W. Va. Code R. § 47-13-14

Current through Register Vol. XLI, No. 50, December 13, 2024

Section 47-13-14 - Injection Well Permitting Program

14.1. General Prohibition and Prohibition of Movement of Fluid into Underground Sources of Drinking Water.

14.1.1. Underground injection is prohibited unless authorized by permit or rule. The construction of any well required to have a permit is prohibited until the permit has been issued.

14.1.2. No owner or operator shall construct, operate, maintain, convert, plug, abandon or conduct any other underground injection activity in a manner which causes or allows the movement of fluid containing any contaminant into underground sources of drinking water, if the presence of that contaminant may cause a violation of any primary drinking water regulation under 40 CFR Part 142 or promulgated pursuant to W. Va. Code § 16-1-1et seq., or may otherwise adversely affect the health of persons. The applicant for a permit shall have the burden of showing that the requirements of this paragraph are met.

14.1.3. For Class 1, 2, 3, and 6 wells, if any water quality monitoring of an USDW indicates the movement of any contaminant into USDW except as authorized under this rule, the Director shall prescribe such additional requirements for construction, corrective action, operation, monitoring, or reporting (including closure of the injection well) as are necessary to prevent such movement. In the case of wells authorized by permit, these additional requirements shall be imposed by modifying the permit or the permit may be revoked if cause exists, or appropriate enforcement action may be taken if the permit has been violated. In the case of wells authorized by rule, see subsection 14.2.

14.1.4. For Class 5 wells, if at any time the Director learns that a Class 5 well may cause a violation of primary drinking water rules under 40 CFR Part 142 or W. Va. Code § 16-1-1et seq., he or she shall:

14.1.4.a. Require the injector to obtain an individual permit;

14.1.4.b. Order the injector to take such actions (including where required closure of the injection well) as may be necessary to prevent the violation; or

14.1.4.c. Take enforcement action.

14.1.5. Whenever the Director learns that a Class 5 well may be otherwise adversely affecting the health of persons, he or she may prescribe such actions as may be necessary to prevent the adverse effect, including any action authorized under subdivision 14.2.4. of this section.

14.1.6. Notwithstanding any other provision of this section, the Director may take emergency action under W. Va. Code § 22-11-19 upon receipt of information that a contaminant which is present in or is likely to enter a public water system or USDW may present an imminent and substantial endangerment to health of persons.

14.2. Authorization of Underground Injection by Rule.

14.2.1. Types of underground injection which may be authorized by rule. Facilities may be authorized by rule under this rule as outlined in this paragraph. Underground injections not authorized by rule or permit are prohibited:

14.2.1.a. Injection into existing or new Class 5 wells may be authorized by rule for periods up to 1 year from the effective date of this rule. Rule authorizations may be reissued annually; however, all such wells must be issued permits within 5 years or close down at the end of the fifth year's authorization period.

14.2.1.b. Class 5 rule authorization is limited to groundwater remediation agent injections; and

14.2.1.c. In the case of Class 5 wells, at the time of application for injection approval, the applicability of this rule is undetermined, such as:

14.2.1.c.1. Septic systems which receive solely sanitary wastes and the number of people the system has the capacity to serve has not been determined; especially existing systems that must be evaluated by the health department for capacity, however authorization by rule terminates upon establishing the system is incapable of serving at least 20 people in a day; or

14.2.1.c.2. For systems deemed capable of serving 20 or more people unless an application for permit is submitted in accordance with 14.3.2.

14.2.1.d. An existing or new Class 5 septic system capable of serving less than 20 people but which receives an alternate waste stream may be authorized by rule while a determination of the applicability of this rule is made, such as in the case of:

14.2.1.d.1. Meat processing facilities, kennels, beauty salons, or other facilities with waste streams, other than sanitary waste.

14.2.1.e. However, the Director has authority to withdraw the authorization if required under this section. Remediation related injections that are not expected to be continuous are typically authorized by rule, while most septic system and stormwater discharges are authorized by permit.

14.2.2. Requirements of Rules. Any facility authorized by rule pursuant to this section shall meet the following requirements no later than 1 year after authorization by such rules:

14.2.2.a. Subdivision 14.6.1. - (exemption from rule where authorized by temporary permits);

14.2.2.b. Subdivision 14.6.2. - (retention of records);

14.2.2.c. Subdivision 14.6.4. - (immediate reporting):

14.2.2.d. Subdivision 14.6.5. - (notice of abandonment);

14.2.2.e. Subdivision 14.7.6, and subsections 8.3, 9.3, and 10.3. - (plugging and abandonment);

14.2.3. Requiring a permit.

14.2.3.a. The Director may require any Class 1, 2, 3, or 5 injection well authorized by rule to apply for and obtain an individual or area UIC permit. Under no circumstances may a Class 6 well be authorized to inject by rule. Cases where individual or area UIC permits may be required include, but are not limited to:

14.2.3.a.1. The injection well is not in compliance with any requirement of the rule;

(Note: Any underground injection which violates any rule under this section is subject to appropriate enforcement action).

14.2.3.a.2. The injection well is not or no longer is within the category of wells and types of well operations authorized in the rule;

14.2.3.a.3. The protection of USDWs requires that the injection operation be regulated by requirements, such as for corrective action, monitoring and reporting, or operation, which are not contained in the rule; and

14.2.3.a.4. As a part of the orderly implementation of the UIC Program during the period of authorization by rule.

14.2.3.b. Any owner or operator authorized by a rule may request to be excluded from the coverage of the rule by applying for an individual or area UIC permit. The owner or operator shall submit an application under subsection 14.3 with reasons supporting the request to the Director. The Director may grant any such request.

14.2.4. Inventory requirements. All injection wells covered by the rule shall submit inventory information to the Director. Any rule under this section shall provide for the automatic termination of authorization for any well which fails to comply within the time specified in paragraph 14.2.4.c., of this section.

14.2.4.a. Contents. The Director shall require:

14.2.4.a.1. Information regarding pollutant loads and schedules for attaining compliance with water quality standards;

14.2.4.a.2. Facility name and location;

14.2.4.a.3. Name and address of legal contact;

14.2.4.a.4. Ownership of facility;

14.2.4.a.5. Nature and type of injection wells; and

14.2.4.a.6. Operating status of injection wells.

14.2.4.b. Notice. Upon approval of the State UIC Program, the Director shall notify owners or operators of injection wells of their duty to submit inventory information. The method of notification selected by the Director must assure that the owners or operators will be made aware of the inventory requirement.

14.2.4.c. Deadlines. Owners or operators of injection wells must submit inventory information no later than 1 year after authorization by rule. The Director need not require inventory information from any facility with interim status under W. Va. Code §22-18.

14.3. Application for a Permit; Authorization by Permit.

14.3.1. Permit application. Except as provided in subsection 14.2 (authorization by rule), all underground injections into Class 1, 2, 3, or 6 wells shall be prohibited unless authorized by permit. Those authorized by a rule under subsection 14.2 must still apply for a permit under this section unless authorization was for the life of the well or project. Rules authorizing well injections for which permit applications have been submitted shall lapse for a particular well injection or project upon the effective date of the permit or permit denial for that well injection or project. Expiration will be effective following the effective date of a permit, after closure (plugging and abandonment), or after conversion of the well.

14.3.2. Time to apply. Any person who performs or proposes an underground injection for which a permit is or will be required shall submit an application to the Director in accordance with the State UIC Program as follows:

14.3.2.a. For existing injection wells as expeditiously as practicable and in accordance with the schedule contained in the State UIC Program description, but no later than 4 years from the effective date of this rule or as required under subsection 7.3 for wells injecting hazardous waste.

14.3.2.b. For new injection wells, except new wells in projects authorized under paragraph 14.2.1.a., or covered by an existing area permit under subdivision 14.4.3., a reasonable time before construction is expected to begin.

14.3.3. Contents of UIC application.

(Reserved)

14.4. Area Permits.

14.4.1. The Director may issue a permit on an area basis, rather than for each well individually, provided that the permit is for injection wells:

14.4.1.a. Described and identified by location in permit application(s) if they are existing wells, except that the Director may accept a single description of wells with substantially the same characteristics;

14.4.1.b. Within the same well field, facility site, reservoir project, or similar unit in the State;

14.4.1.c. Operated by a single owner or operator;

14.4.1.d. Used to inject other than hazardous waste; and

14.4.1.e. Other than Class 6 Wells.

14.4.2. Area permits shall specify:

14.4.2.a. The area within which underground injections are authorized; and

14.4.2.b. The requirements for construction, monitoring, reporting, operation, and abandonment, for all wells authorized by the permit.

14.4.3. The area permit may authorize the permittee to construct and operate, convert, or plug and abandon wells within the permit area provided:

14.4.3.a. The permittee notifies the Director at such time as the permit requires;

14.4.3.b. The additional well satisfies the criteria in subdivision 14.4.1 of this section and meets the requirements specified in the permit under subdivision 14.4.2 of this section; and

14.4.3.c. The cumulative effects of drilling and operation of additional injection wells are considered by the Director during evaluation of the area permit application and are acceptable to the Director.

14.4.4. If the Director determines that any well constructed pursuant to subdivision 14.4.3 of this section does not satisfy any of the requirements of paragraphs 14.4.3.a. and 14.4.3.b of this section, the Director may modify the permit under subsection 14.18, revoke under subsection 14.19, or take enforcement action. If the Director determines that cumulative effects are unacceptable, the permit may be modified under subsection 14.18.

14.5. Emergency Permits.

14.5.1. Coverage. Notwithstanding any other provision of this rule, the Director may temporarily permit a specific underground injection which has not otherwise been authorized by rule or permit if:

14.5.1.a. An imminent and substantial endangerment to the health of persons will result unless a temporary emergency permit is granted; or

14.5.1.b. A substantial or irretrievable loss of oil or gas resources will occur unless a temporary emergency permit is granted to a Class 2 well; and

14.5.1.b.1. Timely application for a permit could not practicably have been made; and

14.5.1.b.2. The injection will not result in the movement of fluids into underground sources of drinking water; or

14.5.1.c. A substantial delay in production of oil or gas resources will occur unless a temporary emergency permit is granted to a new Class 2 well and the temporary authorization will not result in the movement of fluids into an underground source of drinking water.

14.5.2. Requirements for issuance.

14.5.2.a. Any temporary permit under paragraph 14.5.1.a., of this section shall be for no longer term than required to prevent the hazard.

