Introduced Version Senate Bill 290 History

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Key: Green = existing Code. Red = new code to be enacted

WEST virginia legislature

2018 regular session


Senate Bill 290

By Senators Smith, Azinger, Boso, Clements, and Cline

[Introduced January 16, 2018; Referred
to the Committee on Energy, Industry and Mining; and then to the Committee on the Judiciary

A BILL to amend and reenact § 22-11-6 of the Code of West Virginia, 1931, as amended, relating to the Department of Environmental Protection; standards of water quality and effluent limitations; establishing net permit limits; procedures for setting benchmarks and permit limits for storm water discharges; setting a time for submittal of discharge monitoring reports; and limiting reasons for major modification of permits.

Be it enacted by the Legislature of West Virginia:

§22-11-6. Requirement to comply with standards of water quality and effluent limitations.

All persons affected by rules establishing water quality standards and effluent limitations shall promptly comply with the rules: Provided, That:

(1) Where necessary and proper, the secretary may specify a reasonable time for persons not complying with  the standards and limitations to comply  with the rules and upon the expiration of  that period of time, the secretary shall revoke or modify any permit previously issued which authorized the discharge of treated or untreated sewage, industrial wastes or other wastes into the waters of this state which result in reduction of the quality of  the waters below the standards and limitations established therefor by rules of the board or secretary;

(2) For purposes of both this article and sections 309 and 505 of the federal Water Pollution Control Act, compliance with a permit issued pursuant to this article shall be  considered compliance for purposes of both this article and sections 301, 302, 303, 306, 307 and 403 of the federal Water Pollution Control Act and with all applicable state and federal water quality standards, except for any  standard imposed under section 307 of the federal Water Pollution Control Act for a toxic pollutant injurious to human health. Notwithstanding any provision of this code or rule or permit condition to the contrary, water quality standards themselves shall not be considered "effluent standards or limitations" for the purposes of both this article and sections 309 and 505 of the federal Water Pollution Control Act and shall may not be independently or directly enforced or implemented except through the development of terms and conditions of a permit issued pursuant to this article. Nothing in this section, however, prevents the secretary from modifying, reissuing or revoking a permit during its term. The provisions of this section addressing compliance with a permit are intended to apply to all existing and future discharges and permits without the need for permit modifications; and

(3) The Legislature finds that there are concerns within West Virginia regarding the applicability of the research underlying the federal selenium criteria to a state such as West Virginia which has high precipitation rates and free-flowing streams and that the alleged environmental impacts that were documented in applicable federal research have not been observed in West Virginia and, further, that considerable research is required to determine if selenium is having an impact on West Virginia streams, to validate or determine the proper testing methods for selenium and to better understand the chemical reactions related to selenium mobilization in water.

(4) The Legislature finds that the EPA has been contemplating a revision to the federally recommended criteria for several years, but has yet to issue a revised standard.

(5) Because of the uncertainty regarding the applicability of the current selenium standard, the secretary is hereby directed to develop within six months of the effective date of this subdivision an implementation plan for the current selenium standard that will include, at minimum, the following:

(A) Implementing the criteria as a threshold standard;

(B) A monitoring plan that will include chemical speciation of any selenium discharge;

(C) A fish population survey and monitoring plan that will be implemented at a representative location to assess any possible impacts from selenium discharges if the threshold criteria are exceeded; and

(D) The results of the monitoring will be reported to the department for use in the development of state-specific selenium criteria.

(6) Within twenty-four months of the effective date of this subdivision, the secretary shall propose rules for legislative approval in accordance with §29A-3-1 et seq. of this code which establish a state-specific selenium standard that protects aquatic life. Concurrent with proposing a legislative rule, the secretary shall also submit the proposed standard and supporting documentation to the administrator of the Environmental Protection Agency. The secretary shall also consult with and consider research and data from the West Virginia Water Research Institute at West Virginia University, the regulated community and other appropriate groups in developing the state-specific selenium standard.

(7) Within thirty days of the effective date of this section, the secretary shall promulgate an emergency rule revising the statewide aluminum water quality criteria for the protection of aquatic life to incorporate aluminum criteria values using a hardness-based equation. Concurrent with issuing an emergency rule, the secretary shall also submit the proposed revisions and supporting documentation to the administrator of the Environmental Protection Agency

(8) The secretary shall, within ninety days of receipt of any completed request for a site specific water quality criterion, approve or deny the request. Any denial or approval of an application shall detail the specific basis for the denial or approval and any revisions needed to the application.   Any denial or approval of a request may be appealed to the environmental quality board pursuant to section twenty-one of this article.

(b) The secretary may not establish water quality-based effluent limitations that are lower than, or that require treatment for, the substances in, or conditions of, the surface water of the state that is drawn into a permittee's intake.

(1) The secretary shall develop a final rule for the implementation of this subsection by no later than June 1, 2020.

(c) The secretary may not set benchmarks for substances in, or conditions of, discharges of storm water that are more restrictive than the acute aquatic life water quality criterion or, where there is no acute aquatic life water quality criterion, may not set benchmarks more restrictive than the chronic aquatic life water quality criterion or an ambient aquatic life advisory concentration, and storm water benchmarks for any substance shall be expressed as the dissolved fraction of that substance, if the water quality criterion for that substance is expressed as the dissolved fraction.

(d) Upon request by an applicant for a permit issued in accordance with this article, the secretary shall establish effluent limits or benchmarks for storm water that are developed in accordance with mixing zones that are appropriate for relevant conditions.

(e) Permit limits and benchmarks for storm water may not be established where natural background pollutant concentrations are higher than the corresponding benchmark value and there is no net contribution of the pollutant by the permittee.

(f) Benchmarks for storm water in permits issued in accordance with this article may be higher than water quality criteria, upon a demonstration that the storm water discharge will not have an acute toxic effect (i.e., mortality) on aquatic life.

(g) Submittal of discharge monitoring reports for permits issued in accordance with this article shall not be required prior to twenty-eight days after the end of the monitoring period in which the discharges occurred.

(h)  Construction of, or changes to, wastewater treatment plants, operating parameters, control equipment or any other aspect of a permitted facility, which results in no increase in the discharge of any permitted substance or the discharge of any new substance, does not require a major modification of a permit.

(i) This amendment to this section shall be known as the “Stormwater, Netting and Permitting Act of 2018”.


NOTE: The purpose of this bill is to allow the Department of Environmental Protection to issue water pollution control permits that contain water quality-based net limits; to allow the setting of storm water benchmarks that are no more stringent than water quality standards; to allow use of a mixing zone for storm water discharges; to prohibit benchmarks and  permit limits where natural quality is lower than water quality criteria; to allow permittees to demonstrate that discharges of storm water in excess of water quality standards will not cause mortality to aquatic life; to allow submission of discharge monitoring reports on the 28th day of the month following the monitoring period; and to specify facility changes that do not require major modifications. This amendment shall be known as the “Stormwater, Netting and Permitting Act of 2018”.

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

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