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Introduced Version Senate Bill 287 History

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sb287 intr
Senate Bill No. 287

(By Senators Love and Fanning)

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[Introduced February 25, 2005; referred to

the Committee on Natural Resources; then to the

Committee on Energy, Industry and Mining; and

then to the Committee on the Judiciary.]

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A BILL to amend and reenact §22-11-7b of the Code of West Virginia, 1931, as amended; and to amend and reenact §22B-3-2 and §22B-3-4 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; and continuing the authority of the Environmental Quality Board to issue remining variances.

Be it enacted by the Legislature of West Virginia:
That §22-11-7b of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that §22B-3-2 and §22B-3-4
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 session of the Legislature: Provided, That the legislative rule "Requirements Governing Water Quality Standards, 46 CSR 1" authorized by legislative enactment during the two thousand five session of the Legislature shall remain in force and effect until the Secretary amends the rule in accordance with the provisions of article three, chapter twenty-nine-a of this code.
(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 shall be held in accordance with the provisions of article nine, chapter six-a 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, chapter six-a of this code: (i) Consultations between the Department's employees or its consultants, contractors or agents; or (ii) consultations with other state or federal agencies and the Department's employees or its consultants, contractors or agents.
(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. No rule of the Secretary may 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 of the Department of Environmental Protection 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, 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.
(e) On and after the first day of July, two thousand five, all remining variances shall be applied for and considered by the Secretary.
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, article eleven, chapter twenty-two of this code are applicable to this article and have the meanings ascribed to them therein.
§22B-3-4. Remining site specific variance.
(a) In order to carry out the purposes of this chapter and chapter twenty-two of this code, the board shall promulgate legislative rules 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 be such as to protect the public health and welfare, wildlife, fish and aquatic life, and the present and prospective future uses of such water for domestic, agricultural, industrial, recreational, scenic and other legitimate beneficial uses thereof: Provided, That the director of the bureau of environment shall establish the antidegradation implementation procedures which apply to regulated activities that have the potential to affect water quality, pursuant to section seven-b, article eleven of chapter twenty-two of this code.
(b) Except for the alternate procedures provided for in subsection (c) of this section, the board shall promulgate legislative rules setting water quality standards in accordance with the provisions of article three, chapter twenty-nine-a of this code and the declaration of policy set forth in section two, article eleven, chapter twenty-two of this code.
(c) The
Until the thirtieth day of June, two thousand five, the Board may grant site specific variance only for remined areas of coal remining operation from the standards of water quality set forth in legislative rule 46 CSR 1, et seq., setting standards for iron manganese and pH prior to the issuance of a national pollutant discharge elimination system (NPDES) permit by the Division of Environmental Protection in accordance with 33 U.S.C. Section 1311(p) of the federal Water Pollution Control Act. On and after the first day of July, two thousand five, all remining variances shall be applied and considered by the Department of Environmental Protection. The standards established in the variance will exist for the term of the NPDES permit. The Board will promulgate procedural rules on granting site-specific coal remining variances in accordance with the provisions of article three, chapter twenty-nine-a of this code on or before the first day of July, one thousand nine hundred ninety-five. At a minimum, the procedures for granting or denying a remining variance will include the following: A description of the data and information to be submitted to the Board by the applicant for such variance; the criteria to be employed by the Board in its decision; and provisions for a public comment period and public hearing prior to the Board's decision. The Board 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 which requirement will be included as a permit condition. The Board 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 Board may not grant a variance where the Board determines that degradation of the instream water quality will result from the remining operation. The alternate procedures provided in this section are not subject to the legislative rule-making requirements of article three, chapter twenty-nine-a of this code.
(d) No rule of the board may specify the design of equipment, type of construction or particular method which a person shall use to reduce the discharge of a pollutant.



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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