COMMITTEE SUBSTITUTE
FOR
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 206
(By Senators Oliverio, Dempsey, Fanning, Foster,
Hunter, Jenkins, Kessler, Barnes, Weeks, Unger,
McKenzie, McCabe and Sharpe)
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[Originating in the Committee on Finance;
reported March 1, 2006.]
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A BILL to amend and reenact §7-1-3u of the Code of West Virginia,
1931, as amended; to amend and reenact §21-9-4 and §21-9-12 of
said code; and to amend and reenact §24-2-2 of said code, all
relating to floodplain management and flood debris generally;
requiring floodplain management plans to regulate new
construction, placement of manufactured housing and storage of
materials which may become flood debris or present additional
flood hazards; requiring local governments to establish
process for approval of construction or installation of
residence or business in floodplain; authorizing reasonable
fee for services provided by local government; requiring local
governments establish penalties for violations of floodplain
management ordinances or plans; authorizing division of labor to regulate installation of manufactured housing in regulated
floodplains; authorizing rulemaking; requiring licensed
dealers and installers of manufactured housing obtain
certificate of approval for installation of homes in regulated
floodplains; providing for record keeping; providing for
penalties; prohibiting connection of electric service to new
construction of a residence or business or installation or
relocation of manufactured housing in regulated floodplain
without local government approval; requiring landowner to show
proof of local government approval to electrical inspector or
provide certification number; establishing certain
requirements for filing complaints with the public service
commission; and requiring rulemaking by pubic service
commission.
Be it enacted by the Legislature of West Virginia:
That §7-1-3u of the Code of West Virginia, 1931, as amended,
be amended and reenacted; that §21-9-4 and §21-9-12 of said code be
amended and reenacted; and that §24-2-2 of said code be amended and
reenacted, all to read as follows:
CHAPTER 7. COUNTY COMMISSIONS AND OFFICERS.
ARTICLE 1. COUNTY COMMISSIONS GENERALLY.
§7-1-3u. Authority of counties and municipalities to treat streams
to prevent floods.
(a) To protect people and property from floods, counties and
municipalities are hereby empowered
, unless otherwise prohibited by
state or federal law, to rechannel and dredge streams; remove accumulated debris, snags, sandbars, rocks and any other kinds of
obstructions from streams; straighten stream channels; and carry
out erosion and sedimentation control measures and programs.
(b) For stream treatment to prevent floods as provided in this
section, counties and municipalities are hereby further empowered
to levy, within all constitutional and statutory limitations;
acquire property by purchase, exercise of the right of eminent
domain, lease, gift or grant; accept any and all benefits, moneys,
services and assistance which may be available from the federal and
state government or any private source; issue and sell bonds within
the constitutional and statutory limitations prescribed by law for
the issuance and sale of bonds by counties and municipalities for
public purposes generally. Any such levy shall be equal and
uniform throughout the county or municipality.
(c) The power and authority granted in this section may be
exercised by any county or municipality in cooperation with each
other or separately as provided in section three-i of this article.
Any county or municipality which exercises any power or authority
set forth in this section shall comply with all applicable
provisions of federal and state laws and rules and regulations
lawfully promulgated thereunder.
(d) Each county commission and municipal governing body shall,
as part of its floodplain management plan or ordinance, on before
June thirtieth, two thousand seven, regulate the location of any
building, manufactured housing or recreational vehicle, whether
permanent or temporary, utilized for a business, residence, vacation home or camp and storage of hazardous materials,
outbuildings, private culverts, pipes and fuel oil and propane
tanks within the regulated floodplain as defined by the county or
municipal ordinance or flood management plan as approved by the
Federal Emergency Management Agency: Provided, That the Division
of Highways' bridges, culverts and railroad trestles are excluded
from this requirement:
Provided, however, That the authority
granted in this section to county commissions and municipal
governing bodies shall not extend to any equipment or activities
related to the exploration, production, development, storage or
transmission or oil or natural gas.
(1) The county commission or municipal governing body may
prohibit such structures and materials in the regulated floodplain
or require such structures and materials to be elevated above the
level of the regulated floodplain on reinforced piers, securely
anchored to a fixed structure on a permanent foundation, relocated
out of the regulated floodplain or utilize other appropriate
measures designed to keep such items out of streams, resist
expected flood waters and impact from debris.
