Senate Bill No. 609
(By Senators Snyder, Oliverio, Wooton, Kessler,
Redd, Burnette, Mitchell and Rowe )
____________
[Introduced February 15, 2002; 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 fifteen, article fifteen,
chapter twenty-two of the code of West Virginia, one thousand
nine hundred thirty-one, as amended, relating to violations
and penalties under the solid waste management act; creating
a criminal penalty for illegal waste tire piles; correcting
nomenclature; and removing outdated language.
Be it enacted by the Legislature of West Virginia:
That section fifteen, article fifteen, 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 15. SOLID WASTE MANAGEMENT ACT.
§22-15-15. Orders, inspections and enforcement; civil and criminal
penalties.
(a) If the director secretary, upon inspection or
investigation by duly authorized representatives or through other means observes, discovers or learns of a violation of this article,
its rules, article eleven of this chapter or its rules, or any
permit or order issued under this article, he or she shall:
(1) Issue an order stating with reasonable specificity the
nature of the alleged violation and requiring compliance
immediately or within a specified time. An order under this
section includes, but is not limited to, any or all of the
following: Orders suspending, revoking or modifying permits,
orders requiring a person to take remedial action or cease and
desist orders;
(2) Seek an injunction in accordance with subsection (e) of
this section;
(3) Institute a civil action in accordance with subsection (e)
of this section; or
(4) Request the attorney general, or the prosecuting attorney
of the county wherein the alleged violation occurred, to bring an
appropriate action, either civil or criminal in accordance with
subsection (b) of this section.
(b) Any person who willfully or negligently violates the
provisions of this article, any permit or any rule or order issued
pursuant to this article is subject to the same criminal penalties
as set forth in section twenty-four, article eleven of this chapter
Any person who violates this article, or permits issued pursuant to
this article or rules or orders issued by the secretary or board is subject to administrative, civil and criminal sanctions as follows:
(1) Any person who fails or refuses to discharge any duty
imposed upon him or her by this article or by any rule of the
secretary promulgated pursuant to the provisions and intent of this
article or by an order of the secretary or board, or who fails or
refuses to apply for and obtain a permit as required by the
provisions of this article, or who fails or refuses to comply with
any term or condition of the permit, is guilty of a misdemeanor
and, upon conviction thereof, shall be fined not less than one
hundred dollars nor more than one thousand dollars, or imprisoned
in the county or regional jail not more than six months, or both
fined and imprisoned.
(2) Any person who intentionally misrepresents any material
fact in an application, record, report, plan or other document
filed or required to be maintained under the provisions of this
article or any rules promulgated by the secretary thereunder is
guilty of a misdemeanor and, upon conviction thereof, shall be
fined not less than one thousand dollars nor more than ten thousand
dollars, or imprisoned in a county or regional jail not more than
six months, or both fined and imprisoned.
(3) Any person who willfully or negligently violates any
provision of any permit issued under or subject to the provisions
of this article or who willfully or negligently violates any
provision of this article or any rule of the secretary or any order of the secretary or board is guilty of a misdemeanor and, upon
conviction thereof, shall be fined not less than two thousand five
hundred dollars nor more than twenty-five thousand dollars per day
of violation, or imprisoned in a county or regional jail not more
than one year, or both fined and imprisoned.
(4) Any person convicted of a second offense or subsequent
willful violation of subdivision (2) or (3) of this subsection or
knowingly and willfully violating any provision of any permit, rule
or order issued under or subject to the provisions of this article
or knowingly and willfully violating any provision of this article,
is guilty of a felony and, upon conviction thereof, shall be
imprisoned in a state correctional facility not less than one nor
more than three years, or fined not more than fifty thousand
dollars for each day of violation, or both fined and imprisoned.
(5) Any person convicted of accumulating or disposing of one
thousand or more tires in violation of this article is guilty of a
felony and, upon conviction thereof, shall be imprisoned in a state
correctional facility for not less than one nor more than five
years and shall be required to clean up and properly dispose of the
waste tires or reimburse the state agency or agencies for costs
incurred in cleaning up the waste tires. In addition, any person
so convicted may be fined not more than fifty thousand dollars for
each day of the continued violation.
(6) A person may be prosecuted and convicted under the provisions of this section, notwithstanding that the administrative
remedies provided in this article have not been pursued or invoked
against the person and notwithstanding that civil action for the
imposition and collection of a civil penalty or an application for
an injunction under the provisions of this article has not been
filed against the person.
