Introduced Version
House Bill 3071 History
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Key: Green = existing Code. Red = new code to be enacted
H. B. 3071
(By Delegate Pino)
[Introduced March 22, 2013; referred to the
Committee on the Judiciary then Finance.]
A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new section, designated §22-11-22a, relating
to civil penalties and civil administrative penalties for
violations of the Water Pollution Control Act.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new section, designated as §22-11-22a, to read
as follows:
ARTICLE 11. WATER POLLUTION CONTROL ACT.
§22-11-22a. Civil penalties and injunctive relief; civil
administrative penalties for coal mining
operations.
_____(a) Any person who holds a permit to operate a coal mining
operation issued under article three of this chapter who violates any provision of any permit issued under or subject to the
provisions of this article or article eleven-a of this chapter is
subject to a civil penalty not to exceed $25,000 per day of the
violation and any person who violates any provision of this article
or of any rule or who violates any standard or order promulgated or
made and entered under the provisions of this article, article
eleven-a of this chapter or article one, chapter twenty-two-b of
this code is subject to a civil penalty not to exceed $25,000 per
day of the violation.
_____(1) Any such civil penalty may be imposed and collected only
by a civil action instituted by the secretary in the circuit court
of the county in which the violation occurred or is occurring or of
the county in which the waters thereof are polluted as the result
of such violation.
_____(2) In determining the amount of a civil penalty the circuit
court shall consider the seriousness of the violation or
violations, the economic benefit (if any) resulting from the
violation, any history of the violations, any good-faith efforts to
comply with the applicable requirements, cooperation by the
permittee with the secretary, the economic impact of the penalty on
the violator, and other matters as justice may require.
_____(3) Upon application by the secretary, the circuit courts of
the state or the judges thereof in vacation may by injunction
compel compliance with and enjoin violations of the provisions of this article, article eleven-a of this chapter, the rules of the
board or secretary, effluent limitations, the terms and conditions
of any permit granted under the provisions of this article or
article eleven-a of this chapter or any order of the secretary or
board, and the venue of any such actions shall be the county in
which the violations or noncompliance exists or is taking place or
in any county in which the waters thereof are polluted as the
result of the violation or noncompliance. The court or the judge
thereof in vacation may issue a temporary or preliminary injunction
in any case pending a decision on the merits of any injunction
application filed. Any other section of this code to the contrary
notwithstanding, the state is not required to furnish bond as a
prerequisite to obtaining injunctive relief under this article or
article eleven-a of this chapter. An application for an injunction
under the provisions of this section may be filed and injunctive
relief granted notwithstanding that all of the administrative
remedies provided in this article have not been pursued or invoked
against the person or persons against whom such relief is sought
and notwithstanding that the person or persons against whom such
relief is sought have not been prosecuted or convicted under the
provisions of this article.___
_____(4) The judgment of the circuit court upon any application
filed or in any civil action instituted under the provisions of
this section is final unless reversed, vacated or modified on appeal to the Supreme Court of Appeals. Any such appeal shall be
sought in the manner provided by law for appeals from circuit
courts in other civil cases, except that the petition seeking
review in any injunctive proceeding must be filed with said Supreme
Court of Appeals within ninety days from the date of entry of the
judgment of the circuit court.
_____(5) Legal counsel and services for the director, secretary or
the board in all civil penalty and injunction proceedings in the
circuit court and in the Supreme Court of Appeals of this state
shall be provided by legal counsel employed by the department, the
Attorney General or his or her assistants and by the prosecuting
attorneys of the several counties as well, all without additional
compensation, or the director, secretary or the board, with the
written approval of the Attorney General, may employ counsel to
represent him or her or it in a particular proceeding.
_____(b) The secretary may assess a civil administrative penalty
whenever he or she finds that a person who holds a permit to
operate a coal mining operation issued under article three of this
chapter has violated any provision of this article or article
eleven-a of this chapter, any permit issued under or subject to the
provisions of this article or article eleven-a of this chapter or
any rule or order issued pursuant to this article or article
eleven-a of this chapter. A civil administrative penalty may be
assessed unilaterally by the director in accordance with this subsection.
_____(1) Any civil administrative penalty assessed pursuant to this
section shall not exceed $10,000 per violation and the maximum
amount of any civil administrative penalty assessed pursuant to
this section shall not exceed $125,000: Provided, That any
stipulated penalties accrued after the date of the draft order
shall not be included for purposes of determining the total amount
of the civil administrative penalty. For purposes of this section,
a single operational upset which leads to simultaneous violations
of more than one pollutant parameter shall be treated as a single
violation.
