Senate Bill No. 245

(By Senators Withers, Holliday, Macnaughtan and Grubb)

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(Introduced February 2, 1994;

referred to the Committee on Natural Resources;

and then to the Committee on Finance.]

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A BILL to amend chapter twenty-two of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new article, designated article one-a, relating to the environmental quality act; purposes and findings; definitions; requiring state entities to develop environmental impact reports, exemptions, findings of no significant impact, substitution with environmental impact statements prepared in accordance with the national environmental policy act, lead and cooperating agency determinations and responsibilities; environmental impact report process, purpose and timing, scoping, lead agency directives; preparation stages of drafts, supplements and final reports; format for reports; directing solicitation of and responses to public comments; directing agencies to prepare a public record of decision for each approved project; requiring notice of environmental impact reports prior to agency decisions on projects; fees; preparation of environmental impact reports by private entities;
certification of regulatory programs; agency directives for requesting project funds, determining budgets for environmental protection, reviewing statutory authority, policies and procedures to comply with this article; appeals process; judicial review; citizen reports; severability; and applicability.
Be it enacted by the Legislature of West Virginia:
That chapter twenty-two of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended by adding thereto a new article, designated article one-a, to read as follows:
ARTICLE 1A. STATE ENVIRONMENTAL QUALITY ACT.

§22-1A-1. Legislative findings and purpose.

(a) The Legislature finds that:
(1) The division of environmental protection policy statements and structure of article one, chapter twenty-two of this code provide:
(A) Guidance for the establishment of a centralized and comprehensive agency charged with implementing the environmental protection programs of the state;
(B) Opportunity for public participation in the development and execution of state environmental programs; and
(C) Direction toward an integrated and interdisciplinary approach to decision-making.
(2) Mechanisms for environmental review and public participation in state agency actions and decision-making that may impact the environment are currently inadequate or nonexistent.
(3) State agency actions should be subject to and would benefit from environmental review and public participation in view of the established state policy regarding the division of environmental protection.
(4) Statutory provisions are needed to ensure that the actions of all state agencies are consistent with the policy and goals of article one, chapter twenty-two of this code.
(5) The National Environmental Policy Act of 1969, which governs federal actions, provides a well-tested and feasible framework to guide establishment of similar provisions at the state level and should be relied upon in interpreting similar requirements of this Act.
(6) Fifteen states have also enacted similar provisions.
(b) The purposes of this article are:
(1) To establish statutory mechanisms for environmental review of state-sponsored or state-funded actions that have the potential to impact the environment;
(2) To provide for certification of state regulatory programs in order to assure protection of the environment while avoiding unnecessary duplication consistent with the established policy of the division of environmental protection;
(3) To ensure that such review will be used as part of the decision-making process for all such state agency actions;
(4) To provide for public participation in the environmental review and decision-making process for such actions;
(5) To ensure integration of state regulatory programs for projects in which more than one regulatory program is involved;
(6) To enhance the accountability of state agencies to thepublic by requiring agencies to analyze and disclose the impacts of their actions to the public;
and
(7) To require state agencies to consider qualitative factors, as well as economic and technical factors, long-term benefits and costs, in addition to short-term benefits and costs, and to consider alternatives to proposed actions affecting the environment.
§22-1A-2. Definitions.

