WEST VIRGINIA LEGISLATURE
2024 REGULAR SESSION
Committee Substitute for Senate Bill 596
By Senators Smith and Phillips [Originating in the Committee on Energy, Industry,
and Mining; reported February 5, 2024]
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1 A BILL to amend and reenact §22-11-4, §22-11-22, §22-11-22a, §22-11-24, and §22-11-25 of the
2 Code of West Virginia, 1931, as amended; and to amend and reenact §22-11B-3 and §22-
3 11B-12 of said code, all related to the administration of the West Virginia Water Pollution
4 Control Act and Underground Carbon Dioxide Sequestration and Storage to provide
5 assurances to the United States Environmental Protection Agency regarding the State of
6 West Virginia’s application for primary enforcement authority over underground carbon
7 dioxide sequestration programs; to insert cross references between the Underground
8 Carbon Sequestration and Storage statutes and the West Virginia Water Pollution Control
9 Act to protect water resources; providing that before a Certificate of Completion can be
10 issued, all the requirements of a class six injection well permit must be met, including post
11 injection site care and closure requirements; altering the minimum 10-year period between
12 the end of injections and the issuance of the certificate to be either 50 years or another time
13 period on a site-specific basis as determined by Department of Environmental Protection
14 rules; providing exceptions and limitations to what liability is transferred to the state and
15 what remains with the permittee; providing that a permittee will be responsible for certain
16 contractual obligations and criminal liability; providing that a release of liability does not
17 apply to owners or operators of a facility when liability arises from noncompliance with
18 applicable laws, regulations, or permits prior to issuance of the Certificate of Completion;
19 providing for liability when it is determined that fluid migration has occurred that causes or
20 threatens underground sources of drinking water; providing that the secretary will
21 implement the article in a manner consistent with the requirements of the federal Safe
22 Drinking Water Act; providing for the exercise of the state’s authority to restrain people
23 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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1 (a) In addition to all other powers and duties the director has and may exercise, subject to
2 specific grants of authority to the chief or the board in this article or elsewhere in this code, the
3 director has the following powers and authority and shall perform the following duties:
4 (1) To perform any and all acts necessary to carry out the purposes and requirements of
5 this article and of the Federal Water Pollution Control Act, 33 U.S.C. §1251 et seq., as amended,
6 relating to this state's participation in the National Pollutant Discharge Elimination System, 33
7 U.S.C. §1342, established under that act;
8 (2) To encourage voluntary cooperation by all persons in the conservation, improvement,
9 and development of water resources and in controlling and reducing the pollution of the waters of
10 this state, and to advise, consult, and cooperate with all persons, all agencies of this state, the
11 federal government, or other states, and with interstate agencies in the furtherance of the
12 purposes of this article, and to this end and for the purpose of studies, scientific or other
13 investigations, research, experiments, and demonstrations pertaining thereto, the division may
14 receive moneys from such agencies, officers, and persons on behalf of the state. The division shall
15 pay all moneys so received into a special fund hereby created in the state Treasury, which fund
16 shall be expended under the direction of the director solely for the purpose or purposes for which
17 the grant, gift, or contribution was made;
18 (3) To encourage the formulation and execution of plans by cooperative groups or
19 associations of municipal corporations, industries, industrial users, and other users of waters of
20 the state, who, jointly or severally, are or may be the source of pollution of such waters, for the
21 control and reduction of pollution;
22 (4) To encourage, participate in, or conduct, or cause to be conducted studies, scientific or
23 other investigations, research, experiments, and demonstrations relating to the water resources of
24 the state and water pollution and its causes, control, and reduction, and to collect data with respect
25 thereto, all as may be deemed advisable and necessary to carry out the purposes of this article;
26 (5) To study and investigate all problems concerning water flow, water pollution, and the
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27 control and reduction of pollution of the waters of the state, and to make reports and
28 recommendations with respect thereto;
29 (6) To collect and disseminate information relating to water pollution and the control and
30 reduction thereof;
31 (7) To develop a public education and promotion program to aid and assist in publicizing
32 the need for, and securing support for, pollution control and abatement;
33 (8) To sample ground and surface water with sufficient frequency to ascertain the
34 standards of purity or quality, from time to time, of the waters of the state;
35 (9) To develop programs for the control and reduction of the pollution of the waters of the
36 state;
37 (10) To exercise general supervision over the administration and enforcement of the
38 provisions of this article, and all rules, permits, and orders issued pursuant to the provisions of this
39 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.
