H. B. 4001
(By Delegates Fleischauer, Manypenny, Marshall,
Mahan, Doyle, Martin, Beach, Shook,
Lawrence, Longstreth and Hatfield)
[Introduced January 13, 2010; referred to the
Committee on Government Organization then the Judiciary.]
A BILL to amend and reenact §22-11-4 of the Code of West Virginia,
1931, as amended, relating to water pollution control; and
requiring the West Virginia Department of Environmental
Protection to develop specific standards to control levels of
total dissolved solids in the state's rivers and streams.
Be it enacted by the Legislature of West Virginia:
That §22-11-4 of the Code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:
ARTICLE 11. WATER POLLUTION CONTROL ACT.
§22-11-4. General powers and duties of director with respect to
pollution
.
(a) In addition to all other powers and duties the director
has and may exercise, subject to specific grants of authority to
the chief or the board in this article or elsewhere in this code,
the director has the following powers and authority and shall
perform the following duties:
(1) To perform any and all acts necessary to carry out the
purposes and requirements of this article and of the "Federal Water
Pollution Control Act," 33 U.S.C. §1251,
et seq., as amended,
relating to this state's participation in the "National Pollutant
Discharge Elimination System," 33 U.S.C. §1342, established under
that act;
(2) To encourage voluntary cooperation by all persons in the
conservation, improvement and development of water resources and in
controlling and reducing the pollution of the waters of this state,
and to advise, consult and cooperate with all persons, all agencies
of this state, the federal government or other states, and with
interstate agencies in the furtherance of the purposes of this
article, and to this end and for the purpose of studies, scientific
or other investigations, research, experiments and demonstrations
pertaining thereto, the division may receive moneys from such
agencies, officers and persons on behalf of the state. The
division shall pay all moneys so received into a special fund
hereby created in the state Treasury, which fund shall be expended
under the direction of the director solely for the purpose or
purposes for which the grant, gift or contribution was made;
(3) To encourage the formulation and execution of plans by
cooperative groups or associations of municipal corporations,
industries, industrial users, and other users of waters of the
state, who, jointly or severally, are or may be the source of pollution of such waters, for the control and reduction of
pollution;
(4) To encourage, participate in, or conduct or cause to be
conducted studies, scientific or other investigations, research,
experiments and demonstrations relating to the water resources of
the state and water pollution and its causes, control and
reduction, and to collect data with respect thereto, all as may be
deemed advisable and necessary to carry out the purposes of this
article;
(5) To study and investigate all problems concerning water
flow, water pollution and the control and reduction of pollution of
the waters of the state, and to make reports and recommendations
with respect thereto;
(6) To collect and disseminate information relating to water
pollution and the control and reduction thereof;
(7) To develop a public education and promotion program to aid
and assist in publicizing the need for, and securing support for,
pollution control and abatement;
(8) To sample ground and surface water with sufficient
frequency to ascertain the standards of purity or quality from time
to time of the waters of the state;
(9) To develop programs for the control and reduction of the
pollution of the waters of the state;
(10) To exercise general supervision over the administration and enforcement of the provisions of this article, and all rules,
permits and orders issued pursuant to the provisions of this
article, article eleven-a of this chapter and article one, chapter
twenty-two-b of this code;
(11) In cooperation with the college of engineering at West
Virginia University and the schools and departments of engineering
at other institutions of higher education operated by this state,
to conduct studies, scientific or other investigations, research,
experiments and demonstrations in an effort to discover economical
and practical methods for the elimination, disposal, control and
treatment of sewage, industrial wastes, and other wastes, and the
control and reduction of water pollution, and to this end, the
director may cooperate with any public or private agency and
receive therefrom, on behalf of the state, and for deposit in the
state Treasury, any moneys which such agency may contribute as its
part of the expenses thereof, and all gifts, donations or
contributions received as aforesaid shall be expended by the
director according to the requirements or directions of the donor
or contributor without the necessity of an appropriation therefor,
except that an accounting thereof shall be made in the fiscal
reports of the division;
(12) To require the prior submission of plans, specifications,
and other data relative to, and to inspect the construction and
operation of, any activity or activities in connection with the issuance and revocation of such permits as are required by this
article, article eleven-a of this chapter or the rules promulgated
thereunder;
(13) To require any and all persons directly or indirectly
discharging, depositing or disposing of treated or untreated
sewage, industrial wastes or other wastes, or the effluent
therefrom, into or near any waters of the state or into any
underground strata, and any and all persons operating an
establishment which produces or which may produce or from which
escapes, releases or emanates or may escape, release or emanate
treated or untreated sewage, industrial wastes or other wastes, or
the effluent therefrom, into or near any waters of the state or
into any underground strata, to file with the division such
information as the director may require in a form or manner
prescribed for such purpose, including, but not limited to, data as
to the kind, characteristics, amount and rate of flow of any such
discharge, deposit, escape, release or disposition;
(14) To adopt, modify, or repeal procedural rules and
interpretive rules in accordance with the provisions of chapter
twenty-nine-a of this code administering and implementing the
powers, duties and responsibilities vested in the director by the
provisions of this article and article eleven-a of this chapter;
(15) To cooperate with interstate agencies for the purpose of
formulating, for submission to the Legislature, interstate compacts and agreements relating to: (A) The control and reduction of water
pollution; and (B) the state's share of waters in watercourses
bordering the state;
(16) To adopt, modify, repeal and enforce rules, in accordance
with the provisions of chapter twenty-nine-a of this code: (A)
Implementing and making effective the declaration of policy
contained in section one of this article and the powers, duties and
responsibilities vested in the director and the chief by the
provisions of this article and otherwise by law; (B) preventing,
controlling and abating pollution; and (C) facilitating the state's
participation in the "National Pollutant Discharge Elimination
System" pursuant to the "Federal Water Pollution Control Act," as
amended:
Provided, That no rule adopted by the director shall
specify the design of equipment, type of construction or particular
method which a person shall use to reduce the discharge of a
pollutant; and
(17) To advise all users of water resources as to the
availability of water resources and the most practicable method of
water diversion, use, development and conservation.
