Bill Summary – FastDemocracy

WEST VIRGINIA LEGISLATURE
           2024 REGULAR SESSION
                      ENROLLED
              Committee Substitute for House Bill 5045
   BY DELEGATES ANDERSON, ZATEZALO, HECKERT AND HORST
[Passed February 13, 2024; in effect ninety days from passage.]
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  AN ACT to amend and reenact §22-11-4, §22-11-22, §22-11-22a, §22-11-24, and §22-11-25 of
         the Code of West Virginia, 1931, as amended; and to amend and reenact §22-11B-3 and
         §22-11B-12 of said code, all related to the administration of the West Virginia Water
         Pollution Control Act and Underground Carbon Dioxide Sequestration and Storage to
         provide assurances to the United States Environmental Protection Agency regarding the
         State of West Virginia’s application for primary enforcement authority over underground
         carbon dioxide sequestration programs; to insert cross references between the
         Underground Carbon Sequestration and Storage statutes and the West Virginia Water
         Pollution Control Act to protect water resources; providing that before a Certificate of
        Completion can be issued all the requirements of a class 6 injection well permit must be
        met, including post injection site care and closure requirements; altering the minimum 10-
        year period between the end of injections and the issuance of the certificate to be either
        50 years or another time period on a site-specific basis as determined by DEP rules;
        providing exceptions and limitations to what liability is transferred to the state and what
        remains with the permittee; providing that a permittee will be responsible for certain
        contractual obligations and criminal liability; providing that a release of liability does not
        apply to owners or operators of a facility when liability arises from noncompliance with
        applicable laws, regulations, or permits prior to issuance of the Certificate of Completion;
        providing for liability when it is determined that fluid migration has occurred that causes or
        threatens underground sources of drinking water; providing that the secretary will
        implement the article in a manner consistent with the requirements of the federal Safe
        Drinking Water Act; providing for the exercise of the state’s authority to restrain people
        from endangering or damaging public health or the environment.
     Be it enacted by the Legislature of West Virginia:
     ARTICLE 11. WATER POLLUTION CONTROL ACT.
     §22-11-4. General powers and duties of director with respect to pollution.
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             (a) In addition to all other powers and duties the director has and may exercise, subject to
  specific grants of authority to the chief or the board in this article or elsewhere in this code, the
  director has the following powers and authority and shall perform the following duties:
             (1) To perform any and all acts necessary to carry out the purposes and requirements of
  this article and of the "Federal Water Pollution Control Act," 33 U.S.C. §1251 et seq., as amended,
  relating to this state's participation in the "National Pollutant Discharge Elimination System," 33
  U.S.C. §1342, established under that act;
             (2) To encourage voluntary cooperation by all persons in the conservation, improvement,
  and development of water resources and in controlling and reducing the pollution of the waters of
 this state, and to advise, consult, and cooperate with all persons, all agencies of this state, the
 federal government, or other states, and with interstate agencies in the furtherance of the
 purposes of this article, and to this end and for the purpose of studies, scientific or other
 investigations, research, experiments, and demonstrations pertaining thereto, the division may
 receive moneys from such agencies, officers, and persons on behalf of the state. The division
 shall pay all moneys so received into a special fund hereby created in the state Treasury, which
 fund shall be expended under the direction of the director solely for the purpose or purposes for
 which the grant, gift, or contribution was made;
            (3) To encourage the formulation and execution of plans by cooperative groups or
 associations of municipal corporations, industries, industrial users, and other users of waters of
 the state, who, jointly or severally, are or may be the source of pollution of such waters, for the
 control and reduction of pollution;
            (4) To encourage, participate in, or conduct, or cause to be conducted studies, scientific
 or other investigations, research, experiments, and demonstrations relating to the water resources
 of the state and water pollution and its causes, control and reduction, and to collect data with
 respect thereto, all as may be deemed advisable and necessary to carry out the purposes of this
 article;
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          (5) To study and investigate all problems concerning water flow, water pollution, and the
 control and reduction of pollution of the waters of the state, and to make reports and
 recommendations with respect thereto;
          (6) To collect and disseminate information relating to water pollution and the control and
 reduction thereof;
          (7) To develop a public education and promotion program to aid and assist in publicizing
 the need for, and securing support for, pollution control and abatement;
          (8) To sample ground and surface water with sufficient frequency to ascertain the
 standards of purity or quality from time to time of the waters of the state;
          (9) To develop programs for the control and reduction of the pollution of the waters of the
 state;
          (10) To exercise general supervision over the administration and enforcement of the
 provisions of this article, and all rules, permits and orders issued pursuant to the provisions of this
 article, §22-11-1 et seq., §22-11A-1 et seq., §22-11B-1 et seq., of this code and §22B-1-1 et seq.
