H. B. 2721
(By Delegates Staton, Pino, Johnson, Coleman, Trump, Smirl and Faircloth)
[Introduced March 25, 1997; referred to the Committee on the
Judiciary.]
A BILL to amend and reenact section seventeen, article five,
chapter twenty-two of the code of West Virginia, one thousand
nine hundred thirty-one, as amended, relating to requiring
prior legislative review and approval of any requests to
modify state ambient air quality standards or the state
implementation plan for ozone or particulate matter; and
establishing new legislative findings relating thereto.
Be it enacted by the Legislature of West Virginia:
That section seventeen, article five, chapter twenty-two of
the code of West Virginia, one thousand nine hundred thirty- one, as amended, be amended and reenacted to read as follows:
ARTICLE 5. AIR POLLUTION CONTROL.
§22-5-17. Interstate ozone transport; modification of state ambient
air quality standards related to ozone or particulate matter; modification of state implementation plan relating to ozone or particulate matter.
(a) This section of the Air Pollution Control Act may be
referred to as the Interstate Ozone Transport and Air Quality
Standards Oversight Act.
(b) The Legislature hereby finds that:
(1) The federal Clean Air Act, as amended, contains a
comprehensive regulatory scheme for the control of emissions from
mobile and stationary sources, which will improve ambient air
quality and health and welfare in all parts of the nation.
(2) The number of areas unable to meet national ambient air
quality standards for ozone and other pollutants has been declining
steadily and will continue to decline with air quality improvements
resulting from implementation of the federal Clean Air Act
amendments of 1990, and the mobile and stationary source emission
controls specified therein.
(3) Implementation of the federal Clean Air Act, as amended,
together with other local emissions control actions, will help
states to attain the national ambient air quality standard for
ozone and other pollutants.
(3) (4) Scientific research on the transport of atmospheric
ozone across state boundaries is proceeding under the auspices of
the United States environmental protection agency (U.S. EPA)
hereinafter referred to as "U.S. EPA"), state agencies, and private
entities, which research will lead to improved scientific
understanding of the causes and nature of ozone transport, and
emission control strategies potentially applicable thereto.
(4) (5) The northeast ozone transport commission established
by the federal Clean Air Act Amendments of 1990 has proposed
emission control requirements for stationary and mobile sources in
certain northeastern states and the District of Columbia in
addition to those specified by the federal Clean Air Act amendments
of 1990.
(5) (6) Membership of the northeast ozone transport commission
includes, by statute, representatives of state environmental
agencies and governors' offices; similar representation is required
in the case of other ozone transport commissions established by the
Administrator of the United States environmental protection agency
U.S. EPA, pursuant to Section 176A of the federal Clean Air Act, as
amended.
(6) (7) The northeast ozone transport commission neither
sought nor obtained state legislative oversight or approval prior
to reaching its decisions on mobile and stationary source
requirements for states included within the northeast ozone
transport region.
(7) (8) The Commonwealth of Virginia and other parties have
challenged the constitutionality of the northeast ozone transport
commission and its regulatory proposals under the guarantee,
compact, and joinder clauses of the United States Constitution.
(8)(9) The United States environmental protection agency, U.S.
EPA, acting outside of the aforementioned statutory requirements
for the establishment of new interstate transport commissions, is
encouraging the state of West Virginia and twenty-four other states outside of the northeast to participate in multistate negotiations
through the ozone transport assessment group; such negotiations are
intended to provide the basis for an interstate memorandum of
understanding or other agreement on ozone transport requiring
reductions of emissions of nitrogen oxides or volatile organic
compounds in addition to those specified by the federal Clean Air
Act amendments of 1990, membership of the ozone transport
assessment group consists of state and federal air quality
officials, without state legislative representation or
participation by the governor.
(10) Ground-level ozone, a main ingredient of urban smog, is
caused by the photochemical reaction of natural and manmade
emissions of nitrogen oxides and volatile organic compounds by
sunlight on hot days.
