Senate Bill No. 774
(By Senators Kessler, Dempsey, Fanning, Minard, White, Barnes,
Caruth, Deem, Harrison, Lanham, McKenzie and Weeks)
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[Originating in the Committee on the Judiciary;
reported February 22, 2006.]
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A BILL to amend and reenact §22-1-2, §22-1-6, §22-1-7 and §22-1-8
of the Code of West Virginia, 1931, as amended, all relating
to the organization of offices within the Department of
Environmental Protection; and defining certain terms.
Be it enacted by the Legislature of West Virginia:
That §22-1-2, §22-1-6, §22-1-7 and §22-1-8 of the Code of West
Virginia, 1931, as amended, be amended and reenacted, all to read
as follows:
ARTICLE 1. DEPARTMENT OF ENVIRONMENTAL PROTECTION.
§22-1-2. Definitions.
As used in this article chapter, unless otherwise provided or
indicated by the context:
(1)"Chief" means the person named by the Secretary of the
Department of Environmental Protection as the chief executive
officer of an office, division or section within the department.
(1) (2) "Department" means the Department of Environmental
Protection.
(2) (3) "Director" means the Secretary of the Department of
Environmental Protection or his or her designee.
(3) (4) "Division" means the Department of Environmental
Protection.
(4) (5) "Function" includes means any duty, obligation, power,
authority, responsibility, right, privilege, activity or program.
(5) (6) "Office" includes means any office, division, board,
agency, unit, organizational entity or component thereof within the
Department of Environmental Protection.
(6) (7) "Secretary" means the Secretary of the Department of
Environmental Protection.
§22-1-6. Secretary of the Department of Environmental Protection.
(a) The secretary is the chief executive officer of the
division department. Subject to section seven of this article and
other provisions of law, the secretary shall organize the
department into such offices, divisions, sections, agencies and
other units of activity as may be found by the secretary to be
desirable for the orderly, efficient and economical administration
of the department and for the accomplishment of its objects and
purposes. The secretary may appoint a deputy secretary, chief of
staff, assistants, hearing officers, clerks, stenographers and
other officers, technical personnel and employees needed for the operation of the department and may prescribe their powers and
duties and fix their compensation within amounts appropriated.
(b) The secretary has the power to and may designate
supervisory officers or other officers or employees of the
department to substitute for him or her on any board or commission
established under this code or to sit in his or her place in any
hearings, appeals, meetings or other activities with such
substitute having the same powers, duties, authority and
responsibility as the secretary. The secretary has the power to
delegate, as he or she considers appropriate, to supervisory
officers or other officers or employees of the department his or
her powers, duties, authority and responsibility relating to
issuing permits, hiring and training inspectors and other employees
of the department, conducting hearings and appeals and such other
duties and functions set forth in this chapter or elsewhere in this
code.
(c) The secretary has responsibility for the conduct of the
intergovernmental relations of the department, including assuring:
(1) That the department carries out its functions in a manner
which supplements and complements the environmental policies,
programs and procedures of the federal government, other state
governments and other instrumentalities of this state; and
(2) That appropriate officers and employees of the division
department consult with individuals responsible for making policy relating to environmental issues in the federal government, other
state governments and other instrumentalities of this state
concerning differences over environmental policies, programs and
procedures and concerning the impact of statutory law and rules
upon the environment of this state.
(d) In addition to other powers, duties and responsibilities
granted and assigned to the secretary by this chapter, the
secretary is hereby authorized and empowered to:
(1) Sign and execute in the name of the state by the
"Department of Environmental Protection" any contract or agreement
with the federal government or its departments or agencies,
subdivisions of the state, corporations, associations, partnerships
or individuals: Provided, That the powers granted to the secretary
to enter into agreements or contracts and to make expenditures and
obligations of public funds under this subdivision may not exceed
or be interpreted as authority to exceed the powers granted by the
Legislature to the various commissioners, directors or board
members of the various departments, agencies or boards that
comprise and are incorporated into each secretary's department
pursuant to the provisions of chapter five-f of this code;
(2) Conduct research in improved environmental protection
methods and disseminate information to the citizens of this state;
(3) Enter private lands to make surveys and inspections for
environmental protection purposes; to investigate for violations of statutes or rules which the division department is charged with
enforcing; to serve and execute warrants and processes; to make
arrests; issue orders, which for the purposes of this chapter
include consent agreements; and to otherwise enforce the statutes
or rules which the division department is charged with enforcing;
(4) Acquire for the state in the name of the "Department of
Environmental Protection" by purchase, condemnation, lease or
agreement, or accept or reject for the state, in the name of the
Department of Environmental Protection, gifts, donations,
contributions, bequests or devises of money, security or property,
both real and personal, and any interest in property;
(5) Provide for workshops, training programs and other
educational programs, apart from or in cooperation with other
governmental agencies, necessary to insure adequate standards of
public service in the department. The secretary may provide for
technical training and specialized instruction of any employee.
Approved educational programs, training and instruction time may be
compensated for as a part of regular employment. The secretary is
authorized to pay out of federal or state funds, or both, as such
funds are available, fees and expenses incidental to such
educational programs, training and instruction. Eligibility for
participation by employees will be in accordance with guidelines
established by the secretary;
(6) Issue certifications required under 33 U. S. C. §1341 of the federal Clean Water Act and enter into agreements in accordance
with the provisions of section seven-a, article eleven of this
chapter. Prior to issuing any certification the secretary shall
solicit from the Division of Natural Resources reports and comments
concerning the possible certification. The Division of Natural
Resources shall direct the reports and comments to the secretary
for consideration; and
(7) Notwithstanding any provisions of this code to the
contrary, employ in-house counsel to perform all legal services for
the secretary and the department, including, but not limited to,
representing the secretary, any chief, director or other office
head, the department or any office thereof in any administrative
proceeding or in any proceeding in any state or federal court.