14.5.2.b. Any temporary permit under paragraph 14.5.1.b., of this section shall be for no longer term than 90 days, except that if a permit application has been submitted prior to the expiration date of the 90-day period, the Director may extend the temporary permit until final action on the application.

14.5.2.c. Any temporary permit under paragraph 14.5.1.c of this section shall be issued only after a complete permit application has been submitted and shall be effective until final action on the application.

14.5.2.d. Notice of any temporary permit under this paragraph shall be published within 10 days of the issuance of the permit. Public Notice follows subsections 14.24 and 14.25.

14.5.2.e. The temporary permit under this section may be either oral or written. If oral, it must be followed within 5 calendar days by a written temporary emergency permit.

14.5.2.f. The Director shall condition the temporary permit in any manner he or she determines is necessary to ensure that the injection will not result in the movement of fluids into an underground source of drinking water.

14.6. Additional Conditions Applicable to all UIC Permits. The following conditions, in addition to those set forth in subsection 14.12, apply to all UIC permits and shall be incorporated into all permits either expressly or by reference. If incorporated by reference, a specific citation to this rule must be given in the permit.

14.6.1. In addition to subdivision 14.12.1 (duty to comply): the permittee need not comply with the provisions of this permit to the extent and for the duration such non-compliance is authorized in a temporary emergency permit under subsection 14.5.

14.6.2. In addition to paragraph 14.12.10.b (monitoring and records): the permittee shall retain all records concerning the nature and composition of injected fluids until 3 years after completion of any plugging and abandonment procedures specified under subdivision 14.7.6. The Director may require the owner or operator to deliver the records to the Director at the conclusion of the retention period.

14.6.3. In addition to paragraph 14.12.12.a (notice of planned changes): except for all new wells authorized by an area permit under subdivision 14.4.3., a new injection well may not commence injection until construction is complete, and:

14.6.3.a. The permittee has submitted notice of completion of construction to the Director; and

14.6.3.a.1. The Director has inspected or otherwise reviewed the new injection well and finds it is in compliance with the conditions of the permit; or

14.6.3.a.2. The permittee has not received notice from the Director of his or her intent to inspect or otherwise review the new injection well within 13 days of the date of the notice in paragraph 14.6.3.a. of this section, in which case prior inspection or review is waived and the permittee may commence injection. The Director shall include in the notice a reasonable time period in which he or she shall inspect the well.

14.6.4. The following shall be included as information which must be reported immediately under paragraph 14.12.12.f:

14.6.4.a. Any monitoring or other information which indicates that any contaminant may cause an endangerment to USDWs; and

14.6.4.b. Any non-compliance with a permit condition or malfunction of the injection system which may cause fluid migration into or between the USDWs.

14.6.5. The permittee shall notify the Director as such times as the permit requires before conversion or abandonment of the well or in the case of area permits before closure of the project.

14.6.6. If a loss of mechanical integrity is discovered based on alarm shut off or during periodic mechanical integrity testing, the owner or operator shall:

14.6.6.a. Immediately cease injection of waste fluids;

14.6.6.b. Take steps to determine whether there may have been a release of hazardous wastes into any unauthorized zone;

14.6.6.c. Notify the Director within 24 hours;

14.6.6.d. Notify the Director when injection can be expected to resume; and

14.6.6.e. Restore and demonstrate mechanical integrity to the satisfaction of the Director prior to resuming injection.

14.6.7. Whenever the owner or operator obtains evidence that there may have been a release of injected wastes into an unauthorized zone, he shall:

14.6.7.a. Immediately cease injection of waste fluids,

14.6.7.b. Notify the Director within 24 hours of obtaining such evidence;

14.6.7.c. Take steps to identify and characterize the extent of any release;

14.6.7.d. Comply with any remediation plan specified by the Director;

14.6.7.e. Implement any remediation plan approved by the Director; and

14.6.7.f. Where such release is into a USDW currently serving as a water supply, place a notice in a newspaper of general circulation.

14.6.8. Pursuant to 14.6.6. and 14.6.7. The Director may allow the operator to resume injection prior to completing cleanup if the injection operation will not endanger USDWs.

14.6.9. When the Director determines that a Class 1, 2, 3 or 6 well lacks mechanical integrity he/she shall give written notice of his/her determination to the owner or operator. Unless the Director requires immediate cessation, the owner or operator shall cease injection into the well within 48 hours of receipt of the Director's determination. The Director may allow plugging of the well pursuant to the requirements of 14.7.6. of this chapter or require the permittee to perform such additional construction, operation, monitoring, reporting and corrective action as is necessary to prevent the movement of fluid into or between USDWs caused by the lack of mechanical integrity. The owner or operator may resume injection upon written notification from the Director that the owner or operator has demonstrated mechanical integrity pursuant to 14.6.6. and 14.6.7. of this chapter. The Director may allow the owner or operator of a well which lacks mechanical integrity to continue or resume injection, if the owner or operator has made a satisfactory demonstration that there are no leaks in the casing/tubing/packer and no movement of fluid into or between USDWs.

14.7. Establishing UIC Permit Conditions. In addition to conditions required in all permits (subsections 14.6 and 14.12), the Director shall establish conditions in permits as required on a case-by-case basis, to provide for and assure compliance with all applicable requirements of the SDWA and State Act and rules. An applicable requirement is a State statutory or regulatory requirement which takes effect prior to final administrative disposition of a permit and is also any requirement which takes effect prior to the modification or revocation and reissuance of a permit. Each permit shall include conditions meeting the following requirements when applicable:

14.7.1. Construction requirements as set forth in subsections 8.2, 9.2., and 10.2. Existing wells shall achieve compliance with such requirements according to a compliance schedule established as a permit condition. The owner or operator of a proposed new injection well shall submit plans for testing, drilling, and construction as part of the permit application. Except as authorized by an area permit, no construction may commence until a permit has been issued containing construction requirements. New wells shall be in compliance with these requirements prior to commencing injection operations. Changes in construction plans during construction may be approved by the Director as minor modification. No such changes may be physically incorporated into construction of the well prior to approval of the modification by the Director.

14.7.2. Corrective action as set forth in subsections 6.1 and 14.9.

14.7.3. Operation requirements as set forth in subsections 8.4., 9.4., and 10.4. The permit shall establish any maximum injection volumes and/or pressure necessary to assure that fractures are not initiated in the confining zone, that injected fluids do not migrate into any underground source of drinking water, that formation fluids are not displaced into any underground source of drinking water, and to assure compliance with operation requirements.

14.7.4. Requirements for wells managing hazardous waste, as set forth in sections 7 and 11.

14.7.5. Monitoring and reporting requirements as set forth in subsections 8.4, 9.4 and 10.4. The permittee shall be required to identify types of tests and methods used to generate the monitoring data.

14.7.6. Plugging and abandonment. Any Class 1, 2, 3, or 6 permit shall include, and any Class 5 permit may include, conditions to ensure that plugging and abandonment of the well will not allow the movement of fluids either into an underground source of drinking water or from one underground source of drinking water to another. Any applicant for a UIC permit shall be required to submit a plan for plugging and abandonment. Where the plugging and abandonment plan meets the requirements of this paragraph, the Director shall incorporate it into the permit as a condition. Where the Director's review of an application indicates that the permittee's plan is inadequate, the Director shall require the applicant to revise the plan, prescribe conditions meeting the requirements of this paragraph, or deny the application. For purposes of this paragraph, temporary intermittent cessation of injection operations is not abandonment. The owner or operator shall submit revisions to the method of closure no later than the date on which closure notification is required. The Director should be notified at least 45 days prior to the abandonment of any Class 5 injection well.

14.7.6.a. An owner or operator of a Class 1 hazardous waste injection well who ceases injection temporarily, may keep the well open provided he has received authorization from the Director and has described actions to be taken to ensure that the well will not endanger USDWs during disuse. These actions include compliance with the technical requirements applicable to active injection wells unless waived by the Director.

14.7.6.b. The owner or operator of a well shall plug and abandon their well(s) within 2 years of cessation, following their plan, unless:

14.7.6.b.1. The owner/operator provides notice to the Director;

14.7.6.b.2. Describes actions or procedures, satisfactory to the Director, that the owner or operator will take to ensure that the well will not endanger USDWs during the period of temporary abandonment. These actions and procedures shall include compliance with the technical requirements applicable to active injection wells unless waived by the Director.

14.7.6.c. Class 1 hazardous waste injection wells, the obligation to implement the closure plan survives the termination of a permit or the cessation of injection activities. The requirement to maintain and implement an approved plan is directly enforceable regardless of whether the requirement is a condition of the permit.

14.7.6.d. The owner or operator of a Class 1 hazardous waste injection well that has ceased operations for more than two years shall notify the Director 30 days prior to resuming operation of the well.

14.7.7. Financial responsibility. The permit shall require the permittee, including the transferor of a permit, to demonstrate and maintain financial responsibility and resources to close, plug, and abandon underground injection wells in a manner prescribed by the Director until: the well has been plugged and abandoned and the report submitted; or the well has been converted; or the transferor of the permit receives notice that the transferee has demonstrated financial responsibility. The permittee must show evidence of financial responsibility to the Director by submission of a surety bond, or other adequate assurance, such as a financial statement or other material acceptable to the Director. The owner or operator of a well injecting hazardous waste must comply with the financial responsibility requirements of subdivision 47-13-8.7 and 47-13-8.8 For Class 6 permits the following provisions also apply:

14.7.7.a. The permittee must show evidence of financial responsibility to the Director by submission of a surety bond, trust fund, insurance, irrevocable standby letter of credit, escrow account, or other adequate assurance, such as a financial statement or other material acceptable to the Director.

14.7.7.b. The qualifying instrument(s) must be sufficient to cover the cost of:

14.7.7.b.1. Corrective action (that meets the requirements of section 14.9.);

14.7.7.b.2. Injection well plugging (that meets the requirements of section 13.4.);

14.7.7.b.3. Post injection site care and site closure (that meets the requirements of 13.9.); and

14.7.7.b.4. Emergency and remedial response (that meets the requirements of 13.7.).

14.7.7.c. The financial responsibility instrument(s) must be sufficient to address endangerment of underground sources of drinking water.

14.7.7.d. The qualifying financial responsibility instrument(s) must comprise protective conditions of coverage.

14.7.7.d.1. Protective conditions of coverage must include at a minimum cancellation, renewal, and continuation provisions, specifications on when the provider becomes liable following a notice of cancellation if there is a failure to renew with a new qualifying financial instrument, and requirements for the provider to meet a minimum rating, minimum capitalization, and ability to pass the bond rating when applicable.

