COMMITTEE SUBSTITUTE
FOR
H. B. 2333
(By Delegates Douglas, Hunt, Compton, Faircloth, Linch and Riggs)
(Originating in the Committee on the Judiciary)
[March 21, 1997]
AN ACT to amend and reenact article three, chapter sixty-four of
the code of West Virginia, one thousand nine hundred thirty- one, as amended, relating generally to the promulgation of
administrative rules by the division of environmental
protection and the procedures relating thereto; legislative
mandate or authorization for the promulgation of certain
legislative rules by the division of environmental protection;
authorizing the division of environmental protection to
promulgate certain legislative rules in the form that the
rules were filed in the state register; authorizing the
division of environmental protection to promulgate legislative
rules with various modifications presented to and recommended
by the legislative rule-making review committee; directing the
division of environmental protection to promulgate a
legislative rule; authorizing the division of environmental protection to promulgate a legislative rule relating to
hazardous waste management; authorizing the division of
environmental protection to promulgate a legislative rule
relating to standards of performance for new stationary
sources pursuant to 40 CFR Part 60; authorizing the division
of environmental protection to promulgate a legislative rule
relating to emission standards for hazardous air pollutants
pursuant to 40 CFR Part 63; authorizing the division of
environmental protection to promulgate a legislative rule
relating to the underground storage tank insurance trust fund;
authorizing the division of environmental protection to
promulgate a legislative rule relating to WV/NPDES regulations
for coal mining facilities; authorizing the division of
environmental protection to promulgate a legislative rule
relating to surface mining reclamation; authorizing the
division of environmental protection to promulgate a
legislative rule relating to confidential information;
authorizing the division of environmental protection to
promulgate a legislative rule relating to the prevention and
control of air pollution from hazardous waste treatment,
storage or disposal facilities; authorizing the division of
environmental protection to promulgate a legislative rule
relating to voluntary remediation and redevelopment; creating
a legislative rule relating to the office of environmental advocate; authorizing the division of environmental protection
to promulgate an emergency legislative rule amending a current
legislative rule relating to the prevention and control of
particulate air pollution from manufacturing process
operations; and authorizing the division of environmental
protection to promulgate an amendment to a legislative rule
relating to yard waste composting.
Be it enacted by the Legislature of West Virginia:
That article three, chapter sixty-four of the code of West
Virginia, one thousand nine hundred thirty-one, as amended, be
amended and reenacted to read as follows:
ARTICLE 3. AUTHORIZATION FOR BUREAU OF ENVIRONMENT TO PROMULGATE
LEGISLATIVE RULES.
§64-3-1. Division of environmental protection.
(a) The legislative rule filed in the state register on the
thirtieth day of August, one thousand nine hundred ninety-six,
authorized under the authority of section six, article eighteen,
chapter twenty-two of this code, relating to the division of
environmental protection (hazardous waste management, 33 CSR 20),
is authorized.
(b)
The legislative rule filed in the state register on the
twenty-ninth day of August, one thousand nine hundred ninety-six,
authorized under the authority of section four, article five,
chapter twenty-two of this code, relating to the division of environmental protection (standards of performance for new
stationary sources pursuant to 40 CFR Part 60
, 45 CSR 16), is
authorized.
(c)
The legislative rule filed in the state register on
twenty-ninth day of August, one thousand nine hundred ninety-six,
authorized under the authority of section four, article five,
chapter twenty-two of this code, relating to the division of
environmental protection (emission standards for hazardous air
pollutants pursuant to 40 CFR Part 63, 45 CSR 34), is authorized.
(d)
The legislative rule filed in the state register on the
twenty-eighth day of August, one thousand nine hundred ninety-six,
authorized 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 review committee and refiled in the state register on
the twenty-second day of October, one thousand nine hundred
ninety-six, relating to the division of environmental protection
(underground storage tank insurance trust fund
, 33 CSR 32), is
authorized.
(e) The legislative rule filed in the state register on the
twenty-ninth day of August, one thousand nine hundred ninety-six,
authorized 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 review committee and refiled in the state register on
the twentieth day of December, one thousand nine hundred
ninety-six, relating to the division of environmental protection
(WV/NPDES regulations for coal mining facilities
, 47 CSR 30), is
authorized.
