H. B. 4693
(By Delegates Staton, Amores, Hunt, Pino, Tomblin,
Riggs and L. White)
(Originating in the Committee on the Judiciary)
[March 2, l998]
A BILL to amend and reenact sections one and six, article one,
chapter twenty-two of the code of West Virginia, one thousand
nine hundred thirty-one, as amended, all relating generally to
allowing the department of environmental protection to promote
pollution reduction and elimination; allowing the director to
establish a program to assist businesses with pollution
reduction and elimination activities; granting the director
authority to propose legislative rules to implement the
pollution reduction and elimination program.
Be it enacted by the Legislature of West Virginia:
That sections one and six, article one, chapter twenty-two of
the code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted, all to read as follows:
ARTICLE 1.DIVISION OF ENVIRONMENTAL PROTECTION.
§22-1-1.Legislative findings; legislative statement of policy and
purpose.
(a)The Legislature finds that:
(1)Restoring and protecting the environment is fundamental to
the health and welfare of individual citizens, and our government
has a duty to provide and maintain a healthful environment for our
citizens.
(2)The state has the primary responsibility for protecting the
environment; other governmental entities, public and private
organizations and our citizens have the primary responsibility of
supporting the state in its role as protector of the environment.
(3)Governmental decisions on matters which relate to the use,
enhancement, preservation, protection and conservation of the
environment should be made after public participation and public
hearings.
(4)Efficiency in the wise use, enhancement, preservation,
protection and conservation of the environment can best be
accomplished by an integrated and interdisciplinary approach in
decision making and would benefit from the coordination,
consolidation and integration of state programs and agencies which
are significantly concerned with the use, enhancement,
preservation, protection and conservation of the environment.
(5)Those functions of government which regulate the
environment should be consolidated in order to accomplish the
purposes set forth in this article, to carry out the environmental
functions of government in the most efficient and cost effective
manner, to protect human health and safety and, to the greatest degree practicable, to prevent injury to plant, animal and aquatic
life, improve and maintain the quality of life of our citizens, and
promote economic development consistent with environmental goals
and standards.
(b)The Legislature declares that the establishment of a
division of environmental protection is in the public interest and
will promote the general welfare of the state of West Virginia
without sacrificing social and economic development. It is the
policy of the state of West Virginia, in cooperation with other
governmental agencies, public and private organizations, and the
citizens of this state, to use all practicable means and measures
to prevent or eliminate harm to the environment and biosphere, to
create and maintain conditions under which man and nature can exist
in productive harmony, and fulfill the social, economic and other
requirements of present and future generations. The purposes of
this chapter are:
(1)To strengthen the commitment of this state to restore,
maintain and protect the environment;
(2)To consolidate environmental regulatory programs in a
single state agency;
(3)To provide a comprehensive program for the conservation,
protection, exploration, development, enjoyment and use of the
natural resources of the state of West Virginia;
(4)To supplement and complement the efforts of the state by coordinating state programs with the efforts of other governmental
entities, public and private organizations and the general public;
to improve the quality of the environment, the public health and
public enjoyment of the environment, and the propagation and
protection of animal, aquatic and plant life, in a manner
consistent with the benefits to be derived from strong
agricultural, manufacturing, tourism and energy-producing
industries;
(5)Insofar as federal environmental programs require state
participation, to endeavor to obtain and continue state primacy in
the administration of such federally-mandated environmental
programs, and to endeavor to maximize federal funds which may be
available to accomplish the purposes of the state and federal
environmental programs and to cooperate with appropriate federal
agencies to meet environmental goals;
(6)To encourage the increased involvement of all citizens in
the development and execution of state environmental programs;
(7)To promote improvements in the quality of the environment
through research, evaluation and sharing of information;
(8)To improve the management and effectiveness of state
environmental protection programs;
and
(9)To increase the accountability of state environmental
protection programs to the governor, the Legislature and the public
generally
.;and
(10) To promote pollution prevention by encouraging reduction
or elimination of pollutants at the source through process
modification, material substitutions, in-process recycling,
reduction of raw material use or other source reduction
opportunities.
§22-1-6. Director of the division of environmental protection.
(a)The director is the chief executive officer of the
division. Subject to section seven of this article and other
provisions of law, the director shall organize the division into
such offices, sections, agencies and other units of activity as may
be found by the director to be desirable for the orderly, efficient
and economical administration of the division and for the
accomplishment of its objects and purposes. The director may
appoint assistants, hearing officers, clerks, stenographers and
other officers, technical personnel and employees needed for the
operation of the division and may prescribe their powers and duties
and fix their compensation within amounts appropriated therefore.