The terms used in this article are defined as follows:
(a) "Agency" means any unit of state, municipal or county government;
(b) "Division" means the division of environmental protection;
(c) "Director" means the director of the division of environmental protection;
(d) "Effect" and "impact" are synonymous and include direct and indirect results of a project on the ecological, aesthetic, historic, cultural, economic, social and health aspects of society and the environment;
(e) "Environmental impact report" means a detailed written statement as required and defined by sections three, four and five of this article;
(f) "Finding of no significant impact" means a document prepared by the lead agency which briefly presents the reasons why a project will not have a significant effect on the human environment and for which an environmental impact report, therefore, will not be prepared;
(g) "Human environment" shall be interpreted comprehensively to include the natural and physical environment and the relationship of people with that environment;
(h) "Lead agency" means the state agency, board or commission having taken primary responsibility for preparing an environmental impact report;
(i) "Mitigation" means avoiding, minimizing, rectifying or compensating for the impact of a project on the environment;
(j) "Person" means any individual, group organization; or corporation; partnership; agency or other entity.
(k) "Project" means the following:
(1) Activities directly undertaken by any public agency;
(2) Activities undertaken by a person which are supported, in whole or in part, through grants, contracts, subsidies, loans or other forms of assistance from one or more public agencies; or
(3) Activities involving the issuance to a person of a lease, permit, license, certificate or other entitlement for use by one or more public agencies;
(l) "Responsible state official" means the director of the lead agency; and
(m) "Significant" means the severity of the short-term and cumulative impacts of the projects on the environment; the degree to which the proposed action affects public health or safety, unique characteristics of a geographic area, historic or cultural resources, the human environment or threatened and endangered species and their habitat; and the degree to which an action may establish a precedent for future actions with significant effects.
§22-1A-3. Environmental impact report required of state agencies, boards and commissions.

(a) All state agencies, boards and commissions shall include in any report on any project they propose to carry out, which could have a significant effect on the environment of the state, a detailed written statement by the responsible state official setting forth the following in an environmental impact report:
(1) The environmental impact of the proposed action;
(2) Any adverse environmental effects which cannot be avoided if the proposal is implemented;
(3) Mitigation measures proposed to minimize the impact;
(4) Alternatives to the proposed action;
(5) The relationship between local short-term uses of the environment and the maintenance and enhancement of long-term sustainability, quality and productivity of the resources in question; and
(6) Any irreversible environmental changes which would be involved in the proposed action should it be implemented.
(b) Pursuant to the policy stated in article one, chapter twenty-two, no state agency may approve or carry out a project for which an environmental impact report has been completed which identifies one or more significant impacts unless such state agency, based on substantial evidence in the record, makes one or more of the following findings:
(1) Changes or alterations have been required in, or incorporated into, such project which mitigate or avoid the significant effects thereof as identified in the completed environmental impact report;
(2) Such changes or alterations are within the responsibility and jurisdiction of another state agency and such changes have been adopted by such other agency or can and should be adopted by such other agency; or
(3) Specific economic, social or other considerations which shall be described and identified in the record of decision as described in section five-i, make infeasible the mitigation measures or project alternatives identified in the environmental impact report.
(c) No state agency may request funds, nor may any state agency which authorizes expenditures of funds, authorize funds for expenditure, for any project, other than a project involving only feasibility or planning studies for possible future action, which may have a significant effect of the environment unless such request or authorization is accompanied by an environmental impact report. Feasibility and planning studies exempted by this provision from the preparation of an environmental impact report shall nevertheless include consideration of environmental factors and public notification of such studies.
§22-1A-4. Findings of no significant impact; environmental impact reports; lead agency designation.

