West Virginia Department of Environmental Protection 

ADVISORY COUNCIL MEETING MINUTES 

Tuesday, June 24, 2008 

601 57th Street, SE, Charleston, WV 

West Virginia Room – 3rd Floor 

IN ATTENDANCE: 

Members of the Council: 

 

Jackie Hallinan 

Karen Price 

Bill Raney 

Rick Roberts 

DEP: 

Randy Huffman Cabinet Secretary 

Lisa McClung Deputy Cabinet Secretary and Director, 

 Division of Water and Waste Management 

Raymond Franks II General Counsel 

Karen Watson Associate General Counsel 

Kathy Cosco Communications Director 

Pam Nixon Environmental Advocate 

Ken Politan Mining & Reclamation 

Lewis Halstead Mining & Reclamation 

Charlie Sturey Mining & Reclamation 

Carroll Cather Water & Waste Management 

Don Martin Land Restoration 

Brian Long Water & Waste Management 

Dan Arnold Water & Waste Management 

Mike Zeto Environmental Enforcement 

Terrie Sangid Water & Waste Management 

Jim Mason Air Quality 

Mike Johnson Water & Waste Management 

Kathy Emery Water & Waste Management 

Scott Mandirola Water & Waste Management 

Visitors: 

Tom Boggs Chamber of Commerce 

Don Garvin WV Environmental Council 

Ruth Lemmon WV Auto/Truck Dealers Association 

OLD BUSINESS: 
2

Secretary Huffman called the meeting to order at 1:35 p.m., and he announced that Members Lisa 

Dooley and Larry Harris would not be attending. On motion made by Mr. Raney and seconded by 

Ms. Hallinan, the Council approved the minutes from the March 18, 2008 meeting. Secretary 

Huffman then ceded the floor to Mr. Franks.

NEW BUSINESS: 

Mr. Franks noted that for the 2009 regular legislative session, DEP was proposing changes to 20 

rules, grouped by Division for presentation to the Council. Depending on who had shepherded the 

rule through its initial drafting, either Mr. Franks or Ms. Watson would lead the discussion, with 

program administrators available to assist in answering the Council’s questions. 

Ms. Watson presented 60 CSR 3, the “Brownfields” Rule. Ms. Watson explained that the Rule was 

currently pending before the Secretary of State for authorization as an emergency rule, and that the 

proposed changes included adjustments to the “de minimis” table and enhancing DEP’s flexibility in 

obtaining risk assessments. 

Ms. Price referred to a letter recently sent to DEP seeking clarification of the Rule’s provisions 

concerning land use covenants and long-term maintenance agreements. Secretary Huffman stated 

that the letter would be retrieved and the issue noted for further consideration by the agency. 

 

Mr. Raney inquired whether the Council could recommend changes to the rules as presented. Ms. 

Watson responded in the affirmative. Mr. Raney then asked whether written comments, such as 

those submitted by Mr. Harris prior to the meeting, would be appended to the minutes. Mr. Franks 

responded in the negative, and Ms. Watson expounded that Mr. Harris’s comments would be 

summarized and addressed orally during the discussion of the particular rules involved. 

Mr. Franks then presented 38 CSR 2, the Surface Mining Reclamation Rule. Mr. Franks explained 

that the proposed changes would expand the Secretary’s oversight of “approved persons” authorized 

to render technical certifications contained within mining permit applications, and would clarify 

certain collateral activities as being within the scope of requests for incidental boundary revisions to 

existing permits. Mr. Franks also noted that the proposed Rule would set forth more relevant and 

exacting criteria for the Secretary to consider in evaluating applications for revisions. 

Mr. Raney inquired generally about the provisions with respect to approved persons. Secretary 

Huffman replied that the increased oversight is necessary to improve the initial quality of the permit 

applications, such that the delays occasioned by subsequent corrections would be reduced or 

eliminated. Mr. Raney asked whether approved persons could include anyone other than engineers, 

and Mr. Halstead responded that the definition extended to surveyors and geologists. Mr. Raney 

noted the need to establish a procedure for suspension or revocation to limit the agency’s unfettered 

discretion, to which Secretary Huffman and Mr. Franks replied that the Rule provided for notice and 

hearing prior to curtailing the privileges of anyone on the approved-person list. 
3

Ms. Watson presented 47 CSR 30, establishing NPDES requirements for coal mining facilities. Ms. 

Watson explained that the proposed changes were relatively minor, designed to enhance consistency 

with the non-coal rule, to allow for digital signatures, and to permit correction of clerical errors. 

The Council then considered the Air Quality rules. Mr. Franks presented 45 CSR 1 and 45 CSR 26, 

relating to control and reduction of nitrogen oxides from, respectively, non-electric and electric 

generating units, the latter by means of a budget trading program. The rules are to be repealed in 

their entireties, and Mr. Mason explained that both are being subsumed within the Clean Air 

Interstate Rule program. 

