H. B. 4454
(By Delegate Walters)
[Introduced February 13, 2004; 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 §22-25-1, §22-25-2,
§22-25-3, §22-25-4 and §22-25-5, all relating to establishing
the performance based permitting act; setting criteria to be
evaluated when applying for a permit; and rewarding compliance
with expedited permits.
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 §22-25-1, §22-25-2,
§22-25-3, §22-25-4 and §22-25-5, all to read as follows:
ARTICLE 25. PERFORMANCE BASED PERMITTING ACT.
§22-25-1. Short title.
This act shall be known as the "Performance Based Permitting
Act."
§22-25-2. Purpose.
(a) Permit applicants with a history of compliance with
environmental laws and regulations should be eligible for an
expedited permit for extended periods of time, and automatic permit
renewals.
(b) Permit applicants with a history of noncompliance with the
environmental laws and regulations shall under the normal process
of review and permit renewals can be denied for an appropriate
period of time or until the violation in resolved.
(c) Permit decision-making that considers past compliance
history and customizes the permit in recognition of that history:
(1) Increases protection of the environment because it
encourages compliance with environmental laws;
(2) Improves cost benefit to the state by allowing state
agencies to focus resources on the few in the regulated community
with a record of poor performance; and
(3) Improves stewardship of natural resources because it
allows permit applicants with a satisfactory record to focus their
resources on site and situation improvements.
(d) In order to maximize the benefit of a permit
decision-making process that recognizes an applicant's compliance
history, the evaluation of that history should be done in a
reliable and predictable manner.
It is therefore declared to be the purpose of this article to enhance the protection of the state's natural resources by
establishing and making available to the regulated community
incentives to encourage compliance and to reward those who meet or
exceed requirements; provide the department of environmental
protection with clear and specific authority to consider the
compliance history of permit applicants when implementing its
permit program; promote statewide consistency and objectivity in
the evaluation process by establishing measurable criteria for the
review of compliance history and defining the permitting process
for applicants with records of noncompliance.
§22-25-3. Definitions.
For the purpose of this section, the following terms have the
following meanings:
(a) "Applicant" means the owner or operator of a facility or
activity seeking an environmental permit, and the proposed
permittee, if different from the owner or operator of such facility
or activity. If the applicant has not held a department permit
during the five years preceding submittal of the permit
application, the term also includes any person who has the legal or
actual authority to control the owner, operator, or permittee. The
term also includes any person requesting that a permit be
transferred to them, and, if the transferee has not held a
department permit during the five years preceding submittal of the
request to transfer the permit, and person who has the legal or actual authority to control the proposed transferee.
(b) "Department" means the department of environmental
protection.
(c) "Department statutes" means chapter twenty-two of the code
of the state of West Virginia.
(d) "Site" means a single parcel or multiple, contiguous or
adjacent parcels of land on which the applicant proposes to
construct or operate, or has constructed or operated, an
installation, activity or facility for which a permit is required
under department rules. A site is a "new site" if the applicant
has not held a department permit for an installation, activity, or
facility at that location during the five years preceding
submission of an application.
§22-25-4. Application review process.
In determining whether a permit applicant has provided
reasonable assurance of compliance with applicable statutes and
department rules, the department shall consider the compliance
history of the applicant during the five years preceding submission
of a complete application to the department as a part of its permit
application review process.
If the application is for the renewal of a department permit,
or for a new permit at any site where the applicant has held a
department permit for at least five years, the department shall
consider only compliance history at this site.
§22-25-5. Criminal and civil violations.
(a) Category A.
(1)
Felony criminal violations. --
(A) The applicant has been convicted of or entered a plea of
guilty or nolo contendre to, or had adjudication withheld for, a
felony criminal violation of any environmental statute within the
last five years.
(B) For purposes of this paragraph, if the applicant is a
business entity, violations include violations committed by the
applicant's officers, directors, trustees, partners, or employees
who have legal or actual operational control over the facility for
which a permit is being sought.
(2)
Actual harm. -- The applicant is responsible for a
violation of a department statute, rule, consent order, final
order, or agreement that resulted in actual harm to human health
and environment.
(b) Category B.
(1)
Other criminal violations. --
(A) The applicant has been convicted of, or entered a plea of
guilty or nolo contendre to, or had adjudication withheld for, a
misdemeanor criminal violation of any environmental statute within
the last five years; or
(B) For purposes of this paragraph, if the applicant is a
business entity, violations include violations committed by the applicant's officers, directors, trustees, partners, or employees
who have legal or actual operational control over the facility for
which a permit is being sought.
(3)
Circumvention or falsification. --
(A) The applicant is responsible for a violation involving the
knowing submittal of any false statement, representation, or
certification in any application, record, report, plan, or other
document filed or required to be maintained by department rules,
statutes, orders, or permit conditions; or
(B) The applicant is responsible for a violation involving
falsifying, tampering with, or knowingly rendering inaccurate any
monitoring device or method required to be maintained by department
rules, statutes, orders, or permit conditions.
(C)
Actual Harm. -- Any violation of a department statute,
rule, consent order, final order or agreement that resulted in
actual harm to the environment and human health.
(c) Category C.
The applicant is responsible for a violation of a department
statute, rule, consent order, final order or agreement that
resulted in a significant risk to human health or environment.
(d) Category D.
(4)
Pattern of Noncompliance. --
Multiple violations of department statutes, rules, consent
orders, final orders or agreements that establish a pattern of noncompliance indicating that the applicant is unwilling or unable
to comply with applicable department standards and criteria.
