H. B. 2860
(By Mr. Speaker, (Mr. Thompson) and Delegate Armstead)
[By Request of the Executive]
[Introduced February 26, 2009; referred to the
Committee on the Judiciary then Finance.]
A BILL to amend and reenact §22-11-4, §22-11-22, §22-11-24 and
§22-11-25 of the Code of West Virginia, 1931, as amended; and
to amend said code by adding thereto a new article, designated
§22-11A-1, §22-11A-2, §22-11A-3, §22-11A-4, §22-11A-5,
§22-11A-6, §22-11A-7, §22-11A-8, §22-11A-9 and §22-11A-10, all
relating to regulating the sequestration and storage of carbon
dioxide; providing for powers and duties; providing for civil
penalties and injunctive relief; providing for criminal
penalties; providing for civil liability; setting forth
legislative findings; defining terms; specifying powers and
duties; specifying carbon dioxide permitting requirements;
establishing a working group to study and make recommendations
regarding carbon dioxide sequestration; clarifying the
ownership of pore space underlying the surface of the lands
and waters of this state; and authorizing the promulgation of legislative rules.
Be it enacted by the Legislature of West Virginia:
That §22-11-4, §22-11-22, §22-11-24 and §22-11-25 of the Code
of West Virginia, 1931, as amended, be amended and reenacted; and
that said code be amended by adding thereto a new article,
designated §22-11A-1, §22-11A-2, §22-11A-3, §22-11A-4, §22-11A-5,
§22-11A-6, §22-11A-7, §22-11A-8, §22-11A-9 and §22-11A-10, all to
read as follows:
ARTICLE 11. WATER POLLUTION CONTROL ACT.
§22-11-4. General powers and duties of director with respect to
pollution
.
(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;
(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,
article eleven-a of this chapter and
articles article one,
and three chapter twenty-two-b 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;
(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,
article eleven-a of this chapter or the rules promulgated
hereunder or pursuant to article three, chapter twenty-two-b of
this code 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
twenty-nine-a of this code administering and implementing the
powers, duties and responsibilities vested in the director by the
provisions of this article
and article eleven-a of this chapter;
(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: (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
or article eleven-a of this chapter 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 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 is hereby authorized and empowered to
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 article thirteen-a,
chapter sixteen 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 has the authority to 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 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 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,
or three 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.
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,
article eleven-a of this chapter, the rules of the board
or director, effluent limitations, the terms and conditions of any
permit granted under the provisions of this article
or article
eleven-a of this chapter or any order of the director or board, and
the venue of any such actions shall be the county in which the
violations or 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
article eleven-a of this chapter. 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 Supreme Court of Appeals. Any such appeal shall be sought in
the manner provided by law for appeals from circuit courts in other
civil cases, except that the petition seeking review in any
injunctive proceeding must be filed with said Supreme Court of
Appeals within ninety days from the date of entry of the judgment
of the circuit court.
Legal counsel and services for the chief, director or the
board in all civil penalty and injunction proceedings in the
circuit court and in the Supreme Court of Appeals of this state
shall be provided by the Attorney General or his or her assistants
and by the prosecuting attorneys of the several counties as well,
all without additional compensation, or the chief, director or the
board, with the written approval of the Attorney General, may
employ counsel to represent him or her or it in a particular
proceeding.
(b) In addition to the powers and authority granted to the
director by this chapter to enter into consent agreements,
settlements and otherwise enforce this chapter, the director shall
propose, for legislative promulgation, rules in accordance with the
provisions of article three, chapter twenty-nine-a of this code to establish a mechanism for the administrative resolution of
violations set forth in this section through consent order or
agreement as an alternative to instituting a civil action.
§22-11-24. Violations; criminal penalties.
(a) Any person who causes pollution or who fails or refuses to
discharge any duty imposed upon him or her by this article,
by
article eleven-a of this chapter or by any rule of the board or
director, promulgated pursuant to the provisions and intent of this
article
or article eleven-a of this chapter, or article three,
chapter twenty-two-b of this code, or by an order of the director
or board, or who fails or refuses to apply for and obtain a permit
as required by the provisions of this article
or article eleven-a
of this chapter, or who fails or refuses to comply with any term or
condition of such permit, is guilty of a misdemeanor and, upon
conviction thereof, shall be punished by a fine of not less than
$100 nor more than $1,000, or by imprisonment in the county jail
for a period not exceeding six months, or by both fine and
imprisonment.
