Senate Bill No. 627
(By Senators Stollings, Browning and Unger)
____________
[Introduced February 19, 2010; referred to the Committee on the
Judiciary; and then to the Committee on Finance.]
____________
A BILL to amend and reenact §22-15A-3 and §22-15A-4 of the Code of
West Virginia, 1931, as amended, all relating to the crime of
littering; increasing criminal and civil penalties; and
directing the Secretary of the Department of Environmental
Protection to organize a statewide litter reporting program.
Be it enacted by the Legislature of West Virginia:
That §22-15A-3 and §22-15A-4 of the Code of West Virginia,
1931, as amended, be amended and reenacted, all to read as follows:
ARTICLE 15A. THE A. JAMES MANCHIN REHABILITATION ENVIRONMENTAL
ACTION PLAN.
§22-15A-3. West Virginia litter control and recycling programs;
transfer of programs and employees; additional
duties of secretary; grants to counties and
municipalities; and rules relating thereto.
(a) On and After July 1, 2005, the litter control and recycling programs heretofore operated and managed by the Division
of Natural Resources shall transfer to the Department of
Environmental Protection.
With the transfer of the West Virginia Litter Control and
Recycling Programs from the jurisdiction of the Division of Natural
Resources to the jurisdiction of the Department of Environmental
Protection, all records, assets and contracts, along with rights
and obligations thereunder, obtained or signed on behalf of the
Litter Control and Recycling Programs are hereby transferred and
assigned to the Department of Environmental Protection.
(b) The Commissioner of the Division of Natural Resources and
the Secretary of the Department of Environmental Protection shall
determine which employees of the Division of Natural Resources will
be transferred to the Department of Environmental Protection. All
employees including administrators of the litter control and
recycling programs are subject to being transferred to the
Department of Environmental Protection. Employees in the
classified service who have gained permanent status as of the
effective date of this article, enacted during the 2005 regular
session of the Legislature, will not be subject to further
qualifying examination in their respective classifications by
reason of the transfer required by the provisions of this section.
Nothing contained in this section may be construed to either
abridge the rights of employees within the classified service of
the state to the procedures and protections set forth in article six, chapter twenty-nine of this code or to preclude the
reclassification or reallocation of positions in accordance with
procedures set forth in said article. The Division of Personnel
shall work with the commission and secretary to efficiently
transfer employees from the Division of Natural Resources to the
Department of Environmental Protection.
(c) In addition to all other powers, duties and
responsibilities granted and assigned to the Secretary of the
Department of Environmental Protection in this chapter and
elsewhere by law, the secretary, in the administration of the West
Virginia Litter Control Program created by this section, shall:
(1) Coordinate all industry and business organizations seeking
to aid in the litter control and recycling effort;
(2) Cooperate with all local governments to accomplish
coordination of local litter control and recycling efforts;
(3) Encourage, organize, coordinate and increase public
awareness of and participation in all voluntary litter control and
recycling campaigns, including citizen litter watch programs,
seeking to focus the attention of the public on the litter control
and recycling programs of the state and local governments and of
private recycling centers;
(4) Recommend to local governing bodies that they adopt
ordinances similar to the provisions of section four of this
article;
(5) Investigate the methods and success of techniques of litter control, removal and disposal utilized in other states, and
develop, encourage, organize and coordinate local litter control
programs funded by grants awarded pursuant to subsection (d) of
this section utilizing such successful techniques;
(6) Investigate the availability of, and apply for, funds
available from any and all private or public sources to be used in
the litter control program created by this section;
(7) Attract to the state persons or industries that purchase,
process or use recyclable materials; and
(8) Contract for the development, production and broadcast of
radio and television messages promoting the West Virginia Litter
Control Program. The messages should increase public awareness of
and promote citizen responsibility toward the reduction of litter;
and
(9) Encourage, organize, coordinate and increase public
awareness of, and participation in, a volunteer litter reporting
program state-wide.
(d) All authority to promulgate rules pursuant to article
three, chapter twenty-nine-a of this code establishing criteria for
awarding direct or matching grants for the study of available
research and development in the fields of litter control, removal
and disposal, methods for the implementation of such research and
development, and the development of public educational programs
concerning litter control is hereby transferred from the Division
of Natural Resources to the Secretary of the Department of Environmental Protection as of the effective date of enactment of
this section and article during the 2005 session of the
Legislature: Provided, That any rule promulgated by the Division
of Natural Resources relating to such grants shall remain in force
and effect as though promulgated by the Department of Environmental
Protection until the Secretary amends the rules in accordance with
the provisions of article three, chapter twenty-nine-a of this
code.
