H. B. 2972

         (By Delegates Varner, Kominar, Stowers,

           White, Cann, Perry, Hall, Ferro, Pethtel,

                Hartman and R. Phillips)

         [Introduced February 1, 2011; referred to the

Committee on Energy, Industry and Labor, Economic Development and Small Business then the Judiciary.]

A BILL to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated, §22-1A-1, §22-1A-2, §22-1A-3 and §22-1A-4, all relating to environmental resources; creating the Intrastate Coal and Use Act; providing a short title; legislative declarations, including constitutional authority for contents of article; definitions; and stating the responsibility of West Virginia Department of Environmental Protection for the permitting process of coal production under current environmental protection legislation and regulation.

Be it enacted by the Legislature of West Virginia:

    That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new article, designated §22-1A-1, §22-1A-2, §22-1A-3 and §22-1A-4, all to read as follows:

ARTICLE 1A. INTRASTATE COAL AND USE ACT.

§22-1A-1. Short title.

    This article may be cited as the "Intrastate Coal and Use Act".

§22-1A-2.  Legislative declarations of authority.

    (a)The Legislature declares that the authority for this article is as follows:

    (1) The Tenth Amendment to the United States Constitution guarantees to the states and their people all powers not granted to the federal government elsewhere in the Constitution and reserves to the state and people of West Virginia certain powers as they were understood at the time that West Virginia was admitted to statehood in 1863. The guaranty of those powers is a matter of contract between the state and people of West Virginia and the United States as of the time that the compact with the United States was agreed upon and adopted by West Virginia and the United States in 1863.

    (2) The Ninth Amendment to the United States Constitution guarantees to the people rights not granted in the Constitution and reserves to the people of West Virginia certain rights as they were understood at the time that West Virginia was admitted to statehood in 1863. The guaranty of those rights is a matter of contract between the state and people of West Virginia and the United States as of the time that the compact with the United States was agreed upon and adopted by West Virginia and the United States in 1863.

    (3) Article I, Section 2, of the West Virginia Constitution, states that "the government of the United States is a government of enumerated powers, and all powers not delegated to it, nor inhibited to the states, are reserved to the states or to the people thereof." Specifically enumerated among those "powers so reserved to the states is the exclusive regulation of their own internal government and police; and it is the high and solemn duty of the several departments of government, created by this Constitution, to guard and protect the people of this state from all encroachments upon the rights so reserved."

    (4) The regulation of intrastate commerce, including the natural environment as affected by intrastate business, is vested in the states under the Ninth and Tenth Amendments to the United States Constitution and is specifically retained by the State of West Virginia according to Article I, Section 2, of the West Virginia Constitution.

    (b) The Legislature further declares that the United States Environmental Protection Agency, acting under the color of authority of Congress to regulate interstate commerce, lacks the authority to deny permits of operation to such coal mines and facilities as the products of these mines and facilities have not traveled in interstate commerce. The recent actions of the United States Environmental Protection Agency, specifically affecting Logan County, by denying or shutting down mining permits long after the basic permits had been approved presents the threat of the United States Environmental Protection Agency shutting down all coal mining in West Virginia, costing the jobs of thousands of miners and driving the state into bankruptcy. Changing the rules after the permitting process has long been in effect is improper, illegal and amounts to the executive branch of the United States legislating new law, without authority, proper procedure and with no protection to the West Virginia coal industry or its employees.

§22-1A-3. Definitions.

    As used in this article, the following definitions apply:

    (a) "Borders of West Virginia" means the boundaries of the State of West Virginia described in Article II, section 1, of the 1872 West Virginia Constitution.

    (b) The term "coal mine" means those operations removing coal from a coal seam or seams, whether aboveground or underground.

    (c) "Chemically altered coal product" means any product derived principally from coal, including, but not limited to, coke or liquid fuels derived from coal by any process.

§22-1A-4. Responsibility of West Virginia Department of    Environmental Protection.

    (a) In light of the above findings, environmental regulation in West Virginia for all purposes of regulating business activity performed in West Virginia, when the products of the business activities are held, maintained or retained within the borders of West Virginia, is the principal responsibility of the West Virginia Department of Environmental Protection.

    (b) Any West Virginia coal mine producing coal which is used commercially or privately in West Virginia and which is consumed or otherwise remains within the borders of West Virginia and any West Virginia facility producing chemically altered coal products used commercially or privately in West Virginia which remain within the borders of West Virginia, shall be issued a permit to operate by the West Virginia Department of Environmental Protection once the West Virginia Department of Environmental Protection has certified that the mine or facility is compliant with all applicable state and federal laws or state and federal regulation.

    (c) A sample from each vein of coal in a mine and a sample of coal from each West Virginia source used at a facility producing a chemically altered coal product shall be placed on record with the West Virginia Department of Environmental Protection to verify the West Virginia origin of the coal produced and used.

    (d) This section applies to coal and to any chemically altered coal product mined or produced in West Virginia from basic materials which can be manufactured without the inclusion of any significant components imported from another state.

    (e) This section applies only to the issuance of a permit of operation to a coal mine or facility producing chemically altered coal products, the issuance of which permit is required by the Clean Water Act or by another equivalent state or federal statute or regulation. Nothing in this section shall be construed to limit the effect of any other state or federal statute or regulation.

    NOTE: The purpose of this bill is to declare the position of West Virginia as opposed to that of the United States Environmental Protection Agency with regard to regulation of coal production; and to emphasize that under the Ninth and Tenth Amendments to the United States Constitution and Article I, Section 2, of the West Virginia Constitution, the regulation of coal production in West Virginia is subject to the authority of the West Virginia Department of Environmental Protection. The bill also states that the actions of the United States Environmental Protection Agency in changing the rules for a specific permit in Logan County after the permitting process has long been in effect is improper and without legal basis.

    This article is new; therefore, it has been completely underscored.