Senate Bill No. 320

(By Senators Ross, Anderson, Minard,

Snyder, Boley and Minear)

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[Introduced January 24, 2002; referred to the

Committee on Natural Resources;

then to the Committee on Finance;

and then to the Committee on the Judiciary.]

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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 a legislative rule relating to the NOx budget trading program as a means of control and reduction of nitrogen oxides.

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 rule filed in the state register on the twenty-ninth day of August, two thousand, authorized under the authority of section four, article five, chapter twenty-two, of this code, relating to the division of environmental protection (emission standards for hazardous air pollutants pursuant to 40 CFR Part 61, 45 CSR 15), is authorized.
(b) The legislative rule filed in the state register on the twenty-ninth day of August two thousand, authorized under the authority of section four, article five, chapter twenty-two of this code, relating to the division of environmental protection (standards of performance for new stationary sources pursuant to 40 CFR Part 60, 45 CSR 16), is authorized.
(c) The legislative rule filed in the state register on the twenty-ninth day of August, two thousand, authorized under the authority of section four, article five, chapter twenty-two of this code, relating to the division of environmental protection (to prevent and control emissions from municipal solid waste landfills, 45 CSR 23), is authorized.
(d) The legislative rule filed in the state register on the first day of September, two thousand, authorized under the authority of section four, article five, chapter twenty-two, of this code, relating to the division of environmental protection (requirements for operating permits, 45 CSR 30), is authorized.
(e) The legislative rule filed in the state register on the twenty-ninth day of August, two thousand, authorized under the authority of section four, article five, chapter twenty-two of this code, relating to the division of environmental protection (emission standards for hazardous air pollutants pursuant to 40 CFR Part 63, 45 CSR 34), is authorized.
(f) The legislative rule filed in the state register on the twenty-third day of August, two thousand, authorized under the authority of section two, article six, chapter twenty-two, of this code, relating to the division of environmental protection (oil and gas wells and other wells, 35 CSR 4), is authorized.
(g) The legislative rule filed in the state register on the twenty-third day of August, two thousand, authorized under the authority of section six, article eighteen, chapter twenty-two of this code, relating to the division of environmental protection (hazardous waste management, 33 CSR 20), is authorized.
(h) The legislative rule filed in the state register on the twenty-third day of August, two thousand, authorized under the authority of section six, article eighteen, chapter twenty-two, of this code, relating to the division of environmental protection (underground storage tanks, 33 CSR 30), is authorized.
(i) The legislative rule filed in the state register on the first twenty-seventh day of September July, two thousand one, 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 thirteenth twenty-eighth day of December November, two thousand one, relating to the division of environmental protection (NOx budget trading program as a means of control and reduction of nitrogen oxides, 45 CSR 1), is authorized
(j) The legislative rule filed in the state register on the first day of September, two thousand, 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 eighteenth day of January, two thousand one, relating to the division of environmental protection (to prevent and control air pollution from combustion of refuse, 45 CSR 6), is authorized.
(k) The legislative rule filed in the state register on the thirty-first day of August two thousand, 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 fourteenth day of December, two thousand, relating to the division of environmental protection (to prevent and control air pollution from hazardous waste treatment, storage or disposal facilities, 45 CSR 25), is authorized.
(l) The legislative rule filed in the state register on the fourth day of May, two thousand, authorized under the authority of section four, article thirteen, chapter twenty, 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 twentieth day of July, two thousand, relating to the division of environmental protection (awarding of the West Virginia stream partners program grant, 60 CSR 4), is authorized.
(m) The legislative rule filed in the state register on the twenty-ninth day of August, two thousand, authorized under the authority of section three, article three-a, 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 twentieth day of February, two thousand one, relating to the division of environmental protection (surface mining blasting, 199 CSR 1), is authorized with the following amendments:
On page 2, subsection 2.8, after the word "outermost" by inserting the word "loaded";
On page 6, subdivision 3.2.c, by striking out the proposed sentence at the end of the paragraph and inserting in lieu thereof a new sentence to read as follows: For all surface coal extraction operations that will include production blasting, the monitoring procedure shall include provisions for monitoring ground vibrations and air blast.;