 of this code;
          (11) In cooperation with the college of engineering at West Virginia University and the
 schools and departments of engineering at other institutions of higher education operated by this
 state, to conduct studies, scientific or other investigations, research, experiments, and
 demonstrations in an effort to discover economical and practical methods for the elimination,
 disposal, control, and treatment of sewage, industrial wastes, and other wastes, and the control
 and reduction of water pollution, and to this end, the director may cooperate with any public or
 private agency and receive therefrom, on behalf of the state, and for deposit in the state Treasury,
 any moneys which such agency may contribute as its part of the expenses thereof, and all gifts,
 donations or contributions received as aforesaid shall be expended by the director according to
 the requirements or directions of the donor or contributor without the necessity of an appropriation
 therefor, except that an accounting thereof shall be made in the fiscal reports of the division;
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        (12) To require the prior submission of plans, specifications, and other data relative to,
 and to inspect the construction and operation of, any activity or activities in connection with the
 issuance and revocation of such permits as are required by this article, §22-11A-1 et seq. and
 §22-11B-1 et seq., of this code or the rules promulgated thereunder;
        (13) To require any and all persons directly or indirectly discharging, depositing, or
 disposing of treated or untreated sewage, industrial wastes or other wastes, or the effluent
 therefrom, into or near any waters of the state or into any underground strata, and any and all
 persons operating an establishment which produces or which may produce or from which
 escapes, releases or emanates or may escape, release or emanate treated or untreated sewage,
 industrial wastes or other wastes, or the effluent therefrom, into or near any waters of the state or
 into any underground strata, to file with the division such information as the director may require
 in a form or manner prescribed for such purpose, including, but not limited to, data as to the kind,
 characteristics, amount, and rate of flow of any such discharge, deposit, escape, release, or
 disposition;
        (14) To adopt, modify, or repeal procedural rules and interpretive rules in accordance with
 the provisions of Chapter 29A of this code administering and implementing the powers, duties
 and responsibilities vested in the director by the provisions of this article, and §22-11A-1 et seq.
 and §22-11B-1 et seq. of this code;
        (15) To cooperate with interstate agencies for the purpose of formulating, for submission
 to the Legislature, interstate compacts and agreements relating to:
        (A) The control and reduction of water pollution; and
        (B) the state's share of waters in watercourses bordering the state;
        (16) To adopt, modify, repeal, and enforce rules, in accordance with the provisions of
 chapter twenty-nine-a of this code:
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         (A) Implementing and making effective the declaration of policy contained in section one
  of this article and the powers, duties and responsibilities vested in the director and the chief by
  the provisions of this article and otherwise by law;
         (B) preventing, controlling and abating pollution; and
         (C) facilitating the state's participation in the "National Pollutant Discharge Elimination
  System" pursuant to the "Federal Water Pollution Control Act," as amended: Provided, That no
  rule adopted by the director shall specify the design of equipment, type of construction or
  particular method which a person shall use to reduce the discharge of a pollutant; and
         (17) To advise all users of water resources as to the availability of water resources and
  the most practicable method of water diversion, use, development, and conservation.
         (b) Whenever required to carry out the objectives of this article, §22-11A-1 et seq. or §22-
  11B-1 et seq. of this code, the director shall require the owner or operator of any point source or
  establishment to:
         (i) Establish and maintain such records;
         (ii) make such reports;
         (iii) install, use, and maintain such monitoring equipment or methods;
         (iv) sample such effluents in accordance with such methods, at such locations, at such
  intervals, and in such manner as the director shall prescribe; and
         (v) provide such other information as the director may reasonably require.
         (c) The director upon presentation of credentials:
         (i) Has a right of entry to, upon, or through any premises in which an effluent source is
  located or in which any records required to be maintained under subsection (b) of this section are
  located; and
        (ii) may at reasonable times have access to and copy any records, inspect any monitoring
 equipment or method required under subsection (b) of this section, and sample any streams in
 the area as well as sample any effluents which the owner or operator of such source is required
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 to sample under subsection (b) of this section. Nothing in this subsection eliminates any obligation
 to follow any process that may be required by law.
