WEST virginia Legislature
2017 regular session
Introduced
House Bill 2506
By Delegates Zatezalo, Foster, G., Kessinger, Summers, Atkinson, Ambler, Phillips, Westfall and Miley
[Introduced February 16,
2017; Referred
to the Committee on the Judiciary.]
A BILL to amend and reenact §22-11-7b and §22-11-11 of the Code of West Virginia, 1931, as amended, all relating to the implementation of water quality standards for the protection of drinking water; requiring permits limits to be calculated using design flows recommended by the United States Environmental Protection Agency for protection of human health; requiring the Secretary of the Department of Environmental Protection to propose emergency revisions to its water quality standards; and providing that draft permits and fact sheets are to be made available to permit applicants prior to public notice of the issuance or reissuance of any permit.
Be it enacted by the Legislature of West Virginia:
That §22-11-7b and §22-11-11 of the Code of West Virginia, 1931, as amended, be amended and reenacted, all to read as follows:
ARTICLE 11. WATER POLLUTION CONTROL ACT.
§22-11-7b. Water quality standards; implementation of antidegradation procedures; procedure to determine comp1iance with the biologic component of the narrative water quality standard.
(a) All authority to
promulgate to propose rules for legislative approval and
implement water quality standards is vested in the Secretary of the Department
of Environmental Protection.
(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 rules 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
propose rules for legislative approval 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. For implementing human
health criteria for the protection of drinking water, permit limits shall be
calculated using design flows recommended by the United States Environmental
Protection Agency for protection of human health in chapter four of its
Technical Support Document for Water Quality-based Toxics Control (1991), and
the point of compliance for a permittee’s discharge shall be determined at the
downstream boundary of an unrestricted (no limitation of spatial area or
overlapping discharges) mixing of the discharge and the receiving stream that
extends to, but not beyond, a point one-half mile upstream of a public water
supply, unless the public water supply agrees in writing to an extension of the
mixing zone to a point no less than five hundred yards upstream of its intake.
The secretary shall propose emergency revisions to its water quality standards
to implement the design flows and mixing zone requirements for implementation
of human health criteria for the protection of drinking water.
(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. Any final classification determination of a water as a Tier 2.5 water (Water of Special Concern) does not become effective until that determination is approved by the Legislature through the legislative rule-making process as provided in article three, chapter twenty-nine-a of the code.
(e) All remining variances
shall be applied for and considered by the secretary and any variance granted
shall be consistent with 33 U. S. C. Section 1311(p) of the Federal Water
Control Act. 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 by applying best available technology economically achievable using
best professional judgment. Any such requirement will shall 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.
(f) The secretary shall
propose rules measuring compliance with the biologic component of West
Virginia's narrative water quality standard requires evaluation of the holistic
health of the aquatic ecosystem and a determination that the stream: (i)
Supports a balanced aquatic community that is diverse in species composition;
(ii) contains appropriate trophic levels of fish, in streams that have flows
sufficient to support fish populations; and (iii) the aquatic community is composed
of benthic invertebrate assemblages sufficient to perform the biological
functions necessary to support fish communities within the assessed reach, or,
if the assessed reach has insufficient flows to support a fish community, in
those downstream reaches where fish are present. The secretary shall propose
rules for legislative approval in accordance with the provisions of
article three, chapter twenty-nine-a of this code that implement the provisions
of this subsection. Rules promulgated pursuant to this subsection may not
establish measurements for biologic components of West Virginia's narrative
water quality standards that would establish standards less protective than
requirements that exist at the time of enactment of the amendments to this subsection
by the Legislature during the 2012 regular session.
§22-11-11. Procedure concerning permits required under article; transfer of permits; prior permits.
(a) The chief or his or her
duly authorized representatives shall conduct such investigations as
is deemed considered necessary and proper in order to determine
whether any such application should be granted or denied. In making such
the investigation and determination as to any application pertaining
solely to sewage, the chief shall consult with the director of the office of
environmental health services of the state bureau of public health, and in
making such the investigation and determination as to any
application pertaining to any activity specified in subdivision (7), subsection
(b), section eight of this article, the chief shall consult with the director
of the state geological and economic survey and the chief of the office of oil
and gas of the division, and all such these persons shall
cooperate with the chief and assist him or her in carrying out the duties and
responsibilities imposed upon him or her under the provisions of this
article and the rules of the director and board; such the cooperation
shall include, but not be limited to, a written recommendation approving or
disapproving the granting of the permit and the reason or reasons for such
the recommendation, which recommendation and the reason or reasons
therefor shall be submitted to the chief within the specified time period
prescribed by rules of the director.
