Senate Bill No. 472
(By Senators Chafin and Deem)
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[Introduced February 9, 1999; referred to the Committee on
Natural Resources; and then to the Committee on Finance.]
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A BILL to amend and reenact sections two, three, five, seven,
nine, fifteen, seventeen, eighteen and nineteen, article
fourteen, chapter twenty-two of the code of West Virginia,
one thousand nine hundred thirty-one, as amended; and to
further amend said article by adding thereto a new section,
designated section sixteen, all relating to a statement of
legislative findings, intent and purpose of the act;
defining terms; deletion of certain soil conservation
service provisions; amendment of civil penalties; and
establishing priority of actions.
Be it enacted by the Legislature of West Virginia:
That sections two, three, five, seven, nine, fifteen,
seventeen, eighteen and nineteen, article fourteen, chapter
twenty-two of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, be amended and reenacted; and that said article be amended by adding thereto a new section,
designated section sixteen, all to read as follows:
ARTICLE 14. DAM CONTROL ACT.
§22-14-2. Legislative findings; intent and purpose of article.
The Legislature finds that dams may constitute a potential
hazard to people and property; therefore, dams in this state
must be properly regulated and controlled to protect the health,
safety and welfare of people and property in this state. It is
the intent of the Legislature by this article to provide for the
regulation and supervision of dams in this state to the extent
necessary to protect the public health, safety and welfare. The
Legislature has ordained this article to fulfill its
responsibilities to the people of this state and to protect
their lives and private and public property from the danger of
a potential or actual dam failure.
The Legislature finds and
declares that in light of the limited state resources available
for the purposes of this article, and in view of the high
standards to which the United States soil conservation service designs dams, independent state review of the plans and
specifications for dams designed by the soil conservation service
and construction oversight should not be required. The
Legislature further finds and declares that dams designed and
constructed by the soil conservation service but not owned or
operated by it should be subject to the same provisions of
inspection, after construction and certification by the soil
conservation service, as other dams covered by this article, so
long as any dam under the soil conservation service program is
designed with standards equal to or exceeding state requirements
under this article.
§22-14-3. Definition of terms used in article.
As used in this article, unless used in a context that
clearly requires a different meaning, the term:
(a) "Alterations" or "repairs" means only those changes in
the structure or integrity of a dam which may affect its safety,
which determination shall be made by the director.
(b) "Application for a certificate of approval" means the
request in writing by a person to the director requesting that
person be issued a certificate of approval.
(c) "Appurtenant works" means any structure or facility which is an adjunct of, or connected, appended or annexed to a
dam, including, but not limited to, spillways, a reservoir and
its rim, low level outlet works or water conduits such as
tunnels, pipelines and penstocks either through the dam or its
abutments.
(d) "Certificate of approval" means the approval in writing
issued by the director to a person who has applied to the
director for a certificate of approval which authorizes the
person to place, construct, enlarge, alter, repair or remove a
dam and specifies the conditions or limitations under which the
work is to be performed by that person.
(e) "Director" means the director of the division of
environmental protection or such other person to whom the
director has delegated authority or duties pursuant to sections
six or eight, article one of this chapter.
(f) "Division" means the division of environmental
protection.
(g) "Dam" means an artificial barrier or obstruction,
including any works appurtenant to it, and any reservoir created
by it, which is or will be placed, constructed, enlarged, altered
or repaired so that it does or will impound or divert water and: (1) Is or will be twenty-five feet or more in height from the
natural bed of the stream or watercourse measured at the
downstream toe of the barrier and which does or can impound
fifteen acre-feet or more of water; or (2) is or will be six feet
or more in height from the natural bed of the stream or
watercourse measured at the downstream toe of the barrier and
which does or can impound fifty acre-feet or more of water:
Provided, That the term "dam" does not include:
(A) Any dam owned by the federal government;
(B) Any dam for which the operation and maintenance thereof
is the responsibility of the federal government;
(C) Farm ponds constructed and used primarily for
agricultural purposes, including, but not limited to, livestock
watering, irrigation, retention of animal wastes and fish
culture, and which have no potential to cause loss of human life
in the event of embankment failure; or
(D)
Roadfill or other transportation structures which do not
or will not impound water under normal conditions and which have
a designed culvert or similar conveyance
or of such capacity as
would be used under a
state designed highway at the same
location:
Provided, That the director may apply the provisions of section ten of this article for
hazardous, nonimpounding
roadfill or other transportation structures
which are brought to
his or her attention that become a hazard to human life or
property through the frequent or continuous impoundment of water.