On pages 8 and 9, subdivision 3.6.a, by striking out the fourth and fifth sentences in their entirety;
On page 11, subdivision 3.6.i, by inserting the words "A copy of" at the beginning of the last sentence of the subdivision;
On page 13, subdivision 3.8.a, at the end of subdivision, by changing the period to a colon and adding a proviso to read as follows: Provided, That once all required preblast surveys have been accepted by the Office of Explosives and Blasting, blasting may commence sooner than 15 days of submittal.;
On page 14, subdivision 3.10.a, by striking out the subdivision in its entirety and inserting in lieu thereof a new subdivision 3.10.a to read as follows: The office shall review each preblast survey as to form and completeness only, and notify the operator of any deficiencies. The operator or his designee shall correct deficiencies within 30 days from receipt of notice of deficiencies.;
On page fifteen, subsection 4.1.a., following the words 'sign the blasting log.' by inserting the following sentence: 'Nothing in this rule modifies statutory regulatory authority of the state fire marshal and the state fire commission to regulate blasting and explosives.;
And,
On page 25, subsection 6.1 by striking out the words "West Virginia Mining and Reclamation Association" and by inserting the word "Inc." after the words "West Virginia Coal Association"."
(n) The legislative rule filed in the state register on the thirtieth day of August, two thousand, 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-sixth day of October, two thousand, relating to the division of environmental protection (surface mining and reclamation rule, 38 CSR 2), is authorized.
On page 34 of the rule, subdivision 3.22.e, by striking out the last sentence and inserting in lieu thereof the following: Material damage to the hydrologic balance outside the permit areas means any long term or permanent change in the hydrologic balance caused by surface mining operations which has a significant adverse impact on the capability of the affected water resources to support existing conditions and uses.;
On page 104 of the rule, paragraph 11.3.a.3, after the word "surety" by inserting the words "received after July 1, 2001";
On page 135 of the rule, subdivision 12.2.e. after the word "standards" by striking out the words "Measures taken during mining to prevent the formation of waters not in compliance with effluent limitations or water quality standards shall not be considered passive treatment" and inserting in lieu thereof the following: "Measures approved in the permit and taken during mining and reclamation to prevent the formation of acid drainage shall not be considered passive treatment:";
On page 206 of the rule, subsection 24.4 at the end of the subsection, after the word "rule", by inserting the words "Provided, That there is no evidence of a premature vegetation release."
(o) The legislative rule filed in the state register on the twenty-ninth day of August, two thousand, authorized under the authority of section four, article four, 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 fifteenth day of February, two thousand one, relating to the division of environmental protection (quarrying and reclamation, 38 CSR 3), is authorized with the following amendments:
"On page 22 of the rule, subsection 8.5., by striking all the language in subsection 8.5 and replacing it with the following language: 'Backfilling. -- All available spoil material shall be used as necessary to backfill pit areas, to provide positive drainage and to achieve the reclamation as provided for in the approved reclamation plan. Excess spoil shall be placed in controlled fills or spoil piles in accordance with section 9 of this rule. Spoil material that is approved to be placed in permanent excess spoil disposal areas is not required to used as backfill.'
And,
On page 35 of the rule, subsection 9.4.c.4, following the words 'professional engineer' inserting the following sentence 'The spoil pile shall be considered dormant and shall not need to be certified during periods of inactivity that exceed ninety (90) days in length.'"
(p) The legislative rule filed in the state register on the twenty-third day of August, two thousand, authorized under the authority of section two, article six, 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-sixth day of October, two thousand, relating to the division of environmental protection (certification of gas wells, 35 CSR 7), is authorized.
(q) The legislative rule filed in the state register on the thirty-first day of August, two thousand, authorized under the authority of section eight, article eleven, chapter twenty, 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 February, two thousand one, relating to the division of environmental protection (yard waste composting, 33 CSR 3), is authorized.
(r) The legislative rule filed in the state register on the thirty-first day of August, two thousand, authorized under the authority of section five, 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 fifteenth day of December, two thousand, relating to the division of environmental protection (waste tire management, 33 CSR 5), is authorized.

NOTE: The purpose of this bill is to authorize the Division of Environmental Protection to promulgate a legislative rule relating to the NOx Budget Trading Program as a Means of Control and Reduction of Nitrogen Oxides.

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