14.7.7.e. Cancellation - for purposes of this part, an owner or operator must provide that their financial mechanism may not cancel, terminate or fail to renew except for failure to pay such financial instrument. If there is a failure to pay the financial instrument, the financial institution may elect to cancel, terminate, or fail to renew the instrument by sending notice by certified mail to the owner or operator and the Director. The cancellation must not be final for 120 days after receipt of cancellation notice. The owner or operator must provide an alternate financial responsibility demonstration within 60 days of notice of cancellation, and if an alternate financial responsibility demonstration is not acceptable (or possible), any funds from the instrument being canceled must be released within 60 days of notification by the Director.

14.7.7.f. Renewal - for purposes of this part, owners or operators must renew all financial instruments, if an instrument expires, for the entire term of the geologic sequestration project. The instrument may be automatically renewed as long as the owner or operator has the option of renewal at the face amount of the expiring instrument. The automatic renewal of the instrument must, at a minimum, provide the holder with the option of renewal at the face amount of the expiring financial instrument.

14.7.7.g. Cancellation, termination, or failure to renew may not occur and the financial instrument will remain in full force and effect in the event that on or before the date of expiration: The Director deems the facility abandoned; or the permit is terminated or revoked or a new permit is denied; or closure is ordered by the Director or a U.S. district court or other court of competent jurisdiction; or the owner or operator is named as debtor in a voluntary or involuntary proceeding under Title 11 (Bankruptcy), U.S. Code; or the amount due is paid.

14.7.7.h. The qualifying financial responsibility instrument(s) must be approved by the Director.

14.7.7.h.1. The Director shall consider and approve the financial responsibility demonstration for all the phases of the geologic sequestration project prior to issue a Class 6 permit (13.8).

14.7.7.h.2. The owner or operator must provide any updated information related to their financial responsibility instrument(s) on an annual basis and if there are any changes, the Director must evaluate, within a reasonable time, the financial responsibility demonstration to confirm that the instrument(s) used remain adequate for use. The owner or operator must maintain financial responsibility requirements regardless of the status of the Director's review of the financial responsibility demonstration.

14.7.7.h.3. The Director may disapprove the use of a financial instrument if he determines that it is not sufficient to meet the requirements of this section.

14.7.7.i. The owner or operator may demonstrate financial responsibility by using one or multiple qualifying financial instruments for specific phases of the geologic sequestration project.

14.7.7.i.1. In the event that the owner or operator combines more than one instrument for a specific geologic sequestration phase (e.g., well plugging), such combination must be limited to instruments that are not based on financial strength or performance (i.e., self-insurance or performance bond), for example trust funds, surety bonds guaranteeing payment into a trust fund, letters of credit, escrow account, and insurance. In this case, it is the combination of mechanisms, rather than the single mechanism, which must provide financial responsibility for an amount at least equal to the current cost estimate.

14.7.7.j. When using a third-party instrument to demonstrate financial responsibility, the owner or operator must provide a proof that the third-party providers either have passed financial strength requirements based on credit ratings; or have met a minimum rating, minimum capitalization, and ability to pass the bond rating when applicable.

14.7.7.j.1. An owner or operator using certain types of third-party instruments must establish a standby trust to enable the Department and/or EPA to be party to the financial responsibility agreement without the Department and/or EPA being the beneficiary of any funds. The standby trust fund must be used along with other financial responsibility instruments (e.g., surety bonds, letters of credit, or escrow accounts) to provide a location to place funds if needed.

14.7.7.k. An owner or operator may deposit money to an escrow account to cover financial responsibility requirements; this account must segregate funds sufficient to cover estimated costs for Class 6 (geologic sequestration) financial responsibility from other accounts and uses.

14.7.7.l. An owner or operator or its guarantor may use self-insurance to demonstrate financial responsibility for geologic sequestration projects. In order to satisfy this requirement the owner or operator must meet a Tangible Net Worth of an amount approved by the Director, have a Net working capital and tangible net worth each at least six times the sum of the current well plugging, post injection site care and site closure cost, have assets located in the United States amounting to at least 90 percent of total assets or at least six times the sum of the current well plugging, post injection site care and site closure cost, and must submit a report of its bond rating and financial information annually. In addition the owner or operator must either: Have a bond rating test of AAA, AA, A, or BBB as issued by Standard & Poor's or Aaa, Aa, A, or Baa as issued by Moody's; or meet all of the following five financial ratio thresholds: A ratio of total liabilities to net worth less than 2.0; a ratio of current assets to current liabilities greater than 1.5; a ratio of the sum of net income plus depreciation, depletion, and amortization to total liabilities greater than 0.1; A ratio of current assets minus current liabilities to total assets greater than -0.1; and a net profit (revenues minus expenses) greater than 0.

14.7.7.l.a. An owner or operator who is not able to meet corporate financial test criteria may arrange a corporate guarantee by demonstrating that its corporate parent meets the financial test requirements on its behalf. The parent's demonstration that it meets the financial test requirement is insufficient if it has not also guaranteed to fulfill the obligations for the owner or operator.

14.7.7.m. An owner or operator may obtain an insurance policy to cover the estimated costs of geologic sequestration activities requiring financial responsibility. This insurance policy must be obtained from a third-party provider.

14.7.7.n. The requirement to maintain adequate financial responsibility and resources is directly enforceable regardless of whether the requirement is a condition of the permit.

14.7.7.n.1. The owner or operator must maintain financial responsibility and resources until:

14.7.7.n.1.A. The Director receives and approves the completed post-injection site care and site closure plan; and

14.7.7.n.1.B. The Director approves site closure.

14.7.7.n.2. The owner or operator may be released from a financial instrument in the following circumstances:

14.7.7.n.2.A. The owner or operator has completed the phase of the geologic sequestration project for which the financial instrument was required and has fulfilled all its financial obligations as determined by the Director, including obtaining financial responsibility for the next phase of the GS project, if required; or

14.7.7.n.2.B. The owner or operator has submitted a replacement financial instrument and received written approval from the Director accepting the new financial instrument and releasing the owner or operator from the previous financial instrument.

14.7.7.o. The owner or operator must have a detailed written estimate, in current dollars, of the cost of performing corrective action on wells in the area of review, plugging the injection well(s), post-injection site care and site closure, and emergency and remedial response.

14.7.7.o.1. The cost estimate must be performed for each phase separately and must be based on the costs to the regulatory agency of hiring a third party to perform the required activities. A third party is a party who is not within the corporate structure of the owner or operator.

14.7.7.o.2. During the active life of the geologic sequestration project, the owner or operator must adjust the cost estimate for inflation within 60 days prior to the anniversary date of the establishment of the financial instrument(s) used to comply with paragraph (a) of this section and provide this adjustment to the Director. The owner or operator must also provide to the Director written updates of adjustments to the cost estimate within 60 days of any amendments to the area of review and corrective action plan (6.1), the injection well plugging plan (13.4), the post-injection site care and site closure plan (13.9), and the emergency and remedial response plan (13.7).

14.7.7.o.3. The Director must approve any decrease or increase to the initial cost estimate. During the active life of the geologic sequestration project, the owner or operator must revise the cost estimate no later than 60 days after the Director has approved the request to modify the area of review and corrective action plan (6.1), the injection well plugging plan (13.4), the post-injection site care and site closure plan (13.9), and the emergency and response plan (13.7), if the change in the plan increases the cost. If the change to the plans decreases the cost, any withdrawal of funds must be approved by the Director. Any decrease to the value of the financial assurance instrument must first be approved by the Director. The revised cost estimate must be adjusted for inflation as specified at 14.7.7.o.2 of this section.

14.7.7.o.4. Whenever the current cost estimate increases to an amount greater than the face amount of a financial instrument currently in use, the owner or operator, within 60 days after the increase, must either cause the face amount to be increased to an amount at least equal to the current cost estimate and submit evidence of such increase to the Director, or obtain other financial responsibility instruments to cover the increase. Whenever the current cost estimate decreases, the face amount of the financial assurance instrument may be reduced to the amount of the current cost estimate only after the owner or operator has received written approval from the Director.

14.7.7.p. The owner or operator must notify the Director by certified mail of adverse financial conditions such as bankruptcy that may affect the ability to carry out injection well plugging and post-injection site care and site closure.

14.7.7.p.1. In the event that the owner or operator or the third-party provider of a financial responsibility instrument is going through a bankruptcy, the owner or operator must notify the Director by certified mail of the commencement of a voluntary or involuntary proceeding under Title 11 (Bankruptcy), U.S. Code, naming the owner or operator as debtor, within 10 days after commencement of the proceeding.

14.7.7.p.2. A guarantor of a corporate guarantee must make such a notification to the Director if he/she is named as debtor, as required under the terms of the corporate guarantee.

14.7.7.p.3. An owner or operator who fulfills the requirements of 14.7.7. of this section by obtaining a trust fund, surety bond, letter of credit, escrow account, or insurance policy will be deemed to be without the required financial assurance in the event of bankruptcy of the trustee or issuing institution, or a suspension or revocation of the authority of the trustee institution to act as trustee of the institution issuing the trust fund, surety bond, letter of credit, escrow account, or insurance policy. The owner or operator must establish other financial assurance within 60 days after such an event.

14.7.7.q. The owner or operator must provide an adjustment of the cost estimate to the Director within 60 days of notification by the Director, if the Director determines during the annual evaluation of the qualifying financial responsibility instrument(s) that the most recent demonstration is no longer adequate to cover the cost of corrective action (as required by section 6.1), injection well plugging (as required by section 13.4), post-injection site care and site closure (as required by section 13.9), and emergency and remedial response (as required by section 13.7).

14.7.7.r. The Director must approve the use and length of pay-in-periods for trust funds or escrow accounts.

14.7.8. Mechanical integrity. The permittee of a Class 1, 2, 3, or 6 well shall establish and maintain mechanical integrity. A permit for any Class 1, 2, 3, or 6 well or injection project which lacks mechanical integrity shall include, and for any Class 5 well may include, a condition prohibiting injection operations until the permittee shows to the satisfaction of the Director under subsection 6.2 that the well has mechanical integrity.

14.7.9. Additional conditions. The Director shall impose on a case-by-case basis such additional conditions as are necessary to prevent the migration of fluids into underground sources of drinking water.