(2) Each county commission and municipal governing body shall
establish and enforce penalties for violations of its floodplain
management plan and any applicable ordnance.
(3) Each county commission and municipal governing body shall
establish a process for certifying whether proposed construction or
installation of any public or private business or residence is
located in the regulated floodplain designated on floodplain maps or based on other credible, reliable information available to the
county or municipal floodplain manager. A reasonable fee shall be
established to cover the cost of making the certification.
(4) Each county commission and municipal governing body shall
establish a process for approving construction of a business or
residence or installation of manufactured housing in the regulated
floodplain. Any new construction or installation in the regulated
floodplain shall, at a minimum, meet the standards for construction
of a building for business or residential purposes or location of
manufactured housing in a floodplain published by the Federal
Emergency Management Agency or the United States Department of
Housing and Urban Development Authority, which ever is more
protective of human health and safety. More stringent standards
which have been adopted by a county or municipal government when
necessary to protect the health, safety and welfare of the citizens
of this state shall remain in full force and effect until amended
or repealed by the county commission or municipal government.
Reasonable fees shall be established to cover the cost of approving
construction or installation in the regulated floodplain and any
additional services provided by the local government such as
engineering design, surveying and inspecting the site, construction
or installation: Provided, That the fees may be waived on a case
by case basis by the county commission or municipal governing body.
(5) A county commission or municipal governing body may
authorize and approve private contractors or professional surveyors
to conduct the inspections and issue the certification or approval required by this subsection.
(6) A county commission or municipal governing body that
allows new or relocated businesses or residents to locate in the
regulated floodplain shall develop a procedure for issuing
certificates and design approvals to the businesses and residents
in a timely manner prior to the electrical inspection being
conducted at the business or residence. The procedure shall be
integrated with the system for electrical inspections prior to
connection of electric utility service to the business or
residence.
(7) A county commission or municipal governing body that
allows businesses or residents to locate in the regulated
floodplain shall require the property owner to obtain adequate
flood insurance: Provided, That the county commission or municipal
governing body may exempt any business which would not suffer undue
financial loss as the result of a flood: Provided, however, That
no such exemption may be granted if it would jeopardize receipt of
federal assistance after a flood.
(e) The term "stream" as used in this section means any
watercourse, whether natural or man-made, distinguishable by banks
and a bed, regardless of their size, through which water flows
continually or intermittently, regardless of its volume.
CHAPTER 21. LABOR.
ARTICLE 9. MANUFACTURED HOUSING CONSTRUCTION AND SAFETY STANDARDS.
§21-9-4. General powers and duties; persons adversely affected
entitled to hearing.
(a) The board shall have the power to:
(1) Regulate its own procedure and practice;
(2) Propose rules for legislative approval in accordance with
the provisions of article three, chapter twenty-nine-a of this
code, to implement the provisions of this article and the federal
standards;
(3) Advise the commissioner in all matters within his
jurisdiction under this article;
(4) Prepare and submit to HUD a state plan application seeking
the designation of the board as a state administrative agency for
the purpose of administering and enforcing the federal standards
and take all other action necessary to enable the board to serve as
a state administrative agency;
(5) Study and report to the governor and the Legislature on
matters pertinent to the manufacture, distribution and sale of
manufactured housing in this state and recommend changes in the law
determined by the board to be necessary to promote consumer safety
and protect purchasers of manufactured housing;
(6) Conduct hearings and presentations of views consistent
with its rules and the federal standards;
(7) Approve or disapprove applications for licenses to
manufacturers, dealers, distributors and contractors in accordance
with section nine of this article, and revoke or suspend licenses
in accordance with that section, and set the amounts of license
fees and bonds or other forms of assurance in accordance with
sections nine and ten of this article;
(8) Delegate to and authorize the commissioner to exercise the
powers and duties of the board that the board may determine,
including without limitation, the authority to approve, disapprove,
revoke or suspend licenses in accordance with section nine of this
article;
(9) Require all new or previously owned manufactured homes
being installed in a floodplain area in this state after the
amendment and reenactment of this section during the two thousand
six legislative session to be sufficiently secured to prevent the
home from being separated from its foundation or location during a
flood.
