H. B. 4275

         (By Delegates R. Phillips, Barker, Caputo,

          Craig, Marcum, Moore, Skaff, R. Smith, Sumner,

                        Tomblin and White)

         [Introduced January 23, 2014; referred to the

         Committee on the Judiciary.]

A BILL to amend and reenact §22-11-6 of the Code of West Virginia, 1931, as amended, relating to making West Virginia’s Water Pollution Control Act consistent with the federal Water Pollution Act, also known as the Clean Water Act, by clarifying that water quality standards may be used to calculate effluent standards or limitations, but may not themselves be used as effluent standards or limitations in a National Pollutant Discharge Elimination System permit for purposes of the federal Water Pollution Control Act.

Be it enacted by the Legislature of West Virginia:

    That §22-11-6 of the Code of West Virginia, 1931, as amended, be amended and reenacted to read as follows:

ARTICLE 11. WATER POLLUTION CONTROL ACT.

§22-11-6. Requirement to comply with standards of water quality and effluent limitations.

    All persons affected by rules establishing water quality standards and effluent limitations shall promptly comply therewith: Provided, That:

    (1) Where necessary and proper, the secretary may specify a reasonable time for persons not complying with such standards and limitations to comply therewith, and upon the expiration of any such period of time, the secretary shall revoke or modify any permit previously issued which authorized the discharge of treated or untreated sewage, industrial wastes or other wastes into the waters of this state which result in reduction of the quality of such waters below the standards and limitations established therefor by rules of the board or secretary;

    (2) Notwithstanding any rule or permit condition to the contrary, and except for any standard imposed under section 307 of the federal Water Pollution Control Act for a toxic pollutant injurious to human health, compliance with a permit issued pursuant to this article shall be deemed compliance for purposes of both this article and sections 301, 302, 306, 307 and 403 of the federal Water Pollution Control Act. Nothing in this section, however, prevents the secretary from modifying, reissuing or revoking a permit during its term. The provisions of this section addressing compliance with a permit are intended to apply to all existing and future discharges and permits without the need for permit modifications. However, should any such modification be necessary under the terms of this article, then the secretary shall immediately commence the process to effect such modifications; and

    (3) Water quality standards may be used to calculate water quality based limitations in National Pollutant Discharge Elimination System permits issued pursuant to this article, but water quality standards shall not themselves be considered effluent standards or limitations. No existing or future rule or permit may impose or include water quality standards as effluent standards or limitations in a National Pollutant Discharge Elimination System permit. It is the intent of this subdivision that no modification to existing permits be required to remove any permit conditions that make water quality standards into effluent standards or limits in National Pollutant Discharge Elimination System permits. However, to the extent that a modification of any existing permit is required to give effect to this provision, then the director is directed to modify or reissue such permit as soon as possible so that it is in compliance with this article. To the extent that any rule either provides that water quality standards are effluent standards or limitations or provides that permits issued under this chapter require that water quality standards are effluent standards or limitations for any purpose under the federal Water Pollution Control Act, that rule is nullified and no longer of any force or effect; and 

    (3) (4) The Legislature finds that there are concerns within West Virginia regarding the applicability of the research underlying the federal selenium criteria to a state such as West Virginia which has high precipitation rates and free-flowing streams and that the alleged environmental impacts that were documented in applicable federal research have not been observed in West Virginia and, further, that considerable research is required to determine if selenium is having an impact on West Virginia streams, to validate or determine the proper testing methods for selenium and to better understand the chemical reactions related to selenium mobilization in water.

    (4) (5) The Legislature finds that EPA has been contemplating a revision to the federally recommended criteria for several years but has yet to issue a revised standard.

    (5) (6) Because of the uncertainty regarding the applicability of the current selenium standard, the secretary is hereby directed to develop within six months of the effective date of this subdivision an implementation plan for the current selenium standard that will include, at minimum, the following:

    (A) Implementing the criteria as a threshold standard;

    (B) A monitoring plan that will include chemical speciation of any selenium discharge;

    (C) A fish population survey and monitoring plan that will be implemented at a representative location to assess any possible impacts from selenium discharges if the threshold criteria are exceeded; and

    (D) The results of the monitoring will be reported to the department for use in the development of state-specific selenium criteria.

    (6) Within twenty-four months of the effective date of this subdivision, the secretary shall propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine of this code which establish a state-specific selenium standard that protects aquatic life. Concurrent with proposing a legislative rule, the secretary shall also submit the proposed standard and supporting documentation to the Administrator of the Environmental Protection Agency. The secretary shall also consult with and consider research and data from the West Virginia Water Research Institute at West Virginia University, the regulated community, and other appropriate groups in developing the state-specific selenium standard.

    NOTE: The purpose of this bill is to clarify, consistent with the federal Water Pollution Control Act, that water quality standards established standards for waters of the state but are not directly enforceable as effluent standards or limitations in permits under the federal Water Pollution Control Act until and unless the director calculates discharge-specific water quality-based effluent limits based on the expected concentrations of pollutants from a discharge point and in the receiving water. The bill declares that the director may not convert water quality standards into effluent limits by simply making compliance with water quality standards a condition of an NPDES permit, but must actually calculate and assign limits on an outlet by outlet basis. The bill also nullifying any rule that requires otherwise.

    Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.