(f) The legislative rules filed in the state register on the
thirtieth day of August, one thousand nine hundred ninety-six,
authorized under the authority of section four, article three,
chapter twenty-two of this code, modified by the division of
environmental protection to meet the objections of the legislative
rule-making review committee and refiled in the state register on
the twenty-first day of February, one thousand nine hundred
ninety-
seven, relating to the division of environmental protection
(surface mining and reclamation regulations, 38 CSR 2), is
authorized.
(g) The legislative rule filed in the state register on the
twenty-ninth day of August, one thousand nine hundred ninety-six,
authorized under the authority of section ten, article five,
chapter twenty-two of this code, modified by the division of
environmental protection to meet the objections of the legislative
rule-making review committee and refiled in the state register on
the twenty-sixth day of November, one thousand nine hundred
ninety-six, relating to the division of environmental protection
(confidential information
, 45 CSR 31), is authorized.
(h) The legislative rule filed in the state register on the
twenty-ninth day of August, one thousand nine hundred ninety-six,
authorized 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 review committee and refiled in the state register on
the sixteenth day of January, one thousand nine hundred ninety- seven, relating to the division of environmental protection (to
prevent and control air pollution from hazardous waste treatment,
storage or disposal facilities, 45 CSR 25), is authorized.
(I)
The legislative rule filed in the state register on the
fifth day of February, one thousand nine hundred ninety-seven,
authorized under the authority of section three, article twenty- two, chapter twenty-two of this code, modified by the division of
environmental protection to meet the objections of the legislative
rule-making review committee and refiled in the state register on
the twenty-fifth day of February, one thousand nine hundred
ninety-seven, relating to the division of environmental protection
(voluntary remediation and redevelopment
, 60 CSR 3), is authorized.
(j) That title sixty, series one of the code of state rules be
amended by deleting the current interpretative rule for the office
of environmental advocate and inserting in lieu thereof the
following legislative rule, to read as follows:
"§38-10-1. General.
1.1. Scope. - This legislative rule governs and controls the
appointment and qualifications of the position of Environmental
Advocate within the Division of Environmental Protection.
1.2. Authority - West Virginia Code §22-1-3, 22-1-3a, 22-20.
1.3. Filing Date -
1.4. Effective Date - July 1, 1997.
§38-10-2. Appointment, Salary and Qualifications.
2.1. Appointment. - The position of Environmental Advocate
will be a full-time position, will be appointed by the Director,
and will serve at the will and pleasure of the Director of the
Division of Environmental Protection in accordance with the West
Virginia Code §22-20-1.
2.2. Salary. - The salary of the position of Environmental
Advocate will be set by the Director and is subject to future
adjustments at the discretion of the Director.
2.3. Qualifications. - The Director will receive or solicit
applications for the position of Environmental Advocate from persons having the following minimum qualifications:
2.3.a. A citizen and resident of the State of West Virginia.
2.3.b. A graduate from an accredited college or university
with a four-year degree in a field of study directly related to the
qualifications, powers, and duties of the position as set forth by
the director.
2.3.c. A minimum of two years full-time or cumulative
experience in word directly related to environmental protection, or
other public service work or experience which demonstrates the
ability to carry out the powers and duties of the position as set
forth by the director.
2.3.d. A working familiarity with some of the legal
requirements and programmatic functions of the Division of
Environmental Protection.
2.3.e. A demonstrated ability to skillfully verbally and by
writing communicate in a public forum.
2.3.f. A demonstrated ability ro use word processing software
for a computer and other necessary computer skills as determined by the director.
2.3.g. A valid West Virginia driver's license.
§38-10-3. Powers and Limitations - The Environmental Advocate will
carry out the duties of the position as set forth in this rule, and
as prescribed by the Director in accordance with the following:
3.1. The Environmental Advocate will be guided in all actions
by the policy statement and the nine purposes set forth in West
Virginia Code §22-1-1 (b).
3.2. The Environmental Advocate may not in any official
capacity represent any person in, or file on behalf of any person,
legal or quasi-legal actions, either in support of or opposed to
the Division of Environmental Protection without the expressed
approval of the Director, and under supervision of the Division of
Environmental Protection's General Counsel.