(b) Any person who intentionally misrepresents any material
fact in an application, record, report, plan or other document
filed or required to be maintained under the provisions of this
article,
article eleven-a of this chapter or any rules promulgated
by the director thereunder is guilty of a misdemeanor and, upon
conviction thereof, shall be punished by a fine of not less than $1,000 nor more than $10,000 or by imprisonment in
the county jail
not exceeding six months or by both fine and imprisonment.
(c) Any person who willfully or negligently violates any
provision of any permit issued under or subject to the provisions
of this article or
article eleven-a of this chapter or who
willfully or negligently violates any provision of this article or
article eleven-a of this chapter, any rule of the board or director
or, any effluent limitation or any order of the director or board
is guilty of a misdemeanor and, upon conviction thereof, shall be
punished by a fine of not less than $2,500 nor more than $25,000
per day of violation or by imprisonment in
the county jail not
exceeding one year or by both fine and imprisonment.
(d) Any person convicted of a second or subsequent willful
violation of subsections (b) or (c) of this section or knowingly
and willfully violates any provision of any permit, rule or order
issued under or subject to the provisions of this article
or
article eleven-a of this chapter, or knowingly and willfully
violates any provision of this article
or article eleven-a of this
chapter, is guilty of a felony and, upon conviction, shall be
imprisoned in a correctional facility not less than one nor more
than three years, or fined not more than $50,000 for each day of
violation, or both fined and imprisoned.
(e) Any person may be prosecuted and convicted under the
provisions of this section notwithstanding that none of the administrative remedies provided
for in this article have been
pursued or invoked against said person and notwithstanding that
civil action for the imposition and collection of a civil penalty
or an application for an injunction under the provisions of this
article has not been filed against such person.
(f) Where a person holding a permit is carrying out a program
of pollution abatement or remedial action in compliance with the
conditions and terms of the permit, the person is not subject to
criminal prosecution for pollution recognized and authorized by the
permit.
§22-11-25. Civil liability; Natural Resources Game Fish and
Aquatic Life Fund; use of funds.
If any loss of game fish or aquatic life results from a
person's or persons' failure or refusal to discharge any duty
imposed upon such person by this article,
or section seven, article
six of this chapter
or article eleven-a of this chapter, either the
West Virginia Division of Natural Resources or the Division of
Environmental Protection, or both jointly may initiate a civil
action on behalf of the State of West Virginia to recover from such
person or persons causing such loss a sum equal to the cost of
replacing such game fish or aquatic life. Any moneys so collected
shall be deposited in a special revenue fund entitled "Natural
Resources Game Fish and Aquatic Life Fund" and shall be expended as
hereinafter provided. The fund shall be expended to stock waters of this state with game fish and aquatic life. Where feasible, the
Director of the Division of Natural Resources shall use any sum
collected in accordance with the provisions of this section to
stock waters in the area in which the loss resulting in the
collection of such sum occurred. Any balance of such sum shall
remain in said fund and be expended to stock state-owned and
operated fishing lakes and ponds, wherever located in this state,
with game fish and aquatic life.
ARTICLE 11A. CARBON DIOXIDE SEQUESTRATION.
§22-11A-1. Legislative findings.