Mr. Franks then presented 45 CSR 8, the Ambient Air Quality Rule. Mr. Franks explained that the 

1-hour primary and secondary ozone standards were being replaced with 8-hour standards, with the 

maximum tolerance being reduced slightly. Mr. Raney inquired as to the practical effect of the 

proposed change, particularly with regard to whether non-compliance areas within the State might 

be expanded. Mr. Mason replied that an expansion might occur, but that it was difficult to predict at 

this early stage. Mr. Mason added that the time-period increase would inevitably lead to more 

accurate measurements. 

Ms. Watson presented 45 CSR 13, governing permits for constructing and modifying non-major 

stationary sources of air pollutants. Ms. Watson explained that the Rule was being amended to 

reflect the recent statutory changes reducing the lag time for issuing permits and authorizing certain 

pre-permit construction. It was noted that Mr. Harris had submitted in writing his concern that 

courts would be loath to enforce agency cease-and-desist orders based on defects discovered during 

the permitting process after construction had already begun. Ms. Watson pointed out that the statute 

had been carefully crafted to avoid facile invocation of detrimental reliance, with Mr. Franks 

observing that the Rule strove to conform to the statute. Ms. Price wondered whether one or more of 

the timeframe provisions included within the existing Rule had been inadvertently omitted from the 

proposed version. Ms. Watson responded that the Rule had been carefully checked for 

completeness, but that she would once again verify the language to assure its accuracy. 

Mr. Franks presented 45 CSR 14, governing permits for constructing and significantly modifying 

major stationary sources of air pollutants. Mr. Franks explained that references to pollution control 

projects and clean units were deleted in accordance with a federal appellate court decision vacating 

those provisions. 

Mr. Franks went on to present 45 CSR 16, 45 CSR 25, and 45 CSR 34, relating respectively to 

performance standards for new stationary sources, pollution from hazardous waste treatment, 

storage, and disposal facilities, and emission standards for hazardous air pollutants. Mr. Mason 

noted that the changes incorporate revisions to the Rules’ federal counterparts, except that some of 

the new standards were not incorporated within 45 CSR 34, because they constituted unfunded 

mandates. Mr. Garvin was recognized, and he asked whether the failure to incorporate equated to a 

lack of regulation. Mr. Mason responded in the negative, explaining that the monitoring and 

regulation would be performed by the federal government. Mr. Garvin inquired as to the affected 

industries, and Mr. Mason referred to a list including smaller gas facilities and paint-stripping shops. 
4

Ms. Watson presented 45 CSR 37, detailing the budget trading program to reduce mercury 

emissions. Ms. Watson explained that the rule is being repealed as inconsistent with a federal 

appellate court decision, pending alternative action by the EPA. Mr. Garvin inquired whether the 

Rule repealed two years ago would be reinstated upon revocation of the current version, to which 

Ms. Watson and Mr. Franks replied that it would not, if there had indeed been a previous rule in 

place, which was somewhat in question. Mr. Mason explained that mercury emissions would be 

monitored and regulated as usual, except that budget trading would not be available as a method of 

reduction. He also stated that there have been discussions on a national level as to whether to 

reinstate the federal mercury monitoring requirements. 

The Council then turned its attention to the Water and Waste Management Rules. Ms. Watson 

presented 33 CSR 20, governing hazardous waste management systems. Ms. Watson explained that 

the Rule incorporated by reference its federal counterpart, the most salient change to which is its 

attempt to reduce disposal by permitting facilities to stage hazardous waste for three days pending 

recycling. Mr. Raney asked whether three days was sufficient time, and Mr. Cather responded in the 

affirmative. 

Mr. Franks presented 33 CSR 24, the Hazardous Waste Management Fee Rule. Mr. Franks 

explained that increases to the fee assessments are necessary to sustain the underlying Fund by 

ensuring sufficient matching revenue for federal grants. Ms. Price indicated her belief that, as part 

of the legislative compromise extending the fee’s duration, no increases would be forthcoming until 

completion and review of the Fund’s legislative audit. Secretary Huffman responded that the 

preliminary audit findings in no way indicate any misallocation within the Fund or contravene the 

agency’s determination that fee increases are necessary. Ms. Lemmon was recognized, and she 

commented that the proposed increase was unfair to automobile and truck dealers, as well as other 

small generators. Ms. Lemmon suggested that a study be done to identify the industries causing 

DEP to incur program costs, with fee assessments to be made proportionately. 

Ms. Watson presented 33 CSR 22 and 47 CSR 56, governing the assessment of civil administrative 

penalties for, respectively, hazardous and solid waste violations and violations relating to 

groundwater. Ms. Watson explained that the Rules were being modified for the first time since their 

initial promulgation, with the purpose of clarifying their application by listing additional factors to 

be considered in calculating penalties, providing ratings examples, and expanding facility categories. 

