COMMITTEE SUBSTITUTE

FOR

Senate Bill No. 616

(By Senators Ross, Love, Weeks and Edgell)

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[Originating in the Committee on Natural Resources; reported February 26, 2004.]

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A BILL to amend and reenact §22-1-9 of the code of West Virginia, 1931, as amended; and to amend and reenact §22-3-2 and §22-3-4 of said code, all relating to the department of environmental protection; requiring that a regular or special meeting of the advisory committee be had upon the written request of three members; requiring that the council timely receive an agenda for each meeting with supporting documentation; allowing council members to submit rule-making suggestions to the secretary for submission; and establishing a new quality assurance/quality compliance advisory committee to review permitting procedures and improve the permitting processes .

Be it enacted by the Legislature of West Virginia:
That §22-1-9 of the code of West Virginia, 1931, as amended, be amended and reenacted; and that §22-3-2 and §22-3-4 of said code be amended and reenacted, all to read as follows:
ARTICLE 1. DEPARTMENT OF ENVIRONMENTAL PROTECTION.
§22-1-9. Environmental protection advisory council.

(a) There is created within the department of commerce, labor and environmental resources the environmental protection advisory council. The environmental protection advisory council consists of seven members. The director secretary serves as an ex officio member of the council and as its chair. The remaining six members are appointed by the governor. Each member serves for a term of four years and may be reappointed. Of the members of the council first appointed, two shall be appointed for terms ending on the thirtieth day of June, one thousand nine hundred ninety-six, and two each for terms ending one and two years thereafter. Vacancies on the council shall be filled within sixty days after the vacancy occurs.
(b) Two members of the council shall represent industries regulated by the division department or their trade associations. Two members shall represent organizations advocating environmental protection. One member shall represent organizations representing local governments. One member shall represent public service districts. In making subsequent appointments this balance of membership shall be maintained.
(c) Appointed members shall be paid the same compensation and expense reimbursement as is paid to members of the Legislature for their interim duties as recommended by the citizens legislative compensation commission and authorized by law for each day or portion thereof engaged in the discharge of official duties.
(d) The council shall meet at least once every quarter and at the call of the chair or upon the request of any three members of the council presented in writing to the chair.
At least fifteen days prior to each regularly scheduled quarterly meeting, or ten days in advance of a meeting called by the chair or three members of the council, the secretary shall provide to the council an agenda of all matters scheduled for discussion at the meeting together with written materials for any subject that the secretary intends to propose for rule making as required by chapter twenty-nine-a of this code.
(e) The council shall:
(1) Consult with and advise the director secretary on program and policy development, problem solving and other appropriate subjects;
(2) Identify and define problems associated with the implementation of the policy set forth in section one of this article;
(3) Provide and disseminate to industry and the public early identification of major federal program and regulatory changes;
(4) Provide a forum for the resolution of conflicts between constituency groups;
(5) To the extent possible, strive for consensus on the development of overall environmental policy; and
(6) Upon the motion of any member of the council, and with the concurrence of a majority of the members, the council may submit to the secretary suggestions for proposed rule making, which upon adoption by the council, the secretary may submit any suggestion in the proper form to the secretary of state for publication in the state register to initiate formal rule making as provided by chapter twenty-nine-a of this code; and
(6) (7) Provide an annual report to the joint committee on government and finance on or before the first day of January of each year relating to its findings with regard to the division's performance during the previous year. The report will specifically address the division's performance in accomplishing the nine purposes set forth in subsection (b), section one of this article.
ARTICLE 3. SURFACE COAL MINING AND RECLAMATION ACT.

§22-3-2. Legislative findings and purpose; jurisdiction vested in department of environmental protection; authority of secretary; inter-departmental cooperation.

(a) The Legislature finds that it is essential to the economic and social well-being of the citizens of the state of West Virginia to strike a careful balance between the protection of the environment and the economical mining of coal needed to meet energy requirements.
Further, the Legislature finds that there is great diversity in terrain, climate, biological, chemical and other physical conditions in parts of this nation where mining is conducted; that the state of West Virginia in particular needs an environmentally sound and economically healthy mining industry; and by reason of the above it may be necessary for the director to promulgate rules which vary from federal regulations as is provided for in sections 101 (f) and 201 (c)(9) of the federal Surface Mining Control and Reclamation Act of 1977, as amended, "Public Law 95-87."
Further, the Legislature finds that unregulated surface coal mining operations may result in disturbances of surface and underground areas that burden and adversely affect commerce, public welfare and safety by destroying or diminishing the utility of land for commercial, industrial, residential, recreational, agricultural and forestry purposes; by causing erosion and landslides; by contributing to floods; by polluting the water and river and stream beds; by destroying fish, aquatic life and wildlife habitats; by impairing natural beauty; by damaging the property of citizens; by creating hazards dangerous to life and property; and by degrading the quality of life in local communities, all where proper mining and reclamation is not practiced.
(b) Therefore, it is the purpose of this article to:
(1) Expand the established and effective statewide program to protect the public and the environment from the adverse effects of surface-mining operations;
(2) Assure that the rights of surface and mineral owners and other persons with legal interest in the land or appurtenances to land are adequately protected from such surface-mining operations;
(3) Assure that surface-mining operations are not conducted where reclamation as required by this article is not feasible;
(4) Assure that surface-mining operations are conducted in a manner to adequately protect the environment;
(5) Assure that adequate procedures are undertaken to reclaim surface areas as contemporaneously as possible with the surface-mining operations;
(6) Assure that adequate procedures are provided for public participation where appropriate under this article;
(7) Assure the exercise of the full reach of state common law, statutory and constitutional powers for the protection of the public interest through effective control of surface-mining operations; and
(8) Assure that the coal production essential to the nation's energy requirements and to the state's economic and social well-being is provided.
(c) In recognition of these findings and purposes, the Legislature hereby vests authority in the director secretary of the division department of environmental protection to:
(1) Administer and enforce the provisions of this article as it relates to surface mining to accomplish the purposes of this article;
(2) Conduct hearings and conferences or appoint persons to conduct them in accordance with this article;
(3) Promulgate, administer and enforce rules pursuant to this article;
(4) Enter into a cooperative agreement with the secretary of the United States Department of the Interior to provide for state regulation of surface-mining operations on federal lands within West Virginia consistent with section 523 of the federal Surface Mining Control and Reclamation Act of 1977, as amended; and
(5) Administer and enforce rules promulgated pursuant to this chapter to accomplish the requirements of programs under the federal Surface Mining Control and Reclamation Act of 1977, as amended.
(d) The director secretary of the division department of environmental protection and the director of the office of miners' health, safety and training shall cooperate with respect to each agency's programs and records to effect an orderly and harmonious administration of the provisions of this article. The director secretary of the division department of environmental protection may avail himself or herself of any services which may be provided by other state agencies in this state and other states or by agencies of the federal government, and may reasonably compensate them for such the services. Also, he or she may receive any federal funds, state funds or any other funds, and enter into cooperative agreements, for the reclamation of land affected by surface mining.
§22-3-4. Reclamation; duties and functions of director.

