Senate Bill No. 176
(By Senators Ross, Anderson, Boley,
Buckalew, Grubb and Macnaughtan)
__________
[Introduced January 29, 1996; referred to the
Committee on Natural Resources; then to
the Committee on Finance; and then to
the Committee on the Judiciary.]
__________
A BILL to amend and reenact section one, article three,
chapter sixty-four of the code of West Virginia,
one thousand nine hundred thirty-one, as amended,
relating to authorizing the division of
environmental protection to promulgate legislative
rules relating to sewage sludge management.
Be it enacted by the Legislature of West Virginia:
That section one, article three, chapter sixty-four
of the code of West Virginia, one thousand nine hundred
thirty-one, as amended, be amended and reenacted, to read
as follows:
ARTICLE 3. AUTHORIZATION FOR BUREAU OF ENVIRONMENT TO
PROMULGATE LEGISLATIVE RULES.
§64-3-1. Division of environmental protection.
(a) The legislative rules filed in the state
register on the twelfth day of August, one thousand nine
hundred ninety-four, authorized under the authority of
section four, article five, chapter twenty-two, of this
code, modified by the division of environmental
protection to meet the objections of the legislative
rule-making review committee and refiled in the state
register on the twenty-third day of November, one
thousand nine hundred ninety-four, relating to the
division of environmental protection (requirements for
determining conformity of general federal actions to
applicable air quality implementation plans (general
conformity), 45 CSR 35), are authorized.
(b) The legislative rules filed in the state
register on the twelfth day of August, one thousand nine
hundred ninety-four, authorized under the authority of
section four, article five, chapter twenty-two, of this
code, modified by the division of environmental
protection to meet the objections of the legislative
rule-making review committee and refiled in the state register on the twenty-third day of November, one
thousand nine hundred ninety-four, relating to the
division of environmental protection (emission standards
for hazardous air pollutants pursuant to 40 CFR Part 63,
45 CSR 34), are authorized.
(c) The legislative rules filed in the state
register on the twelfth day of August, one thousand nine
hundred ninety-four, authorized under the authority of
section five, article twenty, chapter sixteen, of this
code, modified by the division of environmental
protection to meet the objections of the legislative
rule-making review committee and refiled in the state
register on the twenty-third day of November, one
thousand nine hundred ninety-four, relating to the
division of environmental protection (standards of
performance for new stationary sources, 45 CSR 16), are
authorized with the amendment set forth below:
"On page two, section 4, subsection 4.1, subdivision
4.1.i, by striking out 'Part 60.195(b)' and inserting in
lieu thereof 'Part 60.194(d)';
On page two, section 4, subsection 4.1., subdivision 4.1.k, by striking out 'Part 60.335(a)(1)(i)' and
inserting in lieu thereof 'Part 60.335(f)(1)';
And,
On page two, section 4, after subdivision 'k', by
inserting a new subdivision to read as follows:
'l. Part 60.335(f)(1).'"
(d) The legislative rules filed in the state
register on the fifteenth day of August, one thousand
nine hundred ninety-four, authorized under the authority
of section four, article five, chapter twenty-two, of
this code, modified by the division of environmental
protection to meet the objections of the legislative
rule-making review committee and refiled in the state
register on the nineteenth day of December, one thousand
nine hundred ninety-four, relating to the division of
environmental protection (permits for construction and
major modification of major stationary sources of air
pollution for the prevention of significant
deterioration, 45 CSR 14), are authorized.
(e) The legislative rules filed in the state
register on the twelfth day of August, one thousand nine hundred ninety-four, authorized under the authority of
section four, article five, chapter twenty-two, of this
code, modified by the division of environmental
protection to meet the objections of the legislative
rule-making review committee and refiled in the state
register on the twenty-third day of November, one
thousand nine hundred ninety-four, relating to the
division of environmental protection (requirements for
determining conformity of transportation plans, programs
and projects developed, funded or approved under title 23
U.S.C. or the federal transit act, to applicable air
quality implementation plans, 45 CSR 36), are authorized.