Ms. Watson then presented 47 CSR 31, addressing the State Water Pollution Control Revolving 

Fund. Ms. Watson explained that the proposed changes include the creation of a state review 

process for sewer projects in lieu of a wholesale adoption of the federal requirements. Mr. Roberts 

observed that many of the eligibility criteria would be deleted, but Ms. Emery assured the Council 

that inasmuch as the criteria were not being uniformly met, the deletion would have no practical 

effect on the Fund’s administration. Ms. Watson advised Mr. Roberts that if he continued to have 

concerns upon further review, he should submit written suggestions for changes during the formal 

comment period. 

Mr. Franks presented 47 CSR 32, governing the certification of laboratories conducting analyses of 

waste and wastewater. Mr. Franks explained that the proposed changes are designed to modernize 
5

outdated procedures and protocols that have remained constant since 1995, and to increase program 

funding through increased certification fees and a new application fee. Mr. Raney asked whether the 

new fees would render the program self-sustaining, and Mr. Arnold replied that it would for the 

time-being. In response to further inquiry, Mr. Arnold stated that DEP conducts annual, on-site 

audits of commercial and industrial labs, with municipal labs typically audited every two years, 

depending on the experience of the support personnel. 

Ms. Watson presented 47 CSR 34, the Dam Safety Rule. Ms. Watson explained that the Rule is 

being extensively augmented to govern disbursement and use of a new Revolving Fund to finance 

repair and rehabilitation of deficient dams. Secretary Huffman commented that it appeared 

imminent that the Legislature would approve a transfer of $350,000 from excess general revenue as 

seed money for the Fund. 

Lastly, Ms. Watson presented 47 CSR 2, the Water Quality Standards Rule. Ms. Watson explained 

that the proposed revisions are designed to clarify the definition of Category A use, while providing 

specific standards to be applied in the permitting process to determine in a more streamlined fashion 

whether the use is unsuitable in cases of insufficient flow and hydrologic modification. Mr. Raney 

commented that the Category A determination process has always been a significant problem for the 

coal industry. Ms. Price also agreed for her members. Mr. Garvin noted that the environmental 

community had expressed some initial concern regarding the proposed streamlining mechanisms, but 

that there was some general support for taking the matter out of the legislative arena. Mr. Huffman 

affirmed that the revisions are designed solely for the benefit of the regulated public and that the 

revisions must include the clarification that Category A applies statewide. 

Ms. Watson reported that the rules will proceed to be filed with the Secretary of State, some perhaps 

as early as the week following the Council meeting, and that some will have an extended 45-day 

comment period. 

Mr. Franks requested closing comments from Council members and from the public. Following the 

cessation of discussion, Mr. Franks reminded the Council that the next meeting is scheduled for 1:30 

p.m. on September 9, 2008. 

Secretary Huffman declared the meeting adjourned at 3:25 p.m. 
DEPARTMENT OF ENVIRONMENTAL PROTECTION

DIVISION OF AIR QUALITY

BRIEFING DOCUMENT

Rule Title: 45CSR1 - “Control and Reduction of Nitrogen Oxides from Non-Electric

Generating Units as a Means to Mitigate Transport of Ozone Precursors”

A. AUTHORITY: W.Va. Code §22-5-4

B. SUMMARY OF RULE:

The Department of Environmental Protection is proposing to repeal NOX SIP Call

rule 45CSR1. This rule contains ozone season NOX reduction requirements which apply to

large fossil fuel-fired industrial boilers with heat inputs greater than 250 mmBtu/hr. 45CSR1

also contains ozone season NOX reduction requirements for certain large cement kilns and

internal combustion engines.

C. STATEMENT OF CIRCUMSTANCES WHICH REQUIRE RULE:

This rule is being repealed pursuant to a requirement under the federal Clean Air

Interstate Rule (CAIR), as the CAIR ozone season NOX reduction program under 45CSR40

will subsume the NOX SIP Call program as of May 1, 2009. Also, ozone season NOX

reduction requirements for large cement kilns and internal combustion engines identical to

those in 45CSR1 will continue under 45CSR40, as of May 1, 2009. However, on July 11,

2008, the D.C. Court of Appeals rendered a decision to vacate CAIR. The DEP

acknowledges the intimate relationship between 45CSR1, 45CSR26 and the seasonal NOx

component of the CAIR. The DEP intends to withdraw the repeals of 45CSR1 and 45CSR26

if the relevant requirements of CAIR cannot be salvaged in a timely manner. However,

because of the extension of the time to file petitions for rehearing or rehearing en banc, a

mandate to vacate the Clean Air Interstate Rule (CAIR) has not yet been ordered by the U.S.

