H. B. 2749

(By Delegates J. Martin, Michael, Ashley and Mezzatesta)

[Introduced February 24, 1995; referred to the

Committee on the Judiciary.]

A BILL to amend chapter twenty-two of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new article, designated article one-b, all relating to the regulatory right to know act.

Be it enacted by the Legislature of West Virginia:
That chapter twenty-two of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended by adding thereto a new article, designated article one-b, to read as follows:
§22-1B-1. Findings and policies.
The citizens of this state expend in excess of one hundred seventy-five million dollars annually to implement and to ensure compliance with the environmental regulations of this state. Those funds must be expended wisely. Environmental regulations adopted by this state should be based on the best scientific information available and achieve the greatest overall reduction in risk to the environment in the most cost-effective and flexible manner as possible. The citizens have a right to know whether the state is achieving the goals expressed herein and a right to be fully informed about the costs, benefits and policies that underlie regulatory decisions by agencies of this state.
§22-1B-2. Definitions.
(a) "Cost" means any direct or indirect adverse effect of a rule, including adverse effects that are economic in nature and those that reflect an increase in risk to human health or the environment, that may result either from practices mandated by or expected to be implemented in order to comply with the rule or from likely alternatives to practices prohibited by the rule.
(b) "Director" means the director of the division of environmental protection or any other person to whom the director has delegated authority or duties under this chapter.
(c) "Major regulation" means any regulatory requirement that the director determines may have an effect on the economy of the state of two million dollars or more in any one year or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment or the public health of the state.
(d) "Net benefits" means the risk reduction and other benefits expected from a rule minus the potential costs posed by the regulation.
(e) "Performance oriented" means rules that set requirements in terms of expected outcomes or goals rather than specify mandatory means of achieving those outcomes. A performance-oriented objective permits the regulated entity discretion to determine how to best meet those requirements in its particular circumstances.
(f) "Risk" means the probability of an event occurring as enhanced by the magnitude and consequences of the harm in terms of the population expected to be exposed and the types of potential effects of that exposure.
(g) "Risk assessment" means the process or procedure by which the potential adverse health or ecological effects of exposure of human or nonhuman species to environmental hazards are estimated and analyzed.
§22-1B-3. Right to know.
In exercising authority under any applicable laws protecting the environment, the director shall use the resources available under those laws to reduce the risks to human health and the environment that the director determines to be the most serious, with the goal of achieving the greatest overall reduction in risk with the public and private sector resources expended.
(a) When identifying the most serious risks, the director shall consider, at a minimum, the likelihood and the severity of the effect and the number of individuals potentially affected. When prioritizing risks under this subsection, the director shall also consider whether there are available cost-effective opportunities to reduce those risks commensurate with the costs associated with reducing the risk and the benefits from such reduction.
(b) When adopting rules intended to reduce risks to human health or the environment, to the extent feasible and consistent with the laws under which those rules are being adopted, the director shall:
(1) Identify and assess alternatives for achieving the risk reduction objectives of the rule.
(2) Select the regulatory alternatives that will maximize the net benefits and will achieve the health or environmental risk reduction objectives in the most cost-effective manner, taking into account both public and private costs;
(3) Select regulatory approaches that minimize the flexibility for achieving the desired risk reduction by giving preference to performance-oriented, voluntary and market-based approaches.
(c) If the director is unable to select the regulatory alternatives that maximize the flexibility for achieving risk reduction goals by adopting performance-oriented, voluntary or market-based approaches, the director shall publish an explanation regarding why those alternatives were not chosen when issuing the proposed and the final rule.
(d) Whenever the director adopts environmental rules governing matters that are then regulated under federal law, provisions of those rules may not be more stringent than federal law unless the director can demonstrate that the specific circumstances existing in this state warrant the more stringent regulatory approach.
(e) Nothing in this section supersedes or modifies the requirements of the substantive statute under which the director is carrying out regulatory authority to reduce risks to human health and the environment.
(f) Within five years following the enactment of this article, the director shall review and modify as necessary, all existing major regulations affecting health or the environment to assure that they comply with this section.
(g) The director shall submit to the Legislature annually with the agency's budget request a report explaining how the agency has met the requirements identified in this section during the prior year and how the proposed budget reflects the priorities identified in subsection (a). This budget report shall be filed with the secretary of state for inclusion in the state register contemporaneously with the filing with the Legislature.
§22-1B-4. Public disclosure.
(a) In issuing any proposed or final major rule intended to reduce risks to human health or the environment, the director shall publish along with the proposed or final rule;
(1) A description of, and, to the extent practicable, an estimate of, the human health or environmental risk to be addressed by the rule, the amount of risk reduction or other benefits to be addressed by the rule, other risks potentially posed by implementing or complying with the rule and the public and private sector costs associated with implementing and complying with the rule.
(2) A comparison of the human health or environmental risks addressed by the rule with at least three other risks regulated by the agency with at least three other risks that are not directly regulated by the state but with which the public is familiar. And a determination by the director that the analyses performed to provide the information required above are based on the best scientific and economic information reasonably available and the relevant scientific or economic information made available by interest parties has been considered.
(3) A determination that the rule is likely to result in a significant reduction in the human health or environmental risks to be addressed by the rule and that the rule is likely to bring about reductions in risks to human health and the environment and other benefits that will justify the cost to government and to the public to implement and comply with the rule and that there is no regulatory alternative permitted in the statute under which the rule is promulgated that would achieve the equivalent reduction in risk in a more cost-effective and flexible manner.
(b) The director may implement a program designed to educate the public about the role of risk in making regulatory decisions, the meaning of risk characterization and about the relative risks faced by society, including those that can be affected by government regulation and those that cannot.

NOTE: The purpose of this bill is to require that the public be more fully informed of the requirements of any major rule and the risks to be reduced by such rule.

This article is new; therefore, strike-throughs and underscoring have been omitted.