(f) The legislative rules filed in the state
register on the twelfth day of August, one thousand nine
hundred ninety-four, authorized under the authority of
section four, article five, chapter twenty-two, of this
code, modified by the division of environmental
protection to meet the objections of the legislative
rule-making review committee and refiled in the state
register on the twenty-ninth day of December, one
thousand nine hundred ninety-four, relating to the division of environmental protection (to prevent and
control air pollution from the operation of coal
preparation plants and coal handling operations, 45 CSR
5), are authorized.
(g) The legislative rules filed in the state
register on the thirteenth day of September, one thousand
nine hundred ninety-four, authorized under the authority
of section four, article five, chapter twenty-two, of
this code, modified by the division of environmental
protection to meet the objections of the legislative
rule-making review committee and refiled in the state
register on the twelfth day of January, one thousand nine
hundred ninety-five, relating to the division of
environmental protection (to prevent and control air
pollution from hazardous waste treatment, storage or
disposal facilities, 45 CSR 25), are authorized.
(h) The legislative rules filed in the state
register on the twelfth day of August, one thousand nine
hundred ninety-four, authorized under the authority of
section four, article five, chapter twenty-two, of this
code, modified by the division of environmental protection to meet the objections of the legislative
rule-making review committee and refiled in the state
register on the twenty-third day of November, one
thousand nine hundred ninety-four, relating to the
division of environmental protection (acid rain
provisions and permits, 45 CSR 33), are authorized.
(i) The legislative rules filed in the state
register on the twelfth day of August, one thousand nine
hundred ninety-four, authorized under the authority of
section two, article one, chapter twenty-two, of this
code, modified by the division of environmental
protection to meet the objections of the legislative
rule-making review committee and refiled in the state
register on the twenty-third day of November, one
thousand nine hundred ninety-four, relating to the
division of environmental protection (emission standards
for hazardous air pollutants pursuant to 40 CFR Part 61,
45 CSR 15), are authorized.
(j) The legislative rules filed in the state
register on the twelfth day of August, one thousand nine
hundred ninety-four, authorized under the authority of section four, article five, chapter twenty-two, of this
code, modified by the division of environmental
protection to meet the objections of the legislative
rule-making review committee and refiled in the state
register on the twenty-third day of November, one
thousand nine hundred ninety-four, relating to the
division of environmental protection (provisions for
determination of compliance with air quality management
rules, 45 CSR 38), are authorized.
(k) The legislative rules filed in the state
register on the twelfth day of August, one thousand nine
hundred ninety-four, authorized under the authority of
section five, article twenty, chapter sixteen, of this
code, modified by the division of environmental
protection to meet the objections of the legislative
rule-making review committee and refiled in the state
register on the twenty-third day of November, one
thousand nine hundred ninety-four, relating to the
division of environmental protection (to prevent and
control air pollution from combustion of refuse, 45 CSR
6), are authorized.
(l) The legislative rules filed in the state
register on the fifteenth day of August, one thousand
nine hundred ninety-four, authorized under the authority
of section four, article fourteen, chapter twenty-two, of
this code, modified by the division of environmental
protection to meet the objections of the legislative
rule-making review committee and refiled in the state
register on the fourth day of January, one thousand nine
hundred ninety-five, relating to the division of
environmental protection (dam safety, 47 CSR 34), are
authorized with the amendments set forth below:
On page 9, section §47-34-3, by striking out
3.5.2.c.A, and substituting therefor the following:
"3.5.2.c.A. An impoundment exceeding forty (40)
feet in height or four hundred (400) acre-feet storage
volume shall not be classified as a Class 3 dam."
On pages 17 and 18, section §47-34-7, at the end of
section 7.1.1.b.C. by adding the following:
"The design precipitation for a Class 3 dam may be
reduced based on Risk Assessment pursuant to paragraph
3.5.4 of this rule, but in no case to less than a P100 rainfall of six (6) hours in duration."