District Court of Appeals. Therefore the vacatur is not in effect at this time. There remains

considerable uncertainty regarding the CAIR vacatur and its substantial ramifications. This

issue has attracted national attention and could result in potential congressional action. DEP

believes it prudent to wait until a more definitive indication of CAIR’s fate is recognized.

Depending on future information regarding the vacatur of CAIR, the department may

subsequently withdraw the proposed repeal of 45CSR1 in accordance with WV Code §29A3-14.
Briefing Document

45CSR1

Page 2

D. FEDERAL COUNTERPART REGULATIONS - INCORPORATION BY

REFERENCE/DETERMINATION OF STRINGENCY:

Because repeal of the rule is a federal requirement under CAIR, no determination of

stringency is required.

E. CONSTITUTIONAL TAKINGS DETERMINATION:

In accordance with W.Va. Code §§22-1A-1 and 3(c), the Secretary has determined

that the repeal of this rule will not result in taking of private property within the meaning of

the Constitutions of West Virginia and the United States of America.

F. CONSULTATION WITH THE ENVIRONMENTAL PROTECTION

ADVISORY COUNCIL:

At its June 24, 2008 meeting, the Environmental Protection Advisory Council

reviewed and discussed this rule. (See attached minutes for Council’s discussion).
APPENDIX B 

FISCAL NOTE FOR PROPOSED RULES 

Rule Title: 45CSRl - Reduction of Nitrogen Oxides from Non-Electric Generating 

Units as a Means to Mitigate Transport of Ozone Precursors 

Type of Rule: X Legislative Interpretive Procedural 

Agency: Division of Air Oualitv 

Address: 60 1 57th Street SE 

Charleston, WV 25304 

Phone Number: 926-0499 ext. 1237 Email: tmowrer@,wdep.org - 

Fiscal Note Summary 

Summarize in a clear and concise manner what impact this measure 

will have on costs and revenues of state government. 

The Department of Environmental Protection, Division of Air Quality, is proposing to 

repeal 45CSR1, as the NOx Budget Trading Program will be subsumed by the Clean 

Air Interstate Rule under 45CSR40 on May 1, 2009. The proposed repeal of this rule 

should cause no additional impact on costs and revenues of state government. 

Fiscal Note Detail 

Show over-all effect in Item 1 and 2 and, in Item 3, give an explanation of 

Breakdown by fiscal year, including long-range effect. 

FISCAL YEAR 

Effect of Proposal 

1. Estimated Total Cost 

Personal Services 

Current Expenses 

Repairs & Alterations 

Assets 

Equipment 

Other 

2. Estimated Total Revenues 

2010 

IncreaseDecrease 

0 

0 

0 

0 

0 

0 

0 

0 

2009 

1 

IncreaseDecrease 

0 

0 

0 

0 

0 

0 

0 

0 

Fiscal Year 

(Upon Full Implementation) 

0 

0 

0 

0 

0 

0 

0 

0 
Rule Title: 45CSR1 - Reduction of Nitrogen Oxides from Non-Electric Generating 

Units as a Means to Mitigate Transport of Ozone Precursors 

Explanation of above estimates (including long-range effect): 

Please include any increase or decrease in fees in your estimated total revenues. 

The proposed repeal of this rule will have no effect on the costs to the Division of Air 

Quality. Refer to above explanation. 

MEMORANDUM 

Please identify any areas of vagueness, technical defects, reasons the proposed 

rule would not have a fiscal impact, and/or any special issues not captured elsewhere on 

this form. 

Date: 
WEST VIRGINIA 

SECRETARY OF STATE 

Betty Ireland 

Db3bf Mark In This Box . . 

NOTICE OF A PUBLIC HEARING ON A PROPOSED RULE 

ADMINISTRATIVE LAW DIVISION 

Form #1 

AGENCY: WV Department of Environmental Protection, Division of Air Quality TITLE NUMBER: 45 

db 

RULE TYPE: Legislative CITE AUTHORITY: 

AMENDMENT TO AN EXISTING RULE: YES J NO El 

IF YES, SERIES NUMBER OF RULE BEING AMENDED: 45CSR1 

REPEAL - Control and Reduction of Nitrogen Oxides from Non-Electric Generating 

TITLE OF RULE BEING AMENDED: Units as a Means to Mitipate Trans~ort of Ozone Precursors 

IF NO, SERIES NUMBER OF RULE BEING PROPOSED: 

TITLE OF RULE BEING PROPOSED: 

DATE OF PUBLIC HEARING: Monday, August 11,2008 TIME: 6:00 p.m. 

LOCATION OF PUBLIC HEARING: WV Department of Environmental Protection 

Coopers Rock Conference Room 

601 57th Street, S.E. 

