Introduced Version
House Bill 2313 History
| Email
Key: Green = existing Code. Red = new code to be enacted
Bill-DEP, Stds of Performance
H. B. 2313
(By Delegates Douglas, Hunt, Compton,
Faircloth, Linch and Riggs
)
[Introduced March 3, 1997; referred to the
Committee on the Judiciary .]
A BILL to amend and reenact section one, article three,
chapter sixty-four of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, relating
to authorizing the division of environmental
protection to promulgate a legislative rule relating
to standards of performance for new stationary sources
pursuant to 40 CFR Part 60.
Be it enacted by the Legislature of West Virginia:
That section one, article three, chapter sixty-four of
the code of West Virginia, one thousand nine hundred
thirty-one, as amended, be amended and reenacted, to read
as follows:
ARTICLE 3. AUTHORIZATION FOR BUREAU OF ENVIRONMENT TO PROMULGATE LEGISLATIVE RULES.
§64-3-1. Division of environmental protection.
(a) The legislative rules rule filed in the state
register on twenty-eighth day of July, one thousand nine
hundred ninety-five, authorized under the authority of
section four, article five, chapter twenty-two of this
code, relating to the division of environmental protection
(emission standards for hazardous air pollutants pursuant
to 40 CFR Part 63, 45 CSR 34), are is authorized.
(b) The legislative rules rule filed in the state
register on the twenty-eighth day of July, one thousand
nine hundred ninety-five, authorized under the authority of
section four, article five, chapter twenty-two of this
code, modified by the division of environmental protection
to meet the objections of the legislative rule-making
review committee and refiled in the state register on the
twenty-seventh day of October, one thousand nine hundred
ninety-five, relating to the division of environmental
protection (to prevent and control air pollution from
hazardous waste treatment, storage or disposal facilities,
45 CSR 25), are is authorized.
(c) The legislative rules rule filed in the state
register on the twenty-eighth day of July, one thousand
nine hundred ninety-five, authorized under the authority of section four, article five, chapter twenty-two of this
code, relating to the division of environmental protection
(acid rain provisions and permits, 45 CSR 33), are is
authorized.
(d) The legislative rules rule filed in the state
register on the thirty-first day of July, one thousand nine
hundred ninety-five, authorized under the authority of
section six, article seventeen, chapter twenty-two of this
code, modified by the division of environmental protection
to meet the objections of the legislative rule-making
review committee and refiled in the state register on the
eighteenth day of January, one thousand nine hundred
ninety-six, relating to the division of environmental
protection (underground storage tanks, 47 CSR 36), are is
authorized.
(e) The legislative rules rule filed in the state
register on the thirty-first day of July, one thousand nine
hundred ninety-five, authorized under the authority of
section six, article eighteen, chapter twenty-two of this
code, modified by the division of environmental protection
to meet the objections of the legislative rule-making
review committee and refiled in the state register on the
eighteenth day of January, one thousand nine hundred ninety-six, relating to the division of environmental
protection (hazardous waste management regulations, 47 CSR
35), are is authorized.
(f) The legislative rules rule filed in the state
register on the thirty-first day of July, one thousand nine
hundred ninety-five, authorized under the authority of
section four, article three, chapter twenty-two of this
code, modified by the division of environmental protection
to meet the objections of the legislative rule-making
review committee and refiled in the state register on the
twenty-third day of January, one thousand nine hundred
ninety-six, relating to the division of environmental
protection (surface mining and reclamation regulations, 38
CSR 2), are is authorized with the following amendments:
"On page 64, section 3.27, after the word 'Director'
by striking out the word 'may' and inserting in lieu
thereof the word 'shall';
On page 64, section 3.27, after the word 'completed'
by striking out the remainder of the first paragraph and
inserting in lieu thereof the following words:
'and reclamation activities are ongoing.'