On page 40, section §47-34-13, by striking out
section 13.2 and substituting therefor the following:
"Performance Requirements - All dams completed
before July 1, 1973, shall meet the applicable design
requirements of Section 7 of this rule. Those dams which
do not meet the applicable design requirement of Section
7 of this rule shall be modified, breached, removed, or
properly abandoned pursuant to the provisions of this
rule. In developing the required plans, specifications,
and documentation necessary to bring the structure into
conformity with section 7 of this rule, the design
engineer may consider in his submitted analyses,
peculiarities and local conditions for each impounding
structure with recognition of the many factors involved,
some of which may not be precisely known. Existing
construction documentation and the historical performance
of the structure including documented storms and spillway
flows may be considered by the engineer as part of the
evaluation of the structure. Upon approval by the
Director of the plans, specifications, and documentation submitted by the engineer, the Director may issue a
certificate of approval."
(m) The legislative rules filed in the state
register on the fifteenth day of August, one thousand
nine hundred ninety-four, authorized under the authority
of section fifteen, article one, chapter twenty-two, of
this code, modified by the division of environmental
protection to meet the objections of the legislative
rule-making review committee and refiled in the state
register on the eleventh day of January, one thousand
nine hundred ninety-five, relating to the division of
environmental protection (regulations governing
environmental laboratories certification and standards of
performance, 47 CSR 32), are authorized.
(n) The legislative rules filed in the state
register on the twenty-eighth day of February, one
thousand nine hundred ninety-four, authorized under the
authority of section three, article two, chapter twenty-
two-c, of this code, modified by the division of
environmental protection to meet the objections of the
legislative rule-making review committee and refiled in the state register on the twenty-eighth day of July, one
thousand nine hundred ninety-four, relating to the
division of environmental protection (state water
pollution control revolving fund program, 47 CSR 31), are
authorized.
(o) The legislative rules filed in the state
register on the fifteenth day of August, one thousand
nine hundred ninety-four, authorized under the authority
of section six, article seventeen, chapter twenty-two, of
this code, relating to the division of environmental
protection (underground storage tanks, 47 CSR 36), are
authorized.
(p) The legislative rules filed in the state
register on the fifteenth day of August, one thousand
nine hundred ninety-four, authorized under the authority
of section six, article eighteen, chapter twenty-two, of
this code, modified by the division of environmental
protection to meet the objections of the legislative
rule-making review committee and refiled in the state
register on the thirteenth day of January, one thousand
nine hundred ninety-five, relating to the division of environmental protection (hazardous waste management
regulations, 47 CSR 35), are authorized.
(q) The legislative rules filed in the state
register on the twenty-second day of July, one thousand
nine hundred ninety-four, authorized under the authority
of section four, article three, chapter twenty-two, of
this code, modified by the division of environmental
protection to meet the objections of the legislative
rule-making review committee and refiled in the state
register on the twenty-ninth day of August, one thousand
nine hundred ninety-four, relating to the division of
environmental protection (standards for certification of
blasters-surface coal mines, 38 CSR 2C), are authorized
with the amendments set forth below:
On page 4, section 38.2C.4, after the words "Form
MR-30-TR." by inserting a second paragraph to read as
follows:
"In lieu of completing the training program, the
applicant for certification or re-certification may
complete a self-study course using the study guide and
other materials available from the Division of Environmental Protection."
On page 8, subsection 8.2, after the words
"refresher training course" by inserting the phrase "or
complete the self-study course."
On page 8 at subsection 10.1 by striking out the
phrase "a cessation order and/or take other action as
provided in West Virginia Code 22-3-16 and 17" and the
phrase "the provisions of West Virginia Code 22-3-1 et
seq., rules promulgated under that article, or".