(a) The Legislature finds that:
(1) Carbon dioxide is a colorless, odorless gas that can be
produced by burning carbon and organic compounds;
(2) Carbon dioxide is emitted into the atmosphere from a
number of sources including fossil-fueled power plants,
automobiles, certain industrial processes and other naturally
occurring sources;
(3) By far, fossil-fueled power plants are the largest source
of carbon dioxide emissions. These power plants emit approximately
one-third of carbon dioxide emissions worldwide;
(4) On average, the United States generates approximately
fifty-one percent of its electricity from coal-burning power
plants, which are a prominent source of carbon dioxide emissions;
(5) West Virginia's reliance on electricity produced from coal is even more pronounced, as West Virginia generates approximately
ninety-eight percent of its electricity from coal-burning power
plants;
(6) There is increasing pressure, both nationally and
worldwide, to produce electrical power with an ever-decreasing
amount of carbon dioxide emissions;
(7) West Virginia is a state rich in natural resources, and
its economy depends largely upon the demand for energy produced
from materials found within the state, not the least of which is
coal;
(8) As demand for energy produced from alternative and
renewable resources rises, new technologies are needed to burn coal
more cleanly and efficiently if West Virginia is to remain
competitive as an energy producing state;
(9) Carbon dioxide capture and sequestration is the capture
and secure storage of carbon dioxide that would otherwise be
emitted to, or remain in, the atmosphere. This technology is
currently being used and tested to reduce the carbon footprint of
electricity generated by the combustion of coal;
(10) The science of carbon dioxide capture and sequestration
is advancing rapidly, but the environmental effects of large, long-
term carbon dioxide sequestration operations are still being
studied and evaluated;
(11) Although the state is committed to expanding its portfolio of alternative and renewable energy resources,
electricity generated from these resources is insufficient in the
near term to meet the rising demand for energy;
(12) It is in the public interest to advance the
implementation of carbon dioxide capture and sequestration
technologies into the state's energy portfolio;
(13) The transportation by pipeline and sequestration of
carbon dioxide by a public utility engaged in the generation of
electricity may be integral to the construction, maintenance and
operation of electric light, heat and power plants operating in the
state; and
(14) Therefore, in order to expand more rapidly the generation
of electricity with little or no carbon dioxide emissions, it is
critical to encourage the development of carbon dioxide capture and
sequestration technologies; to examine factors that may be integral
to the construction, maintenance and operation of carbon dioxide
sequestration facilities; and to study the economic and
environmental feasibility of large, long-term carbon dioxide
sequestration operations.
(b) It is therefore the purpose of this article to:
(1) Establish a legal and regulatory framework for the
permitting of carbon dioxide sequestration operations;
(2) Designate a state agency responsible for establishing
standards and rules for the permitting of carbon dioxide sequestration operations including, but not limited to, rules
pertaining to:
(A) Environmental surveillance of carbon dioxide sequestration
operations;
(B) The monitoring of geologic migration of carbon dioxide and
the detection of carbon dioxide excursions;
(C) Construction standards for carbon dioxide sequestration
operations;
(D) Bonding or other financial assurances; and
(E) The closure of carbon dioxide sequestration operations,
including post-closure monitoring, verification and maintenance;
(3) With the aid of a carbon dioxide sequestration working
group, develop a long-term strategy for the regulation of carbon
dioxide sequestration; and to
(4) Clarify the ownership of pore space underlying the surface
of the lands and waters of this state.
§22-11A-2. Definitions.
Unless the context in which used clearly requires a different
meaning, as used in this article:
(a) "Department" means the Department of Environmental
Protection;
(b) "Carbon dioxide sequestration" means the injection of
carbon dioxide and associated constituents into subsurface geologic
formations intended to prevent its release into the atmosphere;(c) "Carbon dioxide sequestration facilities" means the
surface equipment used for transport, storage and injection of
carbon dioxide, excluding pipelines used to transport carbon
dioxide from one or more capture facilities to the sequestration
injection site or sites.
(d) "Carbon dioxide sequestration site" means the underground
carbon dioxide formations where the carbon dioxide is stored or is
intended to be stored;
(e) "Excursion" means the detection of migrating carbon
dioxide at or beyond the boundary of a carbon dioxide sequestration
site;
(f) "Pore space" means subsurface space that can be used as
storage space for carbon dioxide and other associated constituents,
or other substances; and
(g) "Secretary" means the Secretary of the Department of
Environmental Protection.
§22-11A-3. Prohibition of carbon dioxide sequestration without a
permit; injection of carbon dioxide for the purpose
of enhancing the recovery of oil or other minerals
not subject to the provisions of this article.
(a) The provisions of article eleven of this chapter apply to
all permits issued pursuant to this article except, where the
express provisions of this article conflict with the provisions of
article eleven of this chapter, the express provisions of this article control.
(b) Except as set forth in subsection (c) of this section, no
person shall engage in carbon dioxide sequestration in this state
unless authorized by a permit issued by the department in
accordance with section eight, article eleven of this chapter.
(c) The injection of carbon dioxide for purposes of enhancing
the recovery of oil or other minerals pursuant to a project
approved by the department shall not be subject to the provisions
of this article.
