates and concentrations of chemical,
physical, biological and other constituents which are discharged
into the waters of this state;
(10) (9) "Establishment" means an industrial establishment,
mill, factory, tannery, paper or pulp mill, mine, colliery, breaker
or mineral processing operation, quarry, refinery, well and each
and every industry or plant or works in the operation or process of
which industrial wastes, sewage or other wastes are produced;
(11) (10) "Industrial user" means those industries identified
in the standard industrial classification manual, United States
Bureau of the Budget, 1967, as amended and supplemented, under the
category "division d--manufacturing" and other classes of
significant waste producers identified under regulations issued by
the director or the administrator of the United States
Environmental Protection Agency;
(12) (11) "Industrial wastes" means any liquid, gaseous, solid
or other waste substance, or a combination thereof, resulting from
or incidental to any process of industry, manufacturing, trade or
business, or from or incidental to the development, processing or
recovery of any natural resources; and the admixture with such
industrial wastes of sewage or other wastes, as hereinafter
defined, is also "industrial waste" within the meaning of this
article;
(13) (12) "Other wastes" means garbage, refuse, decayed wood,
sawdust, shavings, bark and other wood debris and residues
resulting from secondary processing; sand, lime, cinders, ashes,
offal, night soil, silt, oil, tar, dyestuffs, acids, chemicals,
heat or all other materials and substances not sewage or industrial
wastes which may cause or might reasonably be expected to cause or to contribute to the pollution of any of the waters of the state;
(14) (13) "Outlet" means the terminus of a sewer system or the
point of emergence of any water-carried sewage, industrial wastes
or other wastes, or the effluent therefrom, into any of the waters
of this state, and includes a point source;
(15) (14) "Person", "persons" or "applicant" means any
industrial user, public or private corporation, institution,
association, firm or company organized or existing under the laws
of this or any other state or country; State of West Virginia;
governmental agency, including federal facilities; political
subdivision; county commission; municipal corporation; industry;
sanitary district; public service district; drainage district; soil
conservation district; watershed improvement district; partnership;
trust; estate; person or individual; group of persons or
individuals acting individually or as a group; or any legal entity
whatever;
(16) (15) "Point source" means any discernible, confined and
discrete conveyance, including, but not limited to, any pipe,
ditch, channel, tunnel, conduit, well, discrete fissure, container,
rolling stock or vessel or other floating craft, from which
pollutants are or may be discharged;
(17) (16) "Pollutant" means industrial wastes, sewage or other
wastes as defined in this section;
(18) (17) "Pollution" means the man-made or man-induced
alteration of the chemical, physical, biological and radiological
integrity of the waters of the state;
(19) (18) "Publicly owned treatment works" means any treatment
works owned by the state or any political subdivision thereof, any
municipality or any other public entity, for the treatment of
pollutants;
(19) "Secretary" means the Secretary of the Department of
Environmental Protection or such other person to whom the secretary
has delegated authority or duties pursuant to section six or eight,
article one of this chapter;
(20) "Sewage" means water-carried human or animal wastes from
residences, buildings, industrial establishments or other places,
together with such groundwater infiltration and surface waters as
may be present;
(21) "Sewer system" means pipelines or conduits, pumping
stations, force mains and all other constructions, facilities,
devices and appliances appurtenant thereto, used for collecting or
conducting sewage, industrial wastes or other wastes to a point of
disposal or treatment;
(22) "Treatment works" means any plant, facility, means,
system, disposal field, lagoon, pumping station, constructed
drainage ditch or surface water intercepting ditch, diversion ditch
above or below the surface of the ground, settling tank or pond,
earthen pit, incinerator, area devoted to sanitary landfills or
other works not specifically mentioned herein, installed for the
purpose of treating, neutralizing, stabilizing, holding or
disposing of sewage, industrial wastes or other wastes or for the
purpose of regulating or controlling the quality and rate of flow thereof;
(23) "Water resources", "water" or "waters" means any and all
water on or beneath the surface of the ground, whether percolating,
standing, diffused or flowing, wholly or partially within this
state, or bordering this state and within its jurisdiction, and
includes, without limiting the generality of the foregoing, natural
or artificial lakes, rivers, streams, creeks, branches, brooks,
ponds (except farm ponds, industrial settling basins and ponds and
water treatment facilities), impounding reservoirs, springs, wells,
watercourses and wetlands; and
(24) "Well" means any shaft or hole sunk, drilled, bored or
dug into the earth or into underground strata for the extraction or
injection or placement of any liquid or gas, or any shaft or hole
sunk or used in conjunction with such extraction or injection or
placement. The term "well" does not include any shaft or hole
sunk, drilled, bored or dug into the earth for the sole purpose of
core drilling or pumping or extracting therefrom potable, fresh or
usable water for household, domestic, industrial, agricultural or
public use.