On page 9, subsection 11.1, by striking out the
subsection and inserting in lieu thereof a new subsection
to read as follows: "11.1. Suspension - Upon service of
a written notice of violation by the Director to a
certified blaster, the Director may suspend his or her
certification. Prior to the issuance of such an order,
the certified blaster shall be granted a hearing before
the Director to show cause why his or her certification
should not be suspended."
On page 9, subsection 11.2, by striking out the
phrase "or cessation order" in the first sentence.
On page 9, Section 12, by striking out the phrase "cessation order".
(r) The legislative rules filed in the state
register on the fifteenth day of August, one thousand
nine hundred ninety-four, authorized under the authority
of section nine, article three, chapter twenty-two, of
this code, modified by the division of environmental
protection to meet the objections of the legislative
rule-making review committee and refiled in the state
register on the sixth day of January, one thousand nine
hundred ninety-five, relating to the division of
environmental protection (rules and regulations relating
to abandoned mine lands and reclamation, 38 CSR 2D), are
authorized.
(s) The Legislature hereby authorizes and directs
the division of environmental protection to promulgate
the legislative rules filed in the state register on
February, seventh, one thousand nine hundred ninety-five,
authorized under the authority of section five, article
twenty, chapter sixteen, of this code, relating to the
division of environmental protection (prevention and
control of particulate air pollution from combustion of fuel in indirect heat exchangers, 45 CSR 2), effective
the first day of May, one thousand nine hundred ninety-
five, with the amendments set forth below:
On page eight, section 3.4(e) after the word "operated"
by adding the words "at normal operating loads";
And,
On page thirteen, section 9.4 by striking the words
"monthly or", and, following the words "quarterly basis"
by striking the word "as"; and by inserting the words
"unless otherwise" following the words "quarterly basis".
And,
On page thirteen, by creating a new section, designated
section "45.2.10. Variances.
10.1. In the event of an unavoidable shortage of
fuel having characteristics or specifications necessary
for a fuel burning unit to comply with the opacity
standards set forth in section 3 or any emergency
situation or condition creating a threat to public safety
or welfare, the Director may grant an exception to the
otherwise applicable visible emission standards for a
period not to exceed fifteen (15) days, provided that visible emissions during the exception period do not
exceed a maximum six (6) minute average of thirty (30)
percent and that a reasonable demonstration is made by
the owner or operator that the emission standards under
section 4 of this rule will not be exceeded during the
exemption period."
10.2. In the event a fuel burning unit employing a
flue gas desulphurization system must by-pass such system
because of necessary planned or unplanned maintenance,
visible emissions may not exceed twenty percent (20%)
opacity during such period of maintenance. The Director
may require advance notice of necessary planned
maintenance, including a description of the necessity of
the maintenance activity and its expected duration and
may limit the duration of the variance or the amount of
the excess opacity exception herein allowed. The
Director shall be notified of unplanned maintenance and
may limit the duration of the variance or the amount of
excess opacity exception allowed during unplanned
maintenance.
And, by renumbering subsequent sections.
(t) The legislative rules filed in the state
register on the nineteenth day of August, one thousand
nine hundred ninety-four, authorized under the authority
of section four, article three, chapter twenty-two, of
this code, relating to the division of environmental
protection (surface mining and reclamation regulations,
38 CSR 2), are authorized "with the amendments set forth
below"
On pages 2 and 3, by striking out subsections 1.6,
1.7 and 1.8 in their entirety;
On page 6, by inserting a new subsection 2.20, to
read as follows, and renumbering subsequent subsections;
"Chemical Treatment means - the treatment of water
from a surface coal mining operation using chemical
reagents such as but not limited to sodium hydroxide,
calcium carbonate, or anhydrous ammonia for purposes of
meeting applicable state and federal effluent
limitations. Chemical treatment does not include passive
treatment systems such as but not limited to limestone
drains, wetlands, alkaline addition, application of
flyash, agricultural lime, or injection of flyash, limestone, or other minerals into underground coal
operations."
