ENGROSSED
Senate Bill No. 724
(By Senators Kessler, Fanning, Jenkins, Minard, Oliverio, Ross,
Snyder and Deem)
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[Originating in the Committee on the Judiciary;
reported March 1, 2004.]
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A BILL to amend and reenact §22-11-7b of the code of West Virginia,
1931, as amended; and to amend and reenact §22B-3-2 and
§22B-3-4 of said code, all
relating to water quality standards
generally; transferring authority to propose rules relating to
water quality standards from the environmental quality board
to the department of environmental protection; providing that
the current rule remains in force and effect until amended by
the department of environmental protection; establishing some
requirements for water protection; providing that meetings to
develop water quality standards be open with certain
exceptions; and continuing the authority of the environmental
quality board to issue remining variances.
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; that §22B-3-2 and §22B-3-4
of said code
be amended and reenacted, all to read as follows:
CHAPTER 22. ENVIRONMENTAL RESOURCES.
ARTICLE 11. WATER POLLUTION CONTROL ACT.
§22-11-7b. Water quality standards; implementation of
antidegradation procedures.
(a) The director of the bureau of the environment 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 director shall
propose for legislative approval pursuant to article three, chapter
twenty-nine-a of the code, emergency and 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 "tier" assigned to
the applicable water body segment, the nature of the activity, and
the extent to which existing water quality would be degraded.
(b) The legislative rule filed by the environmental quality
board as 46 CSR 1 in the state register on the first day of
September, two thousand, authorized under the authority of section
four, article three, chapter twenty-two-b, of this code, as amended
by the Legislature during the two thousand one legislative session,
establishes standards of water quality for waters of the state.
Appendices F, F-1, F-2 and F-3 of the rule contain the antidegradation implementation procedures for the state. The
authority and responsibility to develop and implement
antidegradation procedures for West Virginia is effective the first
day of July, two thousand one, transferred from the environmental
quality board to the director. The provisions of Appendices F,
F-1, F-2 and F-3 shall remain in full force and effect as if
promulgated by the director until such time as the director files
the rules authorized herein. The initial rule filed by the
director shall contain the same provisions as Appendices F, F-1,
F-2 and F-3, 46 CSR 1 approved by the Legislature during the two
thousand one regular session. Notwithstanding any provision of the
code to the contrary, the initial rule filed by the director shall
be effective from filing.
(a) All authority to promulgate rules and implement water
quality standards 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 two thousand four session of the Legislature: Provided,
That the legislative rule "Requirements Governing Water Quality
Standards, 46 CSR 1" authorized by legislative enactment during the
two thousand four session of the Legislature shall remain in force
and effect until the secretary amends the rule in accordance with
the provisions of article three, chapter twenty-nine-a of this code.
(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 shall be held in accordance with the provisions of
article nine, chapter six-a 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, chapter six-a of this code: (i) Consultations
between the department's employees or its consultants, contractors
or agents; or (ii) consultations with other state or federal
agencies and the department's employees or its consultants,
contractors or agents.
(c) In order to carry out the purposes of this chapter, the
secretary shall promulgate legislative rules 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. No rule of the secretary may specify the design of equipment, type of construction or particular method which a person
shall use to reduce the discharge of a pollutant.
(d) The secretary of the department of environmental
protection 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,
emergency and 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 "tier" assigned to the applicable water body
segment, the nature of the activity and the extent to which
existing water quality would be degraded.
(e) On and after the first day of July, two thousand five,
all remining variances shall be applied for and considered by the
secretary.
CHAPTER 22B. ENVIRONMENTAL BOARDS.
ARTICLE 3. ENVIRONMENTAL QUALITY BOARD.
§22B-3-2. Authority of board; additional definitions.
(a) In addition to all other powers and duties of the
environmental quality board, as prescribed in this chapter or
elsewhere by law, the board has and may
exercise the powers and
authorities:
(1) To receive any money as a result of the resolution of any
case on appeal which shall be deposited in the state treasury to
the credit of the water quality management fund created pursuant to
section ten, article eleven, chapter twenty-two of this code.
(2) To advise, consult and cooperate with other agencies of
the state, political subdivisions of the state, other states,
agencies of the federal government, industries and with affected
groups and take such other action as may be appropriate in regard
to its rule-making authority; and
(3) To encourage and conduct such studies and research
relating to pollution control and abatement as a board may deem
advisable and necessary in regard to its rule-making authority.
(b) All the terms defined in section two, article eleven,
chapter twenty-two of this code are applicable to this article and
have the meanings ascribed to them therein.
§22B-3-4. Remining site specific variance.
(a) In order to carry out the purposes of this chapter and
chapter twenty-two of this code, the board shall promulgate
legislative rules 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 be such as to
protect the public health and welfare, wildlife, fish and aquatic
life, and the present and prospective future uses of such water for
domestic, agricultural, industrial, recreational, scenic and other legitimate beneficial uses thereof: Provided, That the director of
the bureau of environment shall establish the antidegradation
implementation procedures which apply to regulated activities that
have the potential to affect water quality, pursuant to section
seven-b, article eleven of chapter twenty-two of this code.
(b) Except for the alternate procedures provided for in
subsection (c) of this section, the board shall promulgate
legislative rules setting water quality standards in accordance
with the provisions of article three, chapter twenty-nine-a of this
code and the declaration of policy set forth in section two,
article eleven, chapter twenty-two of this code.
(c) The
Until the thirtieth day of June, two thousand five,
the board may grant site specific variance only for remined areas
of coal remining operation from the standards of water quality set
forth in legislative rule 46 CSR 1, et seq., setting standards for
iron manganese and pH prior to the issuance of a national pollutant
discharge elimination system (NPDES) permit by the division of
environmental protection in accordance with 33 U. S. C. Section
1311(p) of the federal Water Pollution Control Act. On and after
the first day of July, two thousand five, all remining variances
shall be applied and considered by the department of environmental
protection. The standards established in the variance will exist
for the term of the NPDES permit. The board will promulgate
procedural rules on granting site-specific coal remining variances in accordance with the provisions of article three, chapter
twenty-nine-a of this code on or before the first day of July, one
thousand nine hundred ninety-five. At a minimum, the procedures
for granting or denying a remining variance will include the
following: A description of the data and information to be
submitted to the board by the applicant for such variance; the
criteria to be employed by the board in its decision; and
provisions for a public comment period and public hearing prior to
the board's decision. The board 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
which requirement will be included as a permit condition. The
board 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 board may not grant a variance where the
board determines that degradation of the instream water quality
will result from the remining operation. The alternate procedures
provided for in this section are not subject to the legislative
rule-making requirements of article three, chapter twenty-nine-a of
this code.
(d) No rule of the board may specify the design of equipment,
type of construction or particular method which a person shall use to reduce the discharge of a pollutant.
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