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 (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 § 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.”

 West Virginia 35 CSR § 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 § 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 § (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 § (17) defines “pollutant” as “... industrial wastes, sewage or other wastes...” and W. Va. Code (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 § (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 § (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 [§§ and ] of this code....”

 West Virginia Code § (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.”

 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) ext gas/Pages/default.aspx