On page 16, section 2, by striking out subsection
2.92 and renumbering the subsequent subsections.
On page 25, by striking the second paragraph of
subsection 3.1 (o) and inserting in lieu thereof a new
second paragraph 3.1 of subsection 3.1 (o), to read as
follows: "Any permit application which references an
approved centralized ownership and control file may be
determined to be complete and accurate for the purposes
of this subsection. Each centralized ownership and
control file shall at a minimum:"
On page 63, by striking out subsection 3.25 (e).
On page 63, by striking out the first sentence in
subsection 3.26, and inserting in lieu thereof the
following:
"(a) All changes including name changes,
replacements, and additions to the ownership or control
data relative to a permittee or assignee who will
function as an operator pursuant to the provisions of
paragraph (c) of subsection 3.25 of this rule shall be reported to the Director."
On page 64, after subsection 3.26 (a) (5) by
inserting a new subsection 3.26 (a) (6) to read as
follows:
"(6) In the event that a permittee or operator has
incurred no changes in its ownership and control
information and therefore has not been obligated to file
a report within any consecutive twelve-month period,
that permittee or operator is required to notify the
Director in writing that no changes to the information
required by paragraphs (b), (c), (d) and (i) of
subsection 3.1 of this rule have occurred."
On page 64, by striking out subsection 3.27 (a) and
inserting in lieu thereof the following:
"(a) All active surface mining operations shall be
subject to the renewal requirements and provisions for
issuance of a renewal discussed in Section 19 of the Act:
Provided, That the Director may waive the requirement for
renewal if the permittee certifies in writing that all
coal extraction is completed, that all backfilling and
regrading will be completed within sixty (60) days prior to the expiration date of the permit, and that an
application for Phase I bond release will be filed prior
to the expiration date of the permit. Failure of the
permittee complete backfilling and regrading within sixty
(60) days prior to the expiration date of the permit will
nullify the waiver.
Those operations which have been granted inactive
status in accordance with subsection 14.11 of this rule
shall also be subject to the renewal requirements of
Section 19 of the Act.
Applications for renewal shall be filed on forms
provided by the Director and shall contain at a minimum
the following information:"
On page 79, by striking out subsection 3.32 (i) and
renumbering the remaining subsections.
On page 80, subsection 3.34 (b) after the word
"criteria" by inserting the words "paragraph (b) of
subsection 3.32 of this section";
On page 80, by striking out subsection 3.34 (b) (3)
and substituting therefor a new subsection 3.34 (b) (3),
to read as follows: "(3) The permittee was linked to a violation, penalty or fee through ownership or control,
under the violation review criteria, paragraph (b) of
subsection 3.32 of this section at the time the permit
was issued and an ownership or control link between the
permittee and the person responsible for the violation,
penalty or fee still exists, or when the link was severed
the permittee continues to be responsible for the
violation, penalty or fee."
On page 82, by striking out subsection 3.34 (g) and
substituting therefor a new subparagraph (g) to read as
follows:
"(g) For purposes of this subsection, a permit is
issued when it is originally approved, as well as when a
transfer, assignment, or sale of permit rights is
approved pursuant to paragraphs (a) or (c), subsection
3.25 of this rule, or where a permit is revised pursuant
to subsection 3.26 of this rule."
On page 86, at the end of subsection 4.4, by adding
the following sentence: "Prospecting roads are to be
designed, constructed, maintained, and reclaimed in
accordance with the provisions of subsection 13.6 of this rule."
On page 88, by inserting a new subsection 4.7 (a)
(1) to read as follows: (1) Minimize downstream
sedimentation and flooding and renumbering the remaining
subsections.
On page 92, subsection 4.12, by inserting a new
sentence between the second and third sentence which
reads as follows: "Where the certification statement
indicates a change from the design standards or
construction requirements approved in the permit, such
changes will be documented in as-built plans and
submitted for approval to the Director as a permit
revision."