(a) Exemptions. -- Environmental impact report requirements apply to all discretionary projects proposed to be carried out or approved by public agencies except the following:
(1) Administrative projects proposed to be carried out or approved by public agencies;
(2) Emergency repairs to public service facilities necessary to maintain service or protect public health and safety;
(3) Projects undertaken, carried out or approved by a public agency to maintain, repair, restore, demolish or replace property or facilities damaged or destroyed as a result of a disaster in a disaster-stricken area in which a state of emergency has been proclaimed by the governor pursuant to state code; and
(4) Specific actions necessary to prevent or mitigate an emergency.
(b) Findings of no significant impact. -- If a lead agency determines that a proposed project, not otherwise exempt from the provisions of this article, does not have a significant effect on the environment, such lead agency shall issue a finding to that effect and shall publish a Class I advertisement in a newspaper of general circulation in the area affected. The finding of no significant impact shall be prepared in either of the following circumstances:
(1) There is no substantial evidence before the agency that the project may have a significant effect on the environment; or
(2) An initial study identifies potentially significant effects on the environment but revisions have been incorporated into the project plans or proposal, which will avoid or mitigate the effects to a point where clearly no significant effects would occur, and there is no substantial evidence before the agency that the project as revised may have a significant effect on the environment.
Agencies shall allow thirty days from the date of publication of the finding of no significant impact for appeals of the finding before taking any action on the proposal which would limit the choice of reasonable alternatives.
(c) Relationship to National Environmental Policy Act. -- When an environmental impact statement has been or will be prepared for the same project pursuant to the requirements of the National Environmental Policy Act of 1969 and implementing regulations, all or any part of that statement may be submitted in lieu of all or any part of an environmental impact report required by this article if that statement or the part which is used complies with the requirements of this article.
(d) Lead agency. -- A lead agency shall supervise the preparation of an environmental impact report if more than one agency is involved in the same action or is involved in a group of actions directly related to each other because of their functional interdependence or geographical proximity. State, federal or local agencies may act as joint lead agencies to prepare an environmental impact report. The potential lead agencies shall determine by letter or memorandum which agency shall be the lead agency and which shall be cooperating agencies. If there is disagreement among the agencies, lead agency designation shall be determined by the magnitude of each agency's involvement, project approval authority and agency expertise concerning the actions environmental effects. In the event of a dispute, the question shall be resolved by the director of the division of environmental protection.
(e) Cooperating agencies. -- Interagency cooperation shall be pursued early in the environmental impact report process in order to promote interdisciplinary environmental analysis. Any agency with jurisdiction over a project shall be a cooperating agency which shall participate in the scoping process and shallprovide comments and needed information to the lead agency. Lead agencies may consult with other agencies who have special expertise with respect to any environmental impacts involved. Lead agencies may also consult with members of the public who have requested involvement in the development of the environmental impact report.
§22-1A-5. Environmental impact report process and format.

