H. B. 2749
(By Delegates J. Martin, Michael, Ashley and Mezzatesta)
[Introduced February 24, 1995; referred to the
Committee on the Judiciary.]
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-b, all
relating to the regulatory right to know act.
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-b, to read
ARTICLE 1B. REGULATORY RIGHT TO KNOW ACT.
§22-1B-1. Findings and policies.
The citizens of this state expend in excess of one hundred seventy-five million dollars annually to implement and to ensure
compliance with the environmental regulations of this state.
Those funds must be expended wisely. Environmental regulations
adopted by this state should be based on the best scientific
information available and achieve the greatest overall reduction
in risk to the environment in the most cost-effective and
flexible manner as possible. The citizens have a right to know
whether the state is achieving the goals expressed herein and a
right to be fully informed about the costs, benefits and policies
that underlie regulatory decisions by agencies of this state.
(a) "Cost" means any direct or indirect adverse effect of a
rule, including adverse effects that are economic in nature and
those that reflect an increase in risk to human health or the
environment, that may result either from practices mandated by or
expected to be implemented in order to comply with the rule or
from likely alternatives to practices prohibited by the rule.
(b) "Director" means the director of the division of
environmental protection or any other person to whom the director
has delegated authority or duties under this chapter.
(c) "Major regulation" means any regulatory requirement that
the director determines may have an effect on the economy of the
state of two million dollars or more in any one year or adversely
affect in a material way the economy, a sector of the economy,
productivity, competition, jobs, the environment or the public
health of the state.
(d) "Net benefits" means the risk reduction and other
benefits expected from a rule minus the potential costs posed by
(e) "Performance oriented" means rules that set requirements
in terms of expected outcomes or goals rather than specify
mandatory means of achieving those outcomes. A
performance-oriented objective permits the regulated entity
discretion to determine how to best meet those requirements in
its particular circumstances.
(f) "Risk" means the probability of an event occurring as
enhanced by the magnitude and consequences of the harm in terms
of the population expected to be exposed and the types of
potential effects of that exposure.
(g) "Risk assessment" means the process or procedure by which the potential adverse health or ecological effects of
exposure of human or nonhuman species to environmental hazards
are estimated and analyzed.
§22-1B-3. Right to know.
In exercising authority under any applicable laws protecting
the environment, the director shall use the resources available
under those laws to reduce the risks to human health and the
environment that the director determines to be the most serious,
with the goal of achieving the greatest overall reduction in risk
with the public and private sector resources expended.
(a) When identifying the most serious risks, the director
shall consider, at a minimum, the likelihood and the severity of
the effect and the number of individuals potentially affected.
When prioritizing risks under this subsection, the director shall
also consider whether there are available cost-effective
opportunities to reduce those risks commensurate with the costs
associated with reducing the risk and the benefits from such
(b) When adopting rules intended to reduce risks to human
health or the environment, to the extent feasible and consistent with the laws under which those rules are being adopted, the
(1) Identify and assess alternatives for achieving the risk
reduction objectives of the rule.
(2) Select the regulatory alternatives that will maximize
the net benefits and will achieve the health or environmental
risk reduction objectives in the most cost-effective manner,
taking into account both public and private costs;
(3) Select regulatory approaches that minimize the
flexibility for achieving the desired risk reduction by giving
preference to performance-oriented, voluntary and market-based
(c) If the director is unable to select the regulatory
alternatives that maximize the flexibility for achieving risk
reduction goals by adopting performance-oriented, voluntary or
market-based approaches, the director shall publish an
explanation regarding why those alternatives were not chosen when
issuing the proposed and the final rule.
(d) Whenever the director adopts environmental rules
governing matters that are then regulated under federal law, provisions of those rules may not be more stringent than federal
law unless the director can demonstrate that the specific
circumstances existing in this state warrant the more stringent
(e) Nothing in this section supersedes or modifies the
requirements of the substantive statute under which the director
is carrying out regulatory authority to reduce risks to human
health and the environment.
(f) Within five years following the enactment of this
article, the director shall review and modify as necessary, all
existing major regulations affecting health or the environment to
assure that they comply with this section.
(g) The director shall submit to the Legislature annually
with the agency's budget request a report explaining how the
agency has met the requirements identified in this section during
the prior year and how the proposed budget reflects the
priorities identified in subsection (a). This budget report
shall be filed with the secretary of state for inclusion in the
state register contemporaneously with the filing with the
§22-1B-4. Public disclosure.
(a) In issuing any proposed or final major rule intended to
reduce risks to human health or the environment, the director
shall publish along with the proposed or final rule;
(1) A description of, and, to the extent practicable, an
estimate of, the human health or environmental risk to be
addressed by the rule, the amount of risk reduction or other
benefits to be addressed by the rule, other risks potentially
posed by implementing or complying with the rule and the public
and private sector costs associated with implementing and
complying with the rule.
(2) A comparison of the human health or environmental risks
addressed by the rule with at least three other risks regulated
by the agency with at least three other risks that are not
directly regulated by the state but with which the public is
familiar. And a determination by the director that the analyses
performed to provide the information required above are based on
the best scientific and economic information reasonably available
and the relevant scientific or economic information made
available by interest parties has been considered.
(3) A determination that the rule is likely to result in a
significant reduction in the human health or environmental risks
to be addressed by the rule and that the rule is likely to bring
about reductions in risks to human health and the environment and
other benefits that will justify the cost to government and to
the public to implement and comply with the rule and that there
is no regulatory alternative permitted in the statute under which
the rule is promulgated that would achieve the equivalent
reduction in risk in a more cost-effective and flexible manner.
(b) The director may implement a program designed to educate
the public about the role of risk in making regulatory decisions,
the meaning of risk characterization and about the relative risks
faced by society, including those that can be affected by
government regulation and those that cannot.
NOTE: The purpose of this bill is to require that the
public be more fully informed of the requirements of any major
rule and the risks to be reduced by such rule.
This article is new; therefore, strike-throughs and
underscoring have been omitted.