(d) If an oil, natural gas or coalbed methane operator
converts its operations to carbon dioxide sequestration upon the
cessation of oil or other mineral recovery operations, then the
carbon dioxide sequestration facility and the carbon dioxide
sequestration site shall be regulated pursuant to this article and
article eleven of this chapter. If an operator does not convert
its operations to carbon dioxide sequestration upon the cessation
of oil or other mineral recovery operations, the wells shall be
plugged and abandoned in accordance with article six of this
chapter.
(e) Any entity owning or operating a carbon dioxide
sequestration facility in existence on the effective date of this
article is hereby authorized to continue operating until such time
as the secretary has established operational and procedural
requirements applicable to such existing facilities and the entity owning or operating such facility has had a reasonable opportunity
to comply with those requirements.
§22-11A-4. General powers and duties of the secretary with respect
to carbon dioxide sequestration.
(a) The secretary, after receiving public comment and after
consultation with the state geologist and the working group
established in section six of this article, shall promulgate
legislative rules in accordance with the provisions of article
three, chapter twenty-nine-a of this code to implement the
provisions of this article, including without limitation:
(1) The application for, and issuance of, permits for carbon
dioxide sequestration;
(2) The requirements for carbon dioxide sequestration permit
applications;
(3) The issuance of notice following the approval of a permit
application, which shall identify the location at which the public
may examine the permit, describe the nature of the public's
opportunity to comment, and list any public hearing that may be
held in connection with the permit. The secretary shall allow no
less than thirty days for public comment on the draft permit and
may for good cause extend the comment period up to an additional
thirty days. Notice of any public hearing shall be given no less
than thirty days prior to its conduct; and
(4) The creation of subclasses of wells within the existing Underground Injection Control (UIC) program administered by the
United States Environmental Protection Agency pursuant to Part C of
the Safe Drinking Water Act, 42 U.S.C. §300h, et seq., to protect
human health, safety and the environment and to allow for the
permitting of the sequestration of carbon dioxide;
(5) The appropriate bonding or other financial assurance
procedures necessary to ensure that carbon dioxide sequestration
sites and facilities will be constructed, operated and closed in
accordance with the purposes and provisions of this article; and
(6) The proper duration of the post-closure care period for
carbon dioxide sequestration sites.
(b) The secretary shall propose amendments to the rules
promulgated under this section in order to comply with any rules
promulgated for the regulation of the sequestration of carbon
dioxide by the United States Environmental Protection Agency.
§22-11A-5. Permit application requirements and contents; permit
application fees.
(a) A carbon dioxide sequestration permit application shall
include:
(1) A description of the general geology of the area to be
affected by the injection of carbon dioxide, including
geochemistry, structure and faulting, fracturing and seals, and
stratigraphy and lithology, including petrophysical attributes;
(2) A characterization of the injection zone and aquifers above and below the injection zone that may be affected by the
injection of carbon dioxide, including applicable pressure and
fluid chemistry data to describe the projected effects of injection
activities;
(3) The identification of all other drill holes and operating
wells that exist within and adjacent to the proposed sequestration
site;
(4) An assessment of the effect on fluid resources, on
subsurface structures and on the surface of lands that may
reasonably be expected to be affected by the injection of carbon
dioxide, together with the measures required to mitigate those
effects;
(5) The plans and procedures for environmental surveillance
and excursion detection, prevention and control programs;
(6) A site and facilities description, including a description
of the proposed carbon dioxide sequestration facilities and
documentation sufficient to demonstrate that the applicant has, or
will have prior to the commencement of the operation, all legal
rights, including without limitation the right to surface or pore
space use, necessary to sequester carbon dioxide and associated
constituents into the proposed carbon dioxide sequestration site;
(7) Proof that the proposed injection wells are designed, at
minimum, to the construction standards set forth by the department;
(8) A plan for periodic mechanical integrity testing of all wells;
(9) A monitoring plan to assess the migration of the injected
carbon dioxide and to ensure the retention of the carbon dioxide in
the sequestration site;
(10) Proof of bonding or financial assurance to ensure that
carbon dioxide sequestration sites and facilities will be
constructed, operated and closed in accordance with the purposes
and provisions of this article and the rules promulgated pursuant