40 of this code;
41 (11) In cooperation with the college of engineering at West Virginia University and the
42 schools and departments of engineering at other institutions of higher education operated by this
43 state, to conduct studies, scientific or other investigations, research, experiments, and
44 demonstrations in an effort to discover economical and practical methods for the elimination,
45 disposal, control, and treatment of sewage, industrial wastes, and other wastes, and the control
46 and reduction of water pollution, and to this end, the director may cooperate with any public or
47 private agency and receive therefrom, on behalf of the state, and for deposit in the state Treasury,
48 any moneys which such agency may contribute as its part of the expenses thereof, and all gifts,
49 donations, or contributions received as aforesaid shall be expended by the director according to
50 the requirements or directions of the donor or contributor without the necessity of an appropriation
51 therefor, except that an accounting thereof shall be made in the fiscal reports of the division;
52 (12) To require the prior submission of plans, specifications, and other data relative to, and
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53 to inspect the construction and operation of, any activity or activities in connection with the
54 issuance and revocation of such permits as are required by this article, §22-11A-1 et seq. and §22-
55 11B-1 et seq., of this code or the rules promulgated thereunder;
56 (13) To require any and all persons directly or indirectly discharging, depositing, or
57 disposing of treated or untreated sewage, industrial wastes or other wastes, or the effluent
58 therefrom, into or near any waters of the state or into any underground strata, and any and all
59 persons operating an establishment which produces, or which may produce, or from which
60 escapes, releases or emanates or may escape, release or emanate treated or untreated sewage,
61 industrial wastes or other wastes, or the effluent therefrom, into or near any waters of the state or
62 into any underground strata, to file with the division such information as the director may require in
63 a form or manner prescribed for such purpose, including, but not limited to, data as to the kind,
64 characteristics, amount, and rate of flow of any such discharge, deposit, escape, release, or
65 disposition;
66 (14) To adopt, modify, or repeal procedural rules and interpretive rules in accordance with
67 the provisions of Chapter 29A of this code administering and implementing the powers, duties and
68 responsibilities vested in the director by the provisions of this article, and §22-11A-1 et seq. and
69 §22-11B-1 et seq. of this code;
70 (15) To cooperate with interstate agencies for the purpose of formulating, for submission to
71 the Legislature, interstate compacts and agreements relating to:
72 (A) The control and reduction of water pollution; and
73 (B) The state's share of waters in watercourses bordering the state;
74 (16) To adopt, modify, repeal, and enforce rules, in accordance with the provisions of
75 chapter twenty-nine-a of this code:
76 (A) Implementing and making effective the declaration of policy contained in section one of
77 this article and the powers, duties, and responsibilities vested in the director and the chief by the
78 provisions of this article and otherwise by law;
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79 (B) Preventing, controlling, and abating pollution; and
80 (C) Facilitating the state's participation in the National Pollutant Discharge Elimination
81 System pursuant to the Federal Water Pollution Control Act, as amended: Provided, That no rule
82 adopted by the director shall specify the design of equipment, type of construction or particular
83 method which a person shall use to reduce the discharge of a pollutant; and
84 (17) To advise all users of water resources as to the availability of water resources and the
85 most practicable method of water diversion, use, development, and conservation.
86 (b) Whenever required to carry out the objectives of this article, §22-11A-1 et seq. or §22-
87 11B-1 et seq. of this code, the director shall require the owner or operator of any point source or
88 establishment to:
89 (i) Establish and maintain such records;
90 (ii) Make such reports;
91 (iii) Install, use, and maintain such monitoring equipment or methods;
92 (iv) Sample such effluents in accordance with such methods, at such locations, at such
93 intervals, and in such manner as the director shall prescribe; and
94 (v) Provide such other information as the director may reasonably require.
95 (c) The director upon presentation of credentials:
96 (i) Has a right of entry to, upon, or through any premises in which an effluent source is
97 located or in which any records required to be maintained under subsection (b) of this section are
98 located; and
99 (ii) May at reasonable times have access to and copy any records, inspect any monitoring
100 equipment or method required under subsection (b) of this section, and sample any streams in the
101 area as well as sample any effluents which the owner or operator of such source is required to
102 sample under subsection (b) of this section. Nothing in this subsection eliminates any obligation to
103 follow any process that may be required by law.
