H. B. 2717
(By Delegates Williams, Stemple, Shaver,
Michael, Mezzatesta, Cann and Anderson)
[Introduced January 28, 2003; referred to the
Committee on Government Organization then the Judiciary.]
A BILL to repeal section four, article three, chapter twenty-two-b
of the code of West Virginia, one thousand nine hundred
thirty-one, as amended; to amend and reenact section two of
said article; and to amend chapter twenty-two-c of said code
by adding thereto a new article, designated article thirteen,
all relating to the transfer of water quality standard
rule-making authority from the environmental quality board to
the water quality board.
Be it enacted by the Legislature of West Virginia:
That section four, article three, chapter twenty-two-b of the
code of West Virginia, one thousand nine hundred thirty-one, as
amended, be repealed; that section two of said article be amended
and reenacted; and that chapter twenty-two-c be amended by adding
thereto a new article, designated article thirteen, all to read as
follows:
CHAPTER 22B. ENVIRONMENTAL BOARDS.
ARTICLE 3. ENVIRONMENTAL QUALITY BOARD.
§22B-3-2. Authority of board; additional definitions.
(a) In addition to all other powers and duties of the
environmental quality board, as prescribed in this chapter or
elsewhere by law, the board has and may exercise the powers and
authorities:
(1) To Receive any money as a result of the resolution of any
case on appeal which shall be deposited in the state treasury to
the credit of the water quality management fund created pursuant to
section ten, article eleven, chapter twenty-two of this code.
(2) To advise, consult and cooperate with other agencies of
the state, political subdivisions of the state, other states,
agencies of the federal government, industries and with affected
groups and take such other action as may be appropriate in regard
to its rule-making authority; and
(3) To encourage and conduct such studies and research
relating to pollution control and abatement as a board may deem
advisable and necessary in regard to its rule-making authority.
(b) All the terms defined in section two three, article
eleven, chapter twenty-two of this code are applicable to this
article and have the meanings ascribed to them therein.
CHAPTER 22C. ENVIRONMENTAL RESOURCES; BOARDS,
AUTHORITIES, COMMISSIONS AND COMPACTS.
ARTICLE 13. WATER QUALITY BOARD.
§22C-13-1. Declaration of policy and purpose.
It is hereby declared to be the policy of the Legislature that
all actions taken pursuant to this chapter shall assure
implementation of the policies set forth in section one, article
one, chapter twenty-two of this code.
§22C-13-2. Definitions.
Unless the context clearly requires a different meaning, as
used in this chapter the following terms have the meanings ascribed
to them:
(1) "Board" means the water quality board created pursuant to
the provisions of this chapter.
(2) "Person" or "persons" means any public or private
corporation, institution, association, firm or company organized or
existing under the laws of this or any other state or country; the
state of West Virginia; governmental agency; political subdivision;
county commission; municipal corporation; industry; sanitary
district; public service district; drainage district; soil
conservation district; watershed improvement district; partnership;
trust; estate; person or individual group of persons or individuals
acting individually or as a group; or any other legal entity
whatever.
§22C-13-3. Water quality board; composition and organization;
general administration.
(a) On the effective date of this article, the water quality
board is created.
(b) The board shall be composed of seven members ex officio,
which shall include the secretary of the department of
environmental protection, the commissioner of agriculture, the
director of the department of natural resources, the secretary of
the department of transportation, the director of the department of
forestry, the director of the office of economic and community
development and the director of the department of tourism, or their
designees.
(c) The secretary of the department of environmental
protection shall serve as chair of the board. At its first meeting
in each fiscal year, the board shall elect from its membership a
vice chair to act in the chair's absence during that fiscal year.
The chair shall preside over the meetings and hearings of the
board. All of the meetings shall be general meetings for the
consideration of any and all matters which may properly come before
the board. The chair shall convene the first meeting of the board
within thirty days of the effective date of this article.
(d) The chair of the board shall have the following powers,
authorities and duties:
(1) To provide for the management of facilities and personnel
of the board;
(2) To employ, terminate and compensate support staff for the board, including support staff with scientific expertise, and to
fix the compensation of that staff, which shall be paid out of the
state treasury, upon the requisition of moneys appropriated for
such purpose;
(3) To the extent permitted by and consistent with federal or
state law, to consolidate, combine or contribute funds of the board
to maintain the central physical facilities and technical and
support personnel;
(4) To secure funding from whatever source permitted by law;
(5) To secure office space, purchase material and supplies,
and enter into contracts necessary, incident or convenient to the
accomplishment of the purposes of this chapter.
(e) The members of the board shall not receive additional
compensation for their service on the board and shall not be
reimbursed for their expenses from funds under the control of the
board.
(f) A majority of the board constitutes a quorum for the
transaction of business and an affirmative vote of the majority of
the board members present is required for any motion to carry or
for any decision of the board to be effective. The board shall
meet at such times and places as it may determine and shall meet on
the call of the chair. It is the duty of the chair to call a
meeting of the board within thirty days on the written request of
three members thereof.
