H. B. 2408


(By Delegates Amores, Coleman, Cann,
Faircloth and Jenkins)

[Introduced March 5, 1997; 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, relating to purpose; compliance with environmental quality laws; procedures; definitions; consolidated permits process; consolidated permit agency designated; factors; referral of projects; requests for designation of consolidated permit process; request for withdrawal of applicant from consolidated permit process; request for withdrawal of participating permit agency; environmental permit decisions; incorporation; incorporated environmental permits; legal status; enforcement; fees; petition for review of permit process; petition; meeting of participating agencies; failure to provide information to process permit; and limitation of action.

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 as follows:
ARTICLE 1B. CONSOLIDATED PERMITS.
§22-1B-1. Purpose of legislation.
The Legislature finds and declares as follows:
(a) West Virginia's environmental protection programs have established strict standards to reduce pollution and protect the public health and safety and the environment. The single purpose programs instituted to achieve these standards have been among the most successful efforts in the world, and have produced significant gains in protecting West Virginia's environment in the face of substantial increases in industry and population in particular areas of the state.
(b) Continued progress to achieve the environmental standards in face of continued population growth as well as the expansion of industry will require greater coordination between the single purpose environmental programs and more efficient operation of these programs overall. Pollution must be prevented and controlled and not simply transferred to another media or another place. This goal can only be achieved by maintaining the current environmental protection standards and by greater integration of the existing programs.
(c) As the number of environmental laws have grown in this state, so have the number of permits required of business and government. The regulatory burden has significantly added to the cost and time needed to obtain essential operating permits in this state. The increasing number of individual permits and permit authorities has generated the continuing potential for conflict, overlap and duplication between the various state, local and federal environmental permits.
(d) To ensure that local needs and environmental conditions receive the proper attention, the issuance of environmental permits should continue to be made, to the extent feasible, at the regional and local levels of the environmental programs. To establish the framework for coordination among the regional offices of the environmental protection programs, consistency in regional boundaries should be achieved to the maximum extent practicable.
(e) The purpose of this legislation is to require the division of environmental protection to institute new, efficient procedures which will assist businesses and public agencies in complying with the environmental quality laws in an expedited fashion, without reducing protection of public health and safety and the environment.
(f) Those procedures need to provide a permit process that promotes effective dialogue and ensures ease in the transfer and clarification of technical information, while preventing duplication. It is necessary that the procedures establish a process for preliminary and ongoing meetings between the applicant, the consolidated permit agency and the participating permit agencies from individually coordinating with each other.
(g) It is necessary, to the maximum extent practicable, that the procedures established in this article ensure that the consolidated permit agency process and applicable permit requirements and criteria are integrated and run concurrently, rather than consecutively.
§22-1B-2. Definitions.
(a) "Environmental permit" means any license, certificate, registration, permit or other form of authorization required by any department, division or agency of state government to engage in a particular activity.
(b) "Project" means an activity, the conduct of which requires an environmental permit from two or more environmental agencies.
(c) "Consolidated permit" means a permit incorporating the environmental permits granted by environmental agencies for a project and issued in a single permit document by the consolidated permit agency.
(d) "Consolidated permit agency" means the environmental agency that has the greatest overall interest, involvement or regulatory requirements relative to a project.
(e) "Participating permit agency" means an environmental agency, other than the consolidated permit agency, that is responsible for the issuance of an environmental permit for a project.
§22-1B-3. Administrative process; consolidated permit agency designated for project; jurisdiction; factors.
(a) On or before the first day of January, one thousand nine hundred ninety-nine, the division shall establish an administrative process which may be used, at the request of a permit applicant seeking to undertake a project, for the designation of a consolidated permit agency for the project.
(b) The administrative process shall consist of the establishment of guidelines for designating the consolidated permit agency for the project. The guidelines shall be adopted as rules subject to legislative approval. These rules shall take into consideration the following in determining which environmental agency has the greatest overall interest, involvement or regulatory requirements relative to a project:
(1) The types of facilities or activities that make up the project;
(2) The types of public health and safety and environmental concerns that should be considered in issuing environmental permits for the project;
(3) The environmental medium that may be affected by the project, the extent of those potential effects, and the environmental protection measures that may be taken to prevent the occurrence of, or to mitigate, those potential effects;
