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SB287 SUB1 Senate Bill 287 History

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SB287 SUB1
COMMITTEE SUBSTITUTE

FOR

Senate Bill No. 287

(By Senators Love and Fanning)

____________

[Originating in the Committee on the Judiciary;

reported March 25, 2005.]

____________


A BILL to repeal §22B-3-4 of the Code of West Virginia, 1931, as amended; to amend and reenact §22-11-7b of said code; to amend and reenact §22-12-4 of said code; and to amend and reenact §22B-3-2 of said code, all relating to water quality standards generally; transferring authority to propose rules relating to water quality standards from the Environmental Quality Board to the Department of Environmental Protection; providing that the current rule remains in force and effect until amended by the Department of Environmental Protection; establishing some requirements for water protection; providing that meetings to develop water quality standards be open with certain exceptions; authorizing the Department of Environmental Protection to consider remining variances; authorizing the Secretary to promulgate standards of purity and quality for groundwater; establishing the maximum containment levels permitted for groundwater; providing that the current ground water standard remains in effect until modified by the Secretary.

Be it enacted by the Legislature of West Virginia:
That §22B-3-4
of the Code of West Virginia, 1931, as amended, be repealed, ; that §22-11-7b of said code be amended and reenacted; that §22-12-4 of said code be amended and reenacted; and that §22B-3-2 of said code be amended and reenacted, all to read as follows:
CHAPTER 22. ENVIRONMENTAL RESOURCES.

ARTICLE 11. WATER POLLUTION CONTROL ACT.
§22-11-7b. Water quality standards; implementation of antidegradation procedures.

(a) The director of the bureau of the environment shall establish the antidegradation implementation procedures as required by 40 C.F.R. 131.12(a) which apply to regulated activities that have the potential to affect water quality. The director shall propose for legislative approval pursuant to article three, chapter twenty-nine-a of the code, emergency and legislative rules to establish implementation procedures which include specifics of the review depending upon the existing uses of the water body segment that would be affected, the level of protection "tier" assigned to the applicable water body segment, the nature of the activity, and the extent to which existing water quality would be degraded.
(b) The legislative rule filed by the environmental quality board as 46 CSR 1 in the state register on the first day of September, two thousand, authorized under the authority of section four, article three, chapter twenty-two-b, of this code, as amended by the Legislature during the two thousand one legislative session, establishes standards of water quality for waters of the state. Appendices F, F-1, F-2 and F-3 of the rule contain the antidegradation implementation procedures for the state. The authority and responsibility to develop and implement antidegradation procedures for West Virginia is effective the first day of July, two thousand one, transferred from the environmental quality board to the director. The provisions of Appendices F, F-1, F-2 and F-3 shall remain in full force and effect as if promulgated by the director until such time as the director files the rules authorized herein. The initial rule filed by the director shall contain the same provisions as Appendices F, F-1, F-2 and F-3, 46 CSR 1 approved by the Legislature during the two thousand one regular session. Notwithstanding any provision of the code to the contrary, the initial rule filed by the director shall be effective from filing.
(a) All authority to promulgate rules and implement water quality standards vested in the Environmental Quality Board is hereby transferred from the Environmental Quality Board to the Secretary of the Department of Environmental Protection as of the effective date of the amendment and reenactment of this section during the two thousand five regular session of the Legislature: Provided, That the legislative rule containing the state's water quality standards shall remain in force and effect as if promulgated by the Department of Environmental Protection until the Secretary amends the rule in accordance with the provisions of article three, chapter twenty-nine-a of this code. Any proceedings, including notices of proposed rulemaking pending before the Environmental Quality Board, and any other functions, actions or authority transferred to the Secretary shall continue in effect as actions of the Secretary.
(b) All meetings with the Secretary or any employee of the Department and any interested party which are convened for the purpose of making a decision or deliberating toward a decision as to the form and substance of the rule governing water quality standards or variances thereto shall be held in accordance with the provisions of article nine-a, chapter six of this code. When the Secretary is considering the form and substance of the rule governing water quality standards, the following are not meetings pursuant to article nine-a, chapter six of this code: (i) Consultations between the Department's employees or its consultants, contractors or agents; (ii) consultations with other state or federal agencies and the Department's employees or its consultants, contractors or agents, or (iii) consultations between the Secretary, the Department's employees or its consultants, contractors or agents with any interested party for the purpose of collecting facts and explaining state and federal requirements relating to a site specific change or variance.
(c) In order to carry out the purposes of this chapter, the Secretary shall promulgate legislative rules in accordance with the provisions of article three, chapter twenty-nine-a of this code setting standards of water quality applicable to both the surface waters and groundwaters of this state. Standards of quality with respect to surface waters shall protect the public health and welfare, wildlife, fish and aquatic life and the present and prospective future uses of the water for domestic, agricultural, industrial, recreational, scenic and other legitimate beneficial uses thereof. The water quality standards of the Secretary may not specify the design of equipment, type of construction or particular method which a person shall use to reduce the discharge of a pollutant.

