Introduced Version Senate Bill 621 History

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SB621 intr
Senate Bill No. 621

(By Senators Bowman and Minard)


[Introduced February 19, 2010; referred to the Committee on Government Organization; and then to the Committee on the Judiciary.]


A BILL to amend and reenact §22-11-7b of the Code of West Virginia, 1931, as amended, relating to allowing permit limits based on mixing zones for dischargers located upstream of public water service intakes owned by that discharger.

Be it enacted by the Legislature of West Virginia:
That §22-11-7b of the Code of West Virginia, 1931, as amended, be amended and reenacted to read as follows:
§22-11-7b. Water quality standards; implementation of antidegradation procedures; allowance for mixing zones.

(a) All authority to promulgate rules and implement water quality standards is vested in the Environmental Quality Board is hereby transferred from the Environmental Quality Board to the Secretary of the Department of Environmental Protection: as of the effective date of the amendment and reenactment of this section during the 2005 regular session of the Legislature Provided, That the Environmental Quality Board's legislative rule containing the state's water quality standards shall remain remains in force and effect as if promulgated by the Department of Environmental Protection until the secretary amends the rule in accordance with the provisions of article three, chapter twenty-nine-a of this code. Any proceedings, including notices of proposed rulemaking pending before the Environmental Quality Board, and any other functions, actions or authority transferred to the secretary shall continue in effect as actions of the secretary.
(b) All meetings with the secretary or any employee of the department and any interested party which are convened for the purpose of making a decision or deliberating toward a decision as to the form and substance of the rule governing water quality standards or variances thereto shall be held in accordance with the provisions of article nine-a, chapter six of this code. When the secretary is considering the form and substance of the rule governing water quality standards, the following are not meetings pursuant to article nine-a, chapter six of this code: (i) Consultations between the department's employees or its consultants, contractors or agents; (ii) consultations with other state or federal agencies and the department's employees or its consultants, contractors or agents; or (iii) consultations between the secretary, the department's employees or its consultants, contractors or agents with any interested party for the purpose of collecting facts and explaining state and federal requirements relating to a site specific change or variance.
(c) In order to carry out the purposes of this chapter, the secretary shall promulgate propose legislative rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code 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 protect the public health and welfare, wildlife, fish and aquatic life and the present and prospective future uses of the water for domestic, agricultural, industrial, recreational, scenic and other legitimate beneficial uses thereof. The water quality standards of the secretary may not specify the design of equipment, type of construction or particular method which a person shall use uses to reduce the discharge of a pollutant.
(d) The secretary shall establish the antidegradation implementation procedures as required by 40 C.F.R. 131.12(a) which apply to regulated activities that have the potential to affect water quality. The secretary shall propose for legislative approval, pursuant to article three, chapter twenty-nine-a of the code, legislative rules to establish implementation procedures which include specifics of the review depending upon the existing uses of the water body segment that would be affected, the level of protection or "tier" assigned to the applicable water body segment, the nature of the activity and the extent to which existing water quality would be degraded. Any final classification determination of a water as a Tier 2.5 water (Water of Special Concern) does not become effective until that determination is approved by the Legislature through the legislative rulemaking process as provided for in article three, chapter twenty-nine-a of the code.
(e) All remining variances shall be applied for and considered by the secretary and any variance granted shall be consistent with 33 U.S.C. Section 1311(p) of the Federal Water Control Act. At a minimum, when considering an application for a remining variance the secretary shall consider the data and information submitted by the applicant for the variance; and comments received at a public comment period and public hearing. The secretary 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. Any such requirement will shall be included as a permit condition. The secretary 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 secretary may not grant a variance where he or she determines that degradation of the instream water quality will result from the remining operation.
(f) The Legislature finds that where an intake of a public water system, as defined in section nine-a, article one, chapter sixteen of the code, is owned by the same person who owns a disposal system located within a one-half mile zone upstream, the discharge of pollutants from the disposal system in excess of the water quality criteria designated for protection of human health is not prohibited, and the secretary shall allow a mixing zone for the discharge if the person is not engaged in the commercial sale of water to its users.

NOTE: The purpose of this bill is to allow permit limits based on a mixing zone for dischargers who own the nearest public water supply downstream.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.
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