(4) The regulatory activity that is of greatest importance in preventing or mitigating the effects that the project may have on public health and safety or the environment;
(5) The statutory and regulatory requirements that apply to the project and the complexity of those requirements.
§22-1B-4. Requests for designation of consolidated permit agency; duties of permit applicant and agency.
(a) A permit applicant for a project may request the division to designate a consolidated permit agency to administer the processing and issuance of a consolidated permit for the project. The division shall, within thirty days of the request, designate a consolidated permit agency for the project.
(b) An applicant who requests the designation of a consolidated permit agency shall provide the division with a description of the project, a preliminary list of the environmental permits that the project may require, the identity of any public agency currently on notice or otherwise involved concerning the prospective activities of the project, and any additional agencies that the applicant anticipates would be interested in the project by virtue of the agencies' duties involved in enforcing any regulatory requirements designed to protect the environment.
(c) The consolidated permit agency shall serve as the main point of contact for the permit applicant with regard to the processing of the consolidated permit for the project and shall manage the procedural aspects of that processing consistent with existing laws governing the consolidated permit agency and participating permit agencies. In carrying out these responsibilities, the consolidated permit agency shall ensure that the permit applicant has all the information needed to apply for all the component environmental permits that are incorporated in the consolidated permit for the project, coordinate the review of those environmental permits by the respective participating permit agencies, ensure that timely environmental permit decisions are made by the participating permit agencies, and assist in resolving any conflict or inconsistency among the environmental permit requirements and conditions that are to be imposed by the participating permit agencies with regard to the project.
(d) This article may not be construed to limit or abridge the powers and duties granted to a participating permit agency pursuant to the law that authorizes or requires the agency to issue an environmental permit for a project. Each participating permit agency shall retain its authority to make all decisions on all nonprocedural matters with regard to the respective component environmental permit that is within its scope of responsibility, including, but not limited to, the determination of environmental permit application completeness, environmental permit approval or approval with conditions or environmental permit denial. The consolidated permit agency may not substitute its judgment for that of a participating permit agency on any nonprocedural matters.
§22-1B-5. Meeting between consolidated permit agency and applicant.
(a) Within fifteen working days of the date that the consolidated permit agency is designated, the consolidated permit agency shall convene a meeting with the permit applicant for the project and the participating permit agencies. The meeting agenda shall include at least all of the following matters:
(1) A determination of the environmental permits that are required for the project;
(2) A review of the environmental permit application forms and other application requirements of the agencies that are participating in the consolidated permit;
(3) A discussion of the option available to the permit applicant to use the consolidated permit application process in lieu of complying with separate application procedures for each component environmental permit needed to proceed with the project;
(4) A determination of the time lines that will be used by the consolidated permit agency and each participating permit agency to make environmental permit decisions, including the time periods required to determine if the environmental permit applications are complete or the consolidated permit application is complete, to review the application or applications, and to process the component environmental permits, and the time lines that will be used by the consolidated permit agency to aggregate the component environmental permits into, and to issue, the consolidated permit: Provided, That no accelerated time period for the consideration of an environmental permit application may be set if that accelerated time period would be inconsistent with, or in conflict with, any time period or series of time periods set by statute, rule, policy, standard or guideline, which require any of the following:
(A) Other agencies, interested persons or the public to be given adequate notice of the application;
(B) Other agencies to be given a role in, or be allowed to participate in, the decision to approve or disapprove, the application;
(C) Interested persons or the public to be provided the opportunity to challenge, comment on or otherwise voice concerns regarding the application;
(5) The scheduling of any public hearings that are required to issue environmental permits for the project and a determination of the feasibility of coordinating or consolidating any of those required public hearings;
(6) A discussion of fee arrangements for the consolidated permit process.
(b) The consolidated permit agency may request any information from the applicant that is necessary to comply with its obligations under this section, consistent with the time lines set hereunder.
(c) A summary of the decisions made under this section shall be made available for public review upon the filing of the consolidated environmental permit application or environmental permit applications.
