SB395 H JUD AM #1 3-1

Casto 3264

 

The Committee on the Judiciary moves to amend the bill on page one, by striking out everything after the enacting clause and inserting in lieu thereof the following:

ARTICLE 1. GENERAL POLICY AND PURPOSE.


§22B-1-9. General provisions for judicial review.

(a) Any person, or the Secretary, as the case may be, adversely affected by an order made and entered by a board after an appeal hearing, held in accordance with the provisions of this chapter, is entitled to judicial review thereof. All of the provisions of §29A-5-4 of this code apply to and govern the review with like effect as if the provisions of that section four were set forth in extenso in this section, with the modifications or exceptions set forth in this chapter: Provided, that the exceptions set forth in §22B-2-3, §22B-3-3 and §22B-4-3 apply.

 (b) The filing of a petition of appeal under the provisions of this chapter does not automatically stay or suspend the effectiveness or execution of the order, permit or official action pending appeal.  The board shall file with the clerk of the court wherein the petition for appeal is filed all papers, documents, evidence and other records comprising the complete record in the case, or certified copies thereof, as were before the board at the time of the entry of the order from which the appeal is taken.

(c) Notwithstanding any provisions of this code to the contrary, the Secretary may employ in-house legal counsel to perform all legal services for the Department and Secretary or any director, chief or division therein in all proceedings made under the provisions of this chapter, including those in any administrative proceeding or before any state or Federal court.  Additionally, the Secretary may call upon the Attorney General for any legal assistance and representation as provided by law.

ARTICLE 2. AIR QUALITY BOARD.


§22B-2-3. Judicial review of air quality board orders.

All of the provisions of §22B-1-9 of this code apply to and govern such review with like effect as if the provisions of said that section nine were set forth in extenso in this section, with the following modifications or exceptions:

(1 a) As to cases involving an order denying an application for a permit, or approving or modifying the terms and conditions of a permit, the petition for review shall be filed in the circuit court of Kanawha County Supreme Court of Appeals within 30 days of the board’s order: Provided, That, if all parties consent to it, the proceedings may continue in the Circuit Court of Kanawha County; and

(2 b) As to all other cases, the petition shall be filed in the circuit court of the county wherein the alleged statutory air pollution complained of originated or in Kanawha County upon agreement between the parties.


ARTICLE 3. ENVIRONMENTAL QUALITY BOARD.


§22B-3-3. Judicial review.

All of the provisions of §22B-1-9 of this code apply to and govern such review with like effect as if the provisions of said that section nine were set forth in extenso in this section, with the following modifications or exceptions:

(1 a) As to cases involving an order denying an application for a permit, or approving or modifying the terms and conditions of a permit, the petition shall be filed in the circuit court of Kanawha County Supreme Court of Appeals within 30 days of the board’s order: Provided, That, if all parties consent to it, the proceedings may continue in the Circuit Court of Kanawha County;

(2 b) As to cases involving an order revoking or suspending a permit, the petition shall be filed in the circuit court of Kanawha County; and

(3 c) As to cases involving an order directing that any and all discharges or deposits of solid waste, sewage, industrial wastes or other wastes, or the effluent therefrom, determined to be causing pollution be stopped or prevented or else that remedial action be taken, the petition shall be filed in the circuit court of the county in which the establishment is located or in which the pollution occurs.


ARTICLE 4. SURFACE MINE BOARD.


§22B-4-3. Judicial review.

All of the provisions of §22B-1-9 of this code apply to and govern such review with like effect as if the provisions of that said section nine were set forth in extenso in this section. except the petition shall be filed in the circuit court of Kanawha County or the county in which the surface-mining operation is located with the following modifications or exceptions:

(a) As to cases involving an order denying an application for a permit, or approving or modifying the terms and conditions of a permit, the petition shall be filed in the Supreme Court of Appeals within 30 days of the board’s order: Provided, That, if all parties consent to it, the proceedings may continue in the Circuit Court of Kanawha County;

(b) As to all other cases, the petition shall be filed in the circuit court of Kanawha County or in the county wherein the surface mining operation is located.