to this article;
(11) A detailed plan for post-closure monitoring,
verification, accounting, maintenance and mitigation;
(12) Procedures for the operator of the facilities to provide
immediate verbal notice to the department of any excursion after
the excursion is discovered, followed by written notice to all
surface owners, mineral claimants, mineral owners, lessees and
other owners of record of subsurface interests within thirty days
of discovering the excursion;
(13) Procedures for the termination or modification of any
applicable Underground Injection Control (UIC) permit issued under
Part C of the Safe Drinking Water Act, 42 U.S.C. §300h, et seq., if
an excursion cannot be controlled or mitigated;
(14) A plan to provide proof of notice to surface owners,
mineral claimants, mineral owners, lessees and other owners of
record of subsurface interests regarding the contents of the application. At a minimum, the notice shall include:
(A) The publication of a Class I legal advertisement in a
newspaper of general circulation in each county of the proposed
operation. The applicant shall publish the notice at the time of
filing and shall identify in the notice the location where the
public may examine the application;
(B) The mailing of a copy of the notice to all surface owners,
mineral claimants, mineral owners, lessees and other owners of
record of subsurface interests that are located within one-quarter
mile of the proposed boundary of the carbon dioxide sequestration
site; and
(15) Any other requirement set forth in legislative rules
promulgated under this article.
(b) Upon filing an application, an applicant shall pay a
reasonable fee, as established by the secretary in legislative
rules, to the department for the costs of reviewing, evaluating and
processing the permit, serving notice of an application and holding
any hearings. The fee shall be credited to a separate account and
shall be used by the department as required to complete the tasks
necessary to process, publish and reach a decision on the permit
application.
§22-11A-6. Carbon dioxide sequestration working group.
(a) The carbon dioxide sequestration working group is hereby
established.
(b) The secretary, in cooperation with the state geologist,
shall appoint at least ten persons to serve on the working group.
(c) In selecting persons to serve on the working group, the
secretary and the state geologist shall appoint at least three
persons who are experts in carbon dioxide sequestration or related
technologies, at least one person who is an expert in environmental
science, at least one person who is an expert in geology, at least
one person who is an expert in environmental law, at least one
person who is an expert in engineering, and at least one person who
is an expert in the regulation of public utilities in West
Virginia.
(d) The working group shall study issues pertaining to carbon
dioxide sequestration including, but not limited to, scientific,
technical, legal and regulatory issues and shall report to the
secretary and the Legislature its recommendations with respect to
the development, regulation and control of carbon dioxide
sequestration and related technologies in West Virginia.
(e) In addition, the working group shall develop a long-term
strategy for the regulation of carbon dioxide sequestration in West
Virginia.
(f) The working group may conduct or initiate studies,
scientific or other investigations, research, experiments and
demonstrations pertaining to carbon dioxide sequestration, and to
this end, the working group may cooperate with state institutions of higher education or 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 working group
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 department.
(g) The working group shall issue a preliminary report to the
secretary and the Legislature by July 1, 2010, containing any
preliminary recommendations or findings of the working group.
(h) The working group shall issue a final report to the
Legislature by July 1, 2011, which report shall, at a minimum:
(1) Recommend appropriate methods to encourage the development
of carbon dioxide sequestration technologies;
(2) Assess the economic and environmental feasibility of
large, long-term carbon dioxide sequestration operations;
(3) Recommend methods of facilitating the widespread use of
carbon dioxide sequestration technology throughout West Virginia;
(4) Identify geologic sequestration monitoring sites to assess
the short-term and long-term impact of carbon dioxide
sequestration;
(5) Assess the feasibility of carbon dioxide sequestration in West Virginia and the characteristics of areas within the state
where carbon dioxide could be sequestered;
(6) Assess the costs, benefits, risks and rewards of large-
scale carbon dioxide sequestration projects in West Virginia;
(7) Assess the potential carbon dioxide sequestration capacity
in this state;
(8) Identify areas of research needed to better understand and
quantify the processes of carbon dioxide sequestration; and
(9) Outline the working group's long-term strategy for the
regulation of carbon dioxide sequestration in West Virginia.
(i) The working group, along with the state geologist, shall
assist the secretary in developing and promulgating legislative
rules under this article.
