ENGROSSED
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 289
(By Senators Love and Fanning)
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[Originating in the Committee on the Judiciary;
reported March 25, 2005.]
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A BILL to amend and reenact §22-11-3 of the Code of West Virginia,
1931, as amended; and to amend said code by adding thereto a
new section, designated §22-11-6a, all relating to fill
material; defining fill material for the Water Pollution
Control Act; and allowing fill material to be placed in the
waters of the state.
Be it enacted by the Legislature of West Virginia:
That §22-11-3 of the Code of West Virginia, 1931, as amended,
be amended and reenacted; and that said code be amended by adding
thereto a new section, designated §22-11-6a, all to read as
follows:
ARTICLE 11. WATER POLLUTION CONTROL ACT.
§22-11-3. Definitions.
Unless the context in which used clearly requires a different meaning, as used in this article:
(1) "Activity" or "activities" means any activity or
activities for which a permit is required by the provisions of
section seven of this article;
(2) "Board" means the Environmental Quality Board provided for
in article three, chapter twenty-two-b of this code;
(3) "Chief" means the Chief of the Office of Water Resources
of the
division Department of Environmental Protection;
(4) "Code" means the Code of West Virginia, one thousand nine
hundred thirty-one, as amended;
(5) "Department" means the Department of Environmental
Protection;
(5) "Director" means the director of the division of
Environmental Protection or such other person to whom the director
has delegated authority or duties pursuant to sections six or
eight, article one of this chapter;
(6) "Disposal system" means a system for treating or disposing
of sewage, industrial wastes or other wastes, or the effluent
therefrom, either by surface or underground methods, and includes
sewer systems, the use of subterranean spaces, treatment works,
disposal wells and other systems;
(7) "Disposal well" means any well drilled or used for the
injection or disposal of treated or untreated sewage, industrial
wastes or other wastes into underground strata;
(8) "Division" means the division of Environmental Protection;
(9) (8) "Effluent limitation" means any restriction established on quantities, rates and concentrations of chemical,
physical, biological and other constituents which are discharged
into the waters of this state;
(10) (9) "Establishment" means an industrial establishment,
mill, factory, tannery, paper or pulp mill, mine, colliery, breaker
or mineral processing operation, quarry, refinery, well and each
and every industry or plant or works in the operation or process of
which industrial wastes, sewage or other wastes are produced;
(10) "Fill material" means, except as specified herein,
material placed in waters of the state where the material has the
effect of replacing any portion of a water of the state with dry
land; or changing the bottom elevation of any portion of a water of
the state. Examples of fill material include, but are not limited
to, rock, sand, soil, clay, plastics, construction debris, wood
chips, overburden from mining or other excavation activities and
materials used to create any structure or infrastructure in the
waters of the state. The term "fill material" does not include
trash, garbage or solid waste as defined in section two, article
fifteen of this chapter;.
(11) "Industrial user" means those industries identified in
the standard industrial classification manual, United States Bureau
of the Budget, 1967, as amended and supplemented, under the
category "division d--manufacturing" and other classes of
significant waste producers identified under regulations issued by
the Director or the Administrator of the United States
Environmental Protection Agency;
(12) "Industrial wastes" means any liquid, gaseous, solid or
other waste substance, or a combination thereof, resulting from or
incidental to any process of industry, manufacturing, trade or
business, or from or incidental to the development, processing or
recovery of any natural resources; and the admixture with such
industrial wastes of sewage or other wastes, as hereinafter
defined, is also "industrial waste" within the meaning of this
article;
(13) "Other wastes" means garbage, refuse, decayed wood,
sawdust, shavings, bark and other wood debris and residues
resulting from secondary processing; sand, lime, cinders, ashes,
offal, night soil, silt, oil, tar, dyestuffs, acids, chemicals,
heat or all other materials and substances not sewage or industrial
wastes which may cause or might reasonably be expected to cause or
to contribute to the pollution of any of the waters of the state;
(14) "Outlet" means the terminus of a sewer system or the
point of emergence of any water-carried sewage, industrial wastes
or other wastes, or the effluent therefrom, into any of the waters
of this state and includes a point source;
(15) "Person", "persons" or "applicant" means any industrial
user, public or private corporation, institution, association, firm
or company organized or existing under the laws of this or any
other state or country; state of West Virginia; governmental
agency, including federal facilities; 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 legal entity whatever;
(16) "Point source" means any discernible, confined and
discrete conveyance, including, but not limited to, any pipe,
ditch, channel, tunnel, conduit, well, discrete fissure, container,
rolling stock or vessel or other floating craft from which
pollutants are or may be discharged;
(17) "Pollutant" means industrial wastes, sewage or other
wastes as defined in this section;
(18) "Pollution" means the man-made or man-induced alteration
of the chemical, physical, biological and radiological integrity of
the waters of the state;
(19) "Publicly owned treatment works" means any treatment
works owned by the state or any political subdivision thereof, any
municipality or any other public entity for the treatment of
pollutants;
(20) "Secretary" means the director of the Department of
Environmental Protection or such other person to whom the Secretary
has delegated authority or duties pursuant to sections six or
eight, article one of this chapter;
(20) (21) "Sewage" means water-carried human or animal wastes
from residences, buildings, industrial establishments or other
places, together with such groundwater infiltration and surface
waters as may be present;
(21) (22) "Sewer system" means pipelines or conduits, pumping stations, force mains and all other constructions, facilities,
devices and appliances appurtenant thereto, used for collecting or
conducting sewage, industrial wastes or other wastes to a point of
disposal or treatment;
(22) (23) "Treatment works" means any plant, facility, means,
system, disposal field, lagoon, pumping station, constructed
drainage ditch or surface water intercepting ditch, diversion ditch
above or below the surface of the ground, settling tank or pond,
earthen pit, incinerator, area devoted to sanitary landfills or
other works not specifically mentioned herein, installed for the
purpose of treating, neutralizing, stabilizing, holding or
disposing of sewage, industrial wastes or other wastes or for the
purpose of regulating or controlling the quality and rate of flow
thereof;
(23) (24) "Water resources", "water" or "waters" means any and
all water on or beneath the surface of the ground, whether
percolating, standing, diffused or flowing, wholly or partially
within this state, or bordering this state and within its
jurisdiction, and includes, without limiting the generality of the
foregoing, natural or artificial lakes, rivers, streams, creeks,
branches, brooks, ponds (except farm ponds, industrial settling
basins and ponds and water treatment facilities), impounding
reservoirs, springs, wells, watercourses and wetlands; and
(24) (25) "Well" means any shaft or hole sunk, drilled, bored
or dug into the earth or into underground strata for the extraction
or injection or placement of any liquid or gas, or any shaft or hole sunk or used in conjunction with such extraction or injection
or placement. The term "well" does not include any shaft or hole
sunk, drilled, bored or dug into the earth for the sole purpose of
core drilling or pumping or extracting therefrom potable, fresh or
usable water for household, domestic, industrial, agricultural or
public use.
§22-11-6a. Discharges of "fill material".
Notwithstanding any other provision of this act or of any
statute, rule or regulation of the State of West Virginia, fill
material which is discharged into waters of the state, for any
purpose, shall not be considered "waste", "industrial waste" or
"other waste" and such discharges shall not be considered to
constitute the use of waters of the state for "assimilation of
waste" for the purpose of applicable water quality standards.