14.8. Waiver of Requirements by the Director.

14.8.1. When injection does not occur into, through, or above an underground source of drinking water, the Director may authorize a well or project with less stringent requirements for area of review, construction, mechanical integrity, operation, monitoring, and reporting than required in section 8, 9, 10, and subsection 14.7 to the extent that the reduction in requirements will not result in an increased risk of movement of fluids into an underground source of drinking water.

14.8.2. For wells other than Class 6, when injection occurs through or above an underground source of drinking water, but the radius of endangering influence when computed under subdivision 5.3.1 is smaller or equal to the radius of the well, the Director may authorize a well or project with less stringent requirements for operation, monitoring, and reporting in sections 8, 10, and subsection 14.7 to the extent that the reduction in requirements will not result in an increased risk of movement of fluids into an underground source of drinking water.

14.8.3. When reducing requirements under subdivision 14.8.1 or 14.8.2 of this section, the Director shall explain the reason for the action by preparing a fact sheet under subsection 14.31.

14.8.4. When an owner or operator submits a waiver of the Class 6 injection depth requirements, the Director must consult with all affected Public Water System Directors and the Regional Administrator after considering the following:

14.8.4.a. Owner/Operator Requirements. In seeking a waiver of the requirement to inject below the lowermost USDW, the owner or operator must submit a supplemental report concurrent with permit application. The supplemental report must include the following,

14.8.4.a.1. A demonstration that the injection zone(s) is/are laterally continuous, is not a USDW, and is not hydraulically connected to USDWs; does not outcrop; has adequate injectivity, volume, and sufficient porosity to safely contain the injected carbon dioxide and formation fluids; and has appropriate geochemistry.

14.8.4.a.2. A demonstration that the injection zone(s) is/are bounded by laterally continuous, impermeable confining units above and below the injection zone(s) adequate to prevent fluid movement and pressure buildup outside of the injection zone(s); and that the confining unit(s) is/are free of transmissive faults and fractures. The report shall further characterize the regional fracture properties and contain a demonstration that such fractures will not interfere with injection, serve as conduits, or endanger USDWs.

14.8.4.a.3. A demonstration, using computational modeling, that USDWs above and below the injection zone will not be endangered as a result of fluid movement. This modeling should be conducted in conjunction with the area of review determination, as described in 5.4 and 14.9, and is subject to requirements, as described in 14.9.3., and periodic reevaluation, as described in 14.9.5.

14.8.4.a.4. A demonstration that well design and construction, in conjunction with the waiver, will ensure isolation of the injectate in lieu of requirements at 13.3.1.a. and will meet well construction requirements in 14.8.4. of this section.

14.8.4.a.5. A description of how the monitoring and testing and any additional plans will be tailored to the geologic sequestration project to ensure protection of USDWs above and below the injection zone(s), if a waiver is granted.

14.8.4.a.6. Information on the location of all the public water supplies affected, reasonably likely to be affected, or served by USDWs in the area of review.

14.8.4.a.7. Any other information requested by the Director to inform the Regional Administrator's decision to issue a waiver.

14.8.4.b. Consultation. The Director must inform the Regional Administrator of a pending decision on whether to grant a waiver of the injection depth requirements at section 4.6, 14.8.4.f., and 13.3.1.a. the Director must submit, to the Regional Administrator, documentation of the following:

14.8.4.b.1. An evaluation of the following information as it relates to siting, construction, and operation of a geologic sequestration project with a waiver:

14.8.4.b.1.A. The integrity of the upper and lower confining units;

14.8.4.b.1.B. The suitability of the injection zone(s) (e.g., lateral continuity; lack of transmissive faults and fractures; knowledge of current or planned artificial penetrations into the injection zone(s) or formations below the injection zone);

14.8.4.b.1.C. The potential capacity of the geologic formation(s) to sequester carbon dioxide, accounting for the availability of alternative injection sites;

14.8.4.b.1.D. All other site characterization data, the proposed emergency and remedial response plan, and a demonstration of financial responsibility;

14.8.4.b.1.E. Community needs, demands, and supply from drinking water resources;

14.8.4.b.1.F. Planned needs, potential and/or future use of USDWs and non-USDWs in the area;

14.8.4.b.1.G. Planned or permitted water, hydrocarbon, or mineral resource exploitation potential of the proposed injection formation(s) and other formations both above and below the injection zone to determine if there are any plans to drill through the formation to access resources in or beneath the proposed injection zone(s)/formation(s);

14.8.4.b.1.H. The proposed plan for securing alternative resources or treating USDW formation waters in the event of contamination related to the Class 6 injection activity; and,

14.8.4.b.1.I. Any other applicable considerations or information requested by the Director.

14.8.4.b.2. Consultation with the Public Water System Supervision Directors of all States and Tribes having jurisdiction over lands within the area of review of a well for which a waiver is sought.

14.8.4.b.2.A. Any written waiver-related information submitted by the Public Water System Supervision Director(s) to the (UIC) Director.

14.8.4.c. Procedures.

14.8.4.c.1. Pursuant to requirements at 47 CSR 10-12 and concurrent with the Class 6 permit application notice process, the Director shall give public notice that a waiver application has been submitted. The notice shall clearly state:

14.8.4.c.1.A. The depth of the proposed injection zone(s);

14.8.4.c.1.B. The location of the injection well(s);

14.8.4.c.1.C. The name and depth of all USDWs within the area of review;

14.8.4.c.1.D. A map of the area of review;

14.8.4.c.1.E. The names of any public water supplies affected, reasonably likely to be affected, or served by USDWs in the area of review; and,

14.8.4.c.1.F. The results of UIC-Public Water System Supervision consultation required under 14.8.4.b.2.

14.8.4.c.2. Following public notice, the Director shall provide all information received through the waiver application process to the Regional Administrator. Based on the information provided, the Regional Administrator shall provide written concurrence or non-concurrence regarding waiver issuance.

14.8.4.c.2.A. If the Regional Administrator determines that additional information is required to support a decision, the Director shall provide the information. At his or her discretion, the Regional Administrator may require that public notice of the new information be initiated.

14.8.4.c.3. In no case shall a Director of a State-approved program issue a waiver without receipt of written concurrence from the Regional Administrator.

14.8.4.c.4. If a waiver is issued, within 30 days of waiver issuance, the Director shall post the following information on the Department's Division of Water and Waste Management's website:

14.8.4.c.4.A. The depth of the proposed injection zone(s);

14.8.4.c.4.B. The location of the injection well(s);

14.8.4.c.4.C. The name and depth of all USDWs within the area of review;

14.8.4.c.4.D. A map of the area of review;

14.8.4.c.4.E. The names of any public water supplies affected, reasonably likely to be affected, or served by USDWs in the area of review; and

14.8.4.c.4.F. The date of waiver issuance.

14.8.4.d. Additional requirements. Upon receipt of a waiver of the requirement to inject below the lowermost USDW for geologic sequestration, the owner or operator of the Class 6 well must comply with:

14.8.4.d.1. All requirements at 6.2., 13.4., 13.5., 13.6., 13.6.3.a., 13.7., 14.7.7., and 14.9.2.e., of this rule;

14.8.4.d.2. All requirements at section 13.3. with the following modified requirements:

14.8.4.d.2.A. The owner or operator must ensure that Class 6 wells with a waiver are constructed and completed to prevent movement of fluids into any unauthorized zones including USDWs, in lieu of requirements at 13.3.1.a.

14.8.4.d.2.B. The casing and cementing program must be designed to prevent the movement of fluids into any unauthorized zones including USDWs in lieu of requirements at 13.3.2.a.1.

14.8.4.d.2.C. The surface casing must extend through the base of the nearest USDW directly above the injection zone and be cemented to the surface; or, at the Director's discretion, another formation above the injection zone and below the nearest USDW above the injection zone.

14.8.4.d.3. All requirements at 13.6.2. with the following modified requirements:

14.8.4.d.3.A. The owner or operator shall monitor the groundwater quality, geochemical changes, and pressure in the first USDWs immediately above and below the injection zone(s); and in any other formations at the discretion of the Director.

14.8.4.d.3.B. Testing and monitoring to track the extent of the carbon dioxide plume and the presence or absence of elevated pressure (e.g., the pressure front) by using direct methods to monitor for pressure changes in the injection zone(s); and, indirect methods (e.g., seismic, electrical, gravity, or electromagnetic surveys and/or down-hole carbon dioxide detection tools), unless the Director determines, based on site-specific geology, that such methods are not appropriate.

14.8.4.d.4. All requirements at 13.9. with the following, modified post-injection site care monitoring requirements:

14.8.4.d.4.A. The owner or operator shall monitor the groundwater quality, geochemical changes and pressure in the first USDWs immediately above and below the injection zone; and in any other formations at the discretion of the Director.

14.8.4.d.4.B. Testing and monitoring to track the extent of the carbon dioxide plume and the presence or absence of elevated pressure (e.g., the pressure front) by using direct methods in the injection zone(s); and indirect methods (e.g., seismic, electrical, gravity, or electromagnetic surveys and/or down-hole carbon dioxide detection tools), unless the Director determines based on site-specific geology, that such methods are not appropriate;

14.8.4.d.5. Any additional requirements requested by the Director designed to ensure protection of USDWs above and below the injection zone(s).

14.9. Corrective Action

14.9.1. Applicants for Class 1, 2 (other than existing wells) or 3 injection well permits shall identify the location of all known wells within the injection well's area of review which penetrate the injection zone (or for Class 2, all wells penetrating formations affected by an increase in pressure) and/or confining zone. For such wells which are improperly sealed, completed, or abandoned, the applicant shall also submit a plan consisting of such steps or modifications as are necessary to prevent movement of fluid into underground sources of drinking water ("corrective action") under subsection 6.1. Where the plan is adequate, the Director shall incorporate it into the permit as a condition. Where the Director's review of an application indicates that the permittee's plan is inadequate, he or she shall require the applicant to revise the plan, prescribe a plan for corrective action as a condition of the permit under subdivision 14.9.2 of this section, or deny the application.

14.9.2. Requirements.

14.9.2.a. Existing injection wells. Any permit issued for an existing injection well (other than Class 2) requiring corrective action shall include a compliance schedule requiring any corrective action accepted or prescribed under subdivision 14.9.1 of this section to be completed as soon as possible.

14.9.2.b. New injection wells. No permit for a new injection well may authorize injection until all required corrective action has been taken.

14.9.2.c. Injection pressure limitation. The Director may require as a permit condition that pressure be so limited that pressure in the injection zone does not exceed hydrostatic pressure at the site of any improperly completed or abandoned well within the area of review. This pressure limitation shall satisfy the corrective action requirement. Alternatively, such injection pressure limitation can be part of a compliance schedule and last until all other required corrective action has been taken.

