Senate Bill No. 616
(By Senators Ross, Love, Weeks and Edgell)
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[Introduced February 23, 2004; referred to the Committee on
Natural Resources; and then to the Committee on the Judiciary.]
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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 irregular 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 that council members may submit rule-making
suggestions to the secretary; providing that authority is
vested in the secretary to promulgate, administer and enforce
bills; providing that the secretary may not adopt rules
regarding reclamation which are more expansive or more
stringent than federal rules; and establishing a new advisory
committee to assist in improving efficiency and quality of
permits.
Be it enacted by the Legislature of West Virginia:
That §22-1-9 of the code of West Virginia, 1932, 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 thirty 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 shall submit any such
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
(7) Review and act upon, as appropriate, the list of state
requirements submitted on the first day of May, two thousand three,
as directed by Senate concurrent resolution 46, adopted by the
regular session of the two thousand three Legislature; and
(6) (8) 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 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
subsection (b), subdivision (1), section four of 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 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 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 in promulgating and revising such
rules, the secretary shall comply with the provisions of chapter
twenty-nine-a of this code and hereafter shall not adopt any rule
more expansive in coverage nor more stringent in effect that the
rules adopted by the federal agency pursuant to the federal Surface
Mining Control and Reclamation Act of 1977, unless specifically
directed by the Legislature: Provided, however, 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, further, 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:
And provided further, That the
affirmative duties imposed upon the secretary by the provisions of
this subdivision
shall not be interpreted as limiting or
restricting the right of any person to challenge any rules of the
department as being more restrictive than those already adopted by
the federal office of surface-mining reclamation and enforcement,
challenging a final decision of the secretary or otherwise
initiating a petition under subsection (c) of this section.
(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, including a new advisory committee comprised of five persons which shall be responsible for reviewing mine permitting
procedures and related requirements, to work with the department's
division of mining and reclamation to improve upon the efficiencies
and quality of permits and the permitting process the purpose of
such new advisory committee being to replace the function and
responsibilities of the quality assurance/quality compliance
(QA/QC) committee appointed by the United States district court to
perform functions arising out of the litigation styled Bragg v.
Robertson, 248, F.3d 275(4th Cir 2001): Provided, That such
advisory committees shall, in each instance, include members
representative of the general public.
(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 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 require the secretary, in his or her rule-making
functions, not to adopt any rules either more expansive or more
stringent than those of the federal government.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.