(a) The director secretary shall administer the provisions of this article relating to surface-mining operations. The director has within his or her jurisdiction and supervision all lands and areas of the state, mined or susceptible of being mined, for the removal of coal and all other lands and areas of the state deforested, burned over, barren or otherwise denuded, unproductive and subject to soil erosion and waste. Included within such the lands and areas are lands seared and denuded by chemical operations and processes, abandoned coal mining areas, swamplands, lands and areas subject to flowage easements and backwaters from river locks and dams, and river, stream, lake and pond shore areas subject to soil erosion and waste. The jurisdiction and supervision exercised by the director shall be consistent with other provisions of this chapter.
(b) The director secretary has the authority to:
(1) Promulgate rules, in accordance with the provisions of chapter twenty-nine-a of this code, to implement the provisions of this article: Provided, That the director secretary shall give notice by publication of the public hearing required in article three, chapter twenty-nine-a of this code: Provided however, That any forms, handbooks or similar materials having the effect of a rule as defined in article three, chapter twenty-nine-a of this code that were issued, developed or distributed by the director secretary pursuant to or as a result of a rule are subject to the provisions of article three, chapter twenty-nine-a of this code;
(2) Make investigations or inspections necessary to ensure complete compliance with the provisions of this code;
(3) Conduct hearings or appoint persons to conduct hearings under provisions of this article or rules adopted by the director secretary; and for the purpose of any investigation or hearing hereunder, the director secretary or his or her designated representative, may administer oaths or affirmations, subpoena witnesses, compel their attendance, take evidence and require production of any books, papers, correspondence, memoranda, agreements, or other documents or records relevant or material to the inquiry;
(4) Enforce the provisions of this article as provided herein; and
(5) Appoint such advisory committees as may be of assistance to the director secretary in the development of programs and policies: Provided, That such advisory committees shall, in each instance, include members representative of the general public.
(A) A quality assurance/quality compliance (QA/QC) advisory committee is established .
(i) The purpose of the QA/QC advisory committee is to review mine permitting procedures and related requirements, and to work with the division of mining and reclamation to improve upon the efficiencies and quality of permits and the permitting process.
(ii) The QA/QC advisory committee is comprised of the secretary or his or her designee, two members with experience in coal mining, and two members with experience in environmental protection.
(iii) The terms of all members shall begin on the first day of July, two thousand four. The terms of the appointees shall be for six years. Appointees may be reappointed to serve on the committee. The terms of the appointed members initially taking office are to be expired as designated by the secretary at the time of the nomination, one at the end of the second year, one at the end of the fourth year, and two at the end of the sixth year. As the original appointments expire, each subsequent appointment will be for a full six year term. Any appointed member whose term has expired shall serve until a successor has been duly appointed and qualified. Any person appointed to fill a vacancy is to serve only for the unexpired term.
(iv) Appointed members of the QA/QC committee shall be paid the same compensation and expense reimbursement as is provided for members of the Legislature pursuant to section six and eight, article two-a, chapter four of this code.
(v) The QA/QC committee shall meet at the call of the secretary or his or her designee, but not less than every four months.
(c) (1) After the director secretary has adopted the rules required by this article, any person may petition the director to initiate a proceeding for the issuance, amendment or appeal of a rule under this article.
(2) The petition shall be filed with the director secretary and shall set forth the facts which support the issuance, amendment or appeal of a rule under this article.
(3) The director secretary may hold a public hearing or may conduct such an investigation or proceeding as he or she considers appropriate in order to determine whether the petition should be granted or denied.
(4) Within ninety days after filing of a petition described in subdivision (1) of this subsection, the director secretary shall either grant or deny the petition. If the director secretary grants the petition, he or she shall promptly commence an appropriate proceeding in accordance with the provisions of chapter twenty-nine-a of this code. If the director secretary denies the petition, he or she shall notify the petitioner in writing setting forth the reasons for the denial.


NOTE: The purpose of this bill is to empower members of the environmental protection advisory council to compel meetings and to have greater and more meaningful participation in the work of the council; and to create a new five-member advisory committee, called the quality assurance/quality compliance (QA/QC) committee, to review permitting procedures and improve the permitting processes, as established by the United States District Court in Bragg v. Robertson, 248, F.3d 275(4th Cir 2001).

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