COMMITTEE SUBSTITUTE

FOR

H. B. 2134

(By Delegates Gallagher, Douglas, Compton, Linch,

Faircloth and Riggs)


(Originating in the House Committee on the Judiciary)

[February 13, 1995]


A BILL to amend and reenact sections one, two and three, article one, chapter sixty-four of the code of West Virginia, one thousand nine hundred thirty-one, as amended; and to further amend said chapter by amending and reenacting article three, all relating generally to continuing all previously authorized legislative rules, authorizing the promulgation of legislative rules by the division of environmental protection of the bureau of environment, the water quality board of the bureau of environment, and the solid waste management board of the bureau of environment; authorizing the division of environmental protection, the solid waste management board and the water quality board to promulgate legislative rules in the form that the rules were filed in the state register; authorizing the division of environmental protection, the solid waste management board and the water quality board to promulgate legislative rules with various modifications presented to and recommended by the legislative rule-making review committee; authorizing the division of environmental protection to promulgate legislative rules relating to requirements for determining conformity of general federal actions to applicable air quality implementation plans, as modified; authorizing the division of environmental protection to promulgate legislative rules relating to emission standards for hazardous air pollutants pursuant to 40 CFR 63, as modified; authorizing the division of environmental protection to promulgate legislative rules relating to acid rain provisions and permits, as modified; authorizing the division of environmental protection to promulgate legislative rules relating to standards of performance for new stationary sources, as modified; authorizing the division of environmental protection to promulgate legislative rules relating to emission standards for hazardous pollutants, as modified; authorizing the division of environmental protection to promulgate legislative rules relating to permits for construction and major modification of major stationary sources of air pollution for the prevention of significant deterioration, as modified; authorizing the division of environmental protection to promulgate legislative rules relating to requirements for determining conformity of transportation plans, programs and projects developed, funded or approved under title 23 of the United States Code or the Federal Transit Act to applicable air quality implementation plans, as modified; authorizing the division of environmental protection to promulgate legislative rules relating to preventing and controlling air pollution from the operation of coal preparation plants and coal handling operations, as modified; authorizing the division of environmental protection to promulgate legislative rules relating to provisions for determination of compliance with air quality management, as modified; authorizing the division of environmental protection to promulgate legislative rules relating to prevention and control air pollution from combustion of refuse, as modified; authorizing the division of environmental protection to promulgate legislative rules relating to preventing and controlling air pollution from hazardous waste treatment, storage or disposal facilities; authorizing the division of environmental protection to promulgate legislative rules relating to underground storage tanks, as modified; authorizing the division of environmental protection to promulgate legislative rules relating to standards for certification of blasters- surface coal mines, as modified and amended; authorizing the division of environmental protection to promulgate legislative rules relating to hazardous waste management, as modified; authorizing the division of environmental protection to promulgate legislative rules relating to dam safety regulations, as modified and amended; authorizing the division of environmental protection to promulgate legislative rules relating to governing environmental laboratories certification and standards of performance, as modified; authorizing the division of environmental protection to promulgate legislative rules relating to the state water pollution control revolving fund program, as modified; authorizing the division of environmental protection to promulgate legislative rules relating to abandoned lands and reclamation, as modified; authorizing the division of environmental protection to promulgate legislative rules relating to the state water pollution control revolving fund program, as modified; authorizing the environmental quality board to promulgate legislative rules relating to requirements governing water quality standards, as modified; and authorizing the solid waste management board to promulgate legislative rules relating to distribution of grants to solid waste authorities.

Be it enacted by the Legislature of West Virginia:
That sections one, two and three, article one, chapter sixty-four of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted; and that said chapter be further amended by amending and reenacting article three, all to read as follows:
ARTICLE 1. GENERAL LEGISLATIVE AUTHORIZATION.

§64-1-1. Legislative authorization.

Under the provisions of article three, chapter twenty-nine-a of the code of West Virginia, the Legislature expressly authorizes the promulgation of the rules described in articles two through nine ten of this chapter, subject only to the limitations set forth with respect to each such rule in the section or sections of this chapter authorizing its promulgation. The Legislature further declares that all rules now or hereafter authorized under articles two through ten nine of this chapter are within the legislative intent of the statute which the rule is intended to implement, extend, apply or interpret. Legislative rules promulgated pursuant to the provisions of articles one through ten of this chapter in effect at the effective date of this section shall continue in full force and effect until reauthorized in this chapter by legislative enactment, or until amended by emergency rule pursuant to the provisions of article three, chapter twenty-nine-a of this code.
§64-1-2. Effective date of rules.