14.9.2.d. Class 3 wells only. When setting corrective action requirements, the Director shall consider the overall effect of the project on the hydraulic gradient in potentially affected USDW's, and the corresponding changes in potentiometric surface(s) and flow direction(s) rather than the discrete effect of each well. If a decision is made that corrective action is not necessary based on the determinations above, the monitoring program required in subdivision 10.4.2 shall be designed to verify the validity of such determinations.

14.9.2.e. Class 6 wells only. When setting corrective action requirements, the Director shall require the owner or operator of the well to prepare, maintain, and comply with a plan to delineate the area of review for a proposed geologic sequestration project, periodically reevaluate the delineation, and perform corrective action that meets the requirements of this section and is acceptable to the Director. The requirement to maintain and implement an approved plan is directly enforceable regardless of whether the requirement is a condition of the permit. As a part of the permit application for approval by the Director, the owner or operator must submit an area of review and corrective action plan that includes the following information:

14.9.2.e.1. The method for delineating the area of review that meets the requirements of 14.9.3. of this section, including the model to be used, assumptions that will be made, and the site characterization data on which the model will be based;

14.9.2.e.2. A description of:

14.9.2.e.2.A. The minimum fixed frequency, not to exceed 5 years, at which the owner or operator proposes to reevaluate the area of review;

14.9.2.e.2.B. The monitoring and operational conditions that would warrant a reevaluation of the area of review prior to the next scheduled reevaluation as determined by the minimum fixed frequency established in 14.9.2.e.2.A. of this section.

14.9.2.e.2.C. How monitoring and operational data (e.g., injection rate and pressure) will be used to inform an area of review reevaluation; and

14.9.2.e.2.D. How corrective action will be conducted to meet the requirements of 14.9.4. of this section, including what corrective action will be performed prior to injection and what, if any, portions of the area of review will have corrective action addressed on a phased basis and how the phasing will be determined; how corrective action will be adjusted if there are changes in the area of review; and how site access will be guaranteed for future corrective action.

14.9.3. Owners or operators of Class 6 wells must perform the following actions to delineate the area of review and identify all wells that require corrective action:

14.9.3.a. Predict, using existing site characterization, monitoring and operational data, and computational modeling, the projected lateral and vertical migration of the carbon dioxide plume and formation fluids in the subsurface from the commencement of injection activities until the plume movement ceases, until pressure differentials sufficient to cause the movement of injected fluids or formation fluids into a USDW are no longer present, or until the end of a fixed time period as determined by the Director. The model must:

14.9.3.a.1. Be based on detailed geologic data collected to characterize the injection zone(s), confining zone(s) and any additional zones; and anticipated operating data, including injection pressures, rates, and total volumes over the proposed life of the geologic sequestration project;

14.9.3.a.2. Take into account any geologic heterogeneities, other discontinuities, data quality, and their possible impact on model predictions; and

14.9.3.a.3. Consider potential migration through faults, fractures, and artificial penetrations.

14.9.3.b. Using methods approved by the Director, identify all penetrations, including active and abandoned wells and underground mines, in the area of review that may penetrate the confining zone(s). Provide a description of each well's type, construction, date drilled, location, depth, record of plugging and/or completion, and any additional information the Director may require; and

14.9.3.c. Determine which abandoned wells in the area of review have been plugged in a manner that prevents the movement of carbon dioxide or other fluids that may endanger USDWs, including use of materials compatible with the carbon dioxide stream.

14.9.4. Owners or operators of Class 6 wells must perform corrective action on all wells in the area of review that are determined to need corrective action, using methods designed to prevent the movement of fluid into or between USDWs, including use of materials compatible with the carbon dioxide stream, where appropriate.

14.9.5. At the minimum fixed frequency, not to exceed 5 years, as specified in the area of review and corrective action plan, or when monitoring and operational conditions warrant, owners or operators must:

14.9.5.a. Reevaluate the area of review in the same manner specified in 14.9.3.a. of this section;

14.9.5.b. Identify all wells in the reevaluated area of review that require corrective action in the same manner specified in 14.9.3. of this section;

14.9.5.c. Perform corrective action on wells requiring corrective action in the reevaluated area of review in the same manner specified in 14.9.4. of this section; and

14.9.5.d. Submit an amended area of review and corrective action plan or demonstrate to the Director through monitoring data and modeling results that no amendment to the area of review and corrective action plan is needed. Any amendments to the area of review and corrective action plan must be approved by the Director, must be incorporated into the permit, and are subject to the permit modification requirements at sections 14.18 or 14.20, as appropriate.

14.9.6. The emergency and remedial response plan (as required by section 13.7.) and the demonstration of financial responsibility (as described by 14.7.7.) must account for the area of review delineated as specified in 14.9.3.a. of this section or the most recently evaluated area of review delineated under 14.9.5. of this section, regardless of whether or not corrective action in the area of review is phased.

14.9.7. All modeling inputs and data used to support area of review reevaluations under 14.9.5. of this section shall be retained for 10 years.

14.10. Application for a Permit. This section shall apply in addition to the requirements of subsections 8.5, 9.5, 10.5, and 14.3.

14.10.1. Permit application. Any person who is required to have a permit (including new applicants and permittees with expiring permits) shall complete, sign, and submit an application to the Director as described in this section. Persons currently authorized with UIC authorization by rule shall apply for permits when required by the Director.

14.10.2. Who applies. When a facility or activity is owned by one person but is operated by another person, it is the operator's duty to obtain a permit.

14.10.3. Completeness. The Director shall not issue a permit under a program before receiving a complete application, except for an emergency permit. An application for a permit under a program is complete when the Director receives an application form and any supplemental information which are completed to his or her satisfaction.

14.10.4. Information requirements. All applicants for UIC permits shall provide the following information to the Director, using the application form provided by the Director. Class 6 applicants shall follow the requirements of 13.8.:

14.10.4.a. The activities conducted by the applicant which require it to obtain permits under UIC.

14.10.4.b. Name, mailing address, and location of the facility for which the application is submitted.

14.10.4.c. Up to 4 SIC codes which best reflect the principal products or services provided by the facility.

14.10.4.d. The operator's name, address, telephone number, ownership status, and status as Federal, State, private, public, or other entity.

14.10.4.e. A listing of all permits or construction approvals received or applied for under any of the following programs:

14.10.4.e.1. Hazardous Waste Management Program under RCRA and W. Va. Code § 22-18-1et seq.

14.10.4.e.2. NPDES program under CWA and State Act.

14.10.4.e.3. Prevention of Significant Deterioration (PSD) program under the Clean Air Act.

14.10.4.e.4. Nonattainment program under the Clean Air Act.

14.10.4.e.5. National Emission Standards for Hazardous Pollutants (NESHAPS) pre-construction approval under the Clean Air Act.

14.10.4.e.6. Dredge or fill permits under section 404 of CWA.

14.10.4.e.7. Other relevant environmental permits, including State permits.

14.10.4.f. A topographic map extending 1 mile beyond the property boundaries of the source, depicting the facility and each of its intake and discharge structures, each of its hazardous waste treatment, storage, or disposal facilities, each well where fluids from the facility are injected underground and those wells, springs, other surface water bodies, and drinking water wells listed in public records or otherwise known to the applicant in the map area.

14.10.4.f.1. Map requirements for Class 6 permits shall include the injection well for which a permit is sought and the applicable area of review consistent with 5.4 and 14.9.2.e. Within the area of review, the map must show the number or name, and location of all injection wells, producing wells, abandoned wells, plugged wells or dry holes, deep stratigraphic boreholes, State-or EPA-approved subsurface cleanup sites, surface bodies of water, springs, mines (surface and subsurface), quarries, water wells, other pertinent surface features including structures intended for human occupancy, State, Tribal, and Territory boundaries, and roads. The map should also show faults, if known or suspected. Only information of public record is required to be included on this map.

14.10.4.g. A brief description of the nature of the business.

14.10.5. Record keeping. Applicants shall keep records of all data used to complete permit applications and any supplemental information submitted under subsection 14.3 for a period of at least 3 years from the date the application is signed.

14.11. Signatories to Permit Applications and Reports.

14.11.1. Applications. All permit applications, except those submitted for Class 2 wells under the UIC program, shall be signed as follows:

14.11.1.a. For a corporation: by a principal officer of at least the level of vice-president;

14.11.1.b. For a partnership or sole proprietorship: by a general partner or the proprietor, respectively; or

14.11.1.c. For a municipality, State, Federal, or other public agency: by either a principal executive officer or ranking elected official.

14.11.2. Reports. All reports required by permits, other information requested by the Director, and all permit applications submitted for Class 2 wells shall be signed by a person described in subdivision 14.11.1 above in this section, or by a duly authorized representative of that person. A person is a duly authorized representative if:

14.11.2.a. The authorization is made in writing by a person described in subdivision 14.11.1. of this section;

14.11.2.b. The authorization specifies either an individual or a position having responsibility for the overall operation of the regulated facility or activity, such as the position of plant manager, operator of a well or a well field, superintendent, or position of equivalent responsibility. (A duly authorized representative may thus be either a named individual or any individual occupying a named position); and

14.11.2.c. The written authorization is submitted to the Director.

14.11.3. Changes to Authorization. If an authorization under subdivision 14.11.2 of this section is no longer accurate because a different individual or position has responsibility for the overall operation of the facility, a new authorization satisfying the requirements of subdivision 14.11.2 of this section must be submitted to the Director prior to or together with any reports, information, or applications to be signed by an authorized representative.

14.11.4. Certification. Any person signing a document under subdivision 14.11.1 or 14.11.2 of this section shall make the following certification:

"I certify under penalty of law that I have personally examined and am familiar with the information submitted in this document and all attachments and that, based on my inquiry of those individuals immediately responsible for obtaining the information, I believe that the information is true, accurate, and complete. I am aware that there are significant penalties for submitting false information, including the possibility of fine and imprisonment."

14.12. Conditions Applicable to All permits. The following conditions are applicable to all permits, and shall be incorporated into the permits either expressly or by reference. If incorporated by reference, a specific citation to this rule must be given in the permit.

14.12.1. Duty to comply. The permittee must comply with all conditions of this permit. Any permit noncompliance constitutes a violation of the SDWA and the State Act and is grounds for enforcement action; for permit suspension or revocation, revocation and reissuance, or modification; or for denial of a permit renewal application.

