Transcript ENFORCMENT - Jackson Kelly PLLC

Notices of Violation, Orders to Cease
Operation and Consent Orders
If an oil and gas inspector, upon making an inspection of a well
or well site or any other oil or gas facility, finds that any
provision of this article is being violated, the inspector shall also
find whether or not an imminent danger to persons exists, or
whether or not there exists an imminent danger that a fresh
water source or supply will be contaminated or lost. If the
inspector finds that such imminent danger exists, an order
requiring the operator of such well or well site or other oil or gas
facility to cease further operations until such imminent danger
has been abated shall be issued by the inspector. If the inspector
finds that no such imminent danger exists, the inspector shall
determine what would be a reasonable period of time within
which such violation should be totally abated. Such findings
shall contain reference to the provisions of this article which the
inspector finds are being violated, and a detailed description of
the conditions which cause and constitute such violation.
W. Va. Code 22-6-7(b)(1) - It shall be 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,
which is in full force and effect to . . . [a]llow
pollutants or the effluent therefrom, produced
by or emanating from any point source, to flow
into the water of this state.
35 CSR § 4-16.3 requires that “[d]rilling sites shall
be constructed and maintained to prevent surface
run-off carrying excessive sedimentation from the
site, to confine all materials leaked or spilled as a
result of drilling operations to the drilling site, and
to prevent excess sedimentation by not placing in
any stream any material moved or cut. Upon the
plugging of a non-productive well, whether as a
continuous operation with other permitted well
work or otherwise, all cementing and other waste
materials resulting therefrom shall be retained on
the drilling site.”
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West Virginia 35 CSR § 4-16.5.a requires that “[b]efore
commencing to drill any well for oil and gas, the well owner
or operator shall make proper and adequate provision to
prevent surface and underground water pollution.”
West Virginia 35 CSR § 4-17.1 requires that “[a]ll well
owners or operators, contractors, drillers, pipeline
companies, or gas distributing companies producing or
transporting oil or gas for any purpose shall use every
possible precaution in accordance with accepted and
approved methods to prevent waste of oil or gas and to
prevent the pollution of the waters of the state in drilling
and producing operations or in transporting or distributing
such products and shall not wastefully utilize oil or gas or
allow the same to leak or escape from natural reservoirs,
wells or pipelines.”
West Virginia Code § 22-11-3(23) defines “water”
or “waters” as “. . . 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.”
West Virginia Code § 22-11-3(17) defines
“pollutant” as “. . . industrial wastes, sewage or
other wastes . . .” and W. Va. Code 22-11-3(12)
defines “industrial wastes” as “. . . any liquid,
gaseous, solid or other waste substance, or
combination thereof, resulting . . . from or
incidental to the development, processing or
recovery of any natural resources . . . .”
West Virginia Code § 22-6-34(a) provides that
“[a]ny person or persons, firm , partnerships,
partnership association or corporation who
willfully violates any provision of this article or
any rule promulgated thereunder shall be
subject to a civil penalty not exceeding two
thousand five hundred dollars ($2,500). Each
day a violation continues after notice by the
division constitutes a separate offense.”
West Virginia Code § 22-6-7(d) provides that “[a]ny
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
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 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 subject to the same penalties for such
violations as are provided for in [§§ 22-11-22 and 22-1124] of this code . . . .”
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West Virginia Code § 22-11-22(a) provides, in part, that
“[a]ny person who violates any provision of any permit
issued under or subject to the provisions of this article or
article eleven-a of this chapter is subject to a civil penalty not
to exceed $25,000 per day of such violation and any person
who violates any provision of this article or of any rule or
who violates any standard or order promulgated or made
and entered under the provisions of this article, article
eleven-a of this chapter or article one, chapter twenty-two-b
of this code is subject to a civil penalty not to exceed $25,000
per 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.”
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Consent Orders are agreements to settle violations of
the law. The operator agrees to the requirements of the
Consent Order, and OOG agrees not to proceed with
legal action.
Consent Orders are agreed to by the operator, and
contain both a civil administrative penalty and
corrective actions.
The “civil administrative penalty” is a monetary
amount that the operator pays as a result of the
violation.
“Corrective actions” are specific actions or practices
which OOG requires the operator to undertake or
implement as a result of the violation.
Jody C. Jones
Associate Counsel
Office of Legal Services
WV Department of Environmental
Protection
(304) 926-0499 ext 1452
[email protected]
http://www.dep.wv.gov/oil-andgas/Pages/default.aspx