COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 616
(By Senators Ross, Love, Weeks and Edgell)
____________
[Originating in the Committee on Natural Resources; reported
February 26, 2004.]
____________
A BILL to amend and reenact §22-1-9 of the code of West Virginia,
1931, as amended; and to amend and reenact §22-3-2 and §22-3-4
of said code, all relating to the department of environmental
protection; requiring that a regular or special meeting of the
advisory committee be had upon the written request of three
members; requiring that the council timely receive an agenda
for each meeting with supporting documentation; allowing
council members to submit rule-making suggestions to the
secretary for submission; and establishing a new quality
assurance/quality compliance advisory committee
to review
permitting procedures and improve the permitting processes
.
Be it enacted by the Legislature of West Virginia:
That §22-1-9 of the code of West Virginia, 1931, as amended,
be amended and reenacted; and that §22-3-2 and §22-3-4 of said code
be amended and reenacted, all to read as follows:
ARTICLE 1. DEPARTMENT OF ENVIRONMENTAL PROTECTION.
§22-1-9. Environmental protection advisory council.
(a) There is created within the department of commerce, labor
and environmental resources the environmental protection advisory
council. The environmental protection advisory council consists of
seven members. The director secretary serves as an ex officio
member of the council and as its chair. The remaining six members
are appointed by the governor. Each member serves for a term of
four years and may be reappointed. Of the members of the council
first appointed, two shall be appointed for terms ending on the
thirtieth day of June, one thousand nine hundred ninety-six, and
two each for terms ending one and two years thereafter. Vacancies
on the council shall be filled within sixty days after the vacancy
occurs.
(b) Two members of the council shall represent industries
regulated by the division department or their trade associations.
Two members shall represent organizations advocating environmental
protection. One member shall represent organizations representing
local governments. One member shall represent public service
districts. In making subsequent appointments this balance of
membership shall be maintained.
(c) Appointed members shall be paid the same compensation and
expense reimbursement as is paid to members of the Legislature for
their interim duties as recommended by the citizens legislative
compensation commission and authorized by law for each day or
portion thereof engaged in the discharge of official duties.
(d) The council shall meet at least once every quarter and at
the call of the chair or upon the request of any three members of
the council presented in writing to the chair.
At least fifteen days prior to each regularly scheduled
quarterly meeting, or ten days in advance of a meeting called by
the chair or three members of the council, the secretary shall
provide to the council an agenda of all matters scheduled for
discussion at the meeting together with written materials for any
subject that the secretary intends to propose for rule making as
required by chapter twenty-nine-a of this code.
(e) The council shall:
(1) Consult with and advise the director secretary on program
and policy development, problem solving and other appropriate
subjects;
(2) Identify and define problems associated with the
implementation of the policy set forth in section one of this
article;
(3) Provide and disseminate to industry and the public early
identification of major federal program and regulatory changes;
(4) Provide a forum for the resolution of conflicts between
constituency groups;
(5) To the extent possible, strive for consensus on the
development of overall environmental policy; and
(6) Upon the motion of any member of the council, and with the
concurrence of a majority of the members, the council may submit to
the secretary suggestions for proposed rule making, which upon
adoption by the council, the secretary may submit any suggestion in
the proper form to the secretary of state for publication in the
state register to initiate formal rule making as provided by
chapter twenty-nine-a of this code; and
(6) (7) Provide an annual report to the joint committee on government and finance on or before the first day of January of
each year relating to its findings with regard to the division's
performance during the previous year. The report will specifically
address the division's performance in accomplishing the nine
purposes set forth in subsection (b), section one of this article.
ARTICLE 3. SURFACE COAL MINING AND RECLAMATION ACT.
§22-3-2. Legislative findings and purpose; jurisdiction vested in
department of environmental protection; authority of
secretary; inter-departmental cooperation.
(a) The Legislature finds that it is essential to the economic
and social well-being of the citizens of the state of West Virginia
to strike a careful balance between the protection of the
environment and the economical mining of coal needed to meet energy
requirements.
