WEST VIRGINIA LEGISLATURE
2023 REGULAR SESSION
House Bill 3006
By Delegates Ferrell, Rohrbach, Reynolds, Hardy, Jeffries, Phillips, Honaker, Linville, Riley, Barnhart, and Kelly
[Introduced January 24, 2023; Referred to the Committee on the Judiciary]
A BILL to amend and reenact §61-10-34 of the Code of West Virginia, 1931, as amended, relating to the "West Virginia Critical Infrastructure Protection Act"; adding the criminal offense of damaging, destroying, or stealing any amount of copper, with felony penalties; providing for forfeiture of items of personal property which are used, have been used, or are intended for use, used in perpetration of theft or damage to infrastructure, including all conveyances, including aircraft, vehicles or vessels; and providing that the forfeiture provisions of this bill be governed by the applicable provisions of the West Virginia Contraband Forfeiture Act.
Be it enacted by the Legislature of West Virginia:
(a) This section may be referred to as the "West Virginia Critical Infrastructure Protection Act".
(b) For purposes of this section:
"Critical Infrastructure" means systems and assets, whether physical or virtual, so vital to the United States of America or the State of West Virginia that the incapacity or destruction of such systems and assets would have a debilitating impact on security, national economic security, state economic security, national public health or safety, state public health or safety, or any combination of those matters, whether such systems or assets are in operation or are under any state of construction.
"Critical infrastructure facility" means one of the following, if completely enclosed by a fence or other physical barrier that is obviously designed to exclude intruders, or if clearly marked with a sign or signs that are posted on the property that are reasonably likely to come to the attention of intruders and indicate that entry is forbidden without site authorization:
(1) A petroleum or alumina refinery;
(2) An electrical power generating facility, substation, switching station, electrical control center or electric power lines and associated equipment infrastructure;
(3) A chemical, polymer or rubber manufacturing facility;
(4) A water intake structure, water treatment facility, wastewater treatment plant or pump station;
(5) A natural gas compressor station;
(6) A liquid natural gas terminal or storage facility;
(7) Wireline and wireless telecommunications infrastructure;
(8) A port, railroad switching yard, trucking terminal, or other freight transportation facility;
(9) A gas processing plant, including a plant used in the processing, treatment, or fractionation of natural gas or natural gas liquids;
(10) A transmission facility used by a federally licensed radio or television station;
(11) A steelmaking facility that uses an electric arc furnace to make steel;
(12) A facility identified and regulated by the United States Department of Homeland Security Chemical Facility Anti-Terrorism Standards (CFATS) program;
(13) A dam that is regulated by the state or federal government;
(14) A natural gas distribution utility facility including, but not limited to, pipeline interconnections, a city gate or town border station, metering station, below- or above-ground pipeline or piping and truck loading or offloading facility, a natural gas storage facility, a natural gas transmission facility, or a natural gas utility distribution facility;
(15) A crude oil or refined products storage and distribution facility including, but not limited to, valve sites, pipeline interconnections, pump station, metering station, below- or above-ground pipeline or piping, and truck loading or offloading facility;
(16) Military facilities, including national guard facilities and equipment storage areas where non-military personnel are prohibited;
(17) Department of Highways facilities and locations near or on roads or highways where the public is prohibited;
(18) Health care facilities;
(19) Any above-ground portion of an oil, gas, hazardous liquid or chemical pipeline, tank, or other storage facility that is enclosed by a fence, other physical barrier or is clearly marked with signs prohibiting trespassing, that are obviously designed to exclude intruders; or
(20) A commercial service airport as defined by the Federal Aviation Administration.
(c)(1) Any person who willfully and knowingly trespasses or enters property containing a critical infrastructure facility without permission by the owner of the property or lawful occupant thereof is guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of not less than $250 nor more than $1,000, or confined in jail not less than 30 days nor more than one year, or both fined and confined. If the intent of the trespasser is to willfully damage, destroy, vandalize, deface, tamper with equipment, or impede or inhibit operations of the critical infrastructure facility, the person is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $100 nor more than $1,000, or confined in a jail for not more than one year, or both fined and confined.
