H. B. 2889
(By Delegates Williams, Stemple, Michael, Cann and Anderson)
[Introduced on March 4, 2005; referred to the Committee on the
Judiciary.]
A BILL to amend and reenact §22-11-7b of the code of West Virginia,
1931, as amended; that §22-12-4 of said code be amended and
reenacted;
and to amend and reenact §22B-3-2 and §22B-3-4 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 Secretary to promulgate standards
of purity and quality for groundwater; establishing the
maximum containment levels permitted for groundwater;
providing that the current ground water standard remains in effect until modified by the Secretary; and continuing the
authority of the Environmental Quality Board to issue remining
variances.
Be it enacted by the Legislature of West Virginia:
That §22-11-7b of the code of West Virginia, 1931, as amended,
be amended and reenacted; that §22-12-4 of said code be amended and
reenacted;
that §22B-3-2 and §22B-3-4
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) The director of the bureau of the environment 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 director shall propose
for legislative approval pursuant to article three, chapter
twenty-nine-a of the code, emergency and 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 "tier" assigned to
the applicable water body segment, the nature of the activity, and
the extent to which existing water quality would be degraded.
(b) The legislative rule filed by the environmental quality
board as 46 CSR 1 in the state register on the first day of
September, two thousand, authorized under the authority of section
four, article three, chapter twenty-two-b, of this code, as amended
by the Legislature during the two thousand one legislative session,
establishes standards of water quality for waters of the state.
Appendices F, F-1, F-2 and F-3 of the rule contain the
antidegradation implementation procedures for the state. The
authority and responsibility to develop and implement
antidegradation procedures for West Virginia is effective the first
day of July, two thousand one, transferred from the environmental
quality board to the director. The provisions of Appendices F, F-1,
F-2 and F-3 shall remain in full force and effect as if promulgated
by the director until such time as the director files the rules
authorized herein. The initial rule filed by the director shall
contain the same provisions as Appendices F, F-1, F-2 and F-3, 46
CSR 1 approved by the Legislature during the two thousand one
regular session. Notwithstanding any provision of the code to the
contrary, the initial rule filed by the director shall be effective
from filing.
(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 session of the Legislature: Provided,
That the legislative rule "Requirements Governing Water Quality
Standards, 46 CSR 1" authorized by legislative enactment during the
two thousand five session of the Legislature shall remain in force
and effect 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 shall be held in accordance with the provisions of article
nine-a, chapter six of this code. The Secretary shall consider
recommendations made by the Environmental Quality Board. 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
and any interested party regarding 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. No rule of the Secretary may 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 of the Department of Environmental
Protection 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 "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) On and after the first day of July, two thousand six, all
remining variances shall be applied for and considered by the
secretary.
ARTICLE 12. GROUNDWATER PROTECTION ACT.
§22-12-4. Authority of Secretary to promulgate standards of purity
and quality.
(a) The environmental quality board Secretary has the sole and
exclusive authority to promulgate standards of purity and quality
for groundwater of the state. and shall promulgate such standards
following a public hearing within one year from the effective date
of this article, by legislative rules in accordance with the
provisions of chapter twenty-nine-a of this code.
(b) Such 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 board 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 board 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 board 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 board Secretary
shall consult with the division of environmental protection,
Department of Agriculture and the Bureau of Public Health, as appropriate.
(e) Any groundwater standard of the board Secretary
that is in
effect on the effective date of this article shall remain in effect
until modified by the board Secretary
. Notwithstanding any other
provisions of this code to the contrary, the authority of the board
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 board
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 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.
§22B-3-4. Remining site specific variance.
(a) In order to carry out the purposes 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 of chapter twenty-two of this code.
(b) Except for the alternate 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
Until the thirtieth day of June, two thousand six, the
Board may grant site specific variance only for remined areas of
coal remining operation from the standards of water quality set
forth in legislative rule 46 CSR 1, 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. On and after
the first day of July, two thousand six, all remining variances
shall be applied and considered by the department of environmental
protection. 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 on or before the first day of July, one
thousand nine hundred ninety-five. 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. The alternate procedures provided for in this
section are not subject to the legislative rule-making requirements
of article three, chapter twenty-nine-a of this code.
(d) No rule of the board may specify the design of equipment,
type of construction or particular method which a person shall use
to reduce the discharge of a pollutant.