_____(2) In determining the amount of any civil administrative
penalty assessed under this subsection, the secretary shall take
into account the nature, circumstances, extent and gravity of the
violation, or violations, and, with respect to the violator,
ability to pay, any prior history of such violations, the degree of
good faith, economic benefit or savings (if any) resulting from the
violation, cooperation of the alleged violator, and such other
matters as justice may require.
_____(3) No assessment may be levied pursuant to this subsection
until after the alleged violator has been notified by certified
mail or personal service pursuant to the West Virginia Rules of
Civil Procedure. The notice shall include a proposed order which
refers to the provision of the statute, rule, order or permit alleged to have been violated, a concise statement of the facts
alleged to constitute the violation, a statement of the amount of
the administrative penalty to be imposed and a statement of the
alleged violator's right to an informal hearing prior to the
issuance of the proposed order.
_____(A) The alleged violator has thirty calendar days from receipt
of the notice within which to deliver to the secretary a written
request for an informal hearing.
_____(B) If no hearing is requested, the proposed order becomes a
draft order after the expiration of the thirty-day period.
_____(C) If an informal hearing is requested, the director shall
inform the alleged violator of the time and place of the hearing.
The secretary may appoint an assessment officer to conduct the
informal hearing and make a written recommendation to the secretary
concerning the proposed order and the assessment of a civil
administrative penalty.
_____(D) Within thirty days following the informal hearing, the
secretary shall render and furnish to the alleged violator a
written decision, and the reasons therefor, concerning the
assessment of a civil administrative penalty. The proposed order
shall be revised, if necessary, and shall become a draft order.
_____(4) The secretary shall provide the opportunity for the public
to comment on any draft order by publishing a Class II legal
advertisement in the newspaper with the largest circulation in the county in which the violation occurred, and by other such means as
the secretary deems appropriate, which shall provide notice of the
draft order, including the civil administrative penalty assessment.
The secretary shall consider any comments received in determining
whether to revise the draft order before issuance of a final order.
During the thirty-day public comment period, any person may request
a public hearing regarding the draft order and the secretary may
grant or deny the request at his or her discretion. If a request
for a public hearing is denied, the secretary shall provide notice
to the person requesting a hearing and reasons for such denial.
_____(5) Within thirty days of the close of the public comment
period on a draft order, the secretary shall issue a final order or
make a determination not to issue a final order, and shall provide
written notice by certified mail or personal service pursuant to
the West Virginia Rules of Civil Procedure to the alleged violator
and shall provide notice by certified mail or personal service
pursuant to the West Virginia Rules of Civil Procedure to those
persons who submitted written comments on the draft order during
the public comment period.
_____(6) The issuance of a final order assessing a civil
administrative penalty pursuant to subsection (b) of this section
may be appealed to the environmental quality board pursuant to
section twenty-one of this article. Any person who submitted
written comments on a draft order during the public comment period shall have the right to file such an appeal or intervene in any
appeal filed by the alleged violator.
_____(7) The authority to levy a civil administrative penalty is in
addition to all other enforcement provisions of this article and
the payment of any assessment does not affect the availability of
any other enforcement provision in connection with the violation
for which the assessment is levied: Provided, That no combination
of assessments against a violator under this section shall exceed
$25,000 for each violation: Provided, however, That any violation
for which the violator has paid a civil administrative penalty
assessed under this section may not be the subject of a separate
civil penalty action. No assessment levied pursuant to this section
becomes due and payable until at least thirty days after receipt of
the final order or the procedures for review of the assessment,
including any appeals, have been completed, whichever is later.
_____(c) In addition to the authorities set forth in this section,
the secretary may also enter into agreements, settlements, and
other consent orders resolving alleged violations of this chapter.
_____(d) The secretary shall propose, for legislative review,
rules, including emergency rules, in accordance with the provisions
of article three, chapter twenty-nine-a of this code, to establish
procedures for assessing civil administrative penalties in
accordance with this section by no later than July 1, 2013.
NOTE: The purpose of this bill is to establish an administrative and civil enforcement process for coal mining-
related National Pollution Discharge Elimination System
(NPDES)permit holders that conforms with corresponding federal
requirements.
This section is new; therefore, it has been completely
underscored.