14.12.2. Duty to Reapply. If the permittee wishes to continue activity regulated by this permit after the expiration date of this permit, the permittee must apply for and obtain a new permit.

14.12.3. Duty to reduce or halt activity. It shall not be a defense for a permittee in an enforcement action that it would have been necessary to halt or reduce the permitted activity in order to maintain compliance with the conditions of this permit.

14.12.4. Duty to mitigate. The permittee shall take all reasonable steps to minimize or correct any adverse impact on the environment resulting from noncompliance with this permit.

14.12.5. Proper operation and maintenance. The permittee shall at all times, properly operate and maintain all facilities and systems of treatment and control (and related appurtenances) which are installed or used by the permittee to achieve compliance with the conditions of this permit. Proper operation and maintenance includes effective performance, adequate funding, adequate operator staffing and training, and quality assurance procedures. This provision requires the operation of back-up or auxiliary facilities or similar systems only when necessary to achieve compliance with the conditions of the permit.

14.12.6. Permit actions. This permit may be modified, revoked and reissued, suspended, or revoked for cause. The filing of a request by the permittee for a permit modification, revocation and reissuance, suspension or revocation, or notification of planned changes or anticipated noncompliance, does not stay any permit condition. All requests shall be in writing and shall contain facts or reasons supporting the request.

14.12.7. Property rights. This permit does not convey any property rights of any sort, or any exclusive privilege.

14.12.8. Duty to provide information. The permittee shall furnish to the Director within a reasonable time, any information which the Director may request to determine whether cause exists for modifying, revoking and reissuing, or revoking this permit, or to determine compliance with this permit. The permittee shall also furnish to the Director, upon request, copies of records required to be kept by this permit.

14.12.9. Inspection and entry. The permittee shall allow the Director, or an authorized representative, upon the presentation of credentials and other documents as may be required by law, to:

14.12.9.a. Enter upon the permittees premises where a regulated facility or activity is located or conducted, or where records must be kept under the conditions of this permit;

14.12.9.b. Have access to and copy, at reasonable times, any records that must be kept under the conditions of this permit;

14.12.9.c. Inspect at reasonable times any facilities, equipment (including monitoring and control equipment), practices, or operations regulated or required under this permit; and

14.12.9.d. Sample or monitor at reasonable times, for the purposes of assuring permit compliance or as otherwise authorized by the SDWA and State Act, any substances or parameters at any location.

14.12.10. Monitoring and records.

14.12.10.a. Samples and measurements taken for the purpose of monitoring shall be representative of the monitored activity.

14.12.10.b. The permittee shall retain records of all monitoring information, including all calibration and maintenance records and all original strip chart recordings for continuous monitoring instrumentation, copies of all reports required by this permit, and records of all data used to complete the application for this permit, for a period of at least 3 years from the date of the sample, measurement, report or application. This period may be extended by request of the Director at any time.

14.12.10.c. Records of monitoring information shall include:

14.12.10.c.1. The date, exact place, and time of sampling or measurements;

14.12.10.c.2. The individual(s) who performed the sampling or measurements;

14.12.10.c.3. The date(s) analysis(es) were performed;

14.12.10.c.4. The individual(s) who performed the analyses;

14.12.10.c.5. The analytical techniques or methods used; and

14.12.10.c.6. The results of such analyses.

14.12.11. Signatory requirement. All applications, reports, or information submitted to the Director shall be signed and certified, as required under subsection 14.11.

14.12.12. Reporting requirements.

14.12.12.a. Planned changes. The permittee shall give notice to the Director as soon as possible of any planned significant physical alterations or additions to the permitted facility, or any planned significant changes in the operation of the facility.

14.12.12.b. Anticipated noncompliance. The permittee shall give advance notice to the Director of any planned changes in the permitted facility or activity which may result in noncompliance with the permit requirements.

14.12.12.c. Transfers. This permit is not transferable to any person except after notice to the Director. The Director may require modification or revocation and reissuance of the permit to change the name of the permittee and incorporate such other requirements as may be necessary under the SDWA and the State Act and rules. In some cases, modification or revocation and reissuance is mandatory (see subsection 14.17).

14.12.12.d. Monitoring reports. Monitoring results shall be reported at the intervals specified elsewhere in this permit.

14.12.12.e. Compliance schedules. Reports of compliance or noncompliance with, or any progress reports on, interim and final requirements contained in any compliance schedule of this permit shall be submitted no later than 30 days following each schedule date.

14.12.12.f. Immediate reporting. The permittee shall report any noncompliance which may endanger health or the environment immediately after becoming aware of the circumstances by using the Water Resources Emergency Notification Number, 1-800-642-3074. Written submission shall also be provided within 5 days of the time the permittee becomes aware of the circumstances. The written submission shall contain a description of the noncompliance and its cause; the period of noncompliance, including exact dates and times, and if the noncompliance has not been corrected, the anticipated time it is expected to continue; and the steps taken or planned to reduce, eliminate, and prevent reoccurrence of the noncompliance.

14.12.12.g. Other noncompliance. The permittee shall report all instances of noncompliance not reported under paragraphs 14.12.12.a., 14.12.12.d., 14.12.12.e., and 14.12.12.f. of this section, at the time monitoring reports are submitted. The report shall contain the information listed in paragraph 14.12.12.f. of this section.

14.12.12.h. Other information. Where a permittee becomes aware that he/she failed to submit any relevant facts in a permit application, or submitted incorrect information in a permit application or in any report to the Director, he/she shall promptly submit such facts or information.

14.12.12.i. Owners or operators of Class 6 wells shall retain records as specified in 47 CSR 13, including subparts 14.4.4., 14.9.6., 14.9.7., and 14.10.5.

14.13. Duration of Permits. UIC permits for Class 1,5, and 6 wells shall be effective for a fixed term not to exceed 5 years. Reevaluation is required to determine whether it should be modified, revoked and reissued, terminated or a minor modification made.

14.13.1. The term of a permit shall not be extended by modification beyond the maximum duration specified in this section.

14.13.2. The Director may issue any permit for a duration that is less than the full allowable term under this section.

14.14. Schedules of Compliance.

14.14.1. The permit may, when appropriate, specify a schedule of compliance leading to compliance with the SDWA, the State Act and rules.

14.14.1.a. Time for compliance. Any schedules for compliance under this section shall require compliance as soon as possible.

14.14.1.b. In addition, a schedule of compliance shall require compliance no later than 3 years after the effective date of the permit.

14.14.1.c. Interim dates. Except as provided in subparagraph 14.14.2.a.2. of this section, if a permit establishes a schedule of compliance which exceeds 1 year from the date of permit issuance, the schedule shall set forth interim requirements and the dates for their achievement.

14.14.1.c.1. The time between interim dates shall not exceed 1 year.

14.14.1.c.2. If the time necessary for completion of any interim requirement (such as the construction of a control facility) is more than 1 year and is not readily divisible into stages for completion, the permit shall specify interim dates for the submission of reports of progress toward completion of the interim requirements and indicate a projected completion date.

14.14.1.d. Reporting. The permit shall be written to require that no later than 30 days following each interim date and the final date of compliance, the permittee shall notify the Director in writing of its compliance or noncompliance with the interim or final requirements.

14.14.2. Alternative schedules of compliance. A UIC permit applicant or permittee may cease conducting regulated activities (by plugging and abandonment) rather than continue to operate and meet permit requirements as follows:

14.14.2.a. If the permittee decides to cease conducting regulated activities at a given time within the term of a permit which has already been issued:

14.14.2.a.1. The permit may be modified to contain a new or additional schedule leading to timely cessation of activities; or

14.14.2.a.2. The permittee shall cease conducting permitted activities before noncompliance with any interim or final compliance schedule requirement already specified in the permit.

14.14.2.b. If the decision to cease conducting regulated activities is made before issuance of a permit whose term will include the termination date, the permit shall contain a schedule leading to termination which will ensure timely compliance with applicable requirements.

14.14.2.c. If the permittee is undecided whether to cease conducting regulated activities, the Director may issue or modify a permit to contain 2 schedules as follows:

14.14.2.c.1. Both schedules shall contain an identical interim deadline requiring a final decision on whether to cease conducting regulated activities no later than a date which ensures sufficient time to comply with applicable requirements in a timely manner if the decision is to continue conducting regulated activities.

14.14.2.c.2. One schedule shall lead to timely compliance with applicable requirements;

14.14.2.c.3. The second schedule shall lead to cessation of regulated activities by a date which will ensure timely compliance with applicable requirements; and

14.14.2.c.4. Each permit containing 2 schedules shall include a requirement that after the permittee has made a final decision under subparagraph 14.14.2.a.1. of this section it shall follow the schedule leading to compliance if the decision is to continue conducting regulated activities, and follow the schedule leading to termination if the decision is to cease conducting regulated activities.

14.14.2.d. The applicant's or permittee's decision to cease conducting regulated activities shall be evidenced by a firm public commitment satisfactory to the Director, such as a resolution of the board of directors of a corporation.

14.15. Requirements for Recording and Reporting of Monitoring Results. All permits shall specify:

14.15.1. Requirements concerning the proper use, maintenance, and installation, when appropriate, of monitoring equipment or methods (including biological monitoring methods when appropriate);

14.15.2. Required monitoring including type, intervals, and frequency sufficient to yield data which are representative of the monitored activity including, when appropriate, continuous monitoring; and

14.15.3. Applicable reporting requirements based upon the impact of the regulated activity and as specified elsewhere by this rule.

14.16. Effect of a Permit.

14.16.1. The issuance of a permit does not convey any property rights of any sort, or any exclusive privilege.

14.16.2. The issuance of a permit does not authorize any injury to persons or property or invasion of other private rights, or any infringement of State or local law or rules.

14.16.3. Except for Class 2 and 3 wells, compliance with a permit during its term constitutes compliance, for purposes of enforcement, with Part C of SDWA. However, a permit may be modified, revoked, and reissued, suspended or revoked during its term for cause as set forth in subsections 14.18 and 14.19.

14.17. Transfer of Permits.

14.17.1. Transfers by modification. Except as provided in subdivision 14.17.2. of this section, a permit may be transferred by the permittee to a new owner or operator only if the permit has been modified or revoked and reissued, or a minor modification made to identify the new permittee and incorporate such other requirements as may be necessary under the SDWA and the State Act and rules.