(e) All authority to promulgate rules pursuant to article
three, chapter twenty-nine-a of this code designating public areas
where litter receptacles shall be placed and the minimum number of
litter receptacles in accordance with subsection (g), section four
of this article is hereby transferred from the Division of Natural
Resources to the Secretary of the Department of Environmental
Protection as of the effective date of enactment of this section
and article during the 2005 session of the Legislature. Any rule
promulgated by the Division of Natural Resources relating to
littering receptacles shall remain in effect as if promulgated by
the Secretary until amended by the secretary.
(f) Commencing on July 1, 2005, the secretary shall expend
annually at least fifty percent of the moneys credited to the
Litter Control Fund in the previous fiscal year for matching grants
to counties and municipalities for the initiation and
administration of litter control programs. The secretary shall
promulgate rules pursuant to article three, chapter twenty-nine-a of this code establishing criteria for the awarding of matching
grants.
(g) The Secretary of the Department of Environmental
Protection in cooperation with the Commissioner of Highways, the
Department of Commerce, the West Virginia State Police, the United
States Forestry Service and other local, state and federal law-
enforcement agencies shall be responsible for the administration
and enforcement of all laws and rules relating to the maintenance
of cleanliness and improvement of appearances on and along
highways, roads, streets, alleys and any other private or public
areas of the state. These other agencies shall make
recommendations to the Secretary, from time to time, concerning
means and methods of accomplishing litter control consistent with
the provisions of this chapter. Such cooperation shall include,
but not be limited to, contracts with the Commissioner of Highways
to operate a litter control program.
(h) All other state agencies and local governments shall
cooperate with the Secretary in effecting the purposes of the
litter control program.
§22-15A-4. Unlawful disposal of litter; civil and criminal
penalty; litter control fund; evidence; notice
violations; litter receptacle placement; penalty;
duty to enforce violations.
(a) (1) No person shall place, deposit, dump, throw or cause to be placed, deposited, dumped or thrown any litter as defined in
section two of this article, in or upon any public or private
highway, road, street or alley; any private property; any public
property; or the waters of the state or within one hundred feet of
the waters of this state, except in a proper litter or other solid
waste receptacle.
(2) It is unlawful for any person to place, deposit, dump,
throw or cause to be placed, deposited, dumped or thrown any litter
from a motor vehicle or other conveyance or to perform any act
which constitutes a violation of the motor vehicle laws contained
in section fourteen, article fourteen, chapter seventeen-c of this
code.
(3) If any litter is placed, deposited, dumped, discharged,
thrown or caused to be placed, deposited, dumped or thrown from a
motor vehicle, boat, airplane or other conveyance, it is prima
facie evidence that the owner or the operator of the motor vehicle,
boat, airplane or other conveyance intended to violate the
provisions of this section.
(4) Any person who violates the provisions of this section by
placing, depositing, dumping or throwing or causing to be placed,
deposited, dumped or thrown any litter, not collected for
commercial purposes, in an amount not exceeding one hundred pounds
in weight or twenty-seven cubic feet in size, is guilty of a
misdemeanor. Upon conviction, he or she is subject to a fine of
not less than fifty dollars $100 nor more than $1,000, or in the discretion of the court, sentenced to perform community service by
cleaning up litter from any public highway, road, street, alley or
any other public park or public property, or waters of the state,
as designated by the court, for not less than eight nor more than
sixteen hours, or both.
(5) Any person who violates the provisions of this section by
placing, depositing, dumping or throwing or causing to be placed,
deposited, dumped or thrown any litter, not collected for
commercial purposes, in an amount greater than one hundred pounds
in weight or twenty-seven cubic feet in size, but less than five
hundred pounds in weight or two hundred sixteen cubic feet in size
is guilty of a misdemeanor. Upon conviction he or she is subject
to a fine of not less than five hundred dollars $1,000 nor more
than $2,000, or in the discretion of the court, may be sentenced to
perform community service by cleaning up litter from any public
highway, road, street, alley or any other public park or public
property, or waters of the state, as designated by the court, for
not less than sixteen nor more than thirty-two hours, or both.
(6) Any person who violates the provisions of this section by
placing, depositing, dumping or throwing or causing to be placed,
deposited, dumped or thrown any litter in an amount greater than
five hundred pounds in weight or two hundred sixteen cubic feet in
size or any amount which had been collected for commercial purposes
is guilty of a misdemeanor. Upon conviction, the person is subject
to a fine not less than $2,500 or not more than $25,000 or confinement in a county or regional jail for not more than one year
or both. In addition, the violator may be guilty of creating or
contributing to an open dump as defined in section two, article
fifteen, chapter twenty-two of this code and subject to the
enforcement provisions of section fifteen of said article.
(7) Any person convicted of a second or subsequent violation
of this section is subject to double the authorized range of fines
and community service for the subsection violated.