On page 156, section 11.6(c)(6)(A) after the word
'operations' by striking out the words 'within five (5) years of the date of SMA approval,';
On page 156, section 11.6(c)(6)(B) after the word
'(95-87)' by striking out the words 'within five (5) years
of the date of SMA approval,';
On page 157, section 11.6(c)(6)(C) after the word
'State' by striking out the words 'within five (5) years of
the date of SMA approval,';
On page 163, section 11.6(d)(6)(A), after the word
'applicant' by striking out the words 'within five (5)
years of the date of SMA approval,';
On page 164, section 11.6(d)(6)(B), after the word
'95-87' by striking out the words 'within five (5) years of
the date of SMA approval,';
On page 164, section 11.6(d)(6)(C), after the word
'wetlands' by striking out the words 'within five (5) years
of the date of SMA approval,';
On page 169, section 11.6(e)(5)(A), after the word
'95-87' by striking out the words 'within five (5) years of
the date of SMA approval,';
On page 169, section 11.6(e)(5)(B), after the word
'wetlands' by striking out the words 'within five (5) years
of the date of SMA approval,';
On page 175, section 11.6(f)(5)(A), after the word '95-87', by striking out the words 'within five (5) years
of the date of SMA approval,';
On page 175, section 11.6(f)(5)(B), after the word
'enhancement' by striking out the words 'of wetlands within
five (5) years of the date of SMA approval,'.
On page 178, section 12.2 subsection (e) by striking
12.2.e in its entirety and inserting in lieu thereof the
following:
'Notwithstanding any other provisions of this rule, no
bond release or reduction will be granted if, at the time,
water discharged from or affected by the operation requires
chemical treatment in order to comply with applicable
effluent limitations or water quality standards: Provided,
That the Director may approve a request for Phase I but not
Phase II or III, release if the applicant demonstrates to
the satisfaction of the Director that either:
(A) The remaining bond is adequate to assure long term
treatment of the drainage; or
(B) The operator has irrevocably committed other
financial resources which are adequate to assure long term
treatment of the drainage: Provided, That the alternate
financial resources must be in acceptable form, and meet
the standards set forth in Section 11 of the Act and Section 11 of this rule: Provided, however, That the
alternate financial arrangements shall provide a mechanism
whereby the Director can assume management of the resources
and treatment work in the event that the operator defaults
for any reason: And provided further, That default on a
treatment obligation under this paragraph shall be
considered equivalent to a bond forfeiture, and the
operator will be subject to penalties and sanctions,
including permit blocking, as if a bond forfeiture had
occurred.
In order to make such demonstration as referenced
above, the applicant shall address, at a minimum, the
current and projected quantity and quality of drainage to
be treated, the anticipated duration of treatment, the
estimated capital and operating cost of the treatment
facility, and the calculations which demonstrate the
adequacy of the remaining bond or of the alternate
financial resources.'
On page sixteen, section 38-2-2.106, after the words
'sum of the loading' by inserting the words 'or driving';
and by striking out the words 'in a constructed valley
fill, backfill, dam, or refuse pile' and inserting in lieu
thereof the words 'as determined by acceptable engineering practices';
On page twenty-eight, section 38-2-3.2(e), after the
words 'limited number of minor changes' by inserting the
words 'that do not significantly affect the health, safety
or welfare of the public and';
On page thirty-six, section 38-2-3.6(h)(5), after the
words 'as defined in' by striking out the words 'Article 5D
of Chapter 20' and inserting in lieu thereof the words
'Article 14 of Chapter 22';
On page thirty-nine, section 38-2-3.8(c), at the end
after the words 'reasonable time for compliance.', by
inserting a new sentence to read as follows: 'Provided,
That those structures and facilities, where it can be
demonstrated that reconstruction or revision would result
in greater environmental harm and the performance standards
set forth in the Act and these regulations can otherwise be
met, may be exempt from revision or reconstruction.';
On page one hundred seventy-eight, section 38-2- 12.2(d), after the words 'until all coal extraction
operations' by inserting the words 'for the permit or
increment thereof', and after the words 'the entire
disturbed area' by inserting the words 'for the permit or
increment thereof';
On page one hundred ninety-seven, section 38-2- 14.3(c)(2), after the words 'medium is the best' by
inserting the word 'reasonably';
And,
On page two hundred fifteen, section 38-2-14.14(e)(4),
by striking the sentence 'Runoff from areas above and
adjacent to the fill shall not be allowed to flow onto the
fill surface, and shall be diverted into stabilized
diversion channels, designed and constructed to safely pass
the peak runoff from a 100 year, 24 hour precipitation
event.' and inserting in lieu thereof the sentences
'Surface water runoff from areas above and adjacent to the
fill shall be diverted into properly designed and
constructed stabilized diversion channels which have been
designed using best current technology to safely pass the
peak runoff from a 100 year, 24 hour precipitation event.