(g) In addition to all other powers and duties of the board,
the board has and may exercise the following powers and authority
and shall perform the following duties:
(1) To subpoena witnesses, administer oaths, make
investigations and hold hearings relevant to matters properly
pending before a board;
(2) To enter and inspect any property, premises or place on or
at which a source or activity is located or is being constructed,
installed, or established at any reasonable time for the purpose of
gathering information related to the board's rule-making authority;
(3) To perform any and all acts within the appropriate
jurisdiction of each board to secure for the benefit of the state
participation in appropriate federally delegated programs;
(4) To advise, consult, and cooperate with other agencies of
the state, political subdivisions of the state, other states,
agencies of the federal government, industries and with affected
groups and take such other action as may be appropriate in regard
to its rule-making authority;
(5) To encourage and conduct such studies and research
relating to pollution control and abatement as a board may deem
advisable and necessary in regard to its rule-making authority,
including the power to contract for such studies and research.
(h) With respect to any information obtained in the course of
rule making, all members of boards and all personnel employed thereby shall maintain confidentiality to the same extent required
of the secretary of the department of environmental protection as
established under chapter twenty of this code.
(i) Any member of the board who has any financial interest in
the outcome of a decision of the board shall not vote or act on any
matter which shall directly affect the member's personal interests.
§22C-13-4. Water quality board rule-making authority.
(a) In order to carry out the purpose of this chapter and
chapter twenty-two of this code, the board shall promulgate
legislative rules setting standards of water quality applicable to
both the surface waters and groundwaters of this state. Standards
of quality with respect to surface waters shall be such as to
protect the public health and welfare, wildlife, fish and aquatic
life, and the present and prospective future uses of such water for
domestic, agricultural, industrial, recreational, scenic and other
legitimate beneficial uses thereof: Provided, That the director of
the bureau of environment shall establish the antidegradation
implementation procedures which apply to regulated activities that
have the potential to affect water quality, pursuant to section
seven-b, article eleven, chapter twenty-two of this code.
(b) Except for the alternative procedures provided for in
subsection (c) of this section, the board shall promulgate
legislative rules setting water quality standards in accordance
with the provisions of article three, chapter twenty-nine-a of this code and the declaration of policy set forth in section two,
article eleven, chapter twenty-two of this code.
(c) The board may grant site specific variances only for
remined areas of coal remining operation from the standards of
water quality set forth in legislative rule at title forty-six,
code of state rules, section one, et seq., setting standards for
iron, manganese and pH prior to the issuance of a national
pollutant discharge elimination system ("NPDES") permit by the
division of environmental protection in accordance with 33 U.S.C.
Section 1311(p) of the federal Water Pollution Control Act. The
standards established in the variance will exist for the term of
the NPDES permit. The board will promulgate procedural rules on
granting site specific coal remining variances in accordance with
the provisions of article three, chapter twenty-nine-a of this
code. At a minimum, the procedures for granting or denying a
remining variance will include the following: A description of the
data and information to be submitted to the board by the applicant
for such variance; the criteria to be employed by the board in its
decision; and provisions for a public comment period and public
hearing prior to the board's decision. The board may not grant a
variance without requiring the applicant to improve the instream
water quality as much as is reasonably possible by applying best
available technology economically achievable using best
professional judgment which requirement will be included as a permit condition. The board may not grant a variance without a
demonstration by the applicant that the coal remining operation
will result in the potential for improved instream water quality as
a result of the remining operation. The board may not grant a
variance where the board determines that degradation of the
instream water quality will result from the remining operation.
(d) No rule of the board promulgated under this article may
specify the design of equipment, type of construction or particular
method which a person shall use to reduce the discharge of a
pollutant.
(e) No rule or program of the board shall be in addition to,
or more expansive in coverage or more stringent in effect than
necessary to implement the requirements of the federal Clean Water
Act except to the limited extent that the board first makes a
specific written finding for any such departure that there exists
scientifically supportable evidence for such rule reflecting
factors unique to West Virginia or some area thereof.
(f) All rules, orders, determinations, permits, grants,
contracts, certificates, licenses, waivers, bonds, authorizations
and privileges which have been issued, made, granted, promulgated
or allowed to become effective by the environmental quality board
in the performance of functions which have been transferred to the
board and which were in effect on the date such transfer occurred
continue in effect for the benefit of the board according to their terms until modified, terminated, superceded, set aside, or revoked
in accordance with the law by the board, or other authorized
official, a court of competent jurisdiction or by operation of law.
Any proceedings, including notices of proposed rule making pending
before the environmental quality board, functions of which were
transferred to the board shall continue in effect as actions of the
board until modified, terminated, superceded or revoked by the
board, by a court of competent jurisdiction, or by operation of
law. The board is authorized to propose legislative rules in
accordance with the provisions of chapter twenty-nine-a of this
code for the orderly transfer of proceedings continued under the
provisions of this subsection.
NOTE: The purpose of this bill is to transfer the rule-making
authority with respect to water quality standards for surface water
and groundwater from the environmental quality board to the water
quality Board. It also provides that the rules may not be more
stringent or in addition to requirements of the federal Clean Water
Act.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
§22C-13-1 et seq. is new; therefore, strikethroughs and
underscoring have been omitted.