Senate Bill No. 595

(By Senators Helmick, Fanning, Love, Anderson and Ross)


[Introduced February 21, 2000; referred to the Committee Energy, Industry and Mining; and then 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 twenty-three-a, relating to requiring legislative approval prior to the implementation of any new or amended policy, practice, enforcement action, requirement or changes thereto resulting from a recommendation from the U. S. environmental protection agency or resulting from the environmental impact statement conducted by the ISAPI under the auspices of the December 23, 1999, "Settlement Agreement" in the Bragg V. Robertson litigation.

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 twenty-three-a, to read as follows:
ARTICLE 23A. Environmental Impact Statement.
§22-23A-1. Legislative findings.

The Legislature hereby finds:
(a) Coal has long been one of West Virginia's leading industries providing thousands of good paying jobs, infusing millions of dollars into local and statewide economies and providing low cost electricity for state residents;
(b) The coal industry provides thousands of high paying jobs which, on average, earn over fifty thousand dollars a year, or twice that of the average state worker;
(c) Coal also contributes three and one-half billion dollars to the gross state product or thirteen percent of the total and pays an incredible amount of taxes to the state. In fact, the coal industry and the state's coal-fired electric utilities together pay over sixty percent of all state business taxes which in turn support a significant portion of the state's annual budget;
(d) Coal was mined in twenty seven of the state's fifty-five counties during the year one thousand nine hundred ninety-nine, but a "local" share of coal severance dollars is also channeled to all fifty-five counties, coal and noncoal producing counties alike, to provide a revenue stream and funding source for many county and municipal programs;
(e) The state's coal industry has recorded record setting production, historical safety achievement and excellent reclamation practices throughout the past several decades. Today's industry represents a technologically advanced enterprise with a highly skilled and efficient work force that is competing in an international marketplace;
(f) West Virginia coal is shipped to twenty-three foreign countries and accounts for approximately one half of the United States total export product leaving domestic boundaries;
(g) West Virginia coal is shipped to thirty-three states throughout the eastern half of the United States. Eighty percent of coal is used to generate electricity while the remainder is primarily relied upon for industrial and household energy and for coking and steel production.
(h) Although presently under siege from numerous sources, the state's industry is postured with an abundance of opportunity as the world's thirst for low cost, reliable energy grows on an incremental basis of over one percent annually. Coal currently accounts for about fifty-seven percent of the nation's electric power generation;
(i) The coal industry remains essential to economic growth and progress in West Virginia, the United States and around the world. Coal continues to sustain our economy and provides the financial security as future diversity and expansion of our job base is explored;
(j) It's imperative that balance is sought between state policies designed to regulate and protect the environment and the ability of the state to continue to market West Virginia coal throughout the nation and the world;
(k) The state of West Virginia, through the division of environmental protection, entered into a "Settlement Agreement" on the twenty-third day of December, one thousand nine hundred eighty- eight, which imposed additional controls and oversight on the states' mine permitting process by the U.S. Corps of Engineers and U.S. Environmental Protection Agency;
(l) The "Settlement Agreement" further authorizes the U.S. Environmental Protection Agency to undertake a two-year Environmental Impact Statement (EIS) of the effects of large scale mountaintop mining practices which is in various stages of completeness;
(m) The state of West Virginia, through its legislatively authorized "Interim Surface Mining Council," is participating with EPA and other agencies in the conduct of the EIS; and has committed funding and other resources towards the expedient completion of a scientifically based EIS;
(n) Although the state of West Virginia, through its legislatively authorized "Interim Surface Mining Council," remains optimistic that the information collected during this two-year EIS will substantiate the effectiveness and adequacy of existing environmental regulations and controls that are enforced under the federal and state Surface Mining Control Reclamation Act, and Clear Water Act, et al., the "Council" also recognizes that the EIS may ultimately give rise to consideration of new or revised regulations, policies, guidelines or requirements. EPA has already arbitrarily and prematurely released over one hundred twenty ideas for government action with more than a year remaining in the EIS;
(o) EPA has neither produced technical data nor scientific fact in support of these ideas for government action, leading to widespread concern over the fairness and equity of EPA's intentions;
(p) EPA has testified before the West Virginia's interim surface mining council and has not provided testimony or status reports commensurate with its conclusions set forth as the basis for its ideas for government action;
(q) Additional control requirements exceeding those specified by federal law can adversely affect state economic development and severely and irreparably restrict West Virginia's coal industry's ability to compete within current market parameters;
(r) EPA's one hundred twenty ideas of government action, on their face, would add extraordinary costs to coal mined in West Virginia, unlike any other state;
(s) Requiring West Virginia, through new or amended policies, regulations, enforcement or permitting actions to meet requirements more stringent than those otherwise applicable to other states and unnecessary for environmental protection would unfairly affect interstate competition for new mining development and employment opportunities;
(t) West Virginia's regulatory program is comprised of a wide range of unprecedented, substantive requirements that have no parallel in any other state nor under federal rule or regulation, thus contributing to greater restrictions and extraordinary costs. These have come about by various instruments of law, i.e., the "Settlement Agreement"; "Consent Decree"; and "SB 681" which will materially affect the design, processing, approval and execution of mining plans (permits) in West Virginia.
§22-23A-2. EPA to refrain from proposing or adopting rule or making certain commitment absent legislative approval; reporting required.

It is directed that:

(a) The West Virginia division of environmental protection shall refrain from proposing or adopting any new rule or policy guideline intended, in whole or in part, to implement a recommendation which results from the Mountaintop Mining/Valley Fill Environmental Impact Statement (EIS) absent an act of the Legislature;
(b) In the absence of an act of the Legislature of the state of West Virginia approving same, the West Virginia division of environmental protection shall not submit to the ISAPI or to any other agency of the federal government any legally enforceable commitments related to the implementation of any recommendation which results from the EIS;
(c) Within ninety days upon receipt of any final recommendation from the USEPS or any other agency of the federal government related to the EIS, the director of the West Virginia division of environmental protection shall forward such recommendation, embodied in a report, along with all scientific facts or technical evidence relating to and substantiating such recommendation, to the governor, president of the Senate and the speaker of the House of Delegates;
(d) Upon careful consideration of any EIS recommendation and supportive data and scientific facts, the Legislature may elect to recommend passage of federal legislation or regulation and accordingly, petition Congress or any federal agency for that purpose; schedule hearings and receive public comment of the report pursuant to subsection (c) of this section, and accompanying recommendations, if any; direct the division of environmental protection to propose rules to implement any recommendation resulting from the EIS; or take whatever other action that may be warranted and supported by the EIS;
(e) Following conclusion of the ninety-day period in subsection (c) of this section and being so directed by the Legislature, the division of environmental protection may commence with rule making to implement recommendations from the EIS, if any, consistent with the provisions of the West Virginia Administrative Procedures Act pursuant to chapter twenty-nine-a, except for emergency rule making;
(f) No state court has jurisdiction for any cause of action based, in whole or in part, on the provisions of this article.

Note: The purpose of this bill is to prohibit the promulgation of state rules or implementation of state policies stemming from the Mountaintop Mining/Valley Fills Environmental Impact Statement conducted by ISAPI et al., until such state actions are approved by the Legislature.

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