The channel shall be designed and constructed to ensure
stability of the fill, control erosion, and minimize water
infiltration into the fill.'"
(g) The legislative rules rule filed in the state
register on the twenty-sixth day of July, one thousand nine
hundred ninety-five, authorized under the authority of
section four, article twenty-one, chapter twenty-two of this code, modified by the division of environmental
protection to meet the objections of the legislative
rule-making review committee and refiled in the state
register on the fourteenth day of December, one thousand
nine hundred ninety-five, relating to the division of
environmental protection (coalbed methane wells, 38 CSR
23), are is authorized.
(h) The legislative rules rule filed in the state
register on the twenty-third day of November, one thousand
nine hundred ninety-four, authorized under the authority of
section eight, article eleven, chapter twenty of this code,
modified by the division of environmental protection to
meet the objections of the legislative rule-making review
committee and refiled in the state register on the
twentieth day of December, one thousand nine hundred
ninety-five, relating to the division of environmental
protection (waste tire management, 47 CSR 38G), are is
authorized.
(i) The legislative rules rule filed in the state
register on the twenty-second day of June, one thousand
nine hundred ninety-five, authorized under the authority of
section twenty, article fifteen, chapter twenty-two of this
code, modified by the division of environmental protection to meet the objections of the legislative rule-making
review committee and refiled in the state register on the
twenty-second day of December, one thousand nine hundred
ninety-five, relating to the division of environmental
protection (sewage sludge management, 47 CSR 38D), are is
authorized with the amendments set forth below:
On page seven, section 3.2.2, by striking out the
words "Table 3 of this rule will automatically be repealed
and replaced with Table 3A of this rule on December 31,
1997, unless this provision is modified prior to that
date.";
And,
On page seven, section 3.2.2, after the word "rule."
by inserting the following: The director is authorized
until Dec. 31, 1999, to issue variances to this section to
allow land application to soils which exceed the maximum
soil concentrations of metals listed in Table 3 where soil
analyses demonstrate that other soil factors, including,
but not limited to, soil pH, cation exchange capacity,
organic matter content, or clay content, will limit
mobility and availability of the metals. No later than
June 30, 1999, the director shall propose revisions to
Table 3 to adequately protect soil quality, human health and the environment',
And,
On page 20, by striking the following from Table 3:
"NOTE: Table 3 of this rule will automatically be repealed
and replaced with Table 3A of this rule on December 31,
1997, unless the provision of paragraph 3.2.2 of this rule
is modified prior to that date.",
And,
On page 21, by striking out all of Table 3A.
(j) The legislative rules rule filed in the state
register on the thirty-first day of July, one thousand nine
hundred ninety-five, authorized under the authority of
section four, article five, chapter twenty-two of this
code, relating to the division of environmental protection
(to prevent and control of air pollution from the emission
of volatile organic compounds, 45 CSR 21), are is
authorized with the following amendment:
"On pages 170 and 171, by striking out section 40 in
its entirety and inserting in lieu thereof a new section
40, to read as follows:
§45-21-40. Other Facilities that Emit Volatile Organic Compound (VOC).
