H. B. 2721


(By Delegates Staton, Pino, Johnson, Coleman, Trump, Smirl and Faircloth)


[Introduced March 25, 1997; referred to the Committee on the Judiciary.]




A BILL to amend and reenact section seventeen, article five, chapter twenty-two of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to requiring prior legislative review and approval of any requests to modify state ambient air quality standards or the state implementation plan for ozone or particulate matter; and establishing new legislative findings relating thereto.

Be it enacted by the Legislature of West Virginia:
That section seventeen, article five, chapter twenty-two of the code of West Virginia, one thousand nine hundred thirty- one, as amended, be amended and reenacted to read as follows:

ARTICLE 5. AIR POLLUTION CONTROL.
§22-5-17. Interstate ozone transport; modification of state ambient air quality standards related to ozone or particulate matter; modification of state implementation plan relating to ozone or particulate matter.

(a) This section of the Air Pollution Control Act may be referred to as the Interstate Ozone Transport and Air Quality Standards Oversight Act.
(b) The Legislature hereby finds that:
(1) The federal Clean Air Act, as amended, contains a comprehensive regulatory scheme for the control of emissions from mobile and stationary sources, which will improve ambient air quality and health and welfare in all parts of the nation.
(2) The number of areas unable to meet national ambient air quality standards for ozone and other pollutants has been declining steadily and will continue to decline with air quality improvements resulting from implementation of the federal Clean Air Act amendments of 1990, and the mobile and stationary source emission controls specified therein.
(3) Implementation of the federal Clean Air Act, as amended, together with other local emissions control actions, will help states to attain the national ambient air quality standard for ozone and other pollutants.
(3) (4) Scientific research on the transport of atmospheric ozone across state boundaries is proceeding under the auspices of the United States environmental protection agency (U.S. EPA) hereinafter referred to as "U.S. EPA"), state agencies, and private entities, which research will lead to improved scientific understanding of the causes and nature of ozone transport, and emission control strategies potentially applicable thereto.
(4) (5) The northeast ozone transport commission established by the federal Clean Air Act Amendments of 1990 has proposed emission control requirements for stationary and mobile sources in certain northeastern states and the District of Columbia in addition to those specified by the federal Clean Air Act amendments of 1990.
(5) (6) Membership of the northeast ozone transport commission includes, by statute, representatives of state environmental agencies and governors' offices; similar representation is required in the case of other ozone transport commissions established by the Administrator of the United States environmental protection agency U.S. EPA, pursuant to Section 176A of the federal Clean Air Act, as amended.
(6) (7) The northeast ozone transport commission neither sought nor obtained state legislative oversight or approval prior to reaching its decisions on mobile and stationary source requirements for states included within the northeast ozone transport region.
(7) (8) The Commonwealth of Virginia and other parties have challenged the constitutionality of the northeast ozone transport commission and its regulatory proposals under the guarantee, compact, and joinder clauses of the United States Constitution.
(8)(9) The United States environmental protection agency, U.S. EPA, acting outside of the aforementioned statutory requirements for the establishment of new interstate transport commissions, is encouraging the state of West Virginia and twenty-four other states outside of the northeast to participate in multistate negotiations through the ozone transport assessment group; such negotiations are intended to provide the basis for an interstate memorandum of understanding or other agreement on ozone transport requiring reductions of emissions of nitrogen oxides or volatile organic compounds in addition to those specified by the federal Clean Air Act amendments of 1990, membership of the ozone transport assessment group consists of state and federal air quality officials, without state legislative representation or participation by the governor.
(10) Ground-level ozone, a main ingredient of urban smog, is caused by the photochemical reaction of natural and manmade emissions of nitrogen oxides and volatile organic compounds by sunlight on hot days.
(11) Computer modeling studies prepared by the ozone transport assessment group indicate that ozone nonattainment is caused predominantly by local emission sources in densely populated urbanized areas, emissions originating in West Virginia do not contribute significantly to ozone nonattainment in other states or regions, and even extreme emissions controls imposed in upwind areas would not permit a few densely populated urban areas to demonstrate attainment of the national ozone standard.