DATE WRITTEN COMMENT PERIOD ENDS: Monday, August ', 2008 TIME: At close of hearing 

WRITTEN COMMENTS MAY BE MAILED TO: 

The Department requests that persons wishing to make 

comments at the hearing make an effort to submit written 

WV Department of Environmental Protection 

601 57th Street, S.E. 

comments in order to facilitate the review of thesk~@bi~e Rule-Making Charleston. wv 25304 

The issues to be heard shall be limited to the proposed rule. - 

2 2008 

ATTACH A BRIEF SUMMARY OF YOUR PROPOSAL 

Review Committee 
WEST VIRGINIA

SECRETARY OF STATE

BETTY IRELAND

ADMINISTRATIVE LAW DIVISION

Do Not Mark In This Box

r,:---r'l-' I~'

,'- -, •. I; ,,,",,

I '.; i .---•\ ..-. I i

. '-"-/~_f iI LL/

Zoua iWe 29 AM U; 06

Form #3

NOTICE OF AGENCY APPROVAL OF A PROPOSED RULE

AND

FILING WITH THE LEGISLATIVE RULE-MAKING REVIEW COMMITTEE

AGENCY: __ WV __ D--,ep_artm_e_nt_o_f E_n_vi_ro_nm_e_nt_al_P_ro_te_ct_io_n,_Don_iv_o__isfl__A' _ir_Q_ua___lity TITLE NUMBER: __ 4S_

CITE AUTHORlTY: W_,V_a_,C_o_d_e§_2_2-_S-_4 _

AMENDMENT TO AN EXISTING RULE: YES~ NO __

IF YES, SERIES NUMBER OF RULE BEING AMENDED: _

TITLE OF RULE BEING AMENDED: REPEAL - Control and Reduction of Nitrogen Oxides from Non-Electric

. Generating Units as a Means to Mitigate Transport of Ozone Precursors

IF NO, SERIES NUMBER OF RULE BEING PROPOSED: _

TITLE OF RULE BEING PROPOSED: _

THE ABOVE PROPOSED LEGISLATIVE RULE HA VING GONE TO A PUBLIC HEARING ORA PUBLIC

COMMENT PERIOD IS HEREBY APPROVED BY THE PRO MULGA TING AGENCY FOR FILING WITH

THE SECRETARY OF STATE AND THE LEGISLA TIVE RULE-MAKING REVIEW COMMITTEE FOR

THEIR REVIEW,

Legislative Rule-Making

AUG 29 2008

Revtew Committee
WEST VIRGINIA

SECRETARY OF STATE

NATALIE E. TENNANT

ADMINISTRATIVE LAW DIVISION

Do Not Mark In This Box

nog t-1AY -8 PM 2= 42

OI:~":':! '; \ ,,-,' 'i,rGiM/\ Form #6 I 1 t\..J_ ., '-"" ."

- - - - - - - - - - - - - - - - - - - - - - - - - - - --1-~~[HC-i+f1..;;-,='+TAi'\P"1i\Yr(\b'fF-- ..,.QT..;.;.f.1.44-bl= _

NonCE OF FINAL FILING AND ADOPTION OF A LEGISLATIVE RULE AUTHORIZED

BY THE WEST VIRGINIA LEGISLATURE

AGENCY: WVDepartment of Environmental Protection, Division of Air Quality

AMENDMENT TO AN EXISTING RULE: YES ~ NO_

TITLE NUMBER: 45

IF YES, SERIES NUMBER OF RULE BEING AMENDED: 1 __

TITLE OF RULE BEING AMENDED: Repeal- Control and Reduction of Nitrogen Oxides from Non

Electric Generating Units as a Means to Mitigate Transport of

Ozone Precursors

IF NO, SERIES NUMBER OF RULE BEING PROPOSED: _

TITLE OF RULE BEING PROPOSED: _

THE ABOVE RULE HAS BEEN AUTHORIZED BY THE WEST VIRGINIA LEGISLATURE.

AUTHORIZATION IS CITED IN (house or senate bill number) ..::S;.:;:B;;....;1~5;.::;3 _

SECTION S_e_cti....,;·o_n~§~§_64_-_3-_1.::...(f)'___ __ , PASSED ON =A~pn:..;:.:·1;..::;3...:.2;; .0z.,..:;O;;!...:..09~ _