14.17.2. Automatic transfers. As an alternative to transfers under subdivision 14.17.1. of this section, any UIC permit for a well not injecting hazardous waste or injecting carbon dioxide may be automatically transferred to a new permittee if:

14.17.2.a. The current permittee notifies the Director at least 30 days in advance of the proposed transfer date in paragraph 14.17.2.b. of this section;

14.17.2.b. The notice includes a written agreement between the existing and new permittees containing a specific date for transfer of permit responsibility coverage, and liability between them and, in the case of UIC permits, the notice demonstrates that the financial responsibility requirements of subdivision 14.7.7., will be met by new permittee; and

14.17.2.c. The Director does not notify the existing permittee and the proposed new permittee of his or her intent to modify or revoke and reissue the permit. A modification under this section may also be a minor modification under subsection 14.20. If this notice is not received, the transfer is effective on the date specified in the agreement mentioned in paragraph 14.17.2.b. of this section.

14.18. Modification or Revocation and Reissuance of Permits. When the Director receives any information (for example, inspects the facility, receives information submitted by the permittee as required in the permit, receives a request for modification or revocation and reissuance, or conducts a review of the permit file) he or she may determine whether or not one or more of the causes listed in subdivisions 14.18.1., and 14.18.2. of this section for modification or revocation and reissuance or both exists. If cause exists, the Director may modify or revoke and reissue the permit accordingly, subject to the limitations of subdivision 14.18.3. of this section and request an updated application. When a permit is modified, only the conditions subject to modification are reopened. If a permit is revoked and reissued, the entire permit is reopened and subject to revision and the permit is reissued for a new term. If cause does not exist under this section or subsection 14.20, the Director shall not modify or revoke and reissue the permit. If a permit modification satisfies the criteria in subsection 14.20 for "minor modifications" the permit may be modified without a draft permit or public review. Otherwise, a draft permit must be prepared. Notice of intent to revoke a permit will require a draft permit.

14.18.1. Cause for modification. The following are causes for modification but not revocation and reissuance of permits, except for Class 1, 2 and 3 wells in which case the following may be causes for revocation and reissuance as well as modification.

14.18.1.a. Alterations. There are material and substantial alterations or additions to the permitted facility or activity which occurred after permit issuance which justify the application of permit conditions that are different or absent in the existing permit.

14.18.1.b. Information. The Director has received information. Permits other than for Class 2 and 3 wells may be modified during their terms for this cause only if the information was not available at the time of permit issuance (other than revised rules, guidance, or test methods) and would have justified the application of different permit conditions at the time of issuance. For UIC area permits, this cause shall include any information indicating that cumulative effects on the environment are unacceptable.

14.18.1.c. New rules. The standards or rules on which the permit was based have been changed by promulgation of amended standards or rules or by judicial decision after the permit was issued. Permits other than for Class 2 or 3 wells may be modified during their terms for this cause only as follows:

14.18.1.c.1. For promulgation of amended standards or rules, when:

14.18.1.c.1.A. The permit condition to be modified was based on a State regulation requiring compliance with 40 CFR Part 146; and

14.18.1.c.1.B. The State has revised, withdrawn, or modified that portion of the regulation on which the permit condition was based.

14.18.1.c.2. For judicial decisions, a court of competent jurisdiction has remanded and stayed State promulgated rules if the remand and stay concern that portion of the rules on which the permit condition was based.

14.18.1.d. Compliance schedules. The Director determines good cause exists for modification of a compliance schedule, such as an act of God, strike, flood, or materials shortage or other events over which the permittee has little or no control and for which there is no reasonably available remedy.

14.18.1.e. For Class 6 wells. Whenever the Director determines that permit changes are necessary based on area of review reevaluations or any amendments to the testing and monitoring plan, injection well plugging plan, post injection site care and site closure plan, or emergency and remedial response plan; or a review of monitoring and/or testing results conducted in accordance with permit requirements.

14.18.2. Cause for modification or revocation and reissuance. The following are causes to modify or, alternatively, revoke and reissue a permit:

14.18.2.a. Cause exists for revocation under subsection 14.19 and the Director determines that modification or revocation and reissuance is appropriate.

14.18.2.b. The Director has received notification of a proposed transfer of the permit. A permit may also be modified to reflect a transfer after the effective date of an automatic transfer under subdivision 14.17.2. but will not be revoked and reissued after the effective date of the transfer except upon the request of the new permittee unless the permit is up for reissuance or meets a qualification for revocation under 14.19.

14.18.3. Facility siting. Suitability of the facility location will not be considered at the time of permit modification or revocation and reissuance unless new information or standards indicate that a threat to human health or the environment exists which was unknown at the time of permit issuance.

14.19. Revocation and Suspension of Permits.

14.19.1. The Director may revoke or suspend a permit during its term or deny a permit renewal application for the following causes:

14.19.1.a. Noncompliance by the permittee with any condition of the permit;

14.19.1.b. The permittee's failure in the application or during the permit issuance process to disclose fully all relevant facts, or the permittee's misrepresentation of any relevant facts at any time; or

14.19.1.c. A determination that the permitted activity endangers human health or the environment and can only be regulated to acceptable levels by permit modification or revocation. Such as the waste being injected is now a hazardous waste.

14.20. Minor Modifications of Permits. Upon the consent of the permittee, the Director may modify a permit to make the corrections or allowances for changes in the permitted activity listed in this section. Any permit modification not processed as a minor modification under this section must be made for cause and with a draft permit and public notice as required in subsection 14.18. Minor modifications may only:

14.20.1. Correct typographical errors;

14.20.2. Require more frequent monitoring or reporting by the permittee;

14.20.3. Change an interim compliance date in a schedule of compliance, provided the new date is not more than 120 days after the date specified in the existing permit and does not interfere with attainment of the final compliance date requirement;

14.20.4. Allow for a change in ownership or operational control of a facility where the Director determines that no other change in the permit is necessary, provided that a written agreement containing a specific date for transfer of permit responsibility, coverage, and liability between the current and new permittees has been submitted to the Director; or

14.20.5. Allow the following:

14.20.5.a. Change quantities or types of fluids injected which are within the capacity of the facility as permitted, and in the judgement of the Director would not interfere with the operation of the facility or its ability to meet conditions prescribed in the permit, and would not change its classification;

14.20.5.b. Change construction requirements approved by the Director pursuant to subdivision 14.7.1., provided that any such alteration shall comply with the requirements of this rule; and

14.20.5.c. Amend a plugging and abandonment plan which has been updated under subdivision 14.6.5.

14.20.5.d. Amend a Class 6 injection well testing and monitoring plan, plugging plan, post-injection site care and site closure plan, or emergency and remedial response plan where the modifications merely clarify or correct the plan.

14.21. Confidentiality of Information.

14.21.1. Any information submitted to the State pursuant to this rule may be claimed as confidential by the submitter. Any such claim must be asserted at the time of submission in the manner prescribed on the application form or instructions or, in the case of other submissions, by stamping the words "CONFIDENTIAL BUSINESS INFORMATION" on each page containing such information. If no claim is made at the time of submission, the State may make the information available to the public without further notice.

14.21.2. Claims of confidentiality for the following information will be denied:

14.21.2.a. The name and address of any permit applicant or permittee.

14.21.2.b. Information which deals with the existence, absence, or level of contaminants in drinking water.

14.22. Identification of Underground Sources of Drinking Water and Exempted Aquifers.

14.22.1. The Director may identify (by narrative description, illustrations, maps, or other means) and shall protect, except where exempted under subdivision 14.22.2. of this section, as an underground source of drinking water, all aquifers or parts of aquifer which meet the definition of an "underground source of drinking water" in section 2. Even if an aquifer has not been specifically identified by the Director, it is an underground source of drinking water if it meets the definition in section 2 or an expansion to the areal extent of an existing Class 2 EOR/EGR aquifer exemption for the exclusive purpose of Class 6 injection for geologic sequestration. Other than EPA approved aquifer exemption expansions or exemptions following 40 CFR 144.7(a), new aquifer exemptions shall not be issued for Class 6 injection wells.

14.22.2. The Director may identify (by narrative description, illustrations, maps, or other means) and describe in geographic and/or geometric terms, such as vertical and lateral limits and gradient, which are clear and definite, all aquifers or parts thereof which the Director proposes to designate as exempted aquifers using the criteria in section 3.

14.22.3. No designation of an exempted aquifer submitted as a part of a UIC Program shall be final until approved by the Director of the U.S. EPA as part of the State program.

14.22.3.a. No designation of an expansion to the areal extent of a Class 2 EOR/EGR aquifer exemption for the exclusive purpose of Class 6 injection for geologic sequestration shall be final until approved by the Director of the U.S. EPA as part of the State Program.

14.22.3.b. In order to make a request to the Director to approve an expansion to the areal extent of existing Class 2 aquifer exemptions for Class 6 wells, the owner or operator of a Class 2 EOR/EGR must define and describe all aquifers that are requested to be designated as exempted in 40 CFR 146.4. Requests must be treated as a substantial program revision under the approved State UIC program and will not be final until approved by EPA. The Director must determine that the request meets the criteria in 40 CFR 146.4 and consider: 1 - Current and potential future use of the USDWs to be exempted as drinking water resources; 2 - The predicted extent of the injected CO₂ plume and any mobilized fluids that may degrade of water quality, over the GS project lifetime, as informed by computational modeling in 14.9.3.a.; 3 - Whether the areal extent of the expanded aquifer exemption is of sufficient size to account for any possible revisions to the computational model during reevaluation of the area of review, pursuant to 14.9.5.d.; and 4 -Any information submitted to support a waiver request made by the owner or operator under 14.8.4., if appropriate.

14.22.4. For Class 3 wells, the Director shall require an applicant for a permit which necessitates an aquifer exemption under paragraph 3.1.2.a to furnish the data necessary to demonstrate that the aquifer is expected to be mineral or hydrocarbon producing. Information contained in the mining plan for the proposed project, such as a map and general description of the mining zone, general information on the mineralogy and geochemistry of the mining zone, analysis of the amenability of the mining zone to the proposed mining method, and a time-table of planned development of the mining zone shall be considered by the Director in addition to the information required by subsection 14.3.

14.22.5. For Class 2 wells, a demonstration of commercial producibility shall be made as follows:

14.22.5.a. For a Class 2 well to be used for enhanced oil recovery processes in a field or project containing aquifers from which hydrocarbons were previously produced, commercial productibility shall be presumed by the Director upon a demonstration by the applicant of historical production having occurred in the project area or field.