§22-1B-6. Withdrawal of applicant from consolidated permit process; request for withdrawal of participating agency.
(a) The permit applicant may withdraw from the consolidated permit process by submitting to the consolidated permit agency a written request that the process be terminated. Upon receipt of the request, the consolidated permit agency shall notify the division and each participating permit agency that a consolidated permit is no longer applicable to the project.
(b) The permit applicant may submit a written request to the consolidated permit agency that the permit applicant wishes a participating permit agency to withdraw from participation on the basis of a reasonable belief that the issuance of the consolidated permit would be accelerated if the participating permit agency withdraws. In that event, the participating permit agency shall withdraw from participation if the consolidated permit agency approves the request.
§22-1B-7. Environmental permit decisions; incorporation.
The consolidated permit agency shall ensure that the participating permit agencies make all the environmental permit decisions that are necessary for the incorporation of the environmental permits into the consolidated permit and act on the component environmental permits within the time periods set forth in section five of this article.
§22-1B-8. Incorporated environmental permits; legal status; enforcement.
Each environmental permit incorporated in the consolidated permit shall have the legal status and the regulatory effect that is specified in the statute and rules under which the environmental permit would be separately issued and shall be administered and enforced by the environmental agency that would have separately issued it.
§22-1B-9. Fees.
(a) A consolidated permit agency may charge and collect a reasonable fee from any person seeking a consolidated permit to recover the estimated costs incurred by the consolidated permit agency in carrying out the requirements of this article.
(b) The fees charged shall recover only the costs of performing those consolidated permit services and shall be either negotiated with the permit applicant in the meeting required under section five of this article, or shall be set by the agency for the project in a fee schedule adopted by the environmental agency for use in the event that the environmental agency is so designated. In addition, the billing process shall provide for accurate time and cost accounting and a billing cycle that provides for progress payments.
§22-1B-10. Petition for review of permit process.
A petition by the permit applicant for review of an environmental agency action in issuing, denying or amending an environmental permit, or any portion of a consolidated permit agency permit, shall be submitted by the permit applicant to the consolidated permit agency or the participating permit agency which has an interest, involvement or mandatory requirements over that portion of the consolidated permit and shall be processed in accordance with the procedures of that environmental agency. The environmental agency receiving the petition shall, within thirty days, notify the other environmental agencies participating in the original consolidated permit.
§22-1B-11. Petition; meeting of participating agencies.
If an applicant petitions for a significant amendment or modification to a consolidated permit application or any of its component environmental permit applications, the consolidated permit agency shall reconvene a meeting of the participating permit agencies, conducted in accordance with section five of this article.
§22-1B-12. Failure to provide information to process permit; limitation of action.
If an applicant fails to provide information required for the processing of the component environmental permit applications for a consolidated permit or for the designation of a consolidated permit agency, the time requirements of this division shall be tolled until the time as the information is provided.
§22-1B-13. Environmental agency's failure to take timely action; violations without good cause; reimbursement.
(a) No later than the thirty-first day of December, one thousand nine hundred ninety-eight, the division shall propose rules, subject to legislative approval, establishing an expedited appeal process by which the petitioner or applicant may appeal any failure by an environmental agency to take timely action on the issuance or denial of an environmental permit.
(b) If the division finds that the time limits under appeal have been violated without good cause, the division shall establish a date certain by which the environmental agency shall act on the permit application with adequate provision for the requirements of subparagraphs (A) to (C), inclusive, of paragraph (4), subdivision (a), section five of this article, and provide for the full reimbursement of any filing or permit processing fees paid by the applicant to the environmental agency for the permit application under appeal.
(c) The determination of the division on an appeal shall be based only on procedural violations, including, but not limited to, the exceeding of time limits, not on any nonprocedural matter with regard to the environmental permit application or the environmental permit.


NOTE: The purpose of this bill is to provide a mechanism by which persons wishing to engage in projects with multiple environmental concerns or impacts involving the necessity of retrieving permits from multiple state agencies, may request that the multiple requirements be procedurally consolidated under the umbrella of a "consolidated permit agency" that has the greatest environmental interest in the project. The proposed law would only authorize the dominant agency to control procedural matters, not the determination of substantive requirements involved in matters that must be complied with prior to the issuance of a license or permit to proceed with an environmentally sensitive project.

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