§22-11A-7. Reporting and accountability.
The department shall include within the reports to the
Legislature required by section six, article twelve of this chapter
its observations concerning all aspects of compliance with this
article, including without limitation the promulgation of rules,
the formation of the carbon dioxide sequestration working group,
the permitting process and any pertinent changes to federal rules
or regulations.
§22-11A-8. Ownership of pore space underlying surfaces.
(a) It is the intent of the Legislature to clarify the
ownership of pore space underlying the surface of the lands and waters of this state. All conveyances of interests in real
property on and after the effective date of this article shall be
subject to the provisions herein. All conveyances of interests in
real property made prior to the effective date of this article
shall be construed in accordance with the provisions herein unless
a person claiming an ownership interest contrary to the provisions
herein proves the claim by a preponderance of the evidence in an
action commenced for that purpose.
(b) The ownership of all pore space in all strata below the
surface lands and waters of this state is declared to be vested in
the several owners of the surface above the strata.
(c) A conveyance of the surface ownership of real property
shall be a conveyance of the pore space in all strata below the
surface of such real property unless the ownership interest in such
pore space previously has been severed from the surface ownership
or is explicitly excluded in the conveyance. The ownership of pore
space in strata may be conveyed in the manner provided by law for
the transfer of mineral interests in real property. No agreement
conveying mineral or other interests underlying the surface shall
act to convey ownership of any pore space in the stratum unless the
agreement explicitly conveys that ownership interest.
(d) No provision of law, including a lawfully adopted rule or
regulation, requiring notice to be given to a surface owner, to an
owner of the mineral interest, or to both, shall be construed to require notice to persons holding ownership interest in any pore
space in the underlying strata unless the law specifies notice to
such persons is required.
(e) All instruments that transfer the rights to pore space
under this section shall describe the scope of any right to use the
surface estate. The owner of any pore space right has no right to
use the surface estate beyond that right set out in a properly
recorded instrument.
(f) Transfers of pore space rights made after the effective
date of this article are null and void at the option of the owner
of the surface estate if the transfer instrument does not contain
a specific description of the location of the pore space being
transferred. The description may include without limitation a
subsurface geologic or seismic survey or a metes and bounds
description of the surface lying over the transferred pore space.
In the event a description of the surface is used, the transfer
shall be deemed to include pore space at all depths underlying the
described surface area unless specifically excluded. The validity
of pore space rights under this subsection shall not affect the
respective liabilities of any party and such liabilities shall
operate in the same manner as if the pore space transfer were
valid.
(g) Nothing in this section shall alter, amend, diminish or
invalidate rights to the use of subsurface pore space that was acquired by contract or lease prior to the effective date of this
article.
(h)Nothing in this section shall alter or amend state law
regarding the primacy of the mineral estate, and any easement
created hereunder may not limit the right of a mineral owner or his
or her lessee to reasonable use of the surface for the purpose of
mineral exploration and production unless the owners and lessees of
the entire mineral estate and carbon dioxide sequestration right
are a party to the easement or consent thereto.
§22-11A-9. Oil, natural gas and coalbed methane activities at
carbon dioxide sequestration sites; extraction of
sequestered carbon dioxide.
(a) Nothing in this article shall be deemed to affect the
otherwise lawful right of a mineral owner to drill or bore through
a carbon dioxide sequestration site, if done in accordance with the
rules promulgated under this article for protecting the carbon
dioxide sequestration site against the escape of carbon dioxide.
(b) Nothing in this article is intended to impede or impair
the ability of an oil, natural gas or coalbed methane operator to
inject carbon dioxide through an approved enhanced oil, natural gas
or coalbed methane recovery project and to establish, verify,
register and sell emission reduction credits associated with the
project.
(c) The Office of Oil and Gas shall have jurisdiction over any subsequent extraction of sequestered carbon dioxide that is
intended for commercial or industrial purposes.
§22-11A-10. Cooperative agreements.
The secretary is authorized to enter into cooperative
agreements with other governments or government entities for the
purpose of regulating carbon dioxide storage projects that extend
beyond state regulatory authority under this article.
NOTE: The purpose of this bill is to authorize and regulate
the carbon dioxide sequestration and storage of carbon dioxide and
to clarify the issue of pore space ownership.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.