(7) Where a person holding a permit is carrying out a program
of pollution abatement or remedial action in compliance with the
conditions and terms of the permit, that person is not subject to
criminal prosecution for pollution recognized and authorized by the
permit.
(c) Any person who violates any provision of this article, any
permit or any rule or order issued pursuant to this article is
subject to a civil administrative penalty, to be levied by the
director secretary, of not more than five thousand dollars for each
day of such the violation, not to exceed a maximum of twenty
thousand dollars:
(1) In assessing any such a penalty, the director secretary
shall take into account the seriousness of the violation and any
good faith efforts to comply with the applicable requirements as
well as any other appropriate factors as may be established by the
director secretary by rules promulgated pursuant to this article
and article three, chapter twenty-nine-a of this code. 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, order or statement of permit
conditions 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 secretary a written
request for an informal hearing. If no hearing is requested, the
notice becomes a final order after the expiration of the twenty-day
period. If a hearing is requested, the director secretary shall
inform the alleged violator of the time and place of the hearing.
The director secretary may appoint an assessment officer to conduct
the informal hearing and then make a written recommendation to the
director secretary concerning the assessment of a civil
administrative penalty. Within thirty days following the informal
hearing, the director secretary shall issue and furnish to the
alleged violator a written decision, and the reasons therefor,
concerning the assessment of a civil administrative penalty.
Within thirty days after notification of the director's secretary's
decision, the alleged violator may request a formal hearing before
the environmental quality board in accordance with the provisions
of section sixteen of this article. 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 twenty-five thousand dollars for
each day of such a violation: Provided, however, That any
violation for which the violator has paid a civil administrative
penalty assessed under this section shall not be the subject of a
separate civil penalty action under this article to the extent of
the amount of the civil administrative penalty paid. All
administrative penalties shall be levied in accordance with rules
issued pursuant to subsection (a), section five of this article.
The net proceeds of assessments collected pursuant to this
subsection shall be deposited in the solid waste reclamation and
environmental response fund established in subdivision (3),
subsection (h), section eleven of this article;
(2) No assessment levied pursuant to subdivision (1) of this
subsection becomes due and payable until the procedures for review
of such the assessment as set out in said subsection have been
completed.
(d) Any person who violates any provision of this article, any
permit or any rule or order issued pursuant to this article is
subject to a civil penalty not to exceed twenty-five thousand dollars for each day of such the violation, which penalty shall be
recovered in a civil action either in the circuit court wherein the
violation occurs or in the circuit court of Kanawha County.
(e) The director secretary may seek an injunction, or may
institute a civil action against any person in violation of any
provisions of this article or any permit, rule or order issued
pursuant to this article. In seeking an injunction, it is not
necessary for the director secretary to post bond nor 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 such relief is sought.
(f) Upon request of the director secretary, the attorney
general or the prosecuting attorney of the county in which the
violation occurs shall assist the director secretary in any civil
action under this section.
(g) In any civil 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.
(h) In addition to all other grounds for revocation, the
director secretary shall revoke a permit for any of the following reasons:
(1) Fraud, deceit or misrepresentation in securing the permit,
or in the conduct of the permitted activity;
(2) Offering, conferring or agreeing to confer any benefit to
induce any other person to violate the provisions of this chapter,
or of any other law relating to the collection, transportation,
treatment, storage or disposal of solid waste, or of any rule
adopted pursuant thereto;
(3) Coercing a customer by violence or economic reprisal or
the threat thereof to utilize the services of any permittee; or
(4) Preventing, without authorization of the division
secretary, any permittee from disposing of solid waste at a
licensed treatment, storage or disposal facility.
(i) Within thirty days of the effective date of this
subsection, the director shall issue minor permit modifications for
all permits or permit modifications issued on or after the twenty-
eighth day of September, one thousand nine hundred ninety-five, to
reflect the tonnage authorization set forth in the certificate of
need for that solid waste facility. All such facilities may
continue to receive such tonnage until the modification is
received.
(NOTE: The purpose of this bill is to clarify the criminal
penalties applicable to the Solid Waste Management Act by
specifying them in the statute rather than referring to another
code section. The only new penalty is for illegally accumulating 1000 or more waste tires. If convicted the violator would be
imprisoned from one to five years and required to clean up and
properly dispose of the waste tires or reimburse the state for
clean up costs. The violator could also be fined up to $50,000 for
every day of the continuing violation.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.)
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