THIS RULE IS FILED WITH THE SECRETARY OF STATE. THIS RULE BECOMES EFFECTIVE ON THE

FOLLOWING DATE: ~1'2009

.~

Randy C. Huffman, Cabinet Secretary
WEST VIRGINIA LEGISLATURE

Legislative Rule-Making Review Committee

Senator Joseph Minard, Cochair

Delegate Bonnie Brown, Cochair

Debra A. Graham, Chief Counsel

Felisha N. Sutherland, Administrative Assistant

Rita A. Pauley, Associate Counsel

Brian Skinner, Associate Counsel

Charles Roskovensky, Associate Counsel

Jay Lazell, Associate Counsel

February 10, 2009

NOTICE OF ACTION TAKEN BY THE LEGISLATIVE RULE-MAKING REVIEW COMMITTEE

TO: Betty Ireland, Secretary of State, State Register

TO: John Benedict, Director

DEP - Air Quality

601 - 57th Street, SE

Charleston, WV 25304

FROM: Legislative Rule-Making Review Committee

Proposed Rule: Control and Reduction of Nitrogen Oxides from Non-Electric

Generating Units as a Means of Mitigate Transport of Ozone

Precursors, 45CSRl

The Legislative Rule-Making Review Committee Recommends that the West Virginia

Legislature:

1. Authorize the agency to promulgate the Legislative rule:

(A) as originally filed

(B) as modified by the agency

2. Authorize the agency to promulgate part of t.ilE: Legislati'le rule;

a statement of reasons for such recommendation is attached.

3. Authorize the agency to promulgate the Legislative rule with

certain amendments; amendments and a statement of reasons for

such recommendation is attached.

4. Authorize the agency to promulgate the Legislative rule as

modified with certain amendments; amendments and a statement

of reasons for such recommendation is attached.

5. Recommends that the Legislature rule be withdrawn; a statement

of reasons for such recommendation is attached.

Building 1, Room MB-49

Phone: (304) 347-4840

1900 Kanawha Boulevard, East Charleston, WV 25305

Fax: (304) 347-4901 email:feiishas@maiLwvnet.edu
1

QUESTIONNAIRE

(Please include a copy of this form with each filing of your rule: Notice of Public Hearing or Comment Period; Proposed

Rule, and if needed, Emergency and Modified Rule.) 

DATE: 

TO: LEGISLATIVE RULE-MAKING REVIEW COMMITTEE 

FROM:(Agency Name, Address & Phone No.) 

LEGISLATIVE RULE TITLE: 

1. Authorizing statute(s) citation 

2. a. Date filed in State Register with Notice of Hearing or Public Comment Period:

b. What other notice, including advertising, did you give of the hearing?

c. Date of Public Hearing(s) or Public Comment Period ended:

d. Attach list of persons who appeared at hearing, comments received, amendments, reasons

for amendments.

Attached No comments received 
2

e. Date you filed in State Register the agency approved proposed Legislative Rule following

public hearing: (be exact)

f. Name, title, address and phone/fax/e-mail numbers of agency person(s) to receive

all written correspondence regarding this rule: (Please type)

g. IF DIFFERENT FROM ITEM ‘f’, please give Name, title, address and phone

number(s) of agency person(s) who wrote and/or has responsibility for the contents of this

rule: (Please type)

3. If the statute under which you promulgated the submitted rules requires certain findings and

determinations to be made as a condition precedent to their promulgation:

a. Give the date upon which you filed in the State Register a notice of the time and place

of a hearing for the taking of evidence and a general description of the issues to be

decided.
3

b. Date of hearing or comment period:

c. On what date did you file in the State Register the findings and determinations required

together with the reasons therefor?

d. Attach findings and determinations and reasons:

Attached 
1 ENROLLED

2 COMMITTEE SUBSTITUTE

3 FOR

4 Senate Bill No. 153

5 (SENATORS MINARD, FANNING, PREZIOSO,

6 UNGER, BOLEY AND FACEMYER, original sponsors)

7 __________

8 [Passed April 8, 2009; in effect from passage.]

9 __________

10

11

12 AN ACT to amend and reenact article 3, chapter 64 of the Code of

13 West Virginia, 1931, as amended, relating generally to the

14 promulgation of administrative rules by the various executive

15 or administrative agencies and the procedures relating

16 thereto; continuing rules previously promulgated by state

17 agencies and boards; legislative mandate or authorization for

18 the promulgation of certain legislative rules; authorizing

19 certain of the agencies to promulgate certain legislative

20 rules in the form that the rules were filed in the State

21 Register; authorizing certain of the agencies to promulgate

22 certain legislative rule with various modifications presented

23 to and recommended by the Legislative Rule-Making Review

24 Committee; repealing certain legislative rules; authorizing

25 the Department of Environmental Protection to promulgate a
1 legislative rule relating to standards of performance for new

2 stationary sources; authorizing the Department of

3 Environmental Protection to promulgate a legislative rule

4 relating to hazardous waste management systems; authorizing

5 the Department of Environmental Protection to promulgate a

6 legislative rule relating to the assessment of civil

7 administrative penalties; authorizing the Department of

8 Environmental Protection to promulgate a legislative rule

9 relating to the hazardous waste management fee; authorizing

10 the Department of Environmental Protection to promulgate a

11 legislative rule relating to surface mining reclamation;

