ENROLLED
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 287
(Senators Love and Fanning, original sponsors)
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[Passed April 4, 2005; to take effect July 1, 2005.]
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AN ACT to repeal §22B-3-4 of the Code of West Virginia, 1931, as
amended; to amend and reenact §22-11-7b of said code; to amend
and reenact §22-12-4 of said code; and to amend and reenact
§22B-3-2 of said code, all relating to water quality standards
generally; transferring authority to propose rules relating to
water quality standards from the Environmental Quality Board
to the Department of Environmental Protection; providing that
the current rule remains in force and effect until amended by
the Department of Environmental Protection; establishing some
requirements for water protection; providing that meetings to
develop water quality standards be open with certain
exceptions; authorizing the Department of Environmental
Protection to consider remining variances; authorizing the
Secretary to promulgate standards of purity and quality for
groundwater; establishing the maximum containment levels
permitted for groundwater; providing that the current
groundwater standard remains in effect until modified by the Secretary.
Be it enacted by the Legislature of West Virginia:
That §22B-3-4 of the Code of West Virginia, 1931, as amended,
be repealed,; that §22-11-7b of said code be amended and reenacted;
that §22-12-4 of said code be amended and reenacted; and that
§22B-3-2 of said code be amended and reenacted, all to read as
follows:
CHAPTER 22. ENVIRONMENTAL RESOURCES.
ARTICLE 11. WATER POLLUTION CONTROL ACT.
§22-11-7b. Water quality standards; implementation of
antidegradation procedures.
(a) All authority to promulgate rules and implement water
quality standards vested in the Environmental Quality Board is
hereby transferred from the Environmental Quality Board to the
Secretary of the Department of Environmental Protection as of the
effective date of the amendment and reenactment of this section
during the two thousand five regular session of the Legislature:
Provided, That the legislative rule containing the state's water
quality standards shall remain in force and effect as if
promulgated by the Department of Environmental Protection until the
Secretary amends the rule in accordance with the provisions of
article three, chapter twenty-nine-a of this code. Any
proceedings, including notices of proposed rulemaking pending
before the Environmental Quality Board, and any other functions,
actions or authority transferred to the Secretary shall continue in effect as actions of the Secretary.
(b) All meetings with the Secretary or any employee of the
Department and any interested party which are convened for the
purpose of making a decision or deliberating toward a decision as
to the form and substance of the rule governing water quality
standards or variances thereto shall be held in accordance with the
provisions of article nine-a, chapter six of this code. When the
Secretary is considering the form and substance of the rule
governing water quality standards, the following are not meetings
pursuant to article nine-a, chapter six of this code: (i)
Consultations between the Department's employees or its
consultants, contractors or agents; (ii) consultations with other
state or federal agencies and the Department's employees or its
consultants, contractors or agents; or (iii) consultations between
the Secretary, the Department's employees or its consultants,
contractors or agents with any interested party for the purpose of
collecting facts and explaining state and federal requirements
relating to a site specific change or variance.
(c) In order to carry out the purposes of this chapter, the
Secretary shall promulgate legislative rules in accordance with the
provisions of article three, chapter twenty-nine-a of this code
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 protect the public health and
welfare, wildlife, fish and aquatic life and the present and
prospective future uses of the water for domestic, agricultural, industrial, recreational, scenic and other legitimate beneficial
uses thereof. The water quality standards of the Secretary may not
specify the design of equipment, type of construction or particular
method which a person shall use to reduce the discharge of a
pollutant.
(d) The Secretary shall establish the antidegradation
implementation procedures as required by 40 C. F. R. 131.12(a)
which apply to regulated activities that have the potential to
affect water quality. The Secretary shall propose for legislative
approval, pursuant to article three, chapter twenty-nine-a of the
code, legislative rules to establish implementation procedures
which include specifics of the review depending upon the existing
uses of the water body segment that would be affected, the level of
protection or "tier" assigned to the applicable water body segment,
the nature of the activity and the extent to which existing water
quality would be degraded.
(e) All remining variances shall be applied for and considered
by the Secretary and any variance granted shall be consistent with
33 U. S. C. Section 1311(p) of the Federal Water Control Act.
At a minimum, when considering an application for a remining
variance the Secretary shall consider the data and information
submitted by the applicant for the variance; and comments received
at a public comment period and public hearing. The Secretary 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. Any such requirement will be included
as a permit condition. The Secretary 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 Secretary may
not grant a variance where he or she determines that degradation of
the instream water quality will result from the remining operation.
ARTICLE 12. GROUNDWATER PROTECTION ACT.
§22-12-4. Authority of Secretary to promulgate standards of purity
and quality.
(a) The Secretary has the sole and exclusive authority to
promulgate standards of purity and quality for groundwater of the
state.
(b) These standards shall establish the maximum contaminant
levels permitted for groundwater, but in no event shall the
standards allow contaminant levels in groundwater to exceed the
maximum contaminant levels adopted by the United States
Environmental Protection Agency pursuant to the federal Safe
Drinking Water Act. The Secretary may set standards more
restrictive than the maximum contaminant levels where it finds that
such standards are necessary to protect drinking water use where
scientifically supportable evidence reflects factors unique to West
Virginia or some area thereof, or to protect other beneficial uses
of the groundwater. For contaminants not regulated by the federal
Safe Drinking Water Act, standards for such contaminants shall be established by the Secretary to be no less stringent than may be
reasonable and prudent to protect drinking water or any other
beneficial use. Where the concentration of a certain constituent
exceeds such standards due to natural conditions, the natural
concentration is the standard for that constituent. Where the
concentration of a certain constituent exceeds such standard due to
human-induced contamination, no further contamination by that
constituent is allowed and every reasonable effort shall be made to
identify, remove or mitigate the source of such contamination and
to strive where practical to reduce the level of contamination over
time to support drinking water use.
(c) The standards of purity and quality for groundwater
promulgated by the Secretary shall recognize the degree to which
groundwater is hydrologically connected with surface water and
other groundwater and such standards shall provide protection for
such surface water and other groundwater.
(d) In the promulgation of such standards the Secretary shall
consult with the Department of Agriculture and the Bureau for
Public Health, as appropriate.
(e) Any groundwater standard
that is in effect on the
effective date of this article shall remain in effect until
modified by the Secretary
. Notwithstanding any other provisions of
this code to the contrary, the authority of the Secretary
to adopt
standards of purity and quality for groundwater granted by the
provisions of this article is exclusive, and to the extent that any
other provisions of this code grant such authority to any person, body, agency or entity other than the Secretary
, those other
provisions are void.
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 may 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.
(b) All the terms defined in section three, article eleven,
chapter twenty-two of this code are applicable to this article and
have the meanings ascribed to them therein.