(12) Recommendations of the ozone transport assessment group for emissions control actions will form the basis for U.S. EPA actions under the federal Clean Air Act, including the preparation and submission of state implementation plans potentially requiring emission control actions in West Virginia not specifically mandated by the federal Clean Air Act amendments of 1990.
(9) (13) Emission control requirements exceeding those specified by federal law can adversely affect state economic development, competitiveness, employment, and income without corresponding environmental benefits; in the case of electric utility emissions of nitrogen oxides, it is estimated that control costs in addition to those specified by the federal Clean Air Act could exceed five billion dollars annually in a thirty-seven state region of the eastern United States, including the state of West Virginia.
(10) (14) Requiring certain eastern states West Virginia to meet emission control requirements more stringent than those otherwise applicable to other states and unnecessary for environmental protection would unfairly affect interstate competition for new industrial development and employment opportunities.
(15) The EPA has announced its intention to modify the existing national ambient air quality standards for ozone and particulate matter in such a manner as to cause many areas of West Virginia that are now complying with those standards to be unable to comply with them in the future.
(16) Legislative oversight of proposed regulatory actions related to the control of ozone and precursor emissions generated by sources in West Virginia and changes to the ambient air quality standards for ozone and particulate matter, including the preparation and submission of related state implementation plans, is in the public interest.
(c) It is therefore directed that:
(1) Not later than ten days subsequent to the receipt by the director of the division of environmental protection of any proposed memorandum of understanding or other agreement by the ozone transport assessment group, or similar group, or any request by the U.S. EPA to modify West Virginia's ambient air quality standards for ozone or particulate matter or its state implementation plan related to ozone or particulate matter, potentially requiring the state of West Virginia to undertake emission reductions in addition to those specified by the federal Clean Air Act, the director of the division of environmental protection shall submit such proposed memorandum or other agreement or request to modify to the president of the Senate and the speaker of the House of Delegates for consideration.
(2) Upon receipt of the aforesaid memorandum of understanding or agreement or request to modify, the President and the Speaker shall refer the understanding or agreement or request to modify to one or more appropriate legislative committees with a request that such committees convene one or more public hearings to receive comments from agencies of government and other interested parties on its prospective economic and environmental impacts on the state of West Virginia and its citizens, including impacts on energy use, taxes, economic development, utility costs and rates, competitiveness and employment.
(3) Upon completion of the public hearings required by the preceding subdivision, the committees(s) shall forward to the president and the speaker a report containing its findings and recommendations concerning any proposed memorandum of understanding or other agreement or request to modify related to the interstate transport of ozone. The report shall make findings with respect to the economic, health, safety and welfare and environmental impacts on the state of West Virginia and its citizens, including impacts on energy use, taxes, economic development, utility costs and rates, competitiveness and employment.
(4) Upon receipt of the report required by the preceding subdivision, the president and speaker shall therefore transmit the report to the governor for such further consideration or action as may be warranted.
(5) Nothing in this section shall be construed to preclude the Legislature from taking such other action with respect to any proposed memorandum of understanding or other agreement or request to modify related to the interstate transport of ozone as it deems appropriate.
(6) No person is authorized to commit the state of West Virginia to the terms of any such memorandum of agreement understanding or other agreement or request to modify unless specifically approved by an act of the Legislature.
Note: The purpose of this bill is to require prior legislative review and approval of any request to modify West Virginia ambient air quality standards for ozone or particulate matter or its state implementation plan related to ozone or particulate matter. Such legislative review and approval is currently required for any proposed interstate memorandum of understanding or other agreement related to the transport of ozone.

Strike-throughs indicate language that would be deleted from the current law, and underscoring indicates language that would be added.