Senate Bill No. 621
(By Senators Bowman and Minard)
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[Introduced February 19, 2010; referred to the Committee on
Government Organization; and then to the Committee on the
Judiciary.]
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A BILL to amend and reenact §22-11-7b of the Code of West Virginia,
1931, as amended, relating to allowing permit limits based on
mixing zones for dischargers located upstream of public water
service intakes owned by that discharger.
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 to read as follows:
ARTICLE 11. WATER POLLUTION CONTROL ACT.
§22-11-7b. Water quality standards; implementation of
antidegradation procedures; allowance for mixing
zones.
(a) All authority to promulgate rules and implement water
quality standards
is 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 2005 regular session of the Legislature Provided, That
the
Environmental Quality Board's legislative rule containing the
state's water quality standards
shall remain remains in force and
effect as if promulgated by the Department of Environmental
Protection 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 or variances thereto shall be held in accordance with the
provisions of article nine-a, chapter six of this code. 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 with any interested party for the purpose of
collecting facts and explaining state and federal requirements
relating to a site specific change or variance.
(c) In order to carry out the purposes of this chapter, the
secretary shall
promulgate propose legislative rules
for
legislative approval 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.
The water quality standards of the secretary may not specify the
design of equipment, type of construction or particular method
which a person
shall use uses to reduce the discharge of a
pollutant.
(d) The secretary 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 or "tier" assigned to the applicable water body segment,
the nature of the activity and the extent to which existing water
quality would be degraded. Any final classification determination
of a water as a Tier 2.5 water (Water of Special Concern) does not
become effective until that determination is approved by the
Legislature through the legislative rulemaking process as provided
for in article three, chapter twenty-nine-a of the code.
(e) All remining variances shall be applied for and considered
by the secretary and any variance granted shall be consistent with
33 U.S.C. Section 1311(p) of the Federal Water Control Act. At a
minimum, when considering an application for a remining variance
the secretary shall consider the data and information submitted by
the applicant for the variance; and comments received at a public
comment period and public hearing. The secretary 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. Any such requirement
will shall be included
as a permit condition. The secretary 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 secretary may
not grant a variance where he or she determines that degradation of
the instream water quality will result from the remining operation.
(f) The Legislature finds that where an intake of a public
water system, as defined in section nine-a, article one, chapter
sixteen of the code, is owned by the same person who owns a
disposal system located within a one-half mile zone upstream, the
discharge of pollutants from the disposal system in excess of the
water quality criteria designated for protection of human health is
not prohibited, and the secretary shall allow a mixing zone for the
discharge if the person is not engaged in the commercial sale of
water to its users.
NOTE: The purpose of this bill is to allow permit limits based
on a mixing zone for dischargers who own the nearest public water
supply downstream.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.