On Page 148, section 11.6 (a) in the underscored
language, after the word, "completed" by inserting the
words "or nearly completed".
On Page 223, by striking out subsection 14.14 (g)
(8) and inserting in lieu thereof a new subsection 14.14
(g) (8), to read as follows: "(8) Surface water runoff
from areas above and adjacent to the fill shall be
diverted into properly designed and constructed stabilized diversion channels which have been designed
using best current technology to safely pass the peak
runoff from a 100 year, 24-hour precipitation event. The
channel shall be designed and constructed to ensure
stability of the fill, control erosion, and minimize
water infiltration into the fill."
On Page 232, by inserting a new subsection,
designated subsection 14.19 (d) to read as follows: "(d)
Timber from clearing and grubbing operations may be wind-
rowed below the projected toe of the outslope in a manner
that will provide shelter and habitat for game and non-
game wildlife and provide for enhanced sediment control.
These materials may not be placed in natural water
courses or where they will be covered by spoil material
at the toe of the outslope. The wind-rows must be of
relatively uniform height and width and must be more or
less evenly distributed along the lower reaches and
within the permit area."
On Page 240, subsection 17.1, in the first sentence,
after the words "mining and reclamation," by striking out
the remainder of the paragraph and substituting therefor the following: "required by the Act and these Rules,
including the engineering analyses and designs; the
development of cross-section maps and plans; the geologic
drilling and statement of results of test borings and
core samplings; preblast surveys; the collection of
site-specific resource information and production of
protection and enhancement plans for fish and wildlife
habitats and other environmental values; and the
collection of archaeological and historical information;
and any other archaeological and historical information
required by the federal department of the interior and
the preparation of plans that may be necessitated
thereby; and the director shall provide or assume the
cost of training coal operators that meet the
qualifications concerning the preparation of permit
applications and compliance with the regulatory program,
and shall ensure that qualified coal operators are aware
of the assistance available under this section.
On Page 240, subsection 17.1, after the first
paragraph by inserting a new paragraph, to read as
follows: "The Director will develop a procedure for the interstate coordination and exchange of information
collected under the Small Operators Assistance Program."
On Page 241, by striking out subsection 17.4 in its
entirety and substituting therefor the following: "17.4
Request for Assistance. Each applicant requesting
assistance shall provide information on forms provided by
the director in an application that shall be clear and
concise and shall be provided in a format prescribed by
the Director and/or a format required by the Federal
Office of Surface Mining Reclamation and Enforcement."
On Page 249, subsection 17.7 (a) (4), after the
words "twelve (12) month period" by striking the
remainder of the sentence and inserting in lieu thereof
the words "immediately following permit issuance."
On page 273, subsection 20.6 (a), after the word
"first" by striking out the words "thirty (30)" and
inserting in lieu thereof the word "fifteen".
On page 273, subsection 20.6 (c), after the words
"date of the" by striking out the words "Assessment
Officer receiving the
finding specified in paragraph (a) of this subsection." and inserting in lieu thereof the words "issuance of a
notice or order";
On page 274, subsection 20.6 (d), by striking out
the first sentence, and inserting in lieu thereof the
following: "The time and place of an informal assessment
conference shall be posted at the Department of
Environmental Protection Office nearest to the operation.
(u) The legislative rules filed in the state
register on the twenty-second day of June, one thousand
nine hundred ninety-five, authorized under the authority
of section twenty, article fifteen, chapter twenty-two,
of this code, modified by the division of environmental
protection to meet the objections of the legislative
rule-making review committee and refiled in the state
register on the twenty-second day of December, one
thousand nine hundred ninety-five, relating to the
division of environmental protection (sewage sludge
management, 47 CSR 38D), are authorized.
NOTE: The purpose of this bill is to authorize the
Division of Environmental Protection to promulgate
legislative rules relating to sewage sludge management.
Strike-throughs indicate language that would be
stricken from the present law, and underscoring indicates
new language that would be added.