104 (d) The director is hereby authorized and empowered to may investigate and ascertain the
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105 need and factual basis for the establishment of public service districts as a means of controlling
106 and reducing pollution from unincorporated communities and areas of the state, investigate and
107 ascertain, with the assistance of the Public Service Commission, the financial feasibility and
108 projected financial capability of the future operation of any such public service district or districts,
109 and to present reports and recommendations thereon to the county commissions of the areas
110 concerned, together with a request that such county commissions create a public service district or
111 districts, as therein shown to be needed and required and as provided in §16-13A-1 et seq. of this
112 code. In the event a county commission fails to act to establish a county-wide public service district
113 or districts, the director shall act jointly with the Commissioner of the Bureau of Public Health to
114 further investigate and ascertain the financial feasibility and projected financial capability and,
115 subject to the approval of the Public Service Commission, order the county commission to take
116 action to establish such public service district or districts as may be necessary to control, reduce,
117 or abate the pollution, and when so ordered, the county commission members must act to
118 establish such a county-wide public service district or districts.
119 (e) The director has the authority to may enter at all reasonable times upon any private or
120 public property for the purpose of making surveys, examinations, investigations, and studies
121 needed in the gathering of facts concerning the water resources of the state and their use, subject
122 to responsibility for any damage to the property entered. Upon entering, and before making any
123 survey, examination, investigation, and study, such person shall immediately present himself or
124 herself to the occupant of the property. Upon entering property used in any manufacturing, mining,
125 or other commercial enterprise, or by any municipality or governmental agency or subdivision, and
126 before making any survey, examination, investigation, and study, such person shall immediately
127 present himself or herself to the person in charge of the operation, and if he or she is not available,
128 to a managerial employee. All persons shall cooperate fully with the person entering such property
129 for such purposes. Upon refusal of the person owning or controlling such property to permit such
130 entrance or the making of such surveys, examinations, investigations, and studies, the director
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131 may apply to the circuit court of the county in which such property is located, or to the judge thereof
132 in vacation, for an order permitting such entrance or the making of such surveys, examinations,
133 investigations, and studies; and jurisdiction is hereby conferred upon such court to enter such
134 order upon a showing that the relief asked is necessary for the proper enforcement of this article:
135 Provided, That nothing in this subsection eliminates any obligation to follow any process that may
136 be required by law.
§22-11-22. Civil penalties and injunctive relief; administrative penalties.
1 (a) Any person who violates any provision of any permit issued under or subject to the
2 provisions of this article, or §22-11A-1 et seq., or §22-11B-1 et seq. of this code is subject to a civil
3 penalty not to exceed $25,000 per a day of such violation and any person who violates any
4 provision of this article, §22-11A-1 et seq., or §22-11B-1 et seq. of this code or of any rule or who
5 violates any standard or order promulgated or made and entered under the provisions of this
6 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
7 to a civil penalty not to exceed $25,000 per a day of such violation. Any such civil penalty may be
8 imposed and collected only by a civil action instituted by the director in the circuit court of the
9 county in which the violation occurred, or is occurring, or of the county in which the waters thereof
10 are polluted as the result of such violation.
11 Upon application by the director, the circuit courts of the state, or the judges thereof in
12 vacation, may by injunction, compel compliance with and enjoin violations of the provisions of this
13 article, §22-11A-1 et seq., and §22-11B-1 et seq. of this code, the rules of the board or director,
14 effluent limitations, the terms and conditions of any permit granted under the provisions of this
15 article, or §22-11A-1 et seq., and §22-11B-1 et seq. of this code or any order of the director or
16 board, and the venue of any such actions shall be the county in which the violations or
17 noncompliance exists or is taking place, or in any county in which the waters thereof are polluted
18 as the result of such violation or noncompliance. The court, or the judge thereof in vacation, may
19 issue a temporary or preliminary injunction in any case pending a decision on the merits of any
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20 injunction application filed. Any other section of this code to the contrary notwithstanding, the state
21 is not required to furnish bond as a prerequisite to obtaining injunctive relief under this article, or
22 §22-11A-1 et seq., and §22-11B-1 et seq. of this code. An application for an injunction under the
23 provisions of this section may be filed and injunctive relief granted notwithstanding that all of the
24 administrative remedies provided for in this article have not been pursued or invoked against the
25 person or persons against whom such relief is sought and notwithstanding that the person or
26 persons against whom such relief is sought have not been prosecuted or convicted under the
27 provisions of this article.
28 The judgment of the circuit court upon any application filed or in any civil action instituted
29 under the provisions of this section is final unless reversed, vacated, or modified on appeal to the
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