40.1. Applicability.
a. This section 40. applies to any facility that has
aggregate maximum theoretical emissions of 90.7 megagrams
(mg) (100 tons) or more of volatile organic compounds
(VOCs) per calendar year in the absence of control devices;
provided that this section 40. applies to any source or
sources within such facility other than those sources
subject to regulation under sections 11. through 39. VOC
emissions from sources regulated under sections 11. through
39., but which fall below the applicability thresholds of
these sections, and thus are not subject to the emissions
control standards of these sections, shall be included in
the determination of maximum theoretical emissions for a
facility but shall not be subject to the requirements of
this section 40. Emissions from sources listed in section
40.1.d. shall not be included in the determination of
maximum theoretical emissions for a facility.
b. The owner or operator of a coating line or
operation, whose emissions are below this applicability
threshold, shall comply with the certification,
recordkeeping, and reporting requirements of section
40.6.a.
c. The owner or operator of a non-coating source,
whose emissions are below this applicability threshold, shall comply with the certification, recordkeeping, and
reporting requirements of section 40.6.b.
d. The requirements of this section 40. shall not
apply to coke ovens (including by-product recovery plants),
fuel combustion sources, barge loading facilities, jet
engine test cells, vegetable oil processing facilities,
wastewater treatment facilities, iron and steel production,
surface impoundments, pits; and boilers, industrial
furnaces, and incinerators having a destruction efficiency
of 95 percent or greater.
e. The requirements of this section 40. shall not
apply to any facility bound by an order or permit,
enforceable by the Director, which limits the facility's
emissions to less than 100 tons of VOC per calendar year
without the application of control devices.
40.2. Definitions. -- As used in this section 40., all
terms not defined herein shall have the meaning given them
in section 2.
a. 'Reasonably available control measures' (also
denoted as RACM) means an emission limit or limits that
reflect the application of control technology and/or
abatement techniques or measures that are reasonably
available, considering technological and economic feasibility. Such emission limits may be considered on a
plant-wide basis to achieve emission reduction requirements
in the most cost effective manner.
b. "Fugitive emissions" means those emissions which
could not reasonably pass through a stack, chimney, vent,
or other functionally equivalent opening.
40.3. Standards. -- The owner or operator of a
facility subject to this section 40. shall:
a. Except as provided in section 40.3.b.,
1. With respect to any existing non-fugitive
emission source which has maximum theoretical emissions of
6 pounds per hour or more, comply with an emission control
plan established on a case-by-case basis approved by the
Director that meets the definition of reasonably available
control measures (RACM) and achieves at least a 90 percent
reduction in emissions below the total (aggregate) maximum
theoretical emissions from all such non-fugitive emission
sources subject to RACM requirements; and
2. With respect to each process unit producing a
product or products, intermediate or final, in excess of
1000 megagrams (Mg) (1,100 tons) per year, regardless of
whether such product or products are listed in 40 CFR
60.489, comply with an emission control plan for fugitive sources using the methods and criteria of section 37., or
alternative methods and criteria approved by the Director.
The Director may exempt a process unit from fugitive
emission control requirements upon satisfactory
demonstration that emissions are of minor significance.
b. With respect to such sources as described in
sections 40.3.a.1. and 40.3.a.2., comply with emission
limits and measures based upon an alternative emissions
reduction plan approved by the Director considering
technical, economic and air quality benefit considerations
that, at a minimum, maintains emission control measures
incorporated as part of any federally approved maintenance
plan for the county or area in which the source is located.
c. With respect to any source at a facility subject to
this section 40., which source has maximum theoretical
emissions of 6 pounds per hour or more and is constructed,
modified or begins operating after the effective date of
this rule, comply with a control plan developed on a case- by-case basis approved by the Director that meets the
definition of reasonably available control technology
(RACT) in section 2.60. for both fugitive and non- fugitive emission sources.