The effective date of the legislative rules authorized in articles two through nine ten of this chapter shall be governed by the provisions of section thirteen, article three, chapter twenty-nine-a, unless the agency promulgating the rules establishes an effective date which is earlier than that provided by section thirteen, article three, chapter twenty-nine-a, in which case the effective date established by the agency shall control, unless the Legislature in the bill authorizing the rules establishes an effective date for such rules in which case the effective date established by the Legislature shall control.
§64-1-3. Technical deficiencies waived.

The Legislature further declares each legislative rule now or hereafter authorized under articles two through nine ten of this chapter to have been validly promulgated notwithstanding any failure to comply with any requirement of chapter twenty-nine-a for the promulgation of rules at any stage of the promulgation process prior to authorization by the Legislature in articles two through nine ten of this chapter.
ARTICLE 3. AUTHORIZATION FOR BUREAU OF ENVIRONMENT TO PROMULGATE LEGISLATIVE RULES.
§ 64-3-1. Division of environmental protection.
(a) The legislative rules filed by the division of environmental protection in the state register on the twelfth day of August, one thousand nine hundred ninety-four, under the authority of section four, article five, chapter twenty-two of this code, modified by the division of environmental protection to meet the objections of the legislative rule-making committee and refiled in the state register on the twenty-third day of November, one thousand nine hundred ninety-four, (relating to requirements for determining conformity of general federal actions to applicable air quality implementation plans, 45 CSR 35), are authorized.
(b) The legislative rules filed by the division of environmental protection in the state register on the twelfth day of August, one thousand nine hundred ninety-four, under the authority of section four, article five, chapter twenty-two of this code, modified by the division of environmental protection to meet the objections of the legislative rule-making committee and refiled in the state register on the twenty-third day of November, one thousand nine hundred ninety-four, relating to the division of environmental protection (emission standards for hazardous air pollutants pursuant to 40 CFR 63, 45 CSR 34), are authorized.
(c) The legislative rules filed by the division of environmental protection in the state register on the twelfth day of August, one thousand nine hundred ninety-four, under the authority of section four, article five, chapter twenty-two of this code, modified by the division of environmental protection to meet the objections of the legislative rule-making committee and refiled in the state register on the twenty-third day of November, one thousand nine hundred ninety-four, relating to the division of environmental protection (acid rain provisions and permits, 45 CSR 33), are authorized.
(d) The legislative rules filed by the division of environmental protection in the state register on the fifteenth day of August, one thousand nine hundred ninety-four, under the authority of section four, article five, chapter twenty-two of this code, modified by the division of environmental protection to meet the objections of the legislative rule-making committee and refiled in the state register on the twenty-third day of November, one thousand nine hundred ninety-four, relating to the division of environmental protection (standards of performance for new stationary sources, 45 CSR 16), are authorized.
(e) The legislative rules filed by the division of environmental protection in the state register on the fifteenth day of August, one thousand nine hundred ninety-four, under the authority of section four, article five, chapter twenty-two of this code, modified by the division of environmental protection to meet the objections of the legislative rule-making committee and refiled in the state register on the twenty-third day of November, one thousand nine hundred ninety-four, relating to the division of environmental protection (emission standards for hazardous pollutants, 45 CSR 15), are authorized.
(f) The legislative rules filed by the division of environmental protection in the state register on the fifteenth day of August, one thousand nine hundred ninety-four, under the authority of section four, article five, chapter twenty-two of this code, modified by the division of environmental protection to meet the objections of the legislative rule-making committee and refiled in the state register on the nineteenth day of December, one thousand nine hundred ninety-four, relating to the division of environmental protection (permits for construction and major modification of major stationary sources of air pollution for the prevention of significant deterioration, 45 CSR 14), are authorized.
(g) The legislative rules filed by the division of environmental protection in the state register on the twelfth day of August, one thousand nine hundred ninety-four, under the authority of section four, article five, chapter twenty-two of this code, modified by the division of environmental protection to meet the objections of the legislative rule-making committee and refiled in the state register on the twenty-third day of November, one thousand nine hundred ninety-four, relating to the division of environmental protection (requirements for determining conformity of transportation plans, programs and projects developed, funded or approved under title 23 U.S.C. or Federal Transit Act to applicable air quality implementation plans, 45 CSR 36), are authorized.
(h) The legislative rules filed by the division of environmental protection in the state register on the twelfth day of August, one thousand nine hundred ninety-four, under the authority of section four, article five, chapter twenty-two of this code, modified by the division of environmental protection to meet the objections of the legislative rule-making committee and refiled in the state register on the twenty-ninety day of December, one thousand nine hundred ninety-four, relating to the division of environmental protection (prevent and control air pollution from the operation of coal preparation plants and coal handling operations, 45 CSR 5), are authorized.
(i) The legislative rules filed by the division of environmental protection in the state register on the twelfth day of August, one thousand nine hundred ninety-four, under the authority of section four, article five, chapter twenty-two of this code, modified by the division of environmental protection to meet the objections of the legislative rule-making committee and refiled in the state register on the twenty-third day of November, one thousand nine hundred ninety-four, relating to the division of environmental protection (provisions for determination of compliance with air quality management, 45 CSR 38), are authorized.