(A) The board shall promulgate a rule in accordance with the
provisions of chapter twenty-nine, article three of this code to
implement the requirements of this subdivision.
(B) The board shall adopt standards which are no less
stringent than the standards published by the Federal Emergency
Management Agency. More stringent standards may be adopted when
necessary to protect the health, safety and welfare of the citizens
of this State.
(C) The rule shall require licensed dealers and installers to
obtain from the homeowner or obtain on behalf of the homeowner a
certificate from the county or municipal floodplain manager or
licensed engineer approved by the local floodplain manager that the
proposed home site is not in the regulated floodplain or that the
installation design has been approved by the local floodplain
manager, licensed professional surveyor or a licensed engineer approved by the local floodplain manager, for site specific
flooding conditions.
(D) A copy of the site certification or installation approval
shall be maintained in a safe location by the licensed dealer or
installer for a minimum of seven years.
(E) The board shall require and provide all licensed dealers
and installers of manufactured housing information and practical
guidance and require regular training detailing the floodplain
installation requirements set forth in this subdivision or other
requirements required by a federal, state or local government.
(F) In addition to any other penalties provided by law, any
person failing to comply with the provisions of this section is in
violation of the applicable county or municipal floodplain
management plan and any applicable ordnance.
(b) Any person adversely affected by a decision of the board
or the commissioner shall be afforded an opportunity for hearing
before the board in accordance with section one, article five,
chapter twenty-nine-a of this code.
§21-9-12. Violation of article; penalties; injunction.
(a) Any person who violates any of the following provisions
relating to manufactured homes or any legislative rule proposed by
the board pursuant to the provisions of this article, is liable to
the state for a penalty, as determined by the board, not to exceed
one thousand dollars for each violation. Each violation
constitutes a separate violation with respect to each manufactured
home, except that the maximum penalty may not exceed one million dollars for any related series of violations occurring within one
year from the date of the first violation. No person may:
(1) Manufacture for sale, lease, sell, offer for sale or
lease, or introduce or deliver, or import into this state any
manufactured home which is manufactured on or after the effective
date of any applicable standard established by a rule promulgated
by the board pursuant to the provisions of this article, or any
applicable federal standard, which does not comply with that
standard.
(2) Fail or refuse to permit access to or copying of records,
or fail to make reports or provide information or fail or refuse to
permit entry or inspection as required by the provisions of this
article.
(3) Fail to furnish notification of any defect as required by
the provisions of 42 U. S. C. §5414.
(4) Fail to issue a certification required by the provisions
of 42 U. S. C. §5415 or issue a certification to the effect that a
manufactured home conforms to all applicable federal standards,
when the person knows or in the exercise of due care would have
reason to know that the certification is false or misleading in a
material respect.
(5) Fail to establish and maintain records, make reports, and
provide information as the board may reasonably require to enable
the board to determine whether there is compliance with the federal
standards; or fail to permit, upon request of a person duly
authorized by the board, the inspection of appropriate books, papers, records and documents relative to determining whether a
manufacturer, dealer, distributor or contractor has acted or is
acting in compliance with the provisions of this article or
applicable federal standards.
(6) Issue a certification pursuant to the provisions of 42 U.
S. C. §5403(a), when the person knows or in the exercise of due
care would have reason to know that the certification is false or
misleading in a material respect.
(7) Violate the provisions of subdivision (9), subsection (a),
section four of this article. Any person found guilty of such
violation will be subjected to double the maximum penalty provided
by this section and disciplinary action by the board.
(b) Subdivision (1), subsection (a) of this section does not
apply to:
(1) The sale or the offer for sale of any manufactured home
after the first purchase of it in good faith for purposes other
than resale;
(2) Any person who establishes that he did not have reason to
know in the exercise of due care that the manufactured home is not
in conformity with applicable federal standards; or
(3) Any person who, prior to the first purchase, holds a
certificate by the manufacturer or importer of the manufactured
home to the effect that the manufactured home conforms to all
applicable federal standards, unless that person knows that the
manufactured home does not conform to those standards.
(c) Any manufacturer, dealer, distributor or contractor who engages in business in this state without furnishing a bond or
other form of assurance as required by the provisions of this
article is guilty of a misdemeanor and, upon conviction thereof,
shall be fined not more than fifty dollars for each day the
violation continues.
