Senate Bill No. 467
(By Senators Unger, Prezioso, Plymale, Jenkins, Foster,
Stollings, Hunter and Love)
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[Introduced January 28, 2008; referred to the Committee on
Natural Resources; and then to the Committee on Finance.]
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A BILL to amend and reenact §22-14-3, §22-14-15 and §22-14-19 of
the Code of West Virginia, 1931, as amended; and to amend said
code by adding thereto three new sections, designated
§22-14-20, §22-14-21 and §22-14-22, all relating to dam
safety; defining terms; providing for the establishment,
administration and management of the Dam Safety Rehabilitation
Revolving Fund; providing moneys for the fund; providing
eligibility requirements to receive loans from the fund;
providing rule-making authority; providing application
requirements for loans from the fund; establishing loan
agreement requirements; providing for collection of moneys due
the fund; providing authority to the Department of
Environmental Protection for deficient dams that are privately
owned by a noncompliant dam owner; and establishing civil penalties.
Be it enacted by the Legislature of West Virginia:
That §22-14-3, §22-14-15 and §22-14-19 of the Code of West
Virginia, 1931, as amended, be amended and reenacted; and that said
code be amended by adding thereto three new sections, designated
§22-14-20, §22-14-21 and §22-14-22, all to read as follows:
ARTICLE 14. DAM CONTROL ACT.
§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 that may affect its safety to be
determined by the secretary.
(b) "Application for a certificate of approval" means the
written application provided to the secretary requesting that a
person be issued a certificate of approval.
(c) "Appurtenant works" means any structure or facility that
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) "Authority" means the Water Development Authority provided
in section four, article one, chapter twenty-two-c of this code.
(d) (e) "Certificate of approval" means the written approval issued by the secretary to a person who has applied to the
secretary for a certificate of approval that 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) (f)(1) "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:
(A) 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
(B) 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;
(2) "Dam" does not mean:
(A) Any dam owned by the federal government;
(B) Any dam for which the operation and maintenance of the dam
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 that have no potential to cause loss of human life in the event of
embankment failure; or
(D) Roadfill or other transportation structures that do not or
will not impound water under normal conditions and that have a
designed culvert or similar conveyance or capacity that would be
used under a state designed highway at the same location:
Provided, That the secretary may apply the provisions of section
ten of this article for roadfill or other transportation structures
that become a hazard to human life or property through the frequent
or continuous impoundment of water.
(f) (g) "Deficient dam" means a noncoal-related dam that
exhibits one or more design, maintenance or operational problems
that may adversely affect the performance of the dam over a period
of time or during a major storm or other inclement weather that may
cause loss of life or property; or a noncoal-related dam that
otherwise fails to meet the requirements of this article.
(g) (h) "Department" means the Department of Environmental
Protection.
(h) (i) "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.
(j) "Noncompliant dam owner" means an owner who has received
two or more orders to repair or remove a deficient dam without
completion of such repairs or removal within timeframes established
by the secretary.
(i) (k) "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; a sanitary district; a public service district; a
drainage district; a conservation district; a watershed improvement
district; a partnership, trust, or estate; a person or individual;
a group of persons or individuals acting individually or as a
group; or any other legal entity. 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) (l) "Reservoir" means any basin which contains or will
contain impounded water.
(k) (m) "Secretary" means the Secretary of the Department of
Environmental Protection.
(l) (n) "Natural Resources Conservation Service" means the
Natural Resources Conservation Service of the United States
Department of Agriculture or any successor or predecessor agency, including the Soil Conservation Service.
(m) (o) "Water" means any liquid, including any solids or
other matter that may be contained in the liquid, which is or may
be impounded by a dam.
(n) (p) "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.
§22-14-15. 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 secretary, of not more than
two
hundred five thousand dollars for each day the violation continues,
not to exceed a maximum of
four hundred twenty thousand dollars.
In assessing any penalty, the secretary 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 proposed by the secretary
for legislative approval pursuant to article three, chapter
twenty-nine-a of this code. No assessment may 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
civil
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 secretary 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 secretary shall inform the alleged violator of the
time and place of the hearing. Within thirty days following the
informal hearing, the secretary 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 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 shall exceed
four hundred twenty
thousand 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)
A Any person who violates any provision of any certificate
issued under or subject to the provisions of this article is
subject to a civil penalty not to exceed twenty-five thousand
dollars per day of the violation and any person who violates any
provision of this article or of any rule or who violates any
standard or order promulgated or made and entered under the
provisions of this article is subject to a civil penalty not to
exceed twenty-five thousand dollars per day of the violation. Any
such civil penalty may be imposed and collected
in any only by a
civil action instituted by the secretary in the circuit court of
Kanawha County or in the county in which the violation or
noncompliance exists or is taking place.