12 authorizing the Department of Environmental Protection to

13 repeal a legislative rule relating to the control and

14 reduction of nitrogen oxides from nonelectric-generating units

15 as a means of mitigate transport of ozone precursors;

16 authorizing the Department of Environmental Protection to

17 promulgate a legislative rule relating to ambient air quality

18 standards; authorizing the Department of Environmental

19 Protection to promulgate a legislative rule relating to

20 permits for construction, modification, relocation and

21 operation of stationary sources of air pollutants,

22 notification requirements, administrative updates, temporary

23 permits, general permits, permission to commence construction

24 and procedures for evaluation; authorizing the Department of

25 Environmental Protection to promulgate a legislative rule
1 relating to permits for construction and major modification of

2 major stationary sources of air pollution for the prevention

3 of significant deterioration; authorizing the Department of

4 Environmental Protection to promulgate a legislative rule

5 relating to the control of air pollution from hazardous waste

6 treatment, storage and disposal facilities; authorizing the

7 Department of Environmental Protection to repeal a legislative

8 rule relating to the Nox budget trading program as a means of

9 control and reduction of nitrogen oxides from electric10 generating units; authorizing the Department of Environmental

11 Protection to promulgate a legislative rule relating to

12 emission standards for hazardous air pollutants; authorizing

13 the Department of Environmental Protection to promulgate a

14 legislative rule relating to a mercury budget training program

15 to reduce mercury emissions; authorizing the Department of

16 Environmental Protection to promulgate a legislative rule

17 relating to the WV/NPDES rules for coal mining facilities;

18 authorizing the Department of Environmental Protection to

19 promulgate a legislative rule relating to the State Water

20 Pollution Control Revolving Fund; authorizing the Department

21 of Environmental Protection to promulgate a legislative rule

22 relating to environmental laboratories’ certification and

23 standards of performance; authorizing the Department of

24 Environmental Protection to promulgate a legislative rule

25 relating to dam safety; and authorizing the Department of
1 Environmental Protection to promulgate a legislative rule

2 relating to the assessment of civil administrative penalties;

3 authorizing the Department of Environmental Protection to

4 promulgate a legislative rule relating to voluntary

5 remediation and redevelopment.

6 Be it enacted by the Legislature of West Virginia:

7 That article 3, chapter 64 of the Code of West Virginia, 1931,

8 as amended, be amended and reenacted to read as follows:

9 ARTICLE 3. AUTHORIZATION FOR DEPARTMENT OF ENVIRONMENTAL

10 PROTECTION TO PROMULGATE LEGISLATIVE RULES.

11 §64-3-1. Department of Environmental Protection.

12 (a) The legislative rule filed in the State Register on August

13 28, 2008, authorized under the authority of section four, article

14 five, chapter twenty-two of this code, relating to the Department

15 of Environmental Protection (standards of performance for new

16 stationary sources, 45 CSR 16), is authorized.

17 (b) The legislative rule filed in the State Register on August

18 29, 2008, authorized under the authority of section six, article

19 eighteen, chapter twenty-two of this code, modified by the

20 Department of Environmental Protection to meet the objections of

21 the legislative rule-making review committee and refiled in the

22 State Register on October 24, 2008, relating to the Department of

23 Environmental Protection (hazardous waste management systems, 33

24 CSR 20), is authorized.

25 (c) The legislative rule filed in the State Register on August
1 28, 2008, authorized under the authority of section fifteen,

2 article fifteen, chapter twenty-two of this code, modified by the

3 Department of Environmental Protection to meet the objections of

4 the legislative rule-making review committee and refiled in the

5 State Register on November 21, 2008, relating to the Department of

6 Environmental Protection (assessment of civil administrative

7 penalties, 33 CSR 22), is authorized.

8 (d) The legislative rule filed in the State Register on August

9 26, 2008, authorized under the authority of section twenty-two,

10 article eighteen, chapter twenty-two of this code, modified by the

11 Department of Environmental Protection to meet the objections of

12 the legislative rule-making review committee and refiled in the

13 State Register on October 24, 2008, relating to the Department of

14 Environmental Protection (hazardous waste management fee, 33 CSR

15 24), is authorized.

16 (e) The legislative rule filed in the State Register on August

17 29, 2008, authorized under the authority of section four, article

18 three, chapter twenty-two of this code, modified by the Department

19 of Environmental Protection to meet the objections of the

20 legislative rule-making review committee and refiled in the State

21 Register on February 17, 2009, relating to the Department of

22 Environmental Protection (surface mining reclamation, 38 CSR 2), is

23 authorized.

24 (f) The legislative rule filed in the State Register on August

25 29, 2008, authorized under the authority of section four, article
1 five, chapter twenty-two of this code, relating to the Department

2 of Environmental Protection (control and reduction of nitrogen

3 oxides from nonelectric-generating units as a means of mitigate

4 transport of ozone precursors, 45 CSR 1), is authorized.