40.4. Submissions and Approval of Control Plans
a. Within 90 days after the effective date of this
rule, the owner or operator of a facility subject to this
section 40. shall submit any required amendments to the
case-by-case RACT control plans previously submitted to the
Director, that revise such control plans to meet the
definition of reasonably available control measures (RACM).
b. Notwithstanding the provisions of section 9.2.,
the owner or operator of a facility subject to this rule
solely due to this section 40., that requires a major
process change and/or major capital investment to comply
with RACM requirements, may petition the Director for an
additional extension beyond December 31, 1996, for
compliance certification, and the Director may grant such
extension when warranted. Provided however, such
compliance certification date shall be no later July 31,
1997.
c. The Director shall not approve a RACM plan or an
alternative emissions reduction plan under this section 40.
unless such plan includes:
1. A commitment to develop and submit a
complete RACT plan to the Director within 180 days of a
finding by the Director that a violation of the National
Ambient Air Quality Standard for ozone has occurred within the county or maintenance area in which the source is
located; and
2. A commitment to achieving full
implementation of RACT within 2 years of approval of the
RACT plan by the Director.
d. A finding by the Director that a violation of
the National Ambient Air Quality Standard for ozone has
occurred shall be made based upon verification of a
monitored ozone standard violation in the county or
maintenance area in which the source is located. The three
maintenance areas (the Huntington area, comprising Cabell
and Wayne counties; the Charleston area, comprising Kanawha
and Putnam counties; and the Parkersburg area, comprising
Wood county) shall be treated separately and independently
for any such finding(s).
e. All RACM control plans, RACT control plans, and
alternative emissions reduction plans approved by the
Director pursuant to this section 40. shall be embodied in
a consent order or permit in accordance with 45CSR13 or
45CSR30, as required. A facility owner or operator may at
any time petition the Director to approve revisions to
these plans. The decision concerning said petition shall
be issued by the Director in accordance with 45CSR13 or 45CSR30, as required, or a consent order. Any such
revisions shall be subject to the public participation
requirements of 45CSR13 or 45CSR30.
f. The owner or operator of a facility subject to
this section 40. may submit for approval by the Director an
emission control plan that meets the definition of
reasonably available control technology (RACT) in section
2.60.
40.5. Test methods and procedures. -- The owner or
operator of any source subject to this section 40. shall
demonstrate compliance with section 40.3. by using the
applicable test methods specified in sections 41. through
46 or by other means approved by the Director.
Notwithstanding the requirements of section 41.1., EPA
approval for alternate test methods to demonstrate
compliance shall not be required for sources which are
subject solely to emission control requirements specified
in section 40.3.
40.6. Reporting and Recordkeeping Requirements for
Exempt Non-Control Technique Guideline (CTG) Sources.
a. An owner or operator of a coating line or
operation that is exempt from the emission limitations in
section 40.3. shall comply with the certification, recordkeeping, and reporting requirements in section 4.2.
b. An owner or operator of a non-coating source
that is exempt from the emission limitations in section
40.3. shall submit, upon request by the Director, records
that document that the source is exempt from these
requirements.
1. These records shall be submitted to the
Director within 30 days from the date of request.
2. If such records are not made available, the
source will be considered subject to the limits in section
40.3.
40.7. Reporting and Recordkeeping Requirements for
Subject Non-CTG Coating Sources. -- An owner or operator of
a coating line or operation subject to this section 40. and
complying with section 40.3. shall comply with the
certification, recordkeeping, and reporting requirements in
section 4.
40.8. Reporting and Recordkeeping Requirements for
Subject Non-CTG, Non-Coating Sources.
a. The owner or operator of the subject VOC sources
shall perform all testing and maintain the results of all
tests and calculations required under sections 40.3. and
40.5. to demonstrate that the subject source is in compliance.
b. The owner or operator of the subject VOC source
shall maintain these records in a readily accessible
location for a minimum of 3 years, and shall make these
records available to the Director upon verbal or written
request.
c. The owner or operator of any facility containing
sources subject to this section 40. shall comply with the
requirements in section 5. except that such requirements,
as they apply to sources solely subject to this section
40., may be modified by the Director upon petition by the
owner or operator. Any such modified requirements shall be
embodied in the facility's control plan (RACM, RACT or
alternative plan) and reflected in the associated consent
order or permit issued pursuant to 45CSR13 or 45CSR30.'"
