H. B. 2579
(By Delegates R. Phillips, Stowers, Eldridge, Tomblin,
White, Marcum, Caputo, Boggs, Craig, Sumner and Nelson, J.)
[Introduced February 20, 2013; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact §22-11-6 of the Code of West Virginia,
1931, as amended, relating to protecting state waters;
legislative findings; and an implementation plan to establish
state specific selenium criteria.
Be it enacted by the Legislature of West Virginia:
That §22-11-6 of the Code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:
ARTICLE 11. WATER POLLUTION CONTROL ACT.
§22-11-6. Requirement to comply with standards of water quality
and effluent limitations.
All persons affected by rules establishing water quality
standards and effluent limitations shall promptly comply therewith:
Provided, That:
(1) Where necessary and proper, the secretary may specify a
reasonable time for persons not complying with such standards and
limitations to comply therewith, and upon the expiration of any such period of time, the secretary shall revoke or modify any
permit previously issued which authorized the discharge of treated
or untreated sewage, industrial wastes or other wastes into the
waters of this state which result in reduction of the quality of
such waters below the standards and limitations established
therefor by rules of the board or secretary;
(2) Notwithstanding any rule or permit condition to the
contrary, and except for any standard imposed under section 307 of
the federal Water Pollution Control Act for a toxic pollutant
injurious to human health, compliance with a permit issued pursuant
to this article shall be deemed compliance for purposes of both
this article and sections 301, 302, 306, 307 and 403 of the federal
Water Pollution Control Act. Nothing in this section, however,
prevents the secretary from modifying, reissuing or revoking a
permit during its term. The provisions of this section addressing
compliance with a permit are intended to apply to all existing and
future discharges and permits without the need for permit
modifications. However, should any such modification be necessary
under the terms of this article, then the secretary shall
immediately commence the process to effect such modifications; and
(3) The Legislature finds that there are concerns within West
Virginia regarding the applicability of the research underlying the
federal selenium criteria to a state such as West Virginia which
has high precipitation rates and free-flowing streams and that the alleged environmental impacts that were documented in applicable
federal research have not been observed in West Virginia and,
further, that considerable research is required to determine if
selenium is having an impact on West Virginia streams, to validate
or determine the proper testing methods for selenium and to better
understand the chemical reactions related to selenium mobilization
in water. For existing NPDES permits, the department may extend
the time period for achieving water quality-based effluent limits
for selenium discharges into waters supporting aquatic life uses to
July 1, 2012, upon compliance with all federally required public
notice requirements for such modifications, upon a finding that the
permittee cannot comply with its existing compliance schedule and
that an extension is not in violation of any state or federal laws,
rules or regulations. The West Virginia Department of
Environmental Protection is hereby directed to undertake a
comprehensive study relating to selenium and prepare a report
detailing such findings and submitting the report to the Joint
Committee on Government and Finance no later than January 1, 2010.
In conducting such study, the West Virginia Department of
Environmental Protection shall consult with, among others, West
Virginia University and the West Virginia Water Research Institute.
(4) The Legislature finds that EPA has been contemplating a
revision to the federally recommended criteria for several years
but has yet to issue a revised standard.
_____(5) Because of the uncertainty regarding the applicability of
the current selenium standard, the West Virginia Department of
Environmental Protection is hereby directed to develop an
implementation plan for the selenium current criteria within two
months of the effective date of this article that will include:
_____(A) Implementing the criteria as a threshold standard;
_____(B) A monitoring plan that will include chemical speciation of
any selenium discharge;
_____(C) A fish population survey and monitoring plan that will be
implemented at a representative location to assess any possible
impacts from selenium discharges if the threshold criteria are
exceeded;
_____(D) The results of the monitoring will be reported to the
department for use in the development of state-specific selenium
criteria;
_____(6) The Legislature directs the West Virginia Department of
Environmental Protection to provide the results of the monitoring
required in subesection (5) to the West Virginia Water Research
Institute at West Virginia University to assist with the
development of a state-specific selenium criteria that is
protective of state waters.
NOTE: The purpose of this bill is to protect state waters by
creating an implementation plan to establish state specific selenium criteria.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.