(h) "Enlargement" means any change in or addition to an
existing dam which:
(1) Raises the height of the dam;
(2) Raises or may raise the water storage elevation of the
water impounded by the dam;
(3) Increases or may increase the amount of water impounded
by the dam; or
(4) Increases or may increase the watershed area from which
water is impounded by the dam.
(i) "Person" means any public or private corporation,
institution, association, society, firm, organization or company
organized or existing under the laws of this or any other state
or country; the state of West Virginia; any state governmental
agency; any political subdivision of the state or of its counties
or municipalities; sanitary district; public service district;
drainage district; soil conservation district; watershed
improvement district; partnership; trust; estate; person or individual; group of persons or individuals acting individually
or as a group; or any other legal entity whatever. The term
"person", when used in this article, includes and refers to any
authorized agent, lessee or trustee of any of the foregoing or
receiver or trustee appointed by any court for any of the
foregoing.
(j) "Reservoir" means any basin which contains or will
contain impounded water.
(k) "Soil conservation service" means the soil conservation
service of the United States department of agriculture or any
successor agency.
(l) (k) "Water" means any liquid, including any solids or
other matter which may be contained therein, which is or may be
impounded by a dam.
(m) (l) "Water storage elevation" means the maximum
elevation that water can reach behind a dam without encroaching
on the freeboard approved for the dam under flood conditions.
§22-14-5. Unlawful to place, construct, enlarge, alter, repair,
remove or abandon dam without certificate of
approval; application required to obtain
certificate.
It is unlawful for any person to place, construct, enlarge,
alter, repair, remove or abandon any dam under the jurisdiction
of the director until he or she has first: (a) Filed an
application for a certificate of approval with the division; and
(b) obtained from the division a certificate of approval:
Provided, That routine repairs which do not affect the safety of
a dam are not subject to the application and approval
requirements. A separate application for a certificate of
approval must be submitted by a person for each dam he or she
desires to place, construct, enlarge, alter, repair, remove or
abandon. One application may be valid for more than one dam
involved in a single project or in the formation of a reservoir.
Each application for a certificate of approval shall be made
in writing on a form prescribed by the director and shall be
signed and verified by the applicant. The application shall
contain and provide information which may be reasonably required
by the director to administer the provisions of this article.
In the case of dams designed by the soil conservation
service for transfer to any political subdivision, the director
shall, within sixty days after receipt of a completed application
therefor, issue a certificate of approval without review of the plans and specifications.
§22-14-7. Granting or rejecting applications for certificate of
approval by division; publication of notice of application; hearing upon application.
Upon receipt of an application for a certificate of approval
and the fee required under the provisions of this article, the
director shall proceed to consider the application for
sufficiency. The director shall approve or disapprove the
application within sixty days after receipt.
If an application is defective, it shall be returned to the
applicant by certified or registered mail, return receipt
requested, in order that the applicant may correct any defect:
Provided, That a defective application must be returned to the
division by the applicant within thirty days after it has been
returned to the applicant or it shall be treated as a new
application:
Provided, however, That for good cause shown, the
director may extend the thirty-day period.
Upon approval by the director of the sufficiency of the
application, the applicant shall immediately publish the
application as a Class I legal advertisement in compliance with
the provisions of article three, chapter fifty-nine of this code, and the publication area for the publication is the county in
which the proposed dam is to be located or in which the existing
dam is located. The notice shall include, but not be limited to,
the name and address of the owner of the dam and the location of
the dam for which the application was filed.
Any person
who whose life or property may be adversely
affected by the issuance of a certificate of approval has a right
to a hearing before the director if the person demands the
hearing in writing within fifteen days of publication of the
certificate of approval. The written request for hearing shall
include specific objections to the certificate of approval.