(b)The director has the power to and may designate supervisory
officers or other officers or employees of the division 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
director. Additionally, the director has the power to delegate, as he or she considers appropriate, to supervisory officers or other
officers or employees of the division his or her powers, duties,
authority and responsibility relating to issuing permits, hiring
and training inspectors and other employees of the division,
conducting hearings and appeals and such other duties and functions
set fourth in this chapter or elsewhere in this code.
(c)The director has responsibility for the conduct of the
intergovernmental relations of the division, including assuring:
(1) That the division 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 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)
The director has the authority to designate employees in
established programs within the division of environmental
protection to engage in bonafide pollution prevention and
compliance assistance activities as designated by the director
within the state. Disclosure to the enforcement or other division personnel is not required unless an imminent hazard to human health
or the environment exists. Pollution prevention and compliance
assistance may not interfere with current or future enforcement
actions by state or federal regulatory agencies even if such
assistance may result in compliance although the director may
modify agency enforcement actions in light of a facility's
implementation of pollution prevention and waste minimization
practices. The director shall propose for legislative
promulgation, legislative rules pursuant to article three, chapter
twenty-nine-a of this code to implement the provisions of this
subsection.
(d)(e)In addition to other powers, duties and responsibilities
granted and assigned to the director by this chapter, the director
is hereby authorized and empowered to:
(1)Sign and execute in the name of the state by the "division
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 director to enter into
agreements or contracts and to make expenditures and obligations of
public funds under this subdivision shall not exceed or be
interpreted as authority to exceed the powers heretofore 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 is charged with enforcing; to
serve and execute warrants and processes; to make arrest; issue
orders, which for the purposes of this chapter include consent
agreements; and to otherwise enforce the statutes or rules which
the division is charged with enforcing;
(4)Acquire for the state in the name of the "division of
environmental protection" by purchase, condemnation, lease or
agreement, or accept or reject for the state, in the name of the
division of environmental protection, gifts, donations,
contributions, bequests or devises of money, security or property,
both real and personal, and any interest in such 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 division. The director may also 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 director is further 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 director;
(6)Issue certifications required under 33 U.S.C. §1341. Prior
to issuing any such certification the director shall solicit from
the division of natural resources reports and comments concerning
the possible certification. The reports and comments shall be
directed from the division of natural resources to the director for
consideration; and
(7)Notwithstanding any provisions of this code to the
contrary, employ in-house counsel to perform all legal services for
the director and the division, including, but not limited to,
representing the director, any chief, the division or any office
thereof in any administrative proceeding or in any proceeding in
any state or federal court. Additionally, the director may call
upon the attorney general for legal assistance and representation
as provided by law.
(e)(f)The director 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
.:Provided, That in lieu of appointing
a director, the governor may order the secretary to directly
exercise the powers of the director. The secretary shall designate the order in which other officials of the division shall act for an
perform the functions of the secretary or the director during the
absence or disability of both the secretary and the director or in
the event of vacancies in both of those offices.
(f)(g)At the time of his or her initial appointment, the
director shall be at least thirty years old and shall 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 director shall have at least a bachelor's degree in a related
field and shall have 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 director will be
responsible upon assumption of the office of director. The
director shall not be a candidate for or hold any other public
office, shall not be a member of any political party committee and
shall immediately forfeit and vacate his or her office as director
in the event he or she becomes a candidate for or accepts
appointment to any other public office or political party
committee.
(g)(h)The director shall receive an annual salary of sixty-five
thousand dollars and shall be allowed and paid necessary expenses
incident to the performance of his or her official duties. Prior to the assumption of the duties of this or her office, the director
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 shall be filed in the office of the secretary of
state. Premiums on the bond shall be paid from the division funds.
NOTE: The purpose of this bill is to include pollution prevention in
the statement of policy and purpose for the division of environmental protection
and to provide the director the authority to designate pollution prevention
programs and maintain not disclose this information to others in the agency
unless an imminent hazard to human health or the environment exists, and to
maintain enforcement activities while encouraging pollution prevention and waste
minimization.
Strike-throughs indicate language that would be stricken from the
present law, and underscoring indicates new language that would be added.
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