14.22.5.b. For Class 2 wells not located in a field or project containing aquifers from which hydrocarbons were previously produced, information such as logs, core data, formation description, formation depth, formation thickness and formation parameters such as permeability and porosity shall be considered by the Director, to the extent such information is available.

14.23. Public Access to Information.

14.23.1. Any records, reports, or information contained under this rule and any permits, permit applications, and related documentation shall be available to the public for inspection and copying in accordance with Series 8, West Virginia Legislative Rules (Freedom of Information Act); provided, however, that upon a satisfactory showing to the Director that such records, reports, permit documentation, or information (other than that listed in subdivision 14.21.2.), would, if made public, divulge methods or processes entitled to protection as trade secrets, the Director shall consider, treat and protect such records as confidential.

14.23.2. It shall be the responsibility of the person claiming information as confidential under the provisions of subdivision 14.23.1. above to clearly mark each page containing such information with the word "CONFIDENTIAL" and to submit an affidavit setting forth the reasons that said person believes that such information is entitled to protection.

14.23.3. Any document submitted to the Director which contains information for which claim of confidential information is made shall be submitted in a sealed envelope marked "CONFIDENTIAL" and addressed to the Director. The document shall be submitted in 2 separate parts. The first part shall contain all information which is not deemed by the person preparing the report as confidential and shall include appropriate cross-references to the second part which contains data, words, phrases, paragraphs, or pages and appropriate affidavits containing or relating to information which is claimed to be confidential.

14.23.4. No information shall be protected as confidential information by the Director unless it is submitted in accordance with the provisions of subdivision 14.23.3 above and no information which is submitted in accordance with the provisions of subdivision 14.23.3 above shall be afforded protection as confidential information unless the Director finds that such protection is necessary to protect trade secrets and that such protection will not hide from public view the characteristics of waste materials and probable effects of the introduction of such wastes or by-products into the environment. The person who submits information claimed as confidential shall receive written notice from the Director as to whether the information has been accepted as confidential or not.

14.23.5. All information which meets the tests of subdivision 14.23.4. above shall be marked with the term "ACCEPTED" and shall be protected as confidential information. If said person fails to satisfactorily demonstrate to the Director that such information in the form presented to him meets the criteria of subdivision 14.23.4. above, the Director shall mark the information "REJECTED" and promptly return such information to the person submitting such information.

14.23.6. Nothing contained herein shall be construed so as to restrict the release of relevant confidential information during situations declared to be emergencies by the Director or his designee.

14.23.7. Nothing in this section may be construed as limiting the disclosure of information by the Water Resources section to any officer, employee or authorized representative of the State or Federal government concerned with the State UIC program.

14.24. Public Participation in Permit Process.

14.24.1. Scope. Public notice shall be given that the following actions have occurred:

14.24.1.a. A draft permit has been prepared; or

14.24.1.b. A hearing time has been scheduled.

14.24.2. Timing.

14.24.2.a. Public notice of the preparation of the draft permit required under this section shall allow at least 30 days for public comment.

14.24.2.b. Public notice of a hearing shall be given at least 30 days before the hearing.

14.24.3. Methods. Public notice of activities described in this section shall be given by the following methods:

14.24.3.a. By mailing a copy of a notice to the following persons (any person otherwise entitled to receive notice under this paragraph may waive the right to receive notice for any classes and categories of permits):

14.24.3.a.1. The applicant;

14.24.3.a.2. Any other agency including EPA which the Director knows has issued or is required to issue a RCRA, PSD, NPDES permit for the same facility or activity;

14.24.3.a.3. Federal and State and interstate agencies with jurisdiction over fish and wildlife resources, public health, the State Historic Preservation Unit of the Department of Culture and History, and other appropriate government authorities, including any affected states;

14.24.3.a.4. Persons on a mailing list developed by:

14.24.3.a.4.A. Including those who request in writing to be on the list;

14.24.3.a.4.B. Soliciting persons for "area lists" from participants in past permit proceedings in that area; and

14.24.3.a.4.C. Notifying the public of the opportunity to be put on the mailing list through periodic publication in the public press and in appropriate publications of the State.

14.24.3.a.5. By mailing a copy to each agency having authority under State law with respect to the construction or operation of such facility and to any unit of local government having jurisdiction over the area where the facility is proposed to be located;

14.24.3.a.6. State and local oil and gas agencies for Class 6 UIC Permits.

14.24.3.b. For any permit, and all major permits, the Director shall send the public notice to the applicant who shall be responsible for publication of a Class 1 legal advertisement by a date, and in a paper specified by the Director. Upon publication, the applicant shall send the Director a copy of the certificate of publication. The costs of publication shall be borne by the applicant; and

14.24.3.c. Any other method reasonably calculated to give actual notice of the action in question to the persons potentially affected by it, including press releases or any other forum or medium to elicit public participation.

14.25. Contents of a Public Notice.

14.25.1. All public notices issued under this section shall contain the following minimum information:

14.25.1.a. Name and address of the office processing the permit action for which notice is being given.

14.25.1.b. Name and address of the permittee or permit applicant and, if different, of the facility or activity regulated by the permit.

14.25.1.c. A brief description of the business conducted at the facility described in the permit application or the draft permit.

14.25.1.d. The name, address, and telephone number of a person from whom interested persons may obtain further information, including copies of the draft permit or fact sheet, and the application.

14.25.1.e. A brief description of the comment procedures required by subsections 14.26 and 14.27 and the time and place of any hearing that will be held, including a statement of procedures to request a hearing unless already scheduled, and other procedures by which the public may participate in the final permit decision.

14.25.2. In addition to the general public notice described in subdivision 14.25.1., the public notice of a hearing shall contain the following information:

14.25.2.a. Reference to the date of previous public notices relating to the permit;

14.25.2.b. Date, time and place of the hearing; and

14.25.2.c. A brief description of the nature and purposes of the hearing, including the applicable rules and procedures.

14.25.3. In addition to the general public notice, all persons identified in subparagraphs 14.24.3.a.1., 14.24.3.a.2., and 14.24.3.a.3. shall be mailed a copy of the fact sheet, the permit application and the draft permit.

14.26. Public Comment and Requests for Public Hearings. During the public comment period provided, any interested person may submit written comments on the draft permit and may request a public hearing if no hearing has already been scheduled. A request for a public hearing shall be in writing and shall state the nature of the issues proposed to be raised in the hearing. All comments shall be considered in making the final decision and shall be answered as provided in subsection 14.30.

14.27. Public Hearings.

14.27.1. The Director shall hold a public hearing whenever he or she finds, on the basis of requests, a significant degree of public interest of issues relevant to the draft permit(s). The Director also may hold a public hearing at his or her discretion, whenever, for instance, such a hearing might clarify one or more issues involved in the permit decision.

14.27.2. Any person may submit oral or written statements and data concerning the draft permit. Reasonable limits may be set upon the time allowed for oral statements, and the submission of statements in writing may be required. The public comment period under paragraph 14.24.2.a., shall automatically be extended to 10 days after the close of any public hearing under this section.

14.27.3. A tape recording or written transcript of the hearing shall be made available to the public, upon request.

14.28. Obligation to Raise Issues and Provide Information During the Public Comment Period. All persons, including applicants, who believe any condition of a draft permit is inappropriate or that the Director tentative decision to prepare a draft permit is inappropriate, shall raise all reasonably ascertainable issues and submit all reasonably available arguments and factual grounds supporting their position, including all supporting material, by the close of the public comment period. All supporting materials shall be included in full and not be incorporated by reference, unless they are already part of the administrative record in the same proceeding, or consist of State or Federal statutes and rules, documents of general applicability, or other generally available reference materials. Submitters of comments shall make supporting material not already included in the administrative record available to the State as directed by the Director.

14.29. Reopening of the Public Comment Period.

14.29.1. If any data, information or arguments submitted during the public comment period appear to raise substantial new questions concerning a permit, the Director may take one or more of the following actions:

14.29.1.a. Prepare a new draft permit, appropriately modified;

14.29.1.b. Prepare a revised fact sheet and reopen the comment period under this section; or

14.29.1.c. Reopen or extend the comment period to give interested persons an opportunity to comment on the information or arguments submitted.

14.29.2. Comments filed during the reopened comment period shall be limited to the substantial new questions that caused its reopening. The public notice shall define the scope of the reopening.

14.30. Response to Comments.

14.30.1. Any time that any final permit is issued, the Director shall prepare a response to comments. This response shall:

14.30.1.a. Specify which provisions, if any, of the draft permit have been changed in the final permit decision, and the reasons for the change; and

14.30.1.b. Briefly describe and respond to all significant comments on the draft permit raised during the public comment period, or during any hearing.

14.30.2. The response to comments shall be available to the public.

14.31. Fact Sheet.

14.31.1. A fact sheet shall be prepared for every draft permit for a major facility or activity and for every draft permit which the Director finds is the subject of widespread public interest or raises major issues. The fact sheet shall briefly set forth the principal facts and the significant factual, legal, methodological and policy questions considered in preparing the draft permit. The Director shall send this fact sheet to the applicant and, on request, to any other person and to the persons required under subparagraphs 14.24.3.a.1., 14.24.3.a.2., and 14.24.3.a.3. A major facility is classified as such by the Regional Administrator in conjunction with the State Director.

14.31.2. The fact sheet shall include, when applicable:

14.31.2.a. A brief description of the type of facility or activity which is the subject of the draft permit;

14.31.2.b. The type and quantity of fluids, which are proposed to be or are being injected;

14.31.2.c. A brief summary of the basis for the draft permit conditions including references to applicable statutory or regulatory provisions;

14.31.2.c.1. Justified or unjustified variances;

14.31.2.d. A description of the procedures for reaching a final decision on the draft permit including:

14.31.2.d.1. The beginning and ending dates of the public comment period and the address where comments will be received;

14.31.2.d.2. Procedures for requesting a hearing and the nature of that hearing;

14.31.2.d.3. Any other procedures by which the public may participate in the final decision; and

14.31.2.d.4. Name and telephone number of a person to contact for additional information.

14.32. Draft Permits

14.32.1. Once an application is complete, the Director shall tentatively decide whether to prepare a draft permit or to deny the application.

14.32.2. If the Director decides to prepare a draft permit, it shall contain the following information:

14.32.2.a. All conditions under subsections 14.6, 14.7, and 14.12;

14.32.2.b. All compliance schedules; and

14.32.2.c. All monitoring requirements.

Figure 47-13-5

Zone of Endangering Influence

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where:

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W. Va. Code R. § 47-13-14