Upon receipt by the director of the written request for
hearing, the director shall immediately set a date for the
hearing and shall notify the person or persons demanding a
hearing. The hearing shall be held within ten days after receipt
of the written request. The director shall hear evidence from
all interested parties and shall either: (1) Refuse to issue a
certificate of approval; or (2) issue a certificate of approval
which shall be subject to terms, conditions and limitations as
the director may consider necessary to protect life and property.
Unless otherwise extended by the director, a certificate of approval is valid for a period of not more than one year.
§22-14-9. Inspections during progress of work on dam.
During the placement, construction, enlargement, repair,
alteration or removal of any dam, the director shall, either
with the division's own engineers or by consulting engineers or
engineering organizations, make periodic inspections for the
purpose of ascertaining compliance with the certificate of
approval. The director shall require the owner at his or her
expense to perform work or tests as necessary and to provide
adequate supervision during the placement, construction,
enlargement, repair, alteration or removal of a dam.
Provided,
That with respect to dams designed by and constructed under the
supervision of the soil conservation service, as to such dams no
state inspections are required
If at any time during placement, construction, enlargement,
repair, alteration or removal of any dam, the director finds that
the work is not being done in accordance with the provisions of
the original or revised certificate of approval, the director
shall notify the owner by certified or registered mail, return
receipt requested, to correct the deficiency, cease and desist
work or to show cause as to why the certificate of approval should not be revoked.
The notice shall state the reason or reasons why the work is
not in accordance with the certificate of approval. The director
may order that work on the dam cease until the owner has complied
with the notice.
If the director finds that amendments, modifications or
changes are necessary to ensure the safety of the dam, the
director may order the owner to revise his or her plans and
specifications. If conditions are revealed which will not permit
the placement, construction, enlargement, repair, alteration or
removal of the dam in a safe manner, the certificate of approval
may be revoked.
Immediately upon completion of a new dam or enlargement,
repair or alteration of a dam, the owner shall notify the
director.
Provided, That immediately upon completion of a dam
constructed under the supervision of the soil conservation
service, a certification of completion shall be sent to the
director by the soil conservation service, and a complete set of
design documents "as built" plans, and specifications and safety
plan of evacuation shall be provided to the director within
ninety days after completion of the dam
§22-14-15. Civil penalties and injunctive relief.
(a) Any person who violates any provision of this article,
any certificate of approval or any rule, notice or order issued
pursuant to this article is subject to a civil administrative
penalty, to be levied by the director, of not more than
two
hundred five hundred dollars for each day of the violation, not
to exceed a maximum of
four hundred ten thousand dollars. In
assessing any penalty, the director shall take into account the
seriousness of the violation and any good faith efforts to comply
with applicable requirements as well as any other appropriate
factors as may be established by rules promulgated by the
director. No assessment shall be levied pursuant to this
subsection until after the alleged violator has been notified by
certified mail or personal service. The notice shall include a
reference to the section of the statute, rule, notice, order or
statement of the certificate of approval's terms that was
allegedly 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. The alleged
violator has twenty calendar days from receipt of the notice within which to deliver to the director a written request for an
informal hearing. If no hearing is requested, the notice becomes
a final order after the expiration date of the twenty-day period.
If a hearing is requested, the director shall inform the alleged
violator of the time and place of the hearing. Within thirty
days following the informal hearing, the director shall issue
and furnish to the violator a written decision, and the reasons
therefor, concerning the assessment of a civil administrative
penalty. The authority to levy an 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 shall exceed
four
five hundred dollars per day of each violation:
Provided,
however, That any violation for which the violator has paid a
civil administrative penalty assessed under this subsection is
not subject to a separate civil penalty action under this article
to the extent of the amount of the civil administrative penalty
paid. Civil administrative penalties shall be levied in
accordance with the rules promulgated under the authority of section four of this article. The net proceeds of assessments
collected pursuant to this subsection shall be deposited in the
dam safety fund established pursuant to section seventeen of this
article. Any person adversely affected by the assessment of a
civil administrative penalty has the right to appeal to the
environmental quality board pursuant to the provisions of article
one, chapter twenty-two-b of this code.
(b) No assessment levied pursuant to subsection (a) of this
section is due and payable until the procedures for review of the
assessment as set out in said subsection have been completed.