(d) The board may institute proceedings in the circuit court
of the county in which the alleged violation occurred or are
occurring to enjoin any violation of the provisions of this
article.
(e) Any person or officer, director, partner or agent of a
corporation, partnership or other entity who willfully or knowingly
violates any of the provisions listed in subsection (a) of this
section in any manner which threatens the health or safety of any
purchaser is guilty of a misdemeanor and, upon conviction thereof,
shall be fined not more than one thousand dollars or confined in
the county or regional jail for a period of not more than one year,
or both fined and imprisoned.
(f) Nothing in this article applies to any bank or financial
institution engaged in the disposal of foreclosed or repossessed
manufactured homes.
CHAPTER 24. PUBLIC SERVICE COMMISSION.
ARTICLE 2. POWERS AND DUTIES OF PUBLIC SERVICE COMMISSION.
§24-2-2. General power of commission to regulate public utilities.
(a) The commission is hereby given power to investigate all
rates, methods and practices of public utilities subject to the
provisions of this chapter; to require them to conform to the laws of this state and to all rules, regulations and orders of the
commission not contrary to law; and to require copies of all
reports, rates, classifications, schedules and timetables in effect
and used by the public utility or other person, to be filed with
the commission, and all other information desired by the commission
relating to the investigation and requirements, including
inventories of all property in such form and detail as the
commission may prescribe. The commission may compel obedience to
its lawful orders by mandamus or injunction or other proper
proceedings in the name of the state in any circuit court having
jurisdiction of the parties or of the subject matter, or the
Supreme Court of Appeals Direct, and the proceedings shall have
priority over all pending cases. The commission may change any
intrastate rate, charge or toll which is unjust or unreasonable or
any interstate charge with respect to matters of a purely local
nature which have not been regulated by or pursuant to an act of
Congress and may prescribe a rate, charge or toll that is just and
reasonable, and change or prohibit any practice, device or method
of service in order to prevent undue discrimination or favoritism
between persons and between localities and between commodities for
a like and contemporaneous service. But in no case shall the rate,
toll or charge be more than the service is reasonably worth,
considering the cost of the service. Every order entered by the
commission shall continue in force until the expiration of the
time, if any, named by the commission in the order, or until
revoked or modified by the commission, unless the order is suspended, modified or revoked by order or decree of a court of
competent jurisdiction:
Provided, That in the case of utilities
used by emergency shelter providers, the commission shall prescribe
such rates, charges or tolls that are the lowest available.
"Emergency shelter provider" means any nonprofit entity which
provides temporary emergency housing and services to the homeless
or to victims of domestic violence or other abuse.
(b) Notwithstanding any other provision of this code to the
contrary, rates are not discriminatory if, when considering the
debt costs associated with a future water or sewer project which
would not benefit existing customers, the commission establishes
rates which ensure that the future customers to be served by the
new project are solely responsible for the debt costs associated
with the project.
(c) The commission shall, after the thirtieth day of June, two
thousand seven, prohibit any electric utility from providing
service to any newly constructed public or private building or new
installation or relocation of manufactured housing, to be used for
commercial or dwelling purposes, until the building or property
owner or his or her designee provides the electrical inspector
authorized by the electric utility to conduct inspections in that
service area, with a certificate that the building or manufactured
housing is not in the regulated floodplain, as determined by the
county commission or municipal governing body. If the building or
manufactured housing is in the regulated floodplain, certification
that the construction, engineering and installation design have been approved by the county or municipal floodplain manager for
site specific flooding conditions. In any area that does not have
an electrical inspector, the homeowner shall provide a floodplain
certificate number to the utility at the time the request for
service is made. It is not the responsibility of the utility to
obtain for the customer the floodplain certification or
construction, engineering or installation design approval. It is
the responsibility of the customer, at the time a complaint for
failure to timely provide service due to the requirements of this
subsection is filed, to provide the commission with a floodplain
certificate or design approval required in this subsection.
Failure to provide the floodplain certificate or design approval
will result in rejection of the complaint prior to requiring a
response from the utility. The commission shall allow a complaint
to be filed at a later date if the customer provides the floodplain
certificate or design approval required by this subsection.