Upon application by the secretary, 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 proposed 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
secretary or environmental quality board and the venue of any
action shall be in the circuit court of 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. In seeking an
injunction, it is not necessary for the secretary 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. An appeal shall be sought
in the manner provided by law for appeals from circuit courts in
other civil cases, except that the petition seeking review of an
order in any injunction proceeding must be filed with the Supreme
Court of Appeals within ninety days from the date of entry of the
judgment of the circuit court.
(d) Upon request of the secretary, the Attorney General or the
prosecuting attorney of the county in which the violation occurs,
shall assist the secretary in any civil action under this section.
(e) 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.
§22-14-19. Dam Safety Rehabilitation Revolving Fund established;
disbursement of fund moneys.
(a)
There is created in the State Treasury Under the direction
of the department, the authority shall establish, administer and
manage a special revenue fund known as the Dam Safety
Rehabilitation Revolving Fund. The fund shall be comprised of
money allocated to the state by the federal government expressly
for the purposes of establishing and maintaining a state Dam Safety
Rehabilitation Revolving Fund. The fund shall also include all
receipts from loans made by the fund, any moneys appropriated by
the Legislature, all income from the investment of moneys held in
the fund and all other moneys designated for deposit to the fund from any source, public or private. The fund shall operate as a
special revenue fund and all deposits and payments into the fund do
not expire to the General Revenue Fund, but shall remain in the
account and be available for expenditure in succeeding fiscal
years.
(b) The fund, to the extent that money is available, shall be
used solely to make loans to persons who own an interest in a
deficient dam
on the list of deficient dams created pursuant to
section twenty of this article to finance the engineering, design,
alteration, improvement, repair, breaching or removal of the
deficient dam necessary to correct or remove the deficiencies and
other activities as authorized by a federal grant,
or a legislative
appropriation
or by the secretary pursuant to section twenty-two of
this article. Further, The fund may
also be used to defray costs
incurred by the department
or the authority in administering the
provisions of this subsection.
(c) The secretary
shall in consultation with the authority may
promulgate rules, in accordance with the provisions of article
three, chapter twenty-nine-a of this code, to govern the
disbursement of moneys from the fund, establish a state deficient
dams rehabilitation assistance program to direct the distribution
of loans from the fund, establish criteria for eligibility to
receive loans from the fund and establish the terms and conditions
of the loans, including interest rates and repayment terms.
The secretary may initially promulgate rules or amendments to rules as
emergency rules pursuant to the provisions of said article.
(d) The secretary
and the authority may employ qualified
officers, agents, advisors and consultants and other persons
necessary to carry out the administration and management of the
fund.
(e) The authority may propose rules for legislative approval
in accordance with the provisions of article three, chapter
twenty-nine-a of this code to govern the pledge of loans to secure
bonds of the authority.
(f) Moneys belonging to the fund shall be kept in appropriate
depositories and secured in conformance with this code.
Disbursements from the fund shall be authorized for payment in
writing by the director of the authority or the director's
designee. Any depository or officer of the depository to which
moneys of the fund are paid shall act as trustee of the moneys and
shall hold and apply them solely for the purposes for which the
moneys are provided under this article. Moneys in the fund shall
not be commingled with other money of the authority. If not needed
for immediate use or disbursement, moneys in the fund may be
invested or reinvested by the authority in obligations or
securities which are considered lawful investments for public funds
under this code.
§22-14-20. Dam Safety Rehabilitation Revolving Fund program.
(a) The secretary shall develop a state list of deficient dams
using a priority ranking system based on factors designed by the
secretary. Only dams on the list of deficient dams are eligible
for a loan from the Dam Safety Rehabilitation Revolving Fund.
(b) The secretary shall develop an application including
eligibility requirements for persons applying for loans to correct
or remove deficient dams. The eligibility requirements shall
include at a minimum, that the:
(1) Dam is on the list of deficient dams;
(2) Person is in a state of readiness to proceed to planning,
design, or construction and expend loan payments in a timely
manner;
(3) Person has demonstrated the ability to repay the loan; and
(4) Person is in compliance with section five of this article.
(c) A person who owns an interest in a deficient dam on the
list of deficient dams may apply to the department for a loan from
the fund on forms designed and approved by the secretary.
(d) Following approval by the secretary of the application for
a loan and a determination by the secretary and the authority that
moneys are available for a loan, the secretary may direct the
authority to enter a loan agreement with the person submitting the
approved application.
