W. Va. Code R. § 38-18-19

Current through Register Vol. XLI, No. 24, June 14, 2024

Section 38-18-19 - Water Supply Testing

19.1 Testing Obligations and Rights.

19.1.1 At the request of the owners of record of the surface tract as defined in W.Va. Code § 22B-1-9 or an occupant of land within one thousand feet (1000) of the proposed well, the operator shall sample and analyze, in accordance with this section, water from any wells or springs located within one thousand (1000) feet of the proposed well that is actually utilized by such owner or occupant for human consumption, domestic animals, or other general use.

19.1.2 If no request is made of the operator pursuant to the previous subsection, the operator shall sample and analyze in accordance with this section water from any one known and existing well or spring within one thousand (1000) feet of the proposed well If more than one such well or spring exists, the operator shall select for sampling and analysis the one well or spring that, in the operator's judgement, has the highest potential for being influenced by the operator's well work.

19.1.3. If for any reason the operator is unable to sample and to analyze water from any such water wells or springs within one thousand (1000) feet of the operator's proposed well, the Chief may require the operator to sample and to analyze in accordance with this section water from one existing water well or spring located between one thousand (1000) and two thousand (2000) feet from the operator's proposed well.

19.1.4. At an operator's discretion, any or all water wells or springs within one thousand (1000) feet of operator's proposed well may be sampled and analyzed in accordance with this section.

19.2 Notice.

19.2.1. Surface Owner - The operator shall give notice to the owner of record of the surface tract as defined in W. Va. Code § 22B-1-9 of the right of the user who is either an owner or occupant to request the operator to sample and analyze a well or spring in accordance with subsection 19.1.1 of this Section. The operator shall be deemed to have satisfied this requirement if notice is provided by the same methods utilized in conjunction with the permit application.

19.2.2. Generally - The operator shall make a reasonable attempt to give additional notice of the right to request the operator to sample and analyze a well or spring in accordance with subsection 19.1.1 of this section. The operator will be deemed to have satisfied this requirement if notice is provided by any of the following methods

19.2.2.1. By personal service or by posting of notice at the entrance to any dwellings located within one thousand (1000) feet and at any other locations within one thousand (1000) feet of the operator's proposed well where the use of such water wells and springs is conspicuous;

19.2.2.2. Mailing of notice to dwellings located within one thousand (1000) feet of the operator's proposed well and posting at any other locations within one thousand (1000) feet of the operator's proposed well where the use of such water wells and springs is conspicuous;

19.2.2.3. By any other means reasonably calculated by the Chief to provide adequate notice to the occupant/user.

19.2.3. Form - The notice provided by the operator in accordance with this section shall be in a form approved by the Chief, which, at a minimum, shall contain a statement of such user's right to request such sampling and analysis, advise such users of the independent right to sample and analyze any water supply at the expense of the user, advise such users as to whether the operator will utilize an independent laboratory, or not, to analyze any sample, and to advise such users of the availability through the Chief of a list of laboratories.

19.2.4. Timing - For all wells, such notice shall be given at least forty-eight (48) hours prior to the commencement of well drilling. For well drilling permitted after August 1, 1993, the operator shall provide such notice prior to the time of the filing of any permit application with the Chief.

19.2.5 Filing with the Chief - At the time of the filing with the Chief of the permit application for well drilling, the operator shall file with the Chief a statement describing whether any such users were identified and the manner in which any such users were provided with notice.

19.3 Sampling and Analysis.

19.3.1. Approved Methods - The operator shall collect and analyze samples in accordance with methods approved by the Chief or set forth at 40 CFR Part 136.

19.3.2 Parameters - The operator shall analyze samples for the following parameters:

19.3.2.1. pH,

19.3.2.2. iron,

19.3.2.4. total dissolved solids,

19.3.2.5. chloride,

19.3.2.5. detergents (MBAS), and

19.3.2.6. any others parameters as determined by the operator.

19.3.3. Laboratories - The laboratory utilized by the operator shall be approved by the Chief as being capable of performing sample analyses in accordance with this section.

19.3.4. Distribution of Results - The operator shall, no later than thirty (30) days after receipt of such sample analysis provide the results of such sample analysis in writing to the Chief, and any of the users who may have requested such analysis in accordance with this section.

19.3.5. Certification of Results - The submission of analytical results on behalf of the operator pursuant to subsection 19.3.4. shall be made by a responsible operator representative or contractor knowledgeable of, and responsible for, the sampling and analysis of such samples who shall make the following certification:

I certify under penalty of law that this document and all attachments were prepared under my direction or supervision in accordance with a system designed to assure that qualified personnel properly gather and evaluate the information submitted. Based on my inquiry of the person or persons who manage the system, or those persons directly responsible for gathering the information, the information submitted is to the best of my knowledge and belief, true, accurate, and complete. I am aware that there are significant penalties for submitting false information, including the possibility of fine and imprisonment for knowing violations.

19.4 Operators Right of Entry.

19.4.1. After notice as required by this section, the operator (or any other contractor or laboratory directed by the operator to collect samples of water for analysis by this section) may enter onto land upon which a water well or spring is located to conduct sampling as authorized by Section 19.1. This right of entry may be exercised for this purpose without the permission of the landowner or water or spring users.

19.4.2. If any owner of the land or use of the water well or spring protests or acts to block the right of entry, then the right of entry may be enforced by a court with jurisdiction to enter an injunction regarding the land upon which the source or supply is located. However, if any person acts to block the right of entry provided herein, the operator is not required to enforce this right of entry and shall not be liable for any penalty or loss of rights, privileges or permits based on the failure to exercise the right of entry and obtain the water sample otherwise required by this section.

19.4.3. If the operator or contractor does not enter onto land and obtain a water test because of a protest or action to block the operator or contractor's entry, the protest or action to block entry shall be admissible as evidence in an action between the operator and any landowner or water well or spring user in which the results of the test would have been relevant.

19.4.4. The operator is liable for any reasonable actual damages done, other than normal wear and tear of the property, while gathering the sample required by this section. This provision does not limit other provisions of the law.

W. Va. Code R. § 38-18-19