(b) The division's permit
shall be issued upon such reasonable terms and conditions as the chief may
direct if (1) the application, together with all supporting information and
data and other evidence, establishes that any and all discharges or releases,
escapes, deposits and disposition of treated or untreated sewage, industrial
wastes or other wastes, or the effluent therefrom, resulting from the activity
or activities for which the application for a permit was made will not cause
pollution of the waters of this state or violate any effluent limitations or
any rules of the board or director: Provided, That the chief may issue a
permit whenever in his or her judgment the water quality standards of the state
may be best protected by the institution of a program of phased pollution
abatement which under the terms of the permit may temporarily allow a limited
degree of pollution of the waters of the state; and (2) in cases wherein it is
required, such the applicant shall include the name and address
of the responsible agent as set forth in subsection (e), section six, article
six of this chapter.
(c) Each permit issued under this article shall have a fixed term not to exceed five years: Provided, That when the applicant, in accordance with agency rules, has made a timely and complete application for permit reissuance, the permit term may be extended by the chief, at his or her discretion. An extension may be granted for a period not to exceed twelve months beyond its expiration date. Successive extensions may be granted for periods not to exceed twelve months if the chief determines additional time is necessary in order to process the application for permit reissuance. Upon expiration of a permit, a new permit may be issued by the chief upon condition that the discharges or releases, escapes, deposits and disposition thereunder meet or will meet all applicable state and federal water quality standards, effluent limitations and all other requirements of this article.
(d) An application for a
permit incident to remedial action in accordance with the provisions of section
sixteen of this article shall be processed and decided as any other application
for a permit required under the provisions of section eight of this
article.
(e) A complete application for any permit shall be acted upon by the chief, and the division's permit delivered or mailed, or a copy of any order of the chief denying any such application delivered or mailed to the applicant by the chief, within a reasonable time period as prescribed by rules of the director: Provided, That a permit for which a timely application for renewal has been submitted shall be reissued on or before the expiration date of the existing permit. For permits to be issued in accordance with the National Pollutant Discharge Elimination System, the public and applicant shall receive notice of the availability of a draft permit and fact sheet no less than forty-five days prior to the issuance or reissuance of any permit. At least forty-five days prior to the public notice, the Secretary shall ensure that the draft permit and fact sheet are available to the applicant for review and, if requested by the applicant, the secretary shall meet and confer with the applicant regarding the draft permit and fact sheet prior to public notice.
(f) When it is established
that an application for a permit should be denied, the chief shall make and
enter an order to that effect, which order shall specify the reasons for such
the denial, and shall cause a copy of such the order to be
served on the applicant by registered or certified mail. The chief shall also
cause a notice to be served with a copy of such the order, which
notice shall advise the applicant of the right to appeal to the board by filing
a notice of appeal on the form prescribed by the board for such that
purpose, with the board, in accordance with the provisions of, and
within the time specified in, section seven, article one, chapter twenty-two-b
of this code. However, an applicant may alter the plans and specifications for
the proposed activity and submit a new application for any such permit, in
which event the procedure hereinbefore outlined with respect to an original
application shall apply applies.
(g) A permit is
transferable to another person upon proper notification to the chief and in
accordance with applicable rules. Such A transfer does not become
effective until it is reflected in the records of the office of water
resources.
(h) All permits for the
discharge of sewage, industrial wastes or other wastes into any waters of the
state issued by the water resources board prior to July 1, 1964, and all
permits heretofore issued under the provisions of former article five-a,
chapter twenty of this code, and which have not been heretofore revoked, are
subject to review, revocation, suspension, modification and reissuance in
accordance with the terms and conditions of this article and the rules
promulgated thereunder. Any order of revocation, suspension or modification
made and entered pursuant to this subsection shall be upon at least twenty
days' notice and shall specify the reasons for such revocation, suspension or
modification and the chief shall cause a copy of such order, together with a
copy of a notice of the right to appeal to the board as provided for in section
twelve of this article, to be served upon the permit holder as specified in
said section twelve.
NOTE: The purpose of this bill, in the implementation of water quality standards for the protection of drinking water; is to require permits limits to be calculated using design flows recommended by the United States Environmental Protection Agency for protection of human health. The bill requires the Secretary of the Department of Environmental Protection to propose emergency revisions to its water quality standards. And, the bill also provides that draft permits and fact sheets are to be made available to permit applicants prior to public notice of the issuance or reissuance of any permit.
Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.