SB595 SUB1 dmh 2-24
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 595
(By Senators Helmick, Fanning, Love, Anderson and Ross)
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[Originating in the Committee on Energy, Industry and Mining;
reported February 24, 2000.]
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A BILL to amend chapter twenty-two of the code of West Virginia,
one thousand nine hundred thirty-one, as amended, by adding
thereto a new article, designated article twenty-three-a,
relating to requiring legislative approval prior to the
implementation of any new or amended policy, practice,
enforcement action, requirement or changes thereto resulting
from a recommendation from the United States environmental
protection agency (U.S.E.P.A.) or resulting from the
environmental impact statement conducted by the U.S.E.P.A.
under the auspices of the December 23, 1999, settlement
agreement in the Bragg V. Robertson litigation.
Be it enacted by the Legislature of West Virginia:
That chapter twenty-two of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, be amended by adding
thereto a new article, designated article twenty-three-a, to read
as follows:
ARTICLE 23A. Environmental Impact Statement.
§22-23A-1. Legislative findings.
The Legislature hereby finds:
(a) Coal has long been one of West Virginia's leading
industries providing thousands of good paying jobs, infusing
millions of dollars into local and statewide economies and
providing low cost electricity for state residents;
(b) The coal industry provides thousands of high paying jobs
which, on average, earn over fifty thousand dollars a year, or
twice that of the average state worker;
(c) Coal also contributes three and one-half billion dollars
to the gross state product, or thirteen percent of the total, and
pays an incredible amount of taxes to the state. In fact, the coal
industry and the state's coal-fired electric utilities together pay
over sixty percent of all state business taxes which in turn
support a significant portion of the state's annual budget;
(d) Coal was mined in twenty seven of the state's fifty-five
counties during the year one thousand nine hundred ninety-nine, but a "local" share of coal severance dollars is also channeled to all
fifty-five counties, coal and noncoal producing counties alike, to
provide a revenue stream and funding source for many county and
municipal programs;
(e) The state's coal industry has recorded record setting
production, historical safety achievement and excellent reclamation
practices throughout the past several decades. Today's industry
represents a technologically advanced enterprise with a highly
skilled and efficient work force that is competing in an
international marketplace;
(f) West Virginia coal is shipped to twenty-three foreign
countries and accounts for approximately one half of the United
States total coal export product leaving domestic boundaries;
(g) West Virginia coal is shipped to thirty-three states
throughout the eastern half of the United States. Eighty percent
of this coal is used to generate electricity while the remainder is
primarily relied upon for industrial and household energy and for
coking and steel production.
(h) Although presently under siege from numerous sources, the
state's industry is postured with an abundance of opportunity as
the world's thirst for low cost, reliable energy grows on an
incremental basis of over one percent annually. Coal currently
accounts for about fifty-seven percent of the nation's electric power generation;
(i) The coal industry remains essential to economic growth and
progress in West Virginia, the United States and around the world.
Coal continues to sustain our economy and provides the financial
security as future diversity and expansion of our job base is
explored;
(j) It is imperative that balance be sought between state
policies designed to regulate and protect the environment and the
state policies designed to enhance ability of the state to continue
to market West Virginia coal throughout the nation and the world;
(k) The state of West Virginia, through the division of
environmental protection, entered into a settlement agreement on
the twenty-third day of December, one thousand nine hundred ninety-
eight, which imposed additional controls and oversight on the
states' mine permitting process by the U.S. Corps of Engineers and
U.S. Environmental Protection Agency;
(l) The settlement agreement further authorized the U.S.
Environmental Protection Agency to undertake a two-year
Environmental Impact Statement (EIS) of the effects of large scale
mountaintop mining practices and portions of which are in various
stages of completeness;
(m) The state of West Virginia, through its legislatively
authorized "Interim Surface Mining Council," is participating with the EPA and other agencies in the conduct of the EIS; and has
committed funding and other resources towards the expedient
completion of a scientifically based EIS;
(n) Although the state of West Virginia, through its Interim
Surface Mining Council, remains optimistic that the information
collected during this two-year EIS will substantiate the
effectiveness and adequacy of existing environmental regulations
and controls that are enforced under the federal and state Surface
Mining Control Reclamation Act, and Clear Water Act, et al., the
Interim Surface Mining Council also recognizes that the EIS may
ultimately give rise to consideration of new or revised
regulations, policies, guidelines or requirements. EPA has already
arbitrarily and prematurely released over one hundred twenty ideas
for government action with more than a year remaining in the EIS;
(o) EPA has neither produced technical data nor scientific
fact in support of these ideas for government action, leading to
widespread concern over the fairness and equity of EPA's
intentions;
(p) EPA representatives have testified before the West
Virginia's interim surface mining council and have not provided
testimony or status reports commensurate with its conclusions set
forth as the basis for its ideas for government action;
(q) Additional control requirements exceeding those specified by federal law can adversely affect state economic development and
severely and irreparably restrict the West Virginia's coal
industry's ability to compete within current market parameters;
(r) EPA's one hundred twenty ideas of government action, on
their face, would add extraordinary costs to coal mined in West
Virginia, unlike any other state;
(s) Requiring West Virginia, through new or amended policies,
regulations, enforcement or permitting actions to meet requirements
more stringent than those otherwise applicable to other states and
unnecessary for environmental protection would unfairly affect
interstate competition for new mining development and employment
opportunities; and
(t) West Virginia's regulatory program is comprised of a wide
range of unprecedented, substantive requirements that have no
parallel in any other state nor under federal rule or regulation,
thus contributing to greater restrictions and extraordinary costs.
These have come about by various instruments of law, i.e., the
settlement agreement; "Consent Decree"; and "SB 681" which will
materially affect the design, processing, approval and execution of
mining plans (permits) in West Virginia.
§22-23A-2. DEP to refrain from proposing or adopting rule or
making certain commitment absent legislative
approval; reporting required.
It is directed that:
(a) The West Virginia division of environmental protection
shall refrain from proposing or adopting any new rule or policy
guideline intended, in whole or in part, to implement a
recommendation which results from the Mountaintop Mining/Valley
Fill Environmental Impact Statement (EIS) absent an act of the
Legislature;
(b) In the absence of an act of the Legislature of the state
of West Virginia approving same, the West Virginia division of
environmental protection shall not submit to the U.S.E.P.A. or to
any other agency of the federal government any legally enforceable
commitments related to the implementation of any recommendation
which results from the EIS;
(c) Within ninety days upon receipt of any final
recommendation from the U.S.E.P.A. or any other agency of the
federal government related to the EIS, the director of the West
Virginia division of environmental protection shall forward such
recommendation, embodied in a report, along with all scientific
facts or technical evidence relating to and substantiating such
recommendation, to the governor, president of the Senate and the
speaker of the House of Delegates;
(d) Upon careful consideration of any EIS recommendation and
supportive data and scientific facts, the Legislature may elect to recommend passage of federal legislation or regulation and,
accordingly, petition Congress or any federal agency for that
purpose; schedule hearings and receive public comment of the report
pursuant to subsection (c) of this section, and accompanying
recommendations, if any; direct the division of environmental
protection to propose rules to implement any recommendation
resulting from the EIS; or take whatever other action that may be
warranted and supported by the EIS;
(e) Following conclusion of the ninety-day period discussed
in subsection (c) of this section and being so directed by the
Legislature, the division of environmental protection may commence
with rule making to implement recommendations from the EIS, if any,
consistent with the provisions of chapter twenty-nine-a of this
code: Provided, That emergency rule making is not authorized.
(f) No state court has jurisdiction for any cause of action
based, in whole or in part, on the provisions of this article.
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