H. B. 2325
(By Delegate Walters)
[Introduced February 14, 2005; referred to the
Committee on the Judiciary.]
A BILL to amend the code of West Virginia, 1931, as amended, by
adding thereto a new article, designated §22-5A-1, §22-5A-2
and §22-5A-3, all relating to establishing the West Virginia
Protection of Air Quality Related Values Act.
Be it enacted by the Legislature of West Virginia:
That the code of West Virginia, 1931, as amended, be amended
by adding thereto a new article, designated §22-5A-1, §22-5A-2 and
§22-5A-3, all to read as follows:
ARTICLE 5A. WEST VIRGINIA PROTECTION OF AIR QUALITY RELATED
VALUES ACT.
§22-5A-1. Title.
This article is known and referred to as the West Virginia
Protection of Air Quality Related Values.
§22-5A-2. Definitions.
(a) "Air quality-related value" means a feature or property of a Class I federal area that was fundamental to the purpose for
which the area was established or designed and which may be
affected by air pollution, including, but not limited to, flora,
fauna, geologic features and cultural resources.
(b) "Class I" means an area of land that has been designed as
Class I under section 162 of the Federal Clean Air Act.
(c) "Scientifically reliable evidence" means evidence shown by
a methodology that is generally accepted within the relevant
scientific community, that has been subjected to peer review and
publication; is capable of and has been tested; is subject to
established control standards of performance and has a known or
potential rate of error that is within a range acceptable to the
relevant scientific community.
§22-5A-3. Demonstrations of adverse impact on air quality related
values.
The Director of the Division of Environmental Protection is
authorized to represent the state as provided in this section when
assessing demonstrations submitted by a federal land manager under
section 165(d)(2)(C)(ii) of the Federal Clean Air Act.
(1) When a federal land manager sends a written demonstration
to the Division of Environmental Protection under the authority of
section 165(d)(2)(C)(ii) of the Federal Clean Air Act alleging that
emissions of a criteria pollutant from a proposed major new source
or a major modification of a source will have an adverse impact on any specifically defined air quality-related value of a Class I
area, the Division of Environmental Protection shall concur in the
demonstration only if the demonstration establishes the following
by a preponderance of the evidence:
(A) For an area that was designated as Class I under section
162 of the Federal Clean Air Act, that emissions of a specific
criteria pollutant from the proposed new source or modification
will result in a significant, actual adverse impact on an air
quality-related value that was fundamental to the purpose for which
the area was established and preserved by Congress;
(B) For an area that was redesignated as Class I under section
164 of the Federal Clean Air Act, that emissions of a criteria
pollutant from the proposed new source or modification will result
in a significant, actual adverse impact on an air quality-related
value that was considered an important attribute in the decision to
redesignate the area as Class I; or
(C) That an adverse effect of any specific pollutant on any
specific air quality-related value is established by evidence that
is scientifically reliable and which demonstrates the alleged
adverse effect will result from concentrations that are likely to
occur as a result of emissions into the ambient air.
(2) To be considered by the Division of Environmental
Protection, a demonstration under subsection (i) of this section
must be received by the Division of Environmental Protection, no later than thirty days after the mailing of written notice to the
federal land manager of any permit application for a proposed major
source or major modification.
(3) The Division of Environmental Protection shall determine
within thirty days of receipt of a demonstration made under
subsection (i) of this section whether the demonstration meets the
requirements of that subsection. The Division of Environmental
Protection shall notify the Federal Land Manager and the
owner/operator of the proposed new major stationary source or
modification within ten days, in writing, of that determination.
If the Division of Environmental Protection determines that the
proposed new major source or major modification will have a
significant adverse impact on an air quality-related value, a
permit may not be issued unless that owner/operator of the proposed
new major source or modification demonstrates to the Division of
Environmental Protection that it has mitigated that adverse impact
by obtaining enforceable and permanent emissions reductions to
offset the adverse impact. The owner/operator has the burden of
establishing the sufficiency of the mitigation by reliable
scientific evidence. The Division of Environmental Protection's
determination is an appealable agency action subject to appeal by
the owner/operator of the proposed new major source or major
modification under the provisions of the Division of Environmental
Protection.
NOTE: The purpose of this bill is to establish the West
Virginia Protection of Air Quality Related Values Act
. This Act
establishes the procedures to evaluate claims by the Federal Land
Managers on air quality related values.
This article is new; therefore, strike-throughs and
underscoring have been omitted.
Email
Webmaster | © 2024 West Virginia Legislature **