(11) Computer modeling studies prepared by the ozone transport
assessment group indicate that ozone nonattainment is caused
predominantly by local emission sources in densely populated
urbanized areas, emissions originating in West Virginia do not
contribute significantly to ozone nonattainment in other states or
regions, and even extreme emissions controls imposed in upwind
areas would not permit a few densely populated urban areas to
demonstrate attainment of the national ozone standard.
(12) Recommendations of the ozone transport assessment group
for emissions control actions will form the basis for U.S. EPA
actions under the federal Clean Air Act, including the preparation
and submission of state implementation plans potentially requiring emission control actions in West Virginia not specifically mandated
by the federal Clean Air Act amendments of 1990.
(9) (13) Emission control requirements exceeding those
specified by federal law can adversely affect state economic
development, competitiveness, employment, and income without
corresponding environmental benefits; in the case of electric
utility emissions of nitrogen oxides, it is estimated that control
costs in addition to those specified by the federal Clean Air Act
could exceed five billion dollars annually in a thirty-seven state
region of the eastern United States, including the state of West
Virginia.
(10) (14) Requiring certain eastern states West Virginia to
meet emission control requirements more stringent than those
otherwise applicable to other states and unnecessary for
environmental protection would unfairly affect interstate
competition for new industrial development and employment
opportunities.
(15) The EPA has announced its intention to modify the
existing national ambient air quality standards for ozone and
particulate matter in such a manner as to cause many areas of West
Virginia that are now complying with those standards to be unable
to comply with them in the future.
(16) Legislative oversight of proposed regulatory actions
related to the control of ozone and precursor emissions generated
by sources in West Virginia and changes to the ambient air quality
standards for ozone and particulate matter, including the preparation and submission of related state implementation plans,
is in the public interest.
(c) It is therefore directed that:
(1) Not later than ten days subsequent to the receipt by the
director of the division of environmental protection of any
proposed memorandum of understanding or other agreement by the
ozone transport assessment group, or similar group, or any request
by the U.S. EPA to modify West Virginia's ambient air quality
standards for ozone or particulate matter or its state
implementation plan related to ozone or particulate matter,
potentially requiring the state of West Virginia to undertake
emission reductions in addition to those specified by the federal
Clean Air Act, the director of the division of environmental
protection shall submit such proposed memorandum or other agreement
or request to modify to the president of the Senate and the speaker
of the House of Delegates for consideration.
(2) Upon receipt of the aforesaid memorandum of understanding
or agreement or request to modify, the President and the Speaker
shall refer the understanding or agreement or request to modify to
one or more appropriate legislative committees with a request that
such committees convene one or more public hearings to receive
comments from agencies of government and other interested parties
on its prospective economic and environmental impacts on the state
of West Virginia and its citizens, including impacts on energy use,
taxes, economic development, utility costs and rates,
competitiveness and employment.
(3) Upon completion of the public hearings required by the
preceding subdivision, the committees(s) shall forward to the
president and the speaker a report containing its findings and
recommendations concerning any proposed memorandum of understanding
or other agreement or request to modify related to the interstate
transport of ozone. The report shall make findings with respect to
the economic, health, safety and welfare and environmental impacts
on the state of West Virginia and its citizens, including impacts
on energy use, taxes, economic development, utility costs and
rates, competitiveness and employment.
(4) Upon receipt of the report required by the preceding
subdivision, the president and speaker shall therefore transmit the
report to the governor for such further consideration or action as
may be warranted.
(5) Nothing in this section shall be construed to preclude the
Legislature from taking such other action with respect to any
proposed memorandum of understanding or other agreement or request
to modify related to the interstate transport of ozone as it deems
appropriate.
(6) No person is authorized to commit the state of West
Virginia to the terms of any such memorandum of agreement
understanding or other agreement or request to modify unless
specifically approved by an act of the Legislature.
Note: The purpose of this bill is to require prior legislative
review and approval of any request to modify West Virginia ambient
air quality standards for ozone or particulate matter or its state
implementation plan related to ozone or particulate matter. Such
legislative review and approval is currently required for any
proposed interstate memorandum of understanding or other agreement related to the transport of ozone.
Strike-throughs indicate language that would be deleted from the
current law, and underscoring indicates language that would be
added.