(2) (A) Any person who willfully damages, destroys, vandalizes, defaces, or tampers with equipment in a critical infrastructure facility (i) causing damage in excess of $2,500 or (ii) who damages, destroys, or steals any amount of copper from such facility, is guilty of a felony and, upon conviction thereof, shall be fined not less than $1,000 $25,000 nor more than $5,000 $100,000, or imprisoned in a state correctional facility for a term of not less than one year nor more than five years, or both fined and imprisoned.
(B) Any person convicted of a second offense under the provisions of this subdivision is guilty of a felony and, upon conviction thereof, shall be fined not less than $100,000 nor more than $500,000, or imprisoned in a state correctional facility for a term of not less than five years nor more than 10 years, or both fined and imprisoned.
(3) Any person who conspires with any person to commit the offense of trespass against a critical infrastructure facility in violation of subdivision (1) of subsection (c) of this section and the trespass actually occurs is guilty of a misdemeanor and, upon conviction thereof, shall be fined in an amount of not less than $2,500 nor more than $10,000. Any person who conspires with any person to willfully damage, destroy, vandalize, deface, or tamper with equipment in a critical infrastructure facility and the damage, destruction, vandalization, defacing or tampering causes damage in excess of $2,500 is guilty of a felony and, shall, upon conviction thereof, be fined not less than $5,000 nor more than $20,000.
(d)(1) Any person who is arrested for or convicted of an offense under this section may be held civilly liable for any damages to personal or real property while trespassing, in addition to the penalties imposed by this section.
(2) Any person or entity that compensates, provides consideration to, or remunerates a person for trespassing as described in subdivision (1) of subsection (c) of this section may also be held liable for damages to personal or real property committed by the person compensated or remunerated for trespassing.
(e) The provisions of this section do not apply to:
(1) Any person or organization:
(i) Monitoring or attentive to compliance with public or worker safety laws, or, wage and hour requirements;
(ii) Picketing at the workplace that is otherwise lawful and arises out of a bona fide labor dispute, including any controversy concerning wages, salaries, hours, working conditions, or benefits, including health and welfare, sick leave, insurance, and pension or retirement provisions, the managing or maintenance of collective bargaining agreements, and the terms to be included in those agreements;
(iii) Engaging in union organizing or recruitment activities, including attempting to reach workers verbally, in writing with pamphlets and investigation of non-union working conditions, or both.
(2) The right to free speech or assembly, including, but not limited to, protesting and picketing.
(3) A contractor who has a contractual relationship with a critical infrastructure facility and the contractor’s employees are acting within their scope of employment performing work at a critical infrastructure facility.
(f)(1) (A) All items of personal property which are used, have been used, or are intended for use, used in perpetration of theft or damage to infrastructure shall be subject to forfeiture; (B) This includes all conveyances, including aircraft, vehicles or vessels, except that:
(i) A conveyance used by any person as a common carrier in the transaction of business as a common carrier may not be forfeited under this section unless it appears that the person owning the conveyance is a consenting party or privy to a violation of this section:
(ii) A conveyance may not be forfeited under the provisions of this article if the person owning the conveyance establishes that he or she neither knew, nor had reason to know, that the conveyance was being employed or was likely to be employed in a violation of this section: and:
(iii) A bona fide security interest or other valid lien in any conveyance may not be forfeited under the provisions of this article, unless the state proves by a preponderance of the evidence that the holder of the security interest or lien either knew, or had reason to know, that the conveyance was being used or was likely to be used in a violation of this chapter:
(2) All procedures relating to the seizure and disposition of property subject to forfeiture under the authority of this section shall be governed by the applicable provisions of the West Virginia Contraband Forfeiture Act, §60A-7-701, et. seq. of this code.
NOTE: The purpose of this bill is to add the criminal offense of damaging, destroying, or stealing any amount of copper, with felony penalties, providing for forfeiture of items of personal property which are used, have been used, or are intended for use, used in perpetration of theft or damage to infrastructure; and providing that the forfeiture provisions of this bill be governed by the applicable provisions of the West Virginia Contraband Forfeiture Act.
Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.