Further, the Legislature finds that there is great diversity
in terrain, climate, biological, chemical and other physical
conditions in parts of this nation where mining is conducted; that
the state of West Virginia in particular needs an environmentally
sound and economically healthy mining industry; and by reason of
the above it may be necessary for the director to promulgate rules
which vary from federal regulations as is provided for in sections
101 (f) and 201 (c)(9) of the federal Surface Mining Control and
Reclamation Act of 1977, as amended, "Public Law 95-87."
Further, the Legislature finds that unregulated surface coal
mining operations may result in disturbances of surface and
underground areas that burden and adversely affect commerce, public
welfare and safety by destroying or diminishing the utility of land
for commercial, industrial, residential, recreational, agricultural and forestry purposes; by causing erosion and landslides; by
contributing to floods; by polluting the water and river and stream
beds; by destroying fish, aquatic life and wildlife habitats; by
impairing natural beauty; by damaging the property of citizens; by
creating hazards dangerous to life and property; and by degrading
the quality of life in local communities, all where proper mining
and reclamation is not practiced.
(b) Therefore, it is the purpose of this article to:
(1) Expand the established and effective statewide program to
protect the public and the environment from the adverse effects of
surface-mining operations;
(2) Assure that the rights of surface and mineral owners and
other persons with legal interest in the land or appurtenances to
land are adequately protected from such surface-mining operations;
(3) Assure that surface-mining operations are not conducted
where reclamation as required by this article is not feasible;
(4) Assure that surface-mining operations are conducted in a
manner to adequately protect the environment;
(5) Assure that adequate procedures are undertaken to reclaim
surface areas as contemporaneously as possible with the
surface-mining operations;
(6) Assure that adequate procedures are provided for public
participation where appropriate under this article;
(7) Assure the exercise of the full reach of state common law,
statutory and constitutional powers for the protection of the
public interest through effective control of surface-mining
operations; and
(8) Assure that the coal production essential to the nation's energy requirements and to the state's economic and social
well-being is provided.
(c) In recognition of these findings and purposes, the
Legislature hereby vests authority in the director secretary of the
division department of environmental protection to:
(1) Administer and enforce the provisions of this article as
it relates to surface mining to accomplish the purposes of this
article;
(2) Conduct hearings and conferences or appoint persons to
conduct them in accordance with this article;
(3) Promulgate, administer and enforce rules pursuant to this
article;
(4) Enter into a cooperative agreement with the secretary of
the United States Department of the Interior to provide for state
regulation of surface-mining operations on federal lands within
West Virginia consistent with section 523 of the federal Surface
Mining Control and Reclamation Act of 1977, as amended; and
(5) Administer and enforce rules promulgated pursuant to this
chapter to accomplish the requirements of programs under the
federal Surface Mining Control and Reclamation Act of 1977, as
amended.
(d) The director secretary of the division department of
environmental protection and the director of the office of miners'
health, safety and training shall cooperate with respect to each
agency's programs and records to effect an orderly and harmonious
administration of the provisions of this article. The director
secretary of the division department of environmental protection
may avail himself or herself of any services which may be provided by other state agencies in this state and other states or by
agencies of the federal government, and may reasonably compensate
them for such the services. Also, he or she may receive any
federal funds, state funds or any other funds, and enter into
cooperative agreements, for the reclamation of land affected by
surface mining.
§22-3-4. Reclamation; duties and functions of director.
(a) The director secretary shall administer the provisions of
this article relating to surface-mining operations. The director
has within his or her jurisdiction and supervision all lands and
areas of the state, mined or susceptible of being mined, for the
removal of coal and all other lands and areas of the state
deforested, burned over, barren or otherwise denuded, unproductive
and subject to soil erosion and waste. Included within such the
lands and areas are lands seared and denuded by chemical operations
and processes, abandoned coal mining areas, swamplands, lands and
areas subject to flowage easements and backwaters from river locks
and dams, and river, stream, lake and pond shore areas subject to
soil erosion and waste. The jurisdiction and supervision exercised
by the director shall be consistent with other provisions of this
chapter.
