Senate Bill No. 660

(By Senators Walker, Sprouse, Buckalew, Kimble, Ross, Helmick, and Plymale)

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[Introduced February 23, 1998; referred to the Committee on Natural Resources; and then to the Committee on the Judiciary.}
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A BILL to amend and reenact section three-a, article one, chapter twenty-two of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to new, amended or existing rules.

Be it enacted by the Legislature of West Virginia:
That section three-a, article one, 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 1. DIVISION OF ENVIRONMENTAL PROTECTION.

§22-1-3a. Rules -- New, amended or existing environmental provisions.

(a) Except for legislative rules promulgated for the purpose of implementing the provisions of section four, article twelve, section six, article seventeen, and section six, article eighteen, all of this chapter, and notwithstanding the provisions of section four, article five of this chapter, legislative rules promulgated by the director Notwithstanding any provision of this code to the contrary, environmental requirements including, but not limited to, legislative rules, procedural rules, interpretive rules, permits, policies, guidance, directives and programs proposed, adopted or implemented by the director, the environmental quality board and the air quality board which become effective on or after the first day of July, one thousand nine hundred ninety-four ninety-eight, may include new or amended environmental provisions which are be more stringent than the counterpart federal rule or program requirement to the extent that the director or either of said boards first provides specific written reasons which demonstrate that such provisions requirements are reasonably necessary to protect, preserve or enhance the quality of West Virginia's environment or human health or safety, taking into consideration the scientific evidence, specific environmental characteristics of West Virginia or an area thereof, or stated legislative findings, policies or purposes relied upon by the director or either of said boards in making such determination. In the case of specific rules requirements which have a technical basis, the director or either of said boards shall also provide the specific technical basis upon which the director or said board has relied.
(b) Environmental requirements including, but not limited to, legislative rules, procedural rules, interpretative rules, permits, policies, guidance, directives and programs proposed, adopted or implemented by the director, the environmental quality board or the air quality board, which became effective before the first day of July, one thousand nine hundred ninety-eight, may continue to be more stringent than the counterpart federal requirement to the extent that the director or either of said boards provide specific reasons which demonstrate that such provisions are reasonably necessary to protect, preserve or enhance the quality of West Virginia's environment or human health or safety, taking into consideration the scientific evidence, specific environmental characteristics of West Virginia or an area thereof, or stated legislative findings, policies or purposes relied upon by the director or either of said boards in making such determination. In the case of specific requirements which have a technical basis, the director or either of said boards shall also provide the specific technical basis upon which the director or said board relied. Such a demonstration shall apply only to and be performed within six months of the occurrence of the following circumstances:
(1) Environmental requirements that have been specifically identified to the director in writing by any person;
(2) Environmental requirements contained in an existing document when any portion of that document is subject to final amendments; and
(3) Environmental requirements that are made more stringent than the counterpart federal requirement for the reason that the counterpart federal requirement became effective on or after the first day of July, one thousand nine hundred ninety-eight.
In any case in which such a determination is necessary, such a determination shall be made within six months of the occurrence of the circumstances identified in the paragraph.
(c) Notwithstanding the provisions of section four, article twelve, chapter twenty-two, in the event that legislative rules promulgated proposed for promulgation by the director which become effective on or after the first day of July, one thousand nine hundred ninety-four, include new or amended environmental provisions which are may be less stringent than a counterpart federal rule which recommends, but does not require, a particular standard or any federally recommended environmental standard whether or not there be a counterpart federal rule, the division, the director, the environmental quality board or air quality board shall first provide specific written reasons which demonstrate that such provisions are not reasonably necessary to protect, preserve or enhance the quality of West Virginia's environment or human health or safety, taking into consideration the scientific evidence, specific environmental characteristic of West Virginia or an area thereof, or stated legislative findings, policies or purposes relied upon by the director or either of said boards in making such determination. In the case of specific rules which have a technical basis, the director or board shall also provide the specific technical basis upon which the director has relied.
(d) In the absence of a federal rule requirement, the adoption of a state rule shall requirement may not be construed to be more stringent than a federal rule requirement, unless the absence of a federal rule requirement is the result of a specific federal exemption. In any instance in which a state requirement is adopted in the absence of a federal requirement, the director, the environmental quality board or the air quality board shall first provide written reasons demonstrating that such requirements are reasonably necessary to protect, preserve or enhance the quality of West Virginia's environment or human health or safety, taking into consideration the scientific evidence, specific environmental characteristics of West Virginia or an area thereof, or stated legislative findings, policies or purposes relied upon by the director or either of said boards in making such determination. In the case of specific requirements which have a technical basis, the director or either of said boards shall also provide the specific technical basis upon which the director or said board relied.
NOTE: The purpose of this bill is to establish that West Virginia's environmental requirements are no more stringent than the federal requirements are unless there is a specific technical rationale for increased stringency. It also sets up an administrative process to review environmental requirements.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.