(k) The legislative rules rule filed in the state
register on the twenty-seventh day of July, one thousand
nine hundred ninety-five, authorized under the authority of
section five, article twelve, chapter twenty-two of this
code, modified by the division of environmental protection
to meet the objections of the legislative rule-making
review committee and refiled in the state register on the
seventeenth day of January, one thousand nine hundred ninety-six, relating to the division of environmental
protection (monitoring well design standards, 47 CSR 60),
are is authorized.
(l) The legislative rules rule filed in the state
register on the thirty-first day of July, one thousand nine
hundred ninety-five, authorized under the authority of
section five, article fifteen, chapter twenty-two of this
code, modified by the division of environmental protection
to meet the objections of the legislative rule-making
review committee and refiled in the state register on the
twenty-fourth day of January, one thousand nine hundred
ninety-six, relating to the division of environmental
protection (solid waste management, 47 CSR 38), are is
authorized with the following amendments:
"On page 37, subdivision 3.8.4, after the words 'from
the uppermost' by striking the word 'significant.'
On page 142, by striking the existing subdivision
4.11.2.c.A and inserting in lieu thereof the following:
'4.11.2.c.A
The monitoring frequency for all constituents listed in
Appendix I of this rule, must be at least twice a year
during the active life of the facility, including closure
and the post-closure periods. The director may require more frequent monitoring on a site-specific basis by
considering aquifer flow rate and existing quality of the
groundwater.'
On page 148, by striking the existing subdivision
4.11.3.i.A. and inserting in lieu thereof the following:
'4.11.3.i.A.
The director may consider an alternative groundwater
protection standard in consultation with the environmental
quality board pursuant to 47CSR57 for constituents for
which water quality standards have not been established.'
On page 151, subdivision 4.11.5., by following the
words 'any applicable groundwater quality protection
standards' by inserting the words 'and/or background
groundwater quality, pursuant to the requirements of the
Groundwater Protection Act, WVC §22-12-1 et seq.'
On page 152, subdivision 4.11.6.b.A., by following the
words 'Be protective of human health and the environment'
inserting the words 'and maintain existing groundwater
quality, pursuant to the requirements of the Groundwater
Protection Act, WVC §22-12-1 et seq.'
On page 154, subdivision 4.11.6.d.B.(f), by striking
the words 'Resource value of the aquifer' and inserting in
lieu thereof the words 'The hydrogeologic characteristics of the facility and the surrounding land,'
On page 154, subdivision 4.11.6.d.B(f).(e) by striking
out the words "The hydrogeologic characteristics of the
facility and surrounding land;
And, by renumbering and relettering the remaining
subdivisions of the rule.
On page 156, subdivision 4.11.7.a.A., by following the
words 'Demonstrate compliance with' inserting the words
'the Groundwater Protection Act, WVC §22-12-1 et seq.,
and/or the''
And,
On page 173, subdivision 5.4.3, by adding the
following sentence to the end of the subdivision: 'A class
D facility other than a class D-1 solid waste facility
shall not exceed two (2) acres in size.'"
(m) The legislative rule filed in the state register
on the twenty-ninth day of August, one thousand nine
hundred ninety-six, authorized under the authority of
section four, article five, chapter twenty-two, of this
code, relating to the division of environmental protection
(standards of performance for new stationary sources
pursuant to 40 CFR Part 60
, 45 CSR 16), is authorized.
NOTE: The purpose of this bill is to authorize the
Division of Environmental Protection to promulgate a
legislative rule relating to Standards of Performance for
New Stationary Sources Pursuant to 40 CFR Part 60
.
Strike-throughs indicate language that would be
stricken from the present law, and underscoring indicates
new language that would be added.