(5)
Civil Violations. -- The department may consider all civil
violations that were committed during the relevant review period
and that resulted in the initiation of a formal enforcement action
by the department. However, if a civil violation has not been
resolved by consent order or formally adjudicated prior to the time
the department makes its determination on the application, the
civil violation must be established by appropriate evidence in any
subsequent proceeding challenging the department's proposed action.
In all such proceedings:
(A) The permit applicant has the initial burden in any
proceeding challenging the proposed agency action of establishing
a prima facie case that it has provided reasonable assurance and is
entitled to the permit;
(B) The department, or any party seeking to establish
violations under this subsection then has the burden of presenting
by appropriate evidence a prima facie case supporting the
violations it contends warrant denial of the permit.
(6)
Factors to Consider. -- If the department determines that
the applicant has a history of compliance or there is no evidence
of noncompliance, the department shall consider the applicant
eligible for an expedited process for permit approval for a period
of five years.
If the department determines that the applicant is responsible
for any Category A, B, C or D violations, the department shall
initiate a further review. The following factors shall be
considered in order to evaluate such violations in the context of
the applicant's overall performance history, and to determine
whether the applicant has provided reasonable assurance of future
compliance with department rules and statutes;
(A) The number of violations and the seriousness of the
violations;
(B) The number of other facilities controlled by the applicant
that have violations and the types of permits authorizing
activities of those facilities;
(C) The extent to which the violations involved activities
that are the same as or similar to the activity for which a permit
is being requested;
(D) The extent to which the applicant has resolved or in good
faith participated in a process to resolve any previous violations
by the applicant; and
(E) Whether the applicant has developed an internal compliance
program designed to eliminate or reduce the likelihood of similar
violations reoccurring.
(7)
Actions. -- After considering the applicant's compliance
history, including any mitigating factors, the department may, in
its discretion, take one or more of the following actions:
(A) Issue a permit for a period of five years or issue renewal
of permit for a period of five years.
(B) Issue a permit for a period of five years with special
conditions that address compliance issues.
(C) Issue a permit with an accompanying administrative order.
The administrative order may include a schedule for coming into
compliance with department rules statues, orders or permit
conditions, additional operating, training, or auditing procedures
necessary to assure compliance, specified penalties for future
noncompliance for a period of five years.
(D) Issue a permit with a duration of less than five years, if
not prohibited by federal law.
(8)
Permit Denial. -- In addition to the provisions of
subsection (7) of this section, the department may, in its
discretion, deny a permit application in accordance with the
following:
(A) If the applicant is responsible for a Category A
violation, the department may deny the permit application, and the
applicant may not be entitled to apply for a permit for that
installation, activity, or facility for a period of one year from
the time a final order denying the permit has been entered.
(B) If the applicant is responsible for two or more Category
B violations, the department may deny the permit application, and
the applicant may not be entitled to apply for a permit for that installation, activity, or facility for a period of six months from
the time a final order denying the permit has been entered.
(9)
Compliance Incentives. -- Any applicant who meets the
criteria set forth below is eligible for the following incentives
unless otherwise prohibited by state or federal statute, department
rule, or federal regulation, and provided that the applicant meets
all other applicable criteria for the issuance of a permit.
(e)
Tier I. - An applicant is eligible for these incentives
if the applicant operated the installation, facility or activity
for at least two years or, if it is a new installation, facility,
or activity, the applicant must have operated a similar
installation, facility or conducted a similar activity under a
department permit for at least two years and the applicant must
have not been responsible for any Category A, B, C or D violations.
(1)
Extended permit. - A renewal of an operation or closure
permit, which may include expansions or modifications involving
construction, shall be issued for a period of five years without
agency action under the following conditions:
(A) At least one hundred eighty days prior to the end of the
first five-year period, the applicant shall complete and submit
the application to the department. Within thirty days after
submission, the department shall conduct a review of the compliance
history of the applicant and shall determine whether the applicant
continues to meet the criteria set forth in subsection (e) of this section.
(B) The department shall conduct at least one public hearing
within sixty days of submittal of the application to allow the
public the opportunity to present concerns regarding the compliance
history of the applicant.
(C) If the applicant no longer meets the criteria set forth in
paragraph (A) of this subsection, the department shall deny the
automatic permit renewal, and shall require the applicant to submit
a permit renewal application in accordance with applicable
department statutes and rules.
(D) If the applicant seeks to transfer the extended permit to
another entity, the transferee shall submit the application for
transfer. If the department determines that the transferee has met
the criteria set forth in paragraph (A) of this subsection over the
previous five years, and if the transfer complies with all other
applicable criteria, the department shall agree to the transfer of
the extended permit.
(f)
Tier 2. - An applicant is eligible for these incentives
if the applicant meets the same requirements as for Tier 1
described in paragraph (A), and must have implemented an
environmental management system which results in performance
surpassing the department's minimum compliance standards.
(1) Extended permits and short-form renewal applications.
(2) Fewer routing inspections.
(3) Expedited review of requests for permit modifications.
(4) Other incentives as may be provided by the department
which may include secretarial recognition or program-specific
incentives.
NOTE: The purpose of this bill is to establish the
performance based permitting act. This act rewards compliance with
environmental laws by expediting the permit process, and
establishing criteria for evaluating the performance of applicants.
This article is new; therefore, strike-throughs and
underscoring have been omitted.