(c) Any person who violates any provision of this article,
any certificate of approval, rule, notice or order issued under
or subject to the provisions of this article shall be subject to
a civil penalty not to exceed ten thousand dollars per day of
such violation. Any such civil penalty may be imposed and
collected only by civil action instituted by the director either
in the circuit court of Kanawha County or in the county in which
the violation occurred or is occurring.
Upon application by the director, the circuit courts of this
state or the judges thereof in vacation may by injunction compel
compliance with and enjoin violations of the provisions of this article and rules promulgated in accordance with section four of
this article, the terms and conditions of any certificate of
approval granted under the provisions of this article, or any
order of the director or environmental quality board and the
venue of any such action shall be either in Kanawha County, or in
the county in which the violation or noncompliance exists or is
taking place. 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 injunctive application filed.
(c) The director may seek an injunction, or may institute a
civil action against any person in violation of any provisions
of this article or any certificate of approval, rule, notice or
order issued pursuant to this article.
(d) In seeking an injunction, it is not necessary for the
director to post bond or to allege or prove at any stage of the
proceeding that irreparable damage will occur if the injunction
is not issued or that the remedy at law is inadequate. An
application for injunctive relief or a civil penalty action under
this section may be filed and relief granted notwithstanding the
fact that all administrative remedies provided for in this
article have not been exhausted or invoked against the person or persons against whom the relief is sought.
The judgment of the circuit court upon any application filed
or in any civil action instituted under the provisions of this
section shall be 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 the 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 thirty days from the date of
entry of the judgment of the circuit court.
(d) (e) Upon request of the director, the attorney general
or the prosecuting attorney of the county in which the violation
occurs, shall assist the director in any civil action under this
section.
(e) (f) In any action brought pursuant to the provisions of
this section, the state or any agency of the state which
prevails, may be awarded costs and reasonable attorney's fees.
§22-14-16. Priority actions.
All applications under section fifteen of this article shall
take precedence over all other civil cases.
§22-14-16 17. Schedule of application fees established.
The director shall promulgate rules in accordance with the
provisions of section four of this article, to establish a
schedule of application fees for which the appropriate fee shall
be submitted by the applicant to the division together with the
application for a certificate of approval filed pursuant to this
article. The schedule of application fees shall be designed to
establish reasonable categories of certificate application fees
based upon the complexity of the permit application review
process required by the director pursuant to the provisions of
this article and the rules promulgated under this article. The
director shall not process any certificate application pursuant
to this article until the certificate application fee has been
received.
§22-14-17 18. Schedule of annual registration fees established.
The director shall promulgate rules in accordance with the
provisions of section four of this article, to establish a
schedule of annual registration fees which shall be assessed
annually upon each person holding a certificate of approval
issued pursuant to this article. Each person holding a
certificate of approval shall pay the prescribed annual
registration fee to the division pursuant to the rules promulgated under this article. The schedule of annual
registration fees shall be designed to establish reasonable
categories of annual registration fees, including, but not
limited to, the size of the dam and its classification. Any
certificate of approval issued pursuant to this article becomes
void without notification to the person holding a certificate
of approval when the annual registration fee is more than
one
hundred eighty ninety days past due pursuant to the rules
promulgated under this section.
§22-14-18 19. Continuation of dam safety fund; components of
fund.
(a) The special fund designated "The Dam Safety Fund"
hereinafter referred to as "the fund" shall be continued.
(b) All certificate application fees and annual registration
fee assessments, any interest or surcharge assessed and collected
by the division, interest accruing on investments and deposits of
the fund, and any other moneys designated by the division shall
be paid into the fund. Accrual of funds shall not exceed three
hundred thousand dollars per year, exclusive of application fees.
The division shall expend the proceeds of the fund for the review
of applications, inspection of dams, payment of costs of remedial emergency actions and enforcement of the provisions of this
article.
NOTE: The purpose of this bill is to amend civil
administrative penalties; establish civil penalties; establish
civil actions; and to amend legislative findings, intent and
purpose; definition of terms, and other sections; and to delete
certain provisions related to Natural Resource Conservation
Service dams. It also clarifies exemptions to the definition of
a dam regarding roadfills; persons who may request a hearing; and
amends the date at which a certificate becomes void.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.
§22-14-16 is new; therefore, strike-throughs and
underscoring have been omitted.