5 (g) The legislative rule filed in the State Register on August

6 29, 2008, authorized under the authority of section four, article

7 five, chapter twenty-two of this code, modified by the Department

8 of Environmental Protection to meet the objections of the

9 legislative rule-making review committee and refiled in the State

10 Register on November 21, 2008, relating to the Department of

11 Environmental Protection (ambient air quality standards, 45 CSR 8),

12 is authorized.

13 (h) The legislative rule filed in the State Register on August

14 29, 2008, authorized under the authority of section four, article

15 five, chapter twenty-two of this code, relating to the Department

16 of Environmental Protection (permits for construction,

17 modification, relocation and operation of stationary sources of air

18 pollutants, notification requirements, administrative updates,

19 temporary permits, general permits, permission to commence

20 construction and procedures for evaluation, 45 CSR 13), is

21 authorized.

22 (i) The legislative rule filed in the State Register on August

23 29, 2008, authorized under the authority of section four, article

24 five, chapter twenty-two of this code, modified by the Department

25 of Environmental Protection to meet the objections of the
1 legislative rule-making review committee and refiled in the State

2 Register on January 16, 2009, relating to the Department of

3 Environmental Protection (permits for construction and major

4 modification of major stationary sources of air pollution for the

5 prevention of significant deterioration, 45 CSR 14), is authorized.

6 (j) The legislative rule filed in the State Register on August

7 29, 2008, authorized under the authority of section four, article

8 five, chapter twenty-two of this code, relating to the Department

9 of Environmental Protection (control of air pollution from

10 hazardous waste treatment, storage and disposal facilities, 45 CSR

11 25), is authorized.

12 (k) The legislative rule filed in the State Register on August

13 29, 2008, authorized under the authority of section four, article

14 five, chapter twenty-two of this code, relating to the Department

15 of Environmental Protection (Nox budget trading program as a means

16 of control and reduction of nitrogen oxides from electric17 generating units, 45 CSR 26), is authorized.

18 (l) The legislative rule filed in the State Register on August

19 29, 2008, authorized under the authority of section four, article

20 five, chapter twenty-two of this code, relating to the Department

21 of Environmental Protection (emission standards for hazardous air

22 pollutants, 45 CSR 34), is authorized.

23 (m) The legislative rule filed in the State Register on August

24 29, 2008, authorized under the authority of section four, article

25 five, chapter twenty-two of this code, relating to the Department
1 of Environmental Protection (mercury budget training program to

2 reduce mercury emissions, 45 CSR 37), is authorized.

3 (n) The legislative rule filed in the State Register on August

4 28, 2008, authorized under the authority of section four, article

5 eleven, chapter twenty-two of this code, modified by the Department

6 of Environmental Protection to meet the objections of the

7 legislative rule-making review committee and refiled in the State

8 Register on February 17, 2009, relating to the Department of

9 Environmental Protection (WV/NPDES rules for coal mining

10 facilities, 47 CSR 30), is authorized.

11 (o) The legislative rule filed in the State Register on August

12 28, 2008, authorized under the authority of section three, article

13 two, chapter twenty-two-c of this code, relating to the Department

14 of Environmental Protection (state water pollution control

15 revolving fund, 47 CSR 31), is authorized.

16 (p) The legislative rule filed in the State Register on August

17 28, 2008, authorized under the authority of section fifteen,

18 article one, chapter twenty-two of this code, modified by the

19 Department of Environmental Protection to meet the objections of

20 the legislative rule-making review committee and refiled in the

21 State Register on December 12, 2008, relating to the Department of

22 Environmental Protection (environmental laboratories certification

23 and standards of performance, 47 CSR 32), is authorized.

24 (q) The legislative rule filed in the State Register on August

25 28, 2008, authorized under the authority of section six, article
1 eighteen, chapter twenty-two of this code, modified by the

2 Department of Environmental Protection to meet the objections of

3 the legislative rule-making review committee and refiled in the

4 State Register on January 22, 2009, relating to the Department of

5 Environmental Protection (dam safety, 47 CSR 34), is authorized.

6 (r) The legislative rule filed in the State Register on August

7 28, 2008, authorized under the authority of section ten, article

8 twelve, chapter twenty-two of this code, modified by the Department

9 of Environmental Protection to meet the objections of the

10 legislative rule-making review committee and refiled in the State

11 Register on November 21, 2008, relating to the Department of

12 Environmental Protection (assessment of civil administrative

13 penalties, 47 CSR 56), is authorized.

14 (s) The legislative rule filed in the State Register on August

15 25, 2008, authorized under the authority of section three, article

16 twenty-two, chapter twenty-two of this code, relating to the

17 Department of Environmental Protection (voluntary remediation and

18 redevelopment, 60 CSR 3), is authorized.