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.