(j) The legislative rules filed by the division of environmental protection in the state register on the twelfth day of August, one thousand nine hundred ninety-four, under the authority of section four, article five, chapter twenty-two of this code, modified by the division of environmental protection to meet the objections of the legislative rule-making committee and refiled in the state register on the twenty-third day of November, one thousand nine hundred ninety-four, relating to the division of environmental protection (prevention and control air pollution from combustion of refuse, 45 CSR 6), are authorized.
(k) The legislative rules filed by the division of environmental protection in the state register on the thirteenth day of September, one thousand nine hundred ninety-four, under the authority of section four, article five, chapter twenty-two of this code, modified by the division of environmental protection to meet the objections of the legislative rule-making committee and refiled in the state register on the twelfth day of January, one thousand nine hundred ninety-five, relating to the division of environmental protection (prevent and control air pollution from hazardous waste treatment, storage or disposal facilities, 45 CSR 25), are authorized.
(l) The legislative rules filed by the division of environmental protection in the state register on the fifteenth day of August, one thousand nine hundred ninety-four, under the authority of section six, article seventeen, chapter twenty-two of this code, modified by the division of environmental protection to meet the objections of the legislative rule-making committee and refiled in the state register on the fourth day of October, one thousand nine hundred ninety-four, relating to the division of environmental protection (underground storage tanks, 47 CSR 36), are authorized.
(m) The legislative rules filed by the division of environmental protection in the state register on the twenty- second day of July, one thousand nine hundred ninety-four, under the authority of section three, article one, and sections four and thirteen, article three, of chapter twenty-two of this code, modified by the division of environmental protection to meet the objections of the legislative rule-making committee and refiled in the state register on the sixth day of January, one thousand nine hundred ninety-five, relating to the division of environmental protection (standards for certification of blasters- surface coal mines, 38 CSR 2C), are authorized with the amendments set forth below:
On page 4 of the rule, at section 38.2C.4, by adding a second paragraph to read as follows:
"In lieu of completing the training program, the applicant for certification or re-certification may complete a self-study course using the study guide and other materials available from the division of environmental protection."
On page 8 of the rule, at subsection 8.2, after the words "refresher training course" inserting the phrase "or complete the self-study course."
On page 8 of the rule, at subsection 10.1, by striking the phrase "a cessation order and/or take other action as provided in West Virginia code §22-316 and 17 and the phrase "the provisions of West Virginia code §22-3-1, et seq., rules promulgated under that article, or".
On page 9 of the rule, at subsection 11.1, by striking the phrase "or cessation order" in the first and second sentences, after the phrase "the director may also," inserting the phrase "based on clear and convincing evidence of a violation, issue an order suspending", and at the end of the first sentence by inserting a new sentence to read as follows: "prior to the issuance of such an order, the certified blaster shall be granted a hearing before the director to show cause why his or her certification should not be suspended."
On page 9 of the rule, at subsection 11.2, by striking the phrase "or cessation order" in the first sentence,
On page 9 of the rule, at section 12, by striking the phrase "cessation order."
(n) The legislative rules filed by the division of environmental protection in the state register on the fifteenth day of August, one thousand nine hundred ninety-four, under the authority of section six, article eighteen, chapter twenty-two of this code, modified by the division of environmental protection to meet the objections of the legislative rule-making committee and refiled in the state register on the thirteenth day of January, one thousand nine hundred ninety-five, relating to the division of environmental protection (hazardous waste management, 47 CSR 35), are authorized.
(o) The legislative rules filed by the division of environmental protection in the state register on the fifteenth day of August, one thousand nine hundred ninety-four, under the authority of sections two and four, article fourteen, chapter twenty-two of this code, modified by the division of environmental protection to meet the objections of the legislative rule-making committee and refiled in the state register on the fourth day of January, one thousand nine hundred ninety-five, relating to the division of environmental protection (dam safety regulations, 47 CSR 34), are authorized with the following modifications:
On page 9 of the rule, at paragraph 3.5.2.c.A., by striking the word "two" and inserting in lieu thereof the word "four"
and by striking the numeral "(200)" and inserting in lieu thereof the numeral "(400)."
On page 17 of the rule, at paragraph 7.1.1.b.C, by adding a new sentence to read as follows:
"The design precipitation for class 3 dams may be reduced based on Risk Assessment pursuant to paragraph 3.5.4 of this rule, but in no case to less than a p100 rainfall of six hours in duration."
On page 40 of the rule, by striking subsection 13.2 in its entirety and inserting in lieu thereof the following:
"13.2. performance requirements - All dams completed before July 1, 1973 shall meet the applicable design requirements of section 7 of this rule. Those dams which do not meet the applicable design requirements of section 7 of this rule shall be modified, breached, removed or properly abandoned pursuant to the provisions of this rule. In developing the required plans, specifications, and documentation necessary to bring the structure into conformity with section 7 of this rule, the design engineer may consider in his submitted analyses, peculiarities and local conditions for each impounding structure with recognition of the many factors involved, some of which may not be precisely known. Existing construction documentation and the historical performance of the structure including documented storms and spillway flows may be considered by the engineer as part of the evaluation of the structure. Upon approval by the director of the plans, specifications, and documentation submitted by the engineer, the director may issue a certificate of approval."