(b) The director secretary has the authority to:
(1) Promulgate rules, in accordance with the provisions of
chapter twenty-nine-a of this code, to implement the provisions of
this article: Provided, That the director secretary shall give
notice by publication of the public hearing required in article
three, chapter twenty-nine-a of this code: Provided however, That
any forms, handbooks or similar materials having the effect of a rule as defined in article three, chapter twenty-nine-a of this
code that were issued, developed or distributed by the director
secretary pursuant to or as a result of a rule are subject to the
provisions of article three, chapter twenty-nine-a of this code;
(2) Make investigations or inspections necessary to ensure
complete compliance with the provisions of this code;
(3) Conduct hearings or appoint persons to conduct hearings
under provisions of this article or rules adopted by the director
secretary; and for the purpose of any investigation or hearing
hereunder, the director secretary or his or her designated
representative, may administer oaths or affirmations, subpoena
witnesses, compel their attendance, take evidence and require
production of any books, papers, correspondence, memoranda,
agreements, or other documents or records relevant or material to
the inquiry;
(4) Enforce the provisions of this article as provided herein;
and
(5) Appoint such advisory committees as may be of assistance
to the director secretary in the development of programs and
policies: Provided, That such advisory committees shall, in each
instance, include members representative of the general public.
(A) A quality assurance/quality compliance (QA/QC) advisory
committee is established
.
(i) The purpose of the QA/QC advisory committee
is to
review
mine permitting procedures and related requirements, and to work
with the division of mining and reclamation to improve upon the
efficiencies and quality of permits and the permitting process.
(ii) The QA/QC advisory committee is comprised of the secretary or his or her designee, two members with experience in
coal mining, and two members with experience in environmental
protection.
(iii) The terms of all members shall begin on the first day of
July, two thousand four. The terms of the appointees shall be for
six years. Appointees may be reappointed to serve on the committee.
The terms of the appointed members initially taking office are to
be expired as designated by the secretary at the time of the
nomination, one at the end of the second year, one at the end of
the fourth year, and two at the end of the sixth year. As the
original appointments expire, each subsequent appointment will be
for a full six year term. Any appointed member whose term has
expired shall serve until a successor has been duly appointed and
qualified. Any person appointed to fill a vacancy is to serve only
for the unexpired term.
(iv) Appointed members of the QA/QC committee shall be paid
the same compensation and expense reimbursement as is provided for
members of the Legislature pursuant to section six and eight,
article two-a, chapter four of this code.
(v) The QA/QC committee shall meet at the call of the
secretary or his or her designee, but not less than every four
months.
(c) (1) After the director secretary has adopted the rules
required by this article, any person may petition the director to
initiate a proceeding for the issuance, amendment or appeal of a
rule under this article.
(2) The petition shall be filed with the director secretary
and shall set forth the facts which support the issuance, amendment or appeal of a rule under this article.
(3) The director secretary may hold a public hearing or may
conduct such an investigation or proceeding as he or she considers
appropriate in order to determine whether the petition should be
granted or denied.
(4) Within ninety days after filing of a petition described in
subdivision (1) of this subsection, the director secretary shall
either grant or deny the petition. If the director secretary
grants the petition, he or she shall promptly commence an
appropriate proceeding in accordance with the provisions of chapter
twenty-nine-a of this code. If the director secretary denies the
petition, he or she shall notify the petitioner in writing setting
forth the reasons for the denial.
NOTE: The purpose of this bill is to empower members of the
environmental protection advisory council to compel meetings and to
have greater and more meaningful participation in the work of the
council; and to create a new five-member advisory committee, called
the quality assurance/quality compliance (QA/QC) committee, to
review permitting procedures and improve the permitting processes,
as established by the United States District Court in Bragg v.
Robertson, 248, F.3d 275(4th Cir 2001).
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.