3.3. The Environmental Advocate may not in any official
capacity organize public campaigns in support of, or in opposition
to official positions taken by the Division of Environmental
Protection on environmental matters, and will not in any official
capacity actively participate in any such organized campaign."
ARTICLE 3. AUTHORIZATION FOR BUREAU OF ENVIRONMENT TO PROMULGATE
LEGISLATIVE RULE.
§64-3-1. Division of environmental protection.
(a) The legislative rule filed in the state register on the
thirtieth day of August, one thousand nine hundred ninety-six,
authorized under the authority of section six, article eighteen,
chapter twenty-two of this code, relating to the division of
environmental protection (hazardous waste management, 33 CSR 20),
is authorized.
(b) The legislative rule filed in the state register on the
twenty-ninth day of August, one thousand nine hundred ninety-six,
authorized under the authority of section four, article five,
chapter twenty-two of this code, relating to the division of environmental protection (standards of performance for new
stationary sources pursuant to 40 CFR Part 60, 45 CSR 16), is
authorized.
(c) The legislative rule filed in the state register on
twenty-ninth day of August, one thousand nine hundred ninety-six,
authorized under the authority of section four, article five,
chapter twenty-two of this code, relating to the division of
environmental protection (emission standards for hazardous air
pollutants pursuant to 40 CFR Part 63, 45 CSR 34), is authorized.
(d) The legislative rule filed in the state register on the
twenty-eighth day of August, one thousand nine hundred ninety-six,
authorized 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 review committee and refiled in the state register on
the twenty-second day of October, one thousand nine hundred
ninety-six, relating to the division of environmental protection
(underground storage tank insurance trust fund, 33 CSR 32), is
authorized.
(e) The legislative rule filed in the state register on the
twenty-ninth day of August, one thousand nine hundred ninety-six,
authorized 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 review committee and refiled in the state register on
the twentieth day of December, one thousand nine hundred
ninety-six, relating to the division of environmental protection
(WV/NPDES regulations for coal mining facilities, 47 CSR 30), is
authorized.
(f) The legislative rule filed in the state register on the
thirtieth day of August, one thousand nine hundred ninety-six,
authorized under the authority of section four, article three,
chapter twenty-two of this code, modified by the division of
environmental protection to meet the objections of the legislative
rule-making review committee and refiled in the state register on
the twenty-first day of February, one thousand nine hundred ninety- seven, relating to the division of environmental protection
(surface mining and reclamation regulations, 38 CSR 2), is
authorized, with the following amendments:
"On page three, subsection 2.4, by striking out the words
"Coal seams commonly associated with such minerals may include, but
are not limited to Waynesburg, Washington, Freeport, Sewickley,
Redstone, Pittsburgh, Kittanning, Elk Lick, Peerless, No. 2 Gas,
Upper Eagle, No. 5 Block and Stockton Lewiston";
On page three, subsection 2.4, line eight, by striking out the
words "these seams are", and inserting in lieu thereof the words
"the seam is";
On page nine, subsection 2.43, line two, after the word "highwall", by inserting the words "except in operations where the
entire upper horizon above the lowest coal seam is proposed to be
partly or entirely removed";
On page sixteen, subsection 2.95, line seven after the "any",
by inserting the word "substantial";
On page eighteen, subsection 2.108, line two, after the word
"stream." by adding the following: Examples include wildlife
ponds, settling basins and all ponds and facilities or structures
used for water treatment.;
On page nineteen, subsection 2.120, line three, by striking
the word "or" and inserting in lieu thereof the word "and";
On page twenty-nine, subsection 3.2.e., after the word
"period" by striking the remainder of the subdivision 3.2.e.;
On page forty-nine, subsection 3.14.b.7., by striking the
entire paragraph;
On page forty-nine, subsection 3.14.b.8., by striking the
entire paragraph;
On page forty-nine, by renumbering the remaining paragraphs;
On page fifty-one, subparagraph 3.14.b.14E, line one, before
the word "A", by inserting the words "If requested by the
Director";
On page fifty-one, subsection 3.14.b.15.B., by striking the
entire subparagraph, and inserting in lieu thereof the following:
3.14.b.15.B Surface water must be diverted around or over the material by properly designed and stabilized diversion channels
which have been designed using the best current technology to
provide protection to the environment or the health, welfare and
safety of the public. The channel shall be designed and
constructed to ensure stability of the remaining material, control
erosion, and minimize water infiltration into the remaining
material.;
On page seventy-two, subdivision 3.29.a, line five after the
word "IBR", by inserting the words "or where it has been
demonstrated to the satisfaction of the Director that limited coal
removal on areas immediately adjacent to the existing permit is the
only practical alternative to recovery of unanticipated reserves or
necessary to enhance reclamation efforts or environmental
protection";
On page eighty-six, by inserting a new subsection 3.35 to read
as follows: 3.35. All grade measurements and linear measurements
in this rule shall be subject to a tolerance of two percent (2%).