(p) The legislative rules filed by the division of environmental protection in the state register on the fifteenth day of August, one thousand nine hundred ninety-four, under the authority of section fifteen-a, article one, chapter twenty-two of this code, modified by the division of environmental protection to meet the objections of the legislative rule-making committee and refiled in the state register on the eleventh day of January, one thousand nine hundred ninety-five, relating to the division of environmental protection (governing environmental laboratories certification and standards of performance, 47 CSR 32), are authorized.
(q) The legislative rules filed by the division of environmental protection in the state register on the twenty-eighth day of February, one thousand nine hundred ninety-four, under the authority of section three, article one, chapter twenty-two of this code, modified by the division of environmental protection to meet the objections of the legislative rule-making committee and refiled in the state register on the twenty eighth day of July, one thousand nine hundred ninety-four, relating to the division of environmental protection (state water pollution control revolving fund program, 47 CSR 31), are authorized.
(r) The legislative rules filed by the division of environmental protection in the state register on the fifteenth day of August, one thousand nine hundred ninety-four, under the authority of section nine, article two, chapter twenty-two of this code, modified by the division of environmental protection to meet the objections of the legislative rule-making committee and refiled in the state register on the sixth day of January, one thousand nine hundred ninety-five, relating to the division of environmental protection (abandoned lands and reclamation, 38 CSR 2D), are authorized.
§64-3-2. Environmental boards.
(a) The legislative rules filed by the environmental quality board in the state register on the fifteenth day of August, one thousand nine hundred ninety-four, under the authority of section four, article three, chapter twenty-two-b of this code, modified by the environmental quality board to meet the objections of the legislative rule-making committee and refiled in the state register on the twelfth day of January, one thousand nine hundred ninety- five, relating to the division of environmental protection (requirements governing water quality standards, 46 CSR 1), are authorized.
(b) The legislative rules filed by the solid waste management board in the state register on the fourth day of August, one thousand nine hundred ninety-four, under the authority of section six, article three, chapter twenty-two-c of this code, relating to the solid waste management board (regulating for the disbursement of grants to solid waste authorities, 54 CSR 5), are authorized.