H. B. 4136
(By Delegates Hunt, Linch, Compton, Jenkins,
Faircloth and Riggs)
[Introduced January 30, 1998; 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 the prevention and control of particulate air
pollution from manufacturing process operations.
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 rule filed in the state register
on the thirtieth day of August, one thousand nine hundred
ninety-six, authorized under the authority of section six,
article eighteen, chapter twenty-two of this code, relating
to the division of environmental protection (hazardous
waste management, 33 CSR 20), is authorized.
(b) 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.
(c) 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
(emission standards for hazardous air pollutants pursuant
to 40 CFR Part 63, 45 CSR 34), is authorized.
(d) The legislative rule filed in the state register
on the twenty-eighth day of August, one thousand nine
hundred ninety-six, 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
twenty-second day of October, one thousand nine hundred
ninety-six, relating to the division of environmental
protection (underground storage tank insurance trust fund,
33 CSR 32), is authorized.
(e) 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 three, article 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
twentieth day of December, one thousand nine hundred
ninety-six, relating to the division of environmental
protection (WV/NPDES regulations for coal mining
facilities, 47 CSR 30), is authorized.
(f) The legislative rule filed in the state register
on the thirtieth day of August, one thousand nine hundred
ninety-six, 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-first day
of February, one thousand nine hundred ninety-seven,
relating to the division of environmental protection
(surface mining and reclamation regulations, 38 CSR 2), is
authorized, with the following amendments:
"On page three, subsection 2.4, by striking out the
words "Coal seams commonly associated with such minerals
may include, but are not limited to Waynesburg, Washington,
Freeport, Sewickley, Redstone, Pittsburgh, Kittanning, Elk
Lick, Peerless, No. 2 Gas, Upper Eagle, No. 5 Block and
Stockton Lewiston";
On page three, subsection 2.4, line eight, by striking
out the words "these seams are", and inserting in lieu
thereof the words "the seam is";
On page nine, subsection 2.43, line two, after the
word "highwall", by inserting the words "except in operations where the entire upper horizon above the lowest
coal seam is proposed to be partly or entirely removed";
On page sixteen, subsection 2.95, line seven after
the "any", by inserting the word "substantial";
On page eighteen, subsection 2.108, line two, after
the word "stream." by adding the following: Examples
include wildlife ponds, settling basins and all ponds and
facilities or structures used for water treatment.;
On page nineteen, subsection 2.120, line three, by
striking the word "or" and inserting in lieu thereof the
word "and";
On page twenty-nine, subsection 3.2.e., after the word
"period" by striking the remainder of the subdivision
3.2.e.;
On page forty-nine, subsection 3.14.b.7., by striking
the entire paragraph;
On page forty-nine, subsection 3.14.b.8., by striking
the entire paragraph;
On page forty-nine, by renumbering the remaining
paragraphs;
On page fifty-one, subparagraph 3.14.b.14E, line one,
before the word "A", by inserting the words "If requested by the Director";
On page fifty-one, subsection 3.14.b.15.B., by
striking the entire subparagraph, and inserting in lieu
thereof the following: 3.14.b.15.B. Surface water must be
diverted around or over the material by properly designed
and stabilized diversion channels which have been designed
using the best current technology to provide protection to
the environment or the health, welfare and safety of the
public. The channel shall be designed and constructed to
ensure stability of the remaining material, control
erosion, and minimize water infiltration into the remaining
material.;
On page seventy-two, subdivision 3.29.a, line five
after the word "IBR", by inserting the words "or where it
has been demonstrated to the satisfaction of the Director
that limited coal removal on areas immediately adjacent to
the existing permit is the only practical alternative to
recovery of unanticipated reserves or necessary to enhance
reclamation efforts or environmental protection";
On page eighty-six, by inserting a new subsection 3.35
to read as follows: 3.35. All grade measurements and
linear measurements in this rule shall be subject to a tolerance of two percent (2%). All angles in this rule
shall be measured from the horizontal and shall be subject
to a tolerance of five percent (5%):
Provided, however,
this allowable deviation from the approved plan does not
affect storage capacity and/or performance standards.
On page one hundred eight, subdivision 5.5.c., line
two, after the word "landowner", by striking the remainder
of the paragraph and inserting in lieu thereof the words
"requesting the permanent structures be left for
recreational or wildlife propagation purposes or for any
beneficial uses to the landowner";
On page one hundred twelve, subdivision 6.5.a., line
five, after the word "Sunday." by adding the following:
Provided, however, the Director may grant approval of a
request for Sunday blasting if the operator demonstrates to
the satisfaction of the Director that the blasting is
necessary and there has been an opportunity for a public
hearing.;
On page one hundred twenty-six, paragraph 9.2.i.2,
after the word "achieved" by inserting: An alternate
maximum or minimum soil pH may be approved based on the
optimum pH for the revegetation species.;
On page one hundred thirty, line one, paragraph
9.3.h.1., by striking out the paragraph in its entirety,
and inserting in lieu thereof: 9.3.h.1. The minimum
stocking rate of commercial tree species shall be in
accordance with the approved forest management plan
prepared by a registered professional forester. In no case
may the rate be less than four hundred fifty (450) stems
per acre of commercial tree species;
On page one hundred thirty, paragraph 9.3.h.2., by
striking out the paragraph in its entirety, and by
renumbering the subsequent paragraphs;
On page one hundred thirty, in renumbered paragraph
9.3.h.2., after the word "than", by striking out the words
"four hundred fifty (450)", and inserting in lieu thereof
"three hundred (300);"On page one hundred thirty, in
renumbered paragraph 9.3.h.2., after the word "acre", by
inserting the words "or the rate specified in the forest
management plan, whichever is greater,";
On page two hundred twenty-two, subdivision 14.11.e,
line 6, by striking out the word "operable" and by
inserting in lieu thereof "such condition that operations
could be resumed within sixty (60) days";
On page two hundred twenty-three, subdivision
14.11.f., line four, by striking out the word "operative",
and by inserting in lieu thereof the words "such condition
that the operations could be resumed within sixty (60)
days";
On page two hundred twenty-three, subdivision
14.11.f., line four, after the word "is", by inserting the
words "protected from unauthorized entry";
On page two hundred thirty-eight, subparagraph
14.15.b.6.A., line five, after the word "exceed", by
striking out the words "fifty (50) percent of the total
permit acreage, or four hundred (400) acres, whichever is
less, on operations which consist of at least three spreads
of equipment", and inserting in lieu thereof the words
"five hundred (500) acres on operations which consist of
multiple spreads of equipment";
On page two hundred thirty-nine, subsection 14.15.c.,
line three, after the word "regraded", by inserting the
words "and stabilized";
On page two hundred thirty-nine, subsection 14.15.c.,
line four, after the word "plan", by striking out the
"comma" and the remainder of the subparagraph, and inserting in lieu thereof the words: The following shall
not be included in the calculation of disturbed area.;
On page two hundred forty, paragraph 14.15.c.2., line
seven, after the word "benches", by inserting the words
"without regard to like thickness";
On page two hundred forty, paragraph 14.15.c.5, line
two, after the word "graded", by inserting the words "with
material placed in a stable, controlled manner which will
not subsequently be moved".