(a) Purpose and timing. -- The environmental impact report shall serve as an action-forcing mechanism to assure that the policies and goals defined in section one of this article are implemented in all ongoing programs and actions of state government. An agency shall commence preparation of an environmental impact report as close as possible to the time an agency is developing or is presented with a proposal so that it can be completed in time for the final report to be included in any recommendation or report on the proposal. The statement shall be prepared early enough so that it can serve practically as an important contribution to decision-making and is not used to rationalize or justify decisions already made.
(b) Scoping. -- There shall be an early and open process for determining the scope of the issues to be addressed and for identifying the significant issues related to a proposed action. As soon as practicable after determining to prepare an environmental impact report and before the scoping process, the lead agency shall publish a Class I notice of intent in newspapers of general circulation in the area of the project. In the scoping process, the lead agency shall:
(1) Invite the participation of affected federal, state andlocal agencies, the proponent of the action, and other interested persons including those who might not be in accord with the proposed action on environmental grounds;
(2) Determine the scope and the significant issues to be analyzed in depth in the environmental impact report;
(3) Identify and eliminate from detailed study the issues which are not significant or which have been covered by prior environmental review, narrowing the discussion of these issues in the environmental impact report to a brief presentation of why they were eliminated;
(4) Identify other environmental review and consultation requirements such as permits, licenses, plans, etc. so the lead and cooperating agencies may prepare other required analyses and studies concurrently with, and integrated with the environmental impact report; and
(5) Indicate the relationships among the timing of the preparation of environmental analyses and the agencies tentative planning and decision-making schedule.
(c) The environmental impact report shall be prepared using an interdisciplinary approach, which will ensure the integrated use of natural and social sciences and the environmental design arts, and shall be written in plain language so that decisionmakers and the public can readily understand it. The disciplines of the preparers shall be appropriate to the scope and issues identified in the scoping process.
(d) The environmental impact report shall be prepared in two stages and may be supplemented.
(1) A draft environmental impact report shall be prepared inaccordance with the scope decided upon in the scoping process. The draft report must fulfill and satisfy to the fullest extent practicable the requirements established for final environmental impact reports. If a draft environmental impact report is so inadequate as to preclude meaningful analysis, the agency shall prepare and circulate a revised draft of the appropriate portion. The agency shall make every effort to disclose and discuss at appropriate points in the draft report, all major points of view on the environmental impacts of the alternatives including the proposed action.
(2) After circulation of the draft as described in subsection (f) of this section, the lead agency shall prepare a final environmental impact report responsive to comments received and discussing the agency's response to any reasonable opposing view which was not addressed in the draft.
(3) Supplements to the draft or final environmental impact reports shall be prepared any time the agency makes substantial changes in the proposed action that are relevant to environmental concerns or if there are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action and its impacts. Supplements may also be prepared any time the agency determines that the purposes of this article will be furthered by doing so. Supplements to an environmental impact report shall be prepared, circulated and filed in the same manner as a draft and final environmental impact report.
(e) Agencies shall use a format for environmental impact reports which will encourage good analysis and clearpresentations of the alternatives including the proposed action. The following format shall be used unless the agency determines that there is a compelling reason to do otherwise:
(1) Cover sheet;
(2) Summary;
(3) Table of contents;
(4) Purpose of and need for action;
(5) Alternatives including the proposed action and the no action alternative;
(6) Affected environment;
(7) Environmental consequences of each alternative;
(8) List of preparers;
(9) List of agencies, organizations and persons consulted; and
(10) Appendices (if any).
The environmental impact report shall also list all permits, licenses and other entitlements which must be obtained in implementing the proposal.
(f) Agencies shall circulate the entire draft and final environmental impact report, except that if the environmental impact report is unusually long, a summary may be circulated instead. In any case, the entire environmental impact report shall be circulated without charge to any federal, state or local agency with jurisdiction or special expertise with respect to any environmental impact involved, any person, organization or agency requesting the entire report, or, in the case of a final report, any person, organization or agency which submitted substantive comments on the draft.
(g) Public involvement. -- After preparing a draft environmental impact report and before preparing a final environmental impact report, the agency shall request comments from:
(1) Any state, federal or local agency which has jurisdiction or special expertise with respect to any environmental impact involved;
(2) Any person, organization or agency which has requested that it receive reports on actions of the kind proposed; and
(3) The public, affirmatively soliciting comments from those persons or organizations who may be interested or affected.
Agencies shall also publish a notice of the availability of the draft and final environmental impact report in local newspapers of general circulation and shall allow at least sixty days for public comments on the draft environmental impact report. Agencies shall hold public hearings or public meetings whenever appropriate or in accordance with statutory requirements applicable to the agency. Hearings shall be held whenever there is substantial environmental controversy concerning the project or substantial public interest in holding the hearing.
(h) Response to comments. -- An agency preparing a final environmental impact report shall assess and consider comments both individually and collectively, and shall respond by one or more of the means listed below, stating its response in the final report. Possible responses are to:
(1) Modify alternatives including the proposed action;
(2) Develop and evaluate alternatives not previously given serious consideration by the agency;
(3) Supplement, improve or modify its analyses;
(4) Make factual corrections; or
(5) Explain why the comments do not warrant further agency response, citing sources, authorities or reasons which support the agencies position and, if appropriate, indicate those circumstances which would trigger agency reappraisal or further response. All substantive comments received on the draft environmental impact report (or summaries thereof if the response has been exceptionally voluminous) shall be attached to the final environmental impact report whether or not the comment is thought to merit individual discussion by the agency in the text of the environmental impact report.
(i) Public record of decision. -- Whenever an agency approves or determines to carry out a project which is subject to this article, it shall issue a public record of decision, which may be integrated into any other record prepared by the agency. The record shall:
(1) State the agency's decision;
(2) Identify all alternatives considered and specify the alternative or alternatives which were considered to be environmentally preferable. An agency shall identify and discuss all relevant factors, including economic and technical considerations and agency statutory missions, which were balanced by the agency in making its decision and state how those considerations entered into its decision; and
(3) State whether all practicable means to avoid or minimize environmental harm from the selected alternative have been adopted, and if not, why not. Where applicable, a monitoring andenforcement program for any mitigation shall be adopted and summarized.
(j) Time limits. -- Until an agency issues a record of decision as provided in subsection (i), no action concerning the project may be taken which would have an adverse environmental impact or which would limit the choice of reasonable alternatives. No decision on the proposed action may be made until the later of the following dates:
(1) Sixty days after publication of the notice of availability of the draft environmental impact report; or
(2) Thirty days after publication of the notice of availability of the final environmental impact report.
(k) Fees. -- A public agency may charge and collect a reasonable fee from any person proposing a project subject to the provisions of this article in order to recover the estimated costs incurred by the agency in preparing a finding of no significant impact or an environmental impact report for such project.
(l) Contracts to prepare environmental impact report. -- If, after receiving an application from a person proposing a project subject to this article, an agency determines that it will be unable to prepare an environmental impact report in a timely manner with its existing staff resources, the agency shall, upon request of an applicant, contract with or employ qualified private entities or persons on a temporary basis to perform the services necessary to permit the agency to comply with this article. The entity or person shall take into account the views of the applicant, but is solely responsible to the agency. Alocal agency need not enter into a contract or employ persons if it determines that no entities or persons are available or qualified to perform the services. Entities or persons contracted with or employed by an agency may, pursuant to an agreement with the agency, perform functions necessary to meet the requirements of this article and shall not perform those functions reserved by this article for the decision-making body. An agency may charge and may require the applicant to pay a fee in the amount necessary to defray costs directly attributable to employing or contracting with entities or persons performing services pursuant to this section. This section shall not be construed to affect any provision of this article which may require independent judgment of the lead agency.
§22-1A-6. Certification of regulatory programs.