(d) The Secretary shall establish the antidegradation implementation procedures as required by 40 C. F. R. 131.12(a) which apply to regulated activities that have the potential to affect water quality. The Secretary shall propose for legislative approval, pursuant to article three, chapter twenty-nine-a of the code, legislative rules to establish implementation procedures which include specifics of the review depending upon the existing uses of the water body segment that would be affected, the level of protection or "tier" assigned to the applicable water body segment, the nature of the activity and the extent to which existing water quality would be degraded.
(e) All remining variances shall be applied for and considered by the Secretary.
At a minimum, when considering an application for a remining variance the Secretary shall consider the data and information submitted by the applicant for the variance; and comments received at a public comment period and public hearing. The Secretary may not grant a variance without requiring the applicant to improve the instream water quality as much as is reasonably possible and economically feasible by applying best available technology and professional judgment. Any such requirement will be included as a permit condition. The Secretary may not grant a variance without a demonstration by the applicant that the coal remining operation will result in the potential for improved instream water quality as a result of the remining operation. The Secretary may not grant a variance where he or she determines that degradation of the instream water quality will result from the remining operation.
ARTICLE 12. GROUNDWATER PROTECTION ACT.

§22-12-4. Authority of Secretary to promulgate standards of purity and quality.

(a) The environmental quality board Secretary has the sole and exclusive authority to promulgate standards of purity and quality for groundwater of the state. and shall promulgate such standards following a public hearing within one year from the effective date of this article, by legislative rules in accordance with the provisions of chapter twenty-nine-a of this code.
(b) Such These standards shall establish the maximum contaminant levels permitted for groundwater, but in no event shall the standards allow contaminant levels in groundwater to exceed the maximum contaminant levels adopted by the United States Environmental Protection Agency pursuant to the federal Safe Drinking Water Act. The board Secretary may set standards more restrictive than the maximum contaminant levels where it finds that such standards are necessary to protect drinking water use where scientifically supportable evidence reflects factors unique to West Virginia or some area thereof, or to protect other beneficial uses of the groundwater. For contaminants not regulated by the federal Safe Drinking Water Act, standards for such contaminants shall be established by the board Secretary to be no less stringent than may be reasonable and prudent to protect drinking water or any other beneficial use. Where the concentration of a certain constituent exceeds such standards due to natural conditions, the natural concentration is the standard for that constituent. Where the concentration of a certain constituent exceeds such standard due to human-induced contamination, no further contamination by that constituent is allowed and every reasonable effort shall be made to identify, remove or mitigate the source of such contamination and to strive where practical to reduce the level of contamination over time to support drinking water use.
(c) The standards of purity and quality for groundwater promulgated by the board Secretary shall recognize the degree to which groundwater is hydrologically connected with surface water and other groundwater and such standards shall provide protection for such surface water and other groundwater.
(d) In the promulgation of such standards the board Secretary shall consult with the division of environmental protection, Department of Agriculture and the Bureau for Public Health, as appropriate.
(e) Any groundwater standard of the board
that is in effect on the effective date of this article shall remain in effect until modified by the board Secretary . Notwithstanding any other provisions of this code to the contrary, the authority of the board Secretary to adopt standards of purity and quality for groundwater granted by the provisions of this article is exclusive, and to the extent that any other provisions of this code grant such authority to any person, body, agency or entity other than the board Secretary , those other provisions are void.
CHAPTER 22B. ENVIRONMENTAL BOARDS.

ARTICLE 3. ENVIRONMENTAL QUALITY BOARD.
§22B-3-2. Authority of board; additional definitions.

(a) In addition to all other powers and duties of the Environmental Quality Board, as prescribed in this chapter or elsewhere by law, the Board has and may exercise the powers and authorities:
(1) To receive any money as a result of the resolution of any case on appeal which shall be deposited in the State Treasury to the credit of the Water Quality Management Fund created pursuant to section ten, article eleven, chapter twenty-two of this code.
(2) To advise, consult and cooperate with other agencies of the state, political subdivisions of the state, other states, agencies of the federal government, industries and with affected groups and take such other action as may be appropriate in regard to its rule-making authority; and
(3) To encourage and conduct such studies and research relating to pollution control and abatement as a board may deem advisable and necessary in regard to its rule-making authority.

(b) All the terms defined in section two three, article eleven, chapter twenty-two of this code are applicable to this article and have the meanings ascribed to them therein.

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(NOTE: The purpose of this bill is to transfer the authority to propose a legislative rule governing the water quality standards from the Environmental Quality Board to the Department of Environmental Protection while preserving the open process by which the rule has traditionally been developed.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.
)
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