Senate Bill No. 660
(By Senators Walker, Sprouse, Buckalew, Kimble, Ross, Helmick,
and Plymale)
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[Introduced February 23, 1998; referred to the
Committee on Natural Resources; and then to the Committee on the
Judiciary.}
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A BILL to amend and reenact section three-a, article one, chapter
twenty-two of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, relating to new, amended or
existing rules.
Be it enacted by the Legislature of West Virginia:
That section three-a, article one, chapter twenty-two of the
code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted to read as follows:
ARTICLE 1. DIVISION OF ENVIRONMENTAL PROTECTION.
§22-1-3a. Rules -- New, amended or existing environmental
provisions.
(a) Except for legislative rules promulgated for the purpose of implementing the provisions of section four, article twelve,
section six, article seventeen, and section six, article
eighteen, all of this chapter, and notwithstanding the provisions
of section four, article five of this chapter, legislative rules
promulgated by the director Notwithstanding any provision of
this code to the contrary, environmental requirements including,
but not limited to, legislative rules, procedural rules,
interpretive rules, permits, policies, guidance, directives and
programs proposed, adopted or implemented by the director, the
environmental quality board and the air quality board which
become effective on or after the first day of July, one thousand
nine hundred
ninety-four ninety-eight, may
include new or amended
environmental provisions which are be more stringent than the
counterpart federal
rule or program
requirement to the extent
that the director
or either of said boards first provides
specific written reasons which demonstrate that such
provisions
requirements are reasonably necessary to protect, preserve or
enhance the quality of West Virginia's environment or human
health or safety, taking into consideration the scientific
evidence, specific environmental characteristics of West Virginia
or an area thereof, or stated legislative findings, policies or
purposes relied upon by the director
or either of said boards in
making such determination. In the case of specific
rules
requirements which have a technical basis, the director
or either of said boards shall also provide the specific technical basis
upon which the director
or said board has relied.
(b) Environmental requirements including, but not limited
to, legislative rules, procedural rules, interpretative rules,
permits, policies, guidance, directives and programs proposed,
adopted or implemented by the director, the environmental quality
board or the air quality board, which became effective before the
first day of July, one thousand nine hundred ninety-eight, may
continue to be more stringent than the counterpart federal
requirement to the extent that the director or either of said
boards provide specific reasons which demonstrate that such
provisions are reasonably necessary to protect, preserve or
enhance the quality of West Virginia's environment or human
health or safety, taking into consideration the scientific
evidence, specific environmental characteristics of West Virginia
or an area thereof, or stated legislative findings, policies or
purposes relied upon by the director or either of said boards in
making such determination. In the case of specific requirements
which have a technical basis, the director or either of said
boards shall also provide the specific technical basis upon which
the director or said board relied. Such a demonstration shall
apply only to and be performed within six months of the
occurrence of the following circumstances:
(1) Environmental requirements that have been specifically identified to the director in writing by any person;
(2) Environmental requirements contained in an existing
document when any portion of that document is subject to final
amendments; and
(3) Environmental requirements that are made more stringent
than the counterpart federal requirement for the reason that the
counterpart federal requirement became effective on or after the
first day of July, one thousand nine hundred ninety-eight.
In any case in which such a determination is necessary, such
a determination shall be made within six months of the occurrence
of the circumstances identified in the paragraph.
(c) Notwithstanding the provisions of section four, article
twelve, chapter twenty-two, in the event that legislative rules
promulgated proposed for promulgation by the director which
become effective on or after the first day of July, one thousand
nine hundred ninety-four,
include new or amended environmental
provisions which are may be less stringent than a counterpart
federal rule which recommends, but does not require, a particular
standard or any federally recommended environmental standard
whether or not there be a counterpart federal rule, the division,
the director, the environmental quality board or air quality
board shall first provide specific written reasons which
demonstrate that such provisions are not reasonably necessary to
protect, preserve or enhance the quality of West Virginia's environment or human health or safety, taking into consideration
the scientific evidence, specific environmental characteristic of
West Virginia or an area thereof, or stated legislative findings,
policies or purposes relied upon by the director
or either of
said boards in making such determination. In the case of
specific rules which have a technical basis, the director
or
board shall also provide the specific technical basis upon which
the director has relied.
(d) In the absence of a federal
rule requirement, the
adoption of a state
rule shall requirement may not be construed
to be more stringent than a federal
rule requirement, unless the
absence of a federal
rule requirement is the result of a specific
federal exemption.
In any instance in which a state requirement
is adopted in the absence of a federal requirement, the director,
the environmental quality board or the air quality board shall
first provide written reasons demonstrating that such
requirements are reasonably necessary to protect, preserve or
enhance the quality of West Virginia's environment or human
health or safety, taking into consideration the scientific
evidence, specific environmental characteristics of West Virginia
or an area thereof, or stated legislative findings, policies or
purposes relied upon by the director or either of said boards in
making such determination. In the case of specific requirements
which have a technical basis, the director or either of said boards shall also provide the specific technical basis upon which
the director or said board relied.
NOTE: The purpose of this bill is to establish that West
Virginia's environmental requirements are no more stringent than
the federal requirements are unless there is a specific technical
rationale for increased stringency. It also sets up an
administrative process to review environmental requirements.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.