(a) When the regulatory program of a state agency requires a plan, permit or other written documentation, containing environmental information and complying with the requirements below, the plan, permit or other written documentation may be submitted in lieu of the environmental impact report required by this article: Provided, That the director of the division of environmental protection has certified the regulatory program pursuant to this section.
(b) This section applies only to regulatory programs or portions thereof which involve either of the following:
(1) The issuance of a permit, lease, license, certificate or other entitlement for use; or
(2) The adoption or approval of standards, rules or plans for use in the regulatory program.
(c) In order to qualify for certification pursuant to this section, a regulatory program shall require utilization of an interdisciplinary approach which will ensure the integrated use of the natural and social sciences in decision-making and shall meet all of the following criteria:
(1) The enabling legislation of the regulatory program shall include protection of the environment among its principle purposes and shall contain authority for the administering agency to promulgate rules for the protection of the environment.
(2) The rules adopted by the administering agency shall:
(A) Require that an activity will not be approved or adopted as proposed if there are feasible alternatives or feasible mitigation measures available which would substantially lessen any significant adverse impact which the activity may have on the environment;
(B) Include guidelines for the orderly evaluation of proposed activities and the preparation of the plan, permit or other written documentation in a manner consistent with the environmental protection purposes of the regulatory program;
(C) Require the administering agency to consult with all public agencies which have jurisdiction with respect to the proposed activity and shall require public notification and opportunity for comment on the proposed activity;
(D) Require that final action on the proposed activity include written responses to significant environmental points raised during the evaluation process;
(E) Require the filing of a notice of the decision by the administering agency on the proposed activity with the directorof the division of environmental protection and shall make the notice available for public inspection; and
(F) Require notice of filing of the plan or other written documentation to be made to the public and to any person who requests notification. The notification shall be made in a manner that will provide the public with sufficient time to review and comment on the filing.
(3) The plan or other written documentation required by the regulatory program shall include a description of the proposed activity with reasonable alternatives to the proposed activity and mitigation measures to minimize any significant adverse environmental impact. It shall also be available for a reasonable time for review and comment by other agencies and the public.
(d) The director of the division of environment protection shall certify a regulatory program which the director determines meets all the qualifications for certification set forth in this section and shall withdraw certification on determination that the regulatory program has been altered so that it no longer meets those qualifications. In the event that the director determines that the regulatory program does not meet the qualifications for certification, the director shall issue findings setting forth the reasons for the determination.
§22-1A-7. Agency funds for proposed projects, budget requests, statutory review.

(a) No agency may request funds, nor may any agency which authorizes expenditures of funds, authorize funds for any project, other than a project involving only planning, whichcould have a significant effect on the environment unless such request or authorization is accompanied by an environmental impact report as required in sections four and five.
(b) All agencies shall request in their budgets the funds necessary to protect the environment in relation to problems caused by their activities.
(c) Every agency shall review its present statutory authority, rules, policies and procedures to determine any inconsistencies or deficiencies in such provisions which would hinder compliance with the provisions of this article and shall propose to the governor and the Legislature no later than the first day of January, one thousand nine hundred ninety-three, any measures necessary to comply with the intent, policies and procedures of this article.
§22-1A-8. Appeals.