         (d) The director may investigate and ascertain the need and factual basis for the
 establishment of public service districts as a means of controlling and reducing pollution from
 unincorporated communities and areas of the state, investigate and ascertain, with the assistance
 of the Public Service Commission, the financial feasibility and projected financial capability of the
 future operation of any such public service district or districts, and to present reports and
 recommendations thereon to the county commissions of the areas concerned, together with a
 request that such county commissions create a public service district or districts, as therein shown
 to be needed and required and as provided in §16-13A-1 et seq. of this code. In the event a county
 commission fails to act to establish a county-wide public service district or districts, the director
 shall act jointly with the Commissioner of the Bureau of Public Health to further investigate and
 ascertain the financial feasibility and projected financial capability and, subject to the approval of
 the Public Service Commission, order the county commission to take action to establish such
 public service district or districts as may be necessary to control, reduce, or abate the pollution,
 and when so ordered, the county commission members must act to establish such a county-wide
 public service district or districts.
         (e) The director may enter at all reasonable times upon any private or public property for
 the purpose of making surveys, examinations, investigations, and studies needed in the gathering
 of facts concerning the water resources of the state and their use, subject to responsibility for any
 damage to the property entered. Upon entering, and before making any survey, examination,
 investigation, and study, such person shall immediately present himself or herself to the occupant
 of the property. Upon entering property used in any manufacturing, mining, or other commercial
 enterprise, or by any municipality or governmental agency or subdivision, and before making any
 survey, examination, investigation, and study, such person shall immediately present himself or
 herself to the person in charge of the operation, and if he or she is not available, to a managerial
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 employee. All persons shall cooperate fully with the person entering such property for such
 purposes. Upon refusal of the person owning or controlling such property to permit such entrance
 or the making of such surveys, examinations, investigations, and studies, the director may apply
 to the circuit court of the county in which such property is located, or to the judge thereof in
 vacation, for an order permitting such entrance or the making of such surveys, examinations,
 investigations, and studies; and jurisdiction is hereby conferred upon such court to enter such
 order upon a showing that the relief asked is necessary for the proper enforcement of this article:
 Provided, That nothing in this subsection eliminates any obligation to follow any process that may
 be required by law.
      §22-11-22. Civil penalties and injunctive relief; administrative penalties.
         (a) Any person who violates any provision of any permit issued under or subject to the
  provisions of this article, or §22-11A-1 et seq., or §22-11B-1 et seq. of this code is subject to a
  civil penalty not to exceed $25,000 a day of such violation and any person who violates any
  provision of this article, §22-11A-1 et seq., or §22-11B-1 et seq. of this code or of any rule or who
  violates any standard or order promulgated or made and entered under the provisions of this
  article, §22-11A-1 et seq., §22-11B-1 et seq. of this code or §22B-1-1 et seq. of this code is
  subject to a civil penalty not to exceed $25,000 a day of such violation. Any such civil penalty may
  be imposed and collected only by a civil action instituted by the director in the circuit court of the
  county in which the violation occurred or is occurring or of the county in which the waters thereof
  are polluted as the result of such violation.
         Upon application by the director, the circuit courts of the state or the judges thereof in
  vacation may by injunction compel compliance with and enjoin violations of the provisions of this
  article, §22-11A-1 et seq., and §22-11B-1 et seq. of this code, the rules of the board or director,
  effluent limitations, the terms and conditions of any permit granted under the provisions of this
  article, or §22-11A-1 et seq., and §22-11B-1 et seq. of this code or any order of the director or
  board, and the venue of any such actions shall be the county in which the violations or
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 noncompliance exists or is taking place or in any county in which the waters thereof are polluted
 as the result of such violation or noncompliance. The court or the judge thereof in vacation may
 issue a temporary or preliminary injunction in any case pending a decision on the merits of any
 injunction application filed. Any other section of this code to the contrary notwithstanding, the state
 is not required to furnish bond as a prerequisite to obtaining injunctive relief under this article, or
 §22-11A-1 et seq., and §22-11B-1 et seq. of this code. An application for an injunction under the
 provisions of this section may be filed and injunctive relief granted notwithstanding that all of the
 administrative remedies provided for in this article have not been pursued or invoked against the
 person or persons against whom such relief is sought and notwithstanding that the person or
 persons against whom such relief is sought have not been prosecuted or convicted under the
 provisions of this article.
         The judgment of the circuit court upon any application filed or in any civil action instituted
 under the provisions of this section is final unless reversed, vacated, or modified on appeal to the
 Supr