Current through Register Vol. XLI, No. 50, December 13, 2024
Section 35-8-15 - Water Supply Testing15.1. Testing Obligations and Rights.15.1.a. In accordance with W. Va. Code §§ 22-6A-10(b)(5) and 22-6A-10(d), at the request of the surface owner or water purveyor, the operator shall sample and analyze, in accordance with this section, water from any existing water wells or developed springs actually used by the surface owner or water purveyor for consumption by humans or domestic animals, which water wells or springs are located within one thousand five hundred (1,500) feet from the center of the proposed well pad.15.1.b. If no request is made of the operator pursuant to the previous subsection, the operator shall sample and analyze, in accordance with this section, water from any one known existing water well or developed spring within one thousand five hundred (1,500) feet from the center of the proposed well pad. If more than one water well or spring exists, the operator shall select for sampling and analysis the one water well or spring that, in the operator's judgment, has the highest potential for being influenced by the operator's well work.15.1.c. If for any reason the operator is unable to sample and to analyze water from any existing water wells or developed springs within one thousand five hundred (1,500) feet from the center of the proposed well pad, the Chief may require the operator to sample and to analyze, in accordance with this section, water from one existing water well or developed spring located between one thousand five hundred (1,500) and two thousand (2,000) feet from the center of the proposed well pad.15.1.d. In accordance with W. Va. Code § 22-6A-18, at the operator's discretion, any or all existing water wells or developed springs within one thousand five hundred (1,500) feet from the center of the proposed well pad may be sampled and analyzed in accordance with this section.15.1.e. In accordance with W. Va. Code § 22-6A-8(g)(5)(D), owners of drinking water wells located within one thousand five hundred feet (1,500') of a water supply well used to support activities permitted under this article may request well flow and quality testing prior to operating the water supply well. Drinking water well owners shall be noticed as described in section 15.2.b.15.2 Notice 15.2.a. Surface Owner and Water Purveyor - Pursuant to W. Va. Code § 22-6A-10(d), the operator shall give notice to the surface owner and the water purveyor of their right to request that the operator sample and analyze an existing water well or developed spring in accordance with subdivision 15.1.a. of this rule. The operator may satisfy this requirement by providing this notice at the same time and in the same manner as it provides the surface owner with notice of the permit application.15.2.b. Generally - The operator shall make a reasonable attempt to give additional notice of the right to request the operator to sample and analyze an existing water well or developed spring in accordance with subdivision 15.1.a above. The operator may satisfy this requirement if notice is provided by any of the following methods: 15.2.b.1. Personal service or posting notice at the entrance to any occupied dwellings or at any other locations where the use of the existing water well or developed spring is conspicuous, which occupied dwellings or other locations are located within one thousand five hundred (1,500) feet from the center of the proposed well pad;15.2.b.2. Mailing notice to occupied dwellings located within one thousand five hundred (1,500) feet from the center of the proposed well pad; or15.2.b.3. Any other means reasonably calculated to provide adequate notice to the surface owner and water purveyor and approved by the Chief.15.2.c. Form - The notice provided by the operator in accordance with this section shall be in a form approved by the Chief, which, at a minimum, shall contain a statement of the surface owner's and water purveyor's right to request sampling and analysis; advise the surface owner and water purveyor of the rebuttable presumption for contamination or deprivation of a fresh water source or supply; advise the surface owner and water purveyor that refusal to allow the operator to conduct a pre-drilling water well test constitutes a method to rebut the presumption of liability; advise the surface owner and water purveyor of his or her independent right to sample and analyze any water supply at his or her own expense; advise the surface owner and water purveyor whether or not the operator will utilize an independent laboratory to analyze any sample; and advise the surface owner and or water purveyor that he or she can obtain from the Chief a list of water testing laboratories in the subject area capable of and qualified to test water supplies in accordance with standard acceptable methods.15.2.d. Timing - The operator shall provide notice as required in subsection 15.2 above prior to filing any permit application with the Chief.15.2.e. Filing - At the time the operator files a well work permit application, the operator shall also file a statement describing whether any water users as described above were identified and the manner in which the operator provided the requisite notice.15.3. Sampling and Analysis. 15.3.a. Approved Methods - The operator shall collect and analyze samples in accordance with methods approved by the Chief or as set forth at 40 CFR Part 136.15.3.b. Parameters - The operator shall analyze samples for the following parameters: 15.3.b.1. Total Petroleum Hydrocarbons (GRO, DRO, ORO)15.3.b.5. Total Dissolved Solids (TDS)15.3.b.14. Detergents (MBAS)15.3.b.15. Dissolved Methane15.3.b.16. Dissolved Ethane15.3.b.17. Dissolved Butane15.3.b.18. Dissolved Propane15.3.b.19. Bacteria (total coliform)15.3.b.20. Any others parameters determined by the operator or the Chief.15.3.c. Laboratories - The laboratory utilized by the operator shall be approved by the agency as being certified and capable of performing sample analyses in accordance with this section.15.3.d. Distribution of Results - No later than thirty (30) days after receipt of any water sample analysis, the operator shall provide the results of the same in writing to the Chief and to any of the water users who requested an analysis in accordance with this section.15.3.e. Certification of Results - The submission of analytical results on behalf of the operator pursuant to subdivision 15.3.d. shall be made by a responsible operator representative or contractor knowledgeable of and responsible for the sampling and analysis of water samples, who shall make the following certification: I certify under penalty of law that this document and all attachments were prepared under my direction or supervision in accordance with a system designed to assure that qualified personnel properly gather and evaluate the information submitted. Based on my inquiry of the person or persons who manage the system or those persons directly responsible for gathering the information, the information submitted is, to the best of my knowledge and belief, true, accurate, and complete. I am aware that there are significant penalties for submitting false information, including the possibility of fine and imprisonment for knowing violations.
15.4. Operator's Right of Entry. 15.4.a. After notice as required by this section, the operator (or any other contractor or laboratory directed by the operator to collect samples of water for analysis) may enter onto land upon which an existing water well or developed spring is located to conduct sampling as authorized by subsection 15.1 above. This right of entry may be exercised for this purpose without the permission of the surface owner or water purveyor.15.4.b. If the surface owner or water purveyor protests or acts to block the right of entry, then the right of entry may be enforced by a court with jurisdiction to enter an injunction regarding the land upon which the existing water well or developed spring is located. However, if any person acts to block the right of entry provided herein, the operator is not required to enforce this right of entry and shall not be liable for any penalty or loss of rights, privileges or permits based on the failure to exercise the right of entry and obtain the water sample otherwise required by this section.15.4.c. If the operator or contractor does not enter onto land and obtain a water test because of a protest or action to block the operator's or contractor's entry, the protest or action to block entry shall be admissible as evidence in an action between the operator and any surface owner or water purveyor in which the results of the test would have been relevant.15.4.d. The operator is liable for any reasonable actual damages done other than normal wear and tear of the property while gathering the sample required by this section. This provision does not limit other provisions of the law.