(e) At the direction of the department pursuant to subsection
(d) of this section, the authority shall enter into a loan agreement with a person approved for a loan. The loan agreement is
binding under the laws of West Virginia and shall contain
provisions as required by the secretary, including:
(1) The cost of the project, the amount of the loan, and the
terms of repayment of the loan and the security for the loan, which
may include a deed of trust or other appropriate security
instrument creating a lien on the project or any other collateral
the secretary may require;
(2) The specific purposes for which the proceeds of the loan
are required to be expended, the procedures as to the disbursement
of loan proceeds including an estimated monthly draw schedule and
the duties and obligations imposed upon the applicant in regard to
the acquisition or construction of the project;
(3) The agreement of the applicant to repay the obligations of
the applicant under the loan agreement, including provisions that
revenue may be pledged for the repayment of the loan together with
all interest, fees and charges on the loan and all other financial
obligations of the applicant under the loan agreement;
(4) If notes or other interim obligations are being issued by
the applicant, the agreement of the applicant to take other
repayment actions that are required of the applicant under the loan
agreement;
(5) The agreement of the applicant to accept the authority's
enforcement remedies pursuant to section twenty-one of this article in the event of any default under the loan; and
(6) The agreement of the applicant to comply with all
applicable federal and state statutes and regulations and all
applicable local ordinances pertinent to the financing,
acquisition, design, construction, operation, maintenance and use
of the project.
(f)(1) If the secretary assumes full charge and responsibility
over a dam pursuant to section twenty-two of this article, and
seeks to expend money from the fund for the purpose of repairing or
removing a dam or taking other remedial action, the secretary
shall, prior to seeking a requisition from the fund, provide the
authority with the following information:
(A) The location of the dam;
(B) The owners of the dam; and
(C) The maximum amount estimated for repairing or removing the
dam or taking other remedial action.
(2) The authority shall then determine whether sufficient
moneys are available to satisfy the maximum amount estimated for
the dam and still meet all loan obligations of the fund.
(g) The obligation of the authority to enter into loan
agreements is conditioned on the availability of moneys in the fund
in amounts and on terms and conditions as, at the direction of the
secretary, will enable the authority to make loans.
(h) The ability of the secretary to use moneys in the fund pursuant to section twenty-two of this article is conditioned upon
the availability of moneys in the fund.
§22-14-21. Collection of money due to the fund.
(a) In order to ensure the timely payment of all sums due and
owing to the fund under a revolving fund loan agreement between the
state and a person, and notwithstanding any provisions of this code
to the contrary, the authority has and may, at its option, exercise
the following rights and remedies in the event of any default under
a loan agreement:
(1) The authority may directly impose, in its own name and for
its own benefit, service charges upon all users of a project funded
by a loan distributed pursuant to this article and may proceed
directly to enforce and collect service charges, together will all
necessary costs of the enforcement and collection.
(2) The authority may exercise, in its own name or in the name
of and as the agent for a person, all of the rights, powers and
remedies of the person with respect to the project or which may be
conferred upon the person by statute, rule, regulation or judicial
decision, including all rights and remedies with respect to users
of the project funded by the loan distributed to that person
pursuant to this article.
(3) The authority may, by civil action, mandamus or other
judicial or administrative proceeding, compel performance by a
person of all of the terms and conditions of the loan agreement, including:
(A) The adjustment of service charges as required to repay the
loan or otherwise satisfy the terms of the loan agreement;
(B) The enforcement and collection of service charges; and
(C) The enforcement of all rights and remedies conferred by
statute, rule, regulation or judicial decision, including, but not
limited to, all rights associated with a security or other interest
in real or personal property with the right to foreclose upon a
default under a loan agreement.
(4) The rights and remedies enumerated in this section are in
addition to rights and remedies conferred upon the authority by law
or pursuant to the loan agreement.
§22-14-22. Authority of Department of Environmental Protection for
deficient dams that are privately owned by a
noncompliant dam owner.
(a) The secretary may assume full charge and responsibility
over a dam and is authorized to expend money from the Dam Safety
Rehabilitation Revolving Fund for the purpose of repair or removal
of the dam or other remedial action, if:
(1) The dam is a deficient dam;
(2) The dam is privately owned; and
(3) The owner is a noncompliant dam owner.
(b) All costs incurred by the secretary to repair or remove
the dam or take other remedial action shall be promptly repaid by the owner upon request or, if not repaid, the secretary may recover
costs and damages from the owner by appropriate civil action.
Moneys obtained from the such civil action shall be promptly
deposited in the fund.
NOTE: The purpose of this bill is to re-authorize and make
technical changes to the Dam Safety Rehabilitation Revolving Fund
and the loan program to be implemented by the Department of
Environmental Protection and to provide the Department with
additional mechanisms to promote dam safety.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
§22-14-20, §22-14-21 and §22-14-22 are new; therefore,
strike-throughs and underscoring have been omitted.