ENGROSSED
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 287
(By Senators Love and Fanning)
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[Originating in the Committee on the Judiciary;
reported March 25, 2005.]
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A BILL to repeal §22B-3-4 of the Code of West Virginia, 1931, as
amended; to amend and reenact §22-11-7b of said code; to amend
and reenact §22-12-4 of said code; and to amend and reenact
§22B-3-2 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; authorizing the Department of Environmental
Protection to consider remining variances; authorizing the
Secretary to promulgate standards of purity and quality for
groundwater; establishing the maximum containment levels
permitted for groundwater; providing that the current groundwater standard remains in effect until modified by the
Secretary.
Be it enacted by the Legislature of West Virginia:
That §22B-3-4 of the Code of West Virginia, 1931, as amended,
be repealed,; that §22-11-7b of said code be amended and reenacted;
that §22-12-4 of said code be amended and reenacted; and that
§22B-3-2 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 five regular session of the Legislature:
Provided, That the legislative rule containing the state's water
quality standards shall remain in force and effect as if promulgated by the Department of Environmental Protection until the
Secretary amends the rule in accordance with the provisions of
article three, chapter twenty-nine-a of this code. Any
proceedings, including notices of proposed rulemaking pending
before the Environmental Quality Board, and any other functions,
actions or authority transferred to the Secretary shall continue in
effect as actions of the Secretary.
(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 or variances thereto shall be held in accordance with the
provisions of article nine-a, chapter six 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-a, chapter six of this code: (i)
Consultations between the Department's employees or its
consultants, contractors or agents; (ii) consultations with other
state or federal agencies and the Department's employees or its
consultants, contractors or agents; or (iii) consultations between
the Secretary, the Department's employees or its consultants,
contractors or agents with any interested party for the purpose of
collecting facts and explaining state and federal requirements
relating to a site specific change or variance.
(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. The water quality standards of the Secretary may not
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 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, 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 or "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) All remining variances shall be applied for and considered
by the Secretary and any variance granted shall be consistent with
33 U. S. C. Section 1311(p) of the Federal Water Control Act. At
a minimum, when considering an application for a remining variance the Secretary shall consider the data and information submitted by
the applicant for the variance; and comments received at a public
comment period and public hearing. The Secretary 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. Any such requirement will be included as a
permit condition. The Secretary 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 Secretary may not grant a
variance where he or she determines that degradation of the
instream water quality will result from the remining operation.
ARTICLE 12. GROUNDWATER PROTECTION ACT.
§22-12-4. Authority of Secretary to promulgate standards of purity
and quality.
(a) The environmental quality board Secretary has the sole and
exclusive authority to promulgate standards of purity and quality
for groundwater of the state. and shall promulgate such standards
following a public hearing within one year from the effective date
of this article, by legislative rules in accordance with the
provisions of chapter twenty-nine-a of this code.
(b) Such These standards shall establish the maximum
contaminant levels permitted for groundwater, but in no event shall
the standards allow contaminant levels in groundwater to exceed the maximum contaminant levels adopted by the United States
Environmental Protection Agency pursuant to the federal Safe
Drinking Water Act. The board Secretary may set standards more
restrictive than the maximum contaminant levels where it finds that
such standards are necessary to protect drinking water use where
scientifically supportable evidence reflects factors unique to West
Virginia or some area thereof, or to protect other beneficial uses
of the groundwater. For contaminants not regulated by the federal
Safe Drinking Water Act, standards for such contaminants shall be
established by the board Secretary to be no less stringent than may
be reasonable and prudent to protect drinking water or any other
beneficial use. Where the concentration of a certain constituent
exceeds such standards due to natural conditions, the natural
concentration is the standard for that constituent. Where the
concentration of a certain constituent exceeds such standard due to
human-induced contamination, no further contamination by that
constituent is allowed and every reasonable effort shall be made to
identify, remove or mitigate the source of such contamination and
to strive where practical to reduce the level of contamination over
time to support drinking water use.
(c) The standards of purity and quality for groundwater
promulgated by the board Secretary shall recognize the degree to
which groundwater is hydrologically connected with surface water
and other groundwater and such standards shall provide protection
for such surface water and other groundwater.
(d) In the promulgation of such standards the board Secretary shall consult with the division of environmental protection,
Department of Agriculture and the Bureau for Public Health, as
appropriate.
(e) Any groundwater standard of the board
that is in effect on
the effective date of this article shall remain in effect until
modified by the board Secretary
. Notwithstanding any other
provisions of this code to the contrary, the authority of the board
Secretary
to adopt standards of purity and quality for groundwater
granted by the provisions of this article is exclusive, and to the
extent that any other provisions of this code grant such authority
to any person, body, agency or entity other than the board
Secretary
, those other provisions are void.
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 three, article
eleven, chapter twenty-two of this code are applicable to this
article and have the meanings ascribed to them therein.