Additionally, the secretary may call upon the attorney general for
legal assistance and representation as provided by law.
(e) The secretary shall be appointed by the Governor, by and
with the advice and consent of the Senate, and serves at the will
and pleasure of the governor.
(f) At the time of his or her initial appointment, the
secretary must be at least thirty years old and must be selected
with special reference and consideration given to his or her
administrative experience and ability, to his or her demonstrated
interest in the effective and responsible regulation of the energy
industry and the conservation and wise use of natural resources. The secretary must have at least a bachelor's degree in a related
field and at least three years of experience in a position of
responsible charge in at least one discipline relating to the
duties and responsibilities for which the secretary will be
responsible upon assumption of the office. The secretary may not
be a candidate for or hold any other public office, may not be a
member of any political party committee and shall immediately
forfeit and vacate his or her office as secretary in the event he
or she becomes a candidate for or accepts appointment to any other
public office or political party committee.
(g) The secretary will receive an annual salary of eighty-five
thousand dollars and will be allowed and paid necessary expenses
incident to the performance of his or her official duties. Prior
to the assumption of the duties of his or her office, the secretary
shall take and subscribe to the oath required of public officers
prescribed by section five, article IV of the Constitution of West
Virginia and shall execute a bond, with surety approved by the
Governor, in the penal sum of ten thousand dollars, which executed
oath and bond will be filed in the office of the Secretary of
State. Premiums on the bond will be paid from the department
funds.
§22-1-7. Offices within department.
(a) Consistent with the provisions of this article, the
director secretary shall, at a minimum, maintain the following offices, sections or divisions within the division department to
carry out the following responsibilities:
(1) The office of abandoned Abandoned mine lands and
reclamation, which is charged, at a minimum, with administering and
enforcing, under the supervision of the director secretary, the
provisions of article two of this chapter;
(2) The office of mining Mining and reclamation, which is
charged, at a minimum, with administering and enforcing, under the
supervision of the director secretary, the provisions of articles
three and four of this chapter;
(3) The office of air Air quality, which is charged, at a
minimum, with administering and enforcing, under the supervision of
the director secretary, the provisions of article five of this
chapter;
(4) The office of oil Oil and gas, which is charged, at a
minimum, with administering and enforcing, under the supervision of
the director secretary, the provisions of articles six, seven,
eight, nine and ten of this chapter;
(5) The office of water Water resources, which is charged, at
a minimum, with administering and enforcing, under the supervision
of the director secretary, the provisions of articles eleven,
twelve, thirteen and fourteen of this chapter;
(6) The office of waste Waste management, which is charged, at
a minimum, with administering and enforcing, under the supervision of the director secretary, the provisions of articles fifteen,
sixteen, seventeen, eighteen, nineteen and twenty of this chapter;
and
(7) The office of explosives Explosives and blasting, which is
charged, at a minimum, with administering and enforcing, under the
supervision of the director secretary, the provisions of article
three-a of this chapter.
(b) The secretary may organize and designate internal,
organizational names for the offices, sections or divisions of the
department so long as the duties and responsibilities prescribed
for the department in this chapter and chapters twenty-two-a,
twenty-two-b and twenty-two-c of this code are fulfilled.
§22-1-8. Supervisory officers.
(a) The director secretary shall appoint a competent and
qualified person to be the chief executive officer of each office
specified in section seven of this article. The chief executive
officer is the principal administrative officer of that office and
is accountable and responsible for the orderly and efficient
performance of the duties, functions and services of her or his
office.
(b) There shall be in the division department such other
supervisory officers as the director secretary determines is
necessary to administer the functions of the division department.
Such supervisory officers are "administrators" as such term is defined in section two, article six, chapter twenty-nine of this
code, notwithstanding the fact that the positions filled by such
persons are not statutorily created. Any such supervisory officer
may be designated by the director secretary as a deputy director,
assistant director, chief, administrator, or other administrative
title or designation. Each of the supervisory officers shall be
appointed by the director and serve at the will and pleasure of the
director. The compensation of such supervisory officers shall be
fixed by the director. A single individual may be appointed to
serve simultaneously in two distinct supervisory positions, but in
a case where such a dual appointment is made, such the supervisory
officer shall not receive additional compensation above that which
would be paid for serving in one supervisory position.
(c) A supervisory officer appointed pursuant to the provisions
of this section shall report directly to the director secretary and
shall, in addition to any functions vested in or required to be
delegated to such officer, perform such additional functions as the
director secretary may prescribe.
(d) The supervisory officers Each supervisory officer of the
division department shall, before entering upon the discharge of
their his or her duties, take the oath of office prescribed by
section five, article IV of the Constitution of West Virginia and
shall execute a bond in the penalty of two thousand dollars, with
security to be approved by the Governor, conditioned upon the faithful discharge of their duties, a certificate of which the oath
and which bond shall be filed in the office of the Secretary of
State. Premiums on such the bond shall be paid from the division
department funds.
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(NOTE: The purpose of this bill is to allow the Secretary of
the Department of Environmental Protection to organize and name the
offices within the Department of Environmental Protection so long
as the duties prescribed by statute are fulfilled.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.)