§22-11-8. Prohibitions; permits required.
(a) The chief secretary may, after public notice and
opportunity for public hearing, issue a permit for the discharge or
disposition of any pollutant or combination of pollutants into
waters of this state upon condition that such the discharge or
disposition meets or will meet all applicable state and federal
water quality standards and effluent limitations and all other requirements of this article and article three, chapter
twenty-two-b of this code.
(b) It is unlawful for any person, unless the person holds a
permit therefor from the division department, which is in full
force and effect, to:
(1) Allow sewage, industrial wastes or other wastes, or the
effluent therefrom, produced by or emanating from any point source,
to flow into the waters of this state;
(2) Make, cause or permit to be made any outlet, or
substantially enlarge or add to the load of any existing outlet,
for the discharge of sewage, industrial wastes or other wastes, or
the effluent therefrom, into the waters of this state;
(3) Acquire, construct, install, modify or operate a disposal
system or part thereof for the direct or indirect discharge or
deposit of treated or untreated sewage, industrial wastes or other
wastes, or the effluent therefrom, into the waters of this state,
or any extension to or addition to such the disposal system;
(4) Increase in volume or concentration any sewage, industrial
wastes or other wastes in excess of the discharges or disposition
specified or permitted under any existing permit;
(5) Extend, modify or add to any point source, the operation
of which would cause an increase in the volume or concentration of
any sewage, industrial wastes or other wastes discharging or
flowing into the waters of the state;
(6) Construct, install, modify, open, reopen, operate or
abandon any mine, quarry or preparation plant, or dispose of any refuse or industrial wastes or other wastes from any such the mine
or quarry or preparation plant:
Provided, That the division's
department's permit is only required wherever the aforementioned
activities cause, may cause or might reasonably be expected to
cause a discharge into or pollution of waters of the state, except
that a permit is required for any preparation plant:
Provided,
however, That unless waived in writing by the chief secretary,
every application for a permit to open, reopen or operate any mine,
quarry or preparation plant or to dispose of any refuse or
industrial wastes or other wastes from any such the mine or quarry
or preparation plant shall contain a plan for abandonment of such
the facility or operation, which plan shall comply in all respects
to the requirements of this article. Such The plan of abandonment
is subject to modification or amendment upon application by the
permit holder to the chief secretary and approval of such the
modification or amendment by the chief secretary
; or
(7) Operate any disposal well for the injection or reinjection
underground of any industrial wastes, including, but not limited
to, liquids or gases, or convert any well into such a disposal well
or plug or abandon any such disposal well.
(c) Where a person has a number of outlets emerging into the
waters of this state in close proximity to one another, such the
outlets may be treated as a unit for the purposes of this section
and only one permit issued for all such the outlets.
(d) For water pollution control and national pollutant
discharge elimination system permits issued for activities regulated by the office of mining and reclamation and the office of
oil and gas, the chief of the office of water resources may
delegate functions, procedures and activities to the respective
chiefs of those offices. Permits for such activities shall be
issued under the supervision of and with the signature and approval
of the chief of the office of water resources who shall review and
approve all procedures, effluent limits and other conditions of
such permits.
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(NOTE: The purpose of this bill is to authorize the Secretary
of the Department of Environmental Protection to sign National
Pollutant Discharge Elimination System permits.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
)