(g) 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 ten, 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- sixth day of November, one thousand nine hundred
ninety-six, relating to the division of environmental
protection (confidential information, 45 CSR 31), is
authorized.
(h) 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, 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
sixteenth day of January, one thousand nine hundred
ninety-seven, relating to the division of environmental
protection (to prevent and control air pollution from
hazardous waste treatment, storage or disposal facilities,
45 CSR 25), is authorized.
(i) The legislative rule filed in the state register
on the fifth day of February, one thousand nine hundred
ninety-seven, authorized under the authority of section
three, article twenty-two, 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- fifth day of February, one thousand nine hundred
ninety-seven, relating to the division of environmental
protection (voluntary remediation and redevelopment, 60 CSR
3), is authorized.
(j) That title sixty, series one of the code of state rules be amended by deleting the current interpretative
rule for the office of environmental advocate and inserting
in lieu thereof the following legislative rule, to read as
follows:
"§61-10-1. General.
1.1. Scope. - This legislative rule governs and
controls the appointment and qualifications of the position
of Environmental Advocate within the Division of
Environmental Protection.
1.2. Authority - West Virginia Code §22-1-3, 22-1-3a,
22-20.
1.3. Filing Date -
1.4. Effective Date - July 1, 1997.
§61-10-2. Appointment, Salary and Qualifications.
2.1. Appointment. - The position of Environmental
Advocate will be a full-time position, will be appointed by
the Director, and will serve at the will and pleasure of
the Director of the Division of Environmental Protection in
accordance with the West Virginia Code §22-20-1.
2.2. Salary. - The salary of the position of
Environmental Advocate will be set by the Director and is
subject to future adjustments at the discretion of the Director.
2.3. Qualifications. - The Director will receive or
solicit applications for the position of Environmental
Advocate from persons having the following minimum
qualifications:
2.3.a. A citizen and resident of the State of West
Virginia.
2.3.b. A graduate from an accredited college or
university with a four-year degree in a field of study
directly related to the qualifications, powers, and duties
of the position as set forth by the director.
2.3.c. A minimum of two years full-time or cumulative
experience in work directly related to environmental
protection, or other public service work or experience
which demonstrates the ability to carry out the powers and
duties of the position as set forth by the director.
2.3.d. A working familiarity with some of the legal
requirements and programmatic functions of the Division of
Environmental Protection.
2.3.e. A demonstrated ability to skillfully verbally
and by writing communicate in a public forum.
2.3.f. A demonstrated ability to use word processing software for a computer and other necessary computer
skills as determined by the director.
2.3.g. A valid West Virginia driver's license.
§61-10-3. Powers and Limitations -
The Environmental Advocate will carry out the duties
of the position as set forth in this rule, and as
prescribed by the Director in accordance with the
following:
3.1. The Environmental Advocate will be guided in all
actions by the policy statement and the nine purposes set
forth in West Virginia Code §22-1-1 (b).
3.2. The Environmental Advocate may not in any
official capacity represent any person in, or file on
behalf of any person, legal or quasi-legal actions, either
in support of or opposed to the Division of Environmental
Protection without the expressed approval of the Director,
and under supervision of the Division of Environmental
Protection's General Counsel.
3.3. The Environmental Advocate may not in any
official capacity organize public campaigns in support of,
or in opposition to official positions taken by the
Division of Environmental Protection on environmental matters, and will not in any official capacity actively
participate in any such organized campaign."
(k) The
director of the division of environmental
protection is hereby authorized to propose for promulgation
an emergency rule to amend a current legislative rule
relating to monitoring of air quality legislative rule
filed in the state register on the fourteenth day of
August, one thousand nine hundred ninety-seven, 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 particulate
air pollution from manufacturing process operations, 45 CSR
7) is authorized.
(l) The legislative rule filed in the state register
on the eighteenth day of March, one thousand nine hundred
ninety-seven, relating to the division of environmental
protection (yard waste composting, 47 CSR 38E) is
authorized.
NOTE: The purpose of this bill is to authorize the
Division of Environmental Protection to promulgate a
legislative rule relating to the Prevention and Control of
Particulate Air Pollution From Manufacturing Process
Operations
.
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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