(8) The sentence of litter clean up shall be verified by
environmental inspectors from the Department of Environmental
Protection. Any defendant receiving the sentence of litter clean
up shall provide, within a time to be set by the court, written
acknowledgment from an environmental inspector that the sentence
has been completed and the litter has been disposed of lawfully.
(9) Any person who has been found by the court to have
willfully failed to comply with the terms of a litter clean up
sentence imposed by the court pursuant to this section is subject
to, at the discretion of the court, double the amount of the
original fines and community service penalties originally ordered
by the court.
(10) All law-enforcement agencies, officers and environmental
inspectors shall enforce compliance with this section within the
limits of each agency's statutory authority.
(11) No portion of this section restricts an owner, renter or
lessee in the lawful use of his or her own private property or rented or leased property or to prohibit the disposal of any
industrial and other wastes into waters of this state in a manner
consistent with the provisions of article eleven, chapter twenty-
two of this code. But if any owner, renter or lessee, private or
otherwise, knowingly permits any such materials or substances to be
placed, deposited, dumped or thrown in such location that high
water or normal drainage conditions will cause any such materials
or substances to wash into any waters of the state, it is prima
facie evidence that the owner, renter or lessee intended to violate
the provisions of this section: Provided, That if a landowner,
renter or lessee, private or otherwise, reports any placing,
depositing, dumping or throwing of these substances or materials
upon his or her property to the prosecuting attorney, county
commission, the Division of Natural Resources or the Department of
Environmental Protection, the landowner, renter or lessee will be
presumed to not have knowingly permitted the placing, depositing,
dumping or throwing of the materials or substances.
(b) Any indication of ownership found in litter shall be prima
facie evidence that the person identified violated the provisions
of this section: Provided, That no inference may be drawn solely
from the presence of any logo, trademark, trade name or other
similar mass reproduced things of identifying character appearing
on the found litter.
(c) Every person who is convicted of or pleads guilty to
disposing of litter in violation of subsection (a) of this section shall pay a civil penalty in the sum of not less than one hundred
dollars $200 nor more than $1,000 as costs for clean up,
investigation and prosecution of the case, in addition to any other
court costs that the court is otherwise required by law to impose
upon a convicted person.
The clerk of the circuit court, magistrate court or municipal
court in which these additional costs are imposed shall, on or
before the last day of each month, transmit fifty percent of a
civil penalty received pursuant to this section to the State
Treasurer for deposit in the State Treasury to the credit of a
special revenue fund to be known as the Litter Control Fund which
is hereby continued and transferred to the Department of
Environmental Protection. Expenditures for purposes set forth in
this section are not authorized from collections but are to be made
only in accordance with appropriation and in accordance with the
provisions of article three, chapter twelve of this code and upon
fulfillment of the provisions set forth in article two, chapter
five-a of this code. Amounts collected which are found from time
to time to exceed the funds needed for the purposes set forth in
this article may be transferred to other accounts or funds and
designated for other purposes by appropriation of the Legislature.
(d) The remaining fifty percent of each civil penalty
collected pursuant to this section shall be transmitted to the
county or regional solid waste authority in the county where the
litter violation occurred. Moneys shall be expended by the county or regional solid waste authority for the purpose of litter
prevention, clean up and enforcement. The county commission shall
cooperate with the county or regional solid waste authority serving
the respective county to develop a coordinated litter control
program pursuant to section eight, article four, chapter twenty-
two-c of this code.
(e) The Commissioner of the Division of Motor Vehicles, upon
registering a motor vehicle or issuing an operator's or chauffeur's
license, shall issue to the owner or licensee, as the case may be,
a summary of this section and section fourteen, article fourteen,
chapter seventeen-c of the code.
(f) The Commissioner of the Division of Highways shall cause
appropriate signs to be placed at the state boundary on each
primary and secondary road, and at other locations throughout the
state, informing those entering the state of the maximum penalty
provided for disposing of litter in violation of subsection (a) of
this section.
(g) Any state agency or political subdivision that owns,
operates or otherwise controls any public area as may be designated
by the secretary by rule promulgated pursuant to subdivision (8),
subsection (a), section three of this article shall procure and
place litter receptacles at its own expense upon its premises and
shall remove and dispose of litter collected in the litter
receptacles. After receiving two written warnings from any law-
enforcement officer or officers to comply with this subsection or the rules of the secretary, any state agency or political
subdivision that fails to place and maintain the litter receptacles
upon its premises in violation of this subsection or the rules of
the secretary shall be fined fifteen dollars $30 per day of the
violation.
__________
(NOTE: The purpose of this bill is to increase civil and
criminal penalties for the crime of littering and to direct the
Secretary of the Department of Environmental Protection to
coordinate a state-wide litter reporting program.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.)