(b) Whenever required to carry out the objectives of this
article or article eleven-a of this chapter the director shall
require the owner or operator of any point source or establishment
to: (i) Establish and maintain such records; (ii) make such
reports; (iii) install, use and maintain such monitoring equipment or methods; (iv) sample such effluents in accordance with such
methods, at such locations, at such intervals and in such manner as
the director shall prescribe; and (v) provide such other
information as the director may reasonably require.
(c) The director upon presentation of credentials: (i) Has a
right of entry to, upon or through any premises in which an
effluent source is located or in which any records required to be
maintained under subsection (b) of this section are located; and
(ii) may at reasonable times have access to and copy any records,
inspect any monitoring equipment or method required under
subsection (b) of this section and sample any streams in the area
as well as sample any effluents which the owner or operator of such
source is required to sample under subsection (b) of this section.
Nothing in this subsection eliminates any obligation to follow any
process that may be required by law.
(d) The director is hereby authorized and empowered to
investigate and ascertain the need and factual basis for the
establishment of public service districts as a means of controlling
and reducing pollution from unincorporated communities and areas of
the state, investigate and ascertain, with the assistance of the
Public Service Commission, the financial feasibility and projected
financial capability of the future operation of any such public
service district or districts, and to present reports and
recommendations thereon to the county commissions of the areas concerned, together with a request that such county commissions
create a public service district or districts, as therein shown to
be needed and required and as provided in article thirteen-a,
chapter sixteen of this code. In the event a county commission
fails to act to establish a county-wide public service district or
districts, the director shall act jointly with the Commissioner of
the Bureau of Public Health to further investigate and ascertain
the financial feasibility and projected financial capability and,
subject to the approval of the Public Service Commission, order the
county commission to take action to establish such public service
district or districts as may be necessary to control, reduce or
abate the pollution, and when so ordered the county commission
members must act to establish such a county-wide public service
district or districts.
(e) The director has the authority to enter at all reasonable
times upon any private or public property for the purpose of making
surveys, examinations, investigations and studies needed in the
gathering of facts concerning the water resources of the state and
their use, subject to responsibility for any damage to the property
entered. Upon entering, and before making any survey, examination,
investigation and study, such person shall immediately present
himself or herself to the occupant of the property. Upon entering
property used in any manufacturing, mining or other commercial
enterprise, or by any municipality or governmental agency or subdivision, and before making any survey, examination,
investigation and study, such person shall immediately present
himself or herself to the person in charge of the operation, and if
he or she is not available, to a managerial employee. All persons
shall cooperate fully with the person entering such property for
such purposes. Upon refusal of the person owning or controlling
such property to permit such entrance or the making of such
surveys, examinations, investigations and studies, the director may
apply to the circuit court of the county in which such property is
located, or to the judge thereof in vacation, for an order
permitting such entrance or the making of such surveys,
examinations, investigations and studies; and jurisdiction is
hereby conferred upon such court to enter such order upon a showing
that the relief asked is necessary for the proper enforcement of
this article:
Provided, That nothing in this subsection eliminates
any obligation to follow any process that may be required by law.
(f) The director shall develop comprehensive standards to
control the levels of total dissolved solids in the state's rivers
and streams, which standards shall include requiring:
(1) Submission of information regarding the source, schedule
and conditions for water withdrawals;
(2) Disclosure of the make-up of fracturing fluids and
limitation of hazardous chemicals such as benzene and other
hazardous chemicals used in drilling operations;
(3) Water discharge plans detailing treatment, location,
schedule and conditions for discharge of fracturing liquids;
(4) Specifying penalties for noncompliance, including
revocation of drilling permits;
(5) Establishment of total dissolved solids water quality
standards at or below the Pennsylvania standard of 500 mg/l; and
(6) All mining, drilling and other discharges within any river
or stream to be in compliance with the total dissolved solids
standard, even in periods of low flow water throughout the year.
NOTE: The purpose of this bill is to require the West Virginia
Department of Environmental Protection to develop specific
standards to control levels of total dissolved solids in the
state's rivers and streams.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.