Any person, organization, agency or other legal entity may appeal a decision or finding issued pursuant to this article by submitting in writing to the lead agency a request for reconsideration and listing reasons for reconsideration. The lead agency shall respond within thirty days by issuing a revised decision or finding or by rebutting the request for reconsideration. In either case, the lead agency shall include in its response the reasons for its decision and shall notify all affected agencies and persons.
§22-1A-9. Judicial review.

(a) Any person adversely affected by a decision of the lead agency is entitled to judicial review thereof pursuant to the provisions of article five, chapter twenty-nine-a of this code.
(b) Any person, organization, agency or other legal entity may initiate a civil action in the circuit court having jurisdiction over the alleged violation which occurred or is likely to occur for declaratory and equitable relief against any agency of the state, person, partnership, corporation, organization or other legal entity for the protection of the air, water and other natural resources and the public trust therein from pollution, impairment or destruction, except that no action may be commenced against any agency of the state under this section prior to sixty days after the plaintiff has given notice to the agency against whom the action will be commenced: Provided, That such person may commence a civil action immediately upon notification where there is a failure of such authority to perform any nondiscretionary duty or act under this article.
(c) In granting relief provided by subsection (b) where there is involved a standard for pollution or for an anti-pollution device or procedure, fixed by rule or otherwise, by an agency of the state, the court may determine the validity, applicability and reasonableness of the standard. When a court finds a standard to be deficient for the protection of public health or the environment the court may direct the adoption of a standard approved and specified by the court.
(d) When the plaintiff has made a prima facie showing that the conduct of the defendant has, or is likely to pollute, impair or destroy the air, water or other natural resources or the public trust therein, the defendant may rebut the prima facie showing by the submission of evidence to the contrary. Thedefendant may also show that there is no feasible and prudent alternative to defendant's conduct and that such conduct is consistent with the promotion of the public health, safety and welfare in light of the state's paramount concern for the protection of its natural resources from pollution, impairment or destruction.
(e) The court may appoint a master or referee who shall be a disinterested person and technically qualified to take testimony and make a record and a report of his findings to the court in the action.
(f) The court may grant temporary and permanent equitable relief or may impose conditions on the defendant that are required to protect the air, water and other natural resources and the public trust therein from pollution, impairment or destruction. In issuing any final order in any action brought against a state agency pursuant to this section any court with jurisdiction may award costs of litigation, including attorney's fees and expert witness fees, to the prevailing party whenever the court determines such an award to be appropriate based on substantially unjustified actions of the agency.
(g) The attorney general, any agency with jurisdiction or any person may intervene as a matter of right in any suit brought under this section if intervention is timely made.
§22-1A-10. Citizen reports of environmental violations.

(a) The division of environmental protection shall maintain and publicize a toll-free telephone number to enable citizens to report information about potential environmental violations.
(b) The division may establish a program to pay awards fromfunds raised from private sources to persons who provide information that leads to the conviction for an environmental crime.
§22-1A-11. Severability.

If any provision of this article or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of the article, and to this end the provisions of the article are declared severable.
§22-1A-12. Applicability.

This article does not apply to any project in existence or under construction that has all applicable state and local licenses to operate or construct on the effective date of this article or to any project the construction and operation of which has been specifically authorized by the Legislature prior to the effective date thereof.



NOTE: The purpose of this amendment is to establish the State Environmental Quality Act; defining terms; directing state entities to develop environmental impact reports for any project which may have a significant environmental impact; defining the content and format of environmental impact reports; defining exemptions; directing agencies to issue findings of no significant impact in certain instances; permitting report substitution with an environmental impact statement prepared pursuant to the requirements of the National Environmental Policy Act; defining lead and cooperating agencies; defining the environmental impact report process; directing a period for public notice and comment; certification of regulatory programs; agency directives regarding funds, budgets and reviews; appeals and judicial review; severability and applicability.

This article is new; therefore, strike-throughs and underscoring have been omitted.