All angles in this rule shall be measured from the horizontal and
shall be subject to a tolerance of five percent (5%). Provided,
however, this allowable deviation from the approved plan does not
affect storage capacity and/or performance standards.
On page one hundred eight, subdivision 5.5.c., line two, after
the word "landowner", by striking the remainder of the paragraph
and inserting in lieu thereof the words "requesting the permanent structures be left for recreational or wildlife propagation
purposes or for any beneficial uses to the landowner";
On page one hundred twelve, subdivision 6.5.a., line five,
after the word "Sunday." by adding the following: Provided,
however, the Director may grant approval of a request for Sunday
blasting if the operator demonstrates to the satisfaction of the
Director that the blasting is necessary and there has been an
opportunity for a public hearing.;
On page one hundred twenty-six, paragraph 9.2.i.2, after the
word "achieved" by inserting: An alternate maximum or minimum soil
pH may be approved based on the optimum pH for the revegetation
species.;
On page one hundred thirty, line one, paragraph 9.3.h.1., by
striking out the paragraph in its entirety, and inserting in lieu
thereof: 9.3.h.1. The minimum stocking rate of commercial tree
species shall be accordance with the approved forest management
plan prepared by a registered professional forester. In no case
may the rate be less than four hundred fifty (450) stems per acre
of commercial tree species;
On page one hundred thirty, paragraph 9.3.h.2., by striking
out the paragraph in its entirety, and by renumbering the
subsequent paragraphs;
On page one hundred thirty, in renumbered paragraph 9.3.h.2.,
after the word "than", by striking out the words "four hundred fifty (450)", and inserting in lieu thereof "three hundred (300);" On page one hundred thirty, in renumbered paragraph 9.3.h.2.,
after the word "acre", by inserting the words "or the rate
specified in the forest management plan, whichever is greater,";
On page two hundred twenty-two, subdivision 14.11.e, line 6,
by striking out the word "operable" and by inserting in lieu
thereof "such condition that operations could be resumed within
sixty (60) days";
On page two hundred twenty-three, subdivision 14.11.f., line
four, by striking out the word "operative", and by inserting in
lieu thereof the words "such condition that the operations could be
resumed within sixty (60) days";
On page two hundred twenty-three, subdivision 14.11.f., line
four, after the word "is", by inserting the words "protected from
unauthorized entry";
On page two hundred thirty-eight, subparagraph 14.15.b.6.A.,
line five, after the word "exceed", by striking out the words
"fifty (50) percent of the total permit acreage, or four hundred
(400) acres, whichever is less, on operations which consist of at
least three spreads of equipment",and inserting in lieu thereof the
words "five hundred (500) acres on operations which consist of
multiple spreads of equipment";
On page two hundred thirty-nine, subsection 14.15.c., line
three, after the word "regraded", by inserting the words "and stabilized";
On page two hundred thirty-nine, subsection 14.15.c., line
four, after the word "plan", by striking out the "comma" and the
remainder of the subparagraph, and inserting in lieu thereof the
words: The following shall not be included in the calculation of
disturbed area.;
On page two hundred forty, paragraph 14.15.c.2., line seven,
after the word "benches", by inserting the words "without regard to
like thickness";
On page two hundred forty, paragraph 14.15.c.5, line two,
after the word "graded", by inserting the words "with material
placed in a stable, controlled manner which will not subsequently
be moved".;
(g) The legislative rule filed in the state register on the
twenty-ninth day of August, one thousand nine hundred ninety-six,
authorized under the authority of section ten, article five,
chapter twenty-two of this code, modified by the division of
environmental protection to meet the objections of the legislative
rule-making review committee and refiled in the state register on
the twenty-sixth day of November, one thousand nine hundred
ninety-six, relating to the division of environmental protection
(confidential information, 45 CSR 31), is authorized.
