ENROLLED
COMMITTEE SUBSTITUTE
FOR
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 287
(Senators Wooton and Love, original sponsors)
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[Passed March 11, 1995; in effect ninety days from passage.]
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AN ACT to amend and reenact section four, article three,
chapter twenty-two-b of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, relating to
environmental quality board rule-making authority;
authorizing the promulgation of procedural rules granting
site specific variances for water quality standards for
coal remining operations; providing minimum requirements
for procedures for granting variances; granting variance
without requirement of best available technology and best professional judgment prohibited; granting variance
without demonstration of potential for improvement
prohibited; and granting variance if degradation will
result prohibited.
Be it enacted by the Legislature of West Virginia:
That section four, article three, chapter twenty-two-b of
the code of West Virginia, one thousand nine hundred thirty-
one, as amended, be amended and reenacted to read as follows:
ARTICLE 3. ENVIRONMENTAL QUALITY BOARD.
§22B-3-4. Environmental quality board rule-making authority.
(a) In order to carry out the purposes of this chapter and
chapter twenty-two of this code, the board shall promulgate
legislative rules 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 be
such as to protect the public health and welfare, wildlife,
fish and aquatic life, and the present and prospective future
uses of such water for domestic, agricultural, industrial,
recreational, scenic and other legitimate beneficial uses
thereof.
(b) Except for the alternate procedures provided for in subsection (c) of this section, the board shall promulgate
legislative rules setting water quality standards in accordance
with the provisions of article three, chapter twenty-nine-a of
this code and the declaration of policy set forth in section
two, article eleven, chapter twenty-two of this code.
(c) The board may grant site specific variance only for
remined areas of coal remining operation from the standards of
water quality set forth in legislative rule 46-CSR-1, et seq.,
setting standards for iron manganese and pH prior to the
issuance of a national pollutant discharge elimination system
(NPDES) permit by the division of environmental protection in
accordance with 33 USC Section 1311(p) of the federal Water
Pollution Control Act. The standards established in the
variance will exist for the term of the NPDES permit. The
board will promulgate procedural rules on granting site
specific coal remining variances in accordance with the
provisions of article three, chapter twenty-nine-a of this code
on or before the first day of July, one thousand nine hundred
ninety-five. At a minimum, the procedures for granting or
denying a remining variance will include the following: A
description of the data and information to be submitted to the board by the applicant for such variance; the criteria to be
employed by the board in its decision; and provisions for a
public comment period and public hearing prior to the board's
decision. The board 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 which
requirement will be included as a permit condition. The board
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 board may not grant a variance
where the board determines that degradation of the instream
water quality will result from the remining operation.
(d) No rule of the board may specify the design of
equipment, type of construction or particular method which a
person shall use to reduce the discharge of a pollutant.