(h) The legislative rule filed in the state register on the
twenty-ninth day of August, one thousand nine hundred ninety-six, authorized 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 review committee and refiled in the state register on
the sixteenth day of January, one thousand nine hundred ninety- seven, relating to the division of environmental protection (to
prevent and control air pollution from hazardous waste treatment,
storage or disposal facilities, 45 CSR 25), is authorized.
(iI) The legislative rule filed in the state register on the
fifth day of February, one thousand nine hundred ninety-seven,
authorized under the authority of section three, article twenty- two, chapter twenty-two of this code, modified by the division of
environmental protection to meet the objections of the legislative
rule-making review committee and refiled in the state register on
the twenty-fifth day of February, one thousand nine hundred
ninety-seven, relating to the division of environmental protection
(voluntary remediation and redevelopment, 60 CSR 3), is authorized.
(j) That title sixty, series one of the code of state rules be
amended by deleting the current interpretative rule for the office
of environmental advocate and inserting in lieu thereof the
following legislative rule, to read as follows:
"§61-10-1. General.
1.1. Scope. - This legislative rule governs and controls the
appointment and qualifications of the position of Environmental Advocate within the Division of Environmental Protection.
1.2. Authority - West Virginia Code §22-1-3, 22-1-3a, 22-20.
1.3. Filing Date -
1.4. Effective Date - July 1, 1997.
§61-10-2. Appointment, Salary and Qualifications.
2.1. Appointment. - The position of Environmental Advocate
will be a full-time position, will be appointed by the Director,
and will serve at the will and pleasure of the Director of the
Division of Environmental Protection in accordance with the West
Virginia Code §22-20-1.
2.2. Salary. - The salary of the position of Environmental
Advocate will be set by the Director and is subject to future
adjustments at the discretion of the Director.
2.3. Qualifications. - The Director will receive or solicit
applications for the position of Environmental Advocate from
persons having the following minimum qualifications:
2.3.a. A citizen and resident of the State of West Virginia.
2.3.b. A graduate from an accredited college or university
with a four-year degree in a field of study directly related to the
qualifications, powers, and duties of the position as set forth by
the director.
2.3.c. A minimum of two years full-time or cumulative
experience in work directly related to environmental protection, or
other public service work or experience which demonstrates the ability to carry out the powers and duties of the position as set
forth by the director.
2.3.d. A working familiarity with some of the legal
requirements and programmatic functions of the Division of
Environmental Protection.
2.3.e. A demonstrated ability to skillfully verbally and by
writing communicate in a public forum.
2.3.f. A demonstrated ability to use word processing software
for a computer and other necessary computer skills as determined by
the director.
2.3.g. A valid West Virginia driver's license.
§61-10-3. Powers and Limitations -
The Environmental Advocate will carry out the duties of the
position as set forth in this rule, and as prescribed by the
Director in accordance with the following:
3.1. The Environmental Advocate will be guided in all actions
by the policy statement and the nine purposes set forth in West
Virginia Code §22-1-1 (b).
3.2. The Environmental Advocate may not in any official
capacity represent any person in, or file on behalf of any person,
legal or quasi-legal actions, either in support of or opposed to
the Division of Environmental Protection without the expressed
approval of the Director, and under supervision of the Division of
Environmental Protection's General Counsel.
3.3. The Environmental Advocate may not in any official
capacity organize public campaigns in support of, or in opposition
to official positions taken by the Division of Environmental
Protection on environmental matters, and will not in any official
capacity actively participate in any such organized campaign."
(k) The director of the division of environmental protection
is hereby authorized to propose for promulgation an emergency rule
to amend a current legislative rule relating to monitoring of air
quality (to prevent and control particulate air pollution from
manufacturing process operation, 45 CSR 7).
(lll) The legislative rule filed in the state register on the
eighteenth day of March, one thousand nine hundred ninety-seven,
relating to the division of environmental protection (yard waste
composting, 47 CSR 38E) is authorized.