COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 440
(By Senator Ross)
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[Originating in the Committee on Judiciary;
reported February 12, 1999.]
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A BILL to amend and reenact sections five, six and fifteen, article
five, chapter twenty-two of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, all relating to
making the issuance of a cease and desist order optional;
clarifying the criminal penalty for the knowing
misrepresentation of a material fact in a report or other
document; and making the promulgation of rules pertaining to
motor vehicle emissions optional instead of mandatory.
Be it enacted by the Legislature of West Virginia:
That sections five, six and fifteen, article five, 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 5. AIR POLLUTION CONTROL.
§22-5-5. Issuance of cease and desist orders by director; service;
permit suspension, modification and revocation; appeals to
board.
If, from any investigation made by the director or from any
complaint filed with him or her, the director is of the opinion
that a person is violating the provisions of this article, or any
rules promulgated pursuant thereto, he or she shall make and enter
an order directing such the person to cease and desist such the
activity, unless the director determines the violation is of a
minor nature or the violation has been abated. The director shall
fix a reasonable time in such order by which such the activity must
stop or be prevented. The order shall contain the findings of fact
upon which the director determined to make and enter such the
order.
If, after any investigation made by the director, or from any
complaint filed with him or her, the director is of the opinion
that a permit holder is violating the provisions of this article,,
or any rules promulgated pursuant thereto, or any order of the
director, or any provision of a permit, the director may issue notice of intent to suspend, modify or revoke and reissue such
permit. Upon notice of the director's intent to suspend, modify or
revoke a permit, the permit holder may request a conference with
the director to show cause why the permit should not be suspended,
modified or revoked. The request for conference must be received
by the director within fifteen days following receipt of notice.
After conference or fifteen days after issuance of notice of
intent, if no conference is requested, the director may enter an
order suspending, modifying or revoking the permit and send notice
to the permit holder. Such order is a cease and desist order for
purposes of administrative and judicial review and shall contain
findings of fact upon which the director determined to make and
enter
such the order. If an appeal of the director's order is
filed, the order of the director shall be stayed from the date of
issuance pending a final decision of the board.
The director shall cause a copy of any such order to be served
upon such the person by registered or certified mail or by any
proper law-enforcement officer.
Any person upon whom a copy of such the final order has been
served may appeal such order to the air quality board pursuant to
the provisions of article one, chapter twenty-two-b of this code.
§22-5-6. Penalties; recovery and disposition; duties of
prosecuting attorneys.
(a) Any person who violates any provision of this article, any
permit or any rule or order issued pursuant to this article or
article one, chapter twenty-two-b of this code is subject to a
civil penalty not to exceed ten thousand dollars for each day of
such violation, which penalty shall be recovered in a civil action
brought by the director in the name of the state of West Virginia
in the circuit court of any county wherein such the person resides
or is engaged in the activity complained of or in the circuit court
of Kanawha County. The amount of the penalty shall be fixed by the
court without a jury: Provided,
That any such person is not
subject to such civil penalties unless such the person has been
given written notice thereof by the director: Provided, however,
That for the first such minor violation, if such the person
corrects the violation within such the time as was specified in the
notice of violation issued by the director, no such civil penalty
may be recovered: Provided further,
That if such the person fails
to correct such a minor violation or for any serious or subsequent
serious or minor violation, such the person is subject to civil
penalties imposed pursuant to this section from the first day of such the violation notwithstanding the date of the issuance or
receipt of the notice of violation. The director shall, by rule
subject to the provisions of chapter twenty-nine-a of this code,
determine the definitions of serious and minor violations. The
amount of any
such penalty collected by the director shall be
deposited in the general revenue of the state treasury according to
law.
(b) (1) Any person who knowingly misrepresents any material
fact in an application, record, report, plan or other document
filed or required to be maintained under the provisions of this
article or any rules promulgated under this article is guilty of a
misdemeanor and, upon conviction thereof, shall be fined not more
than twenty-five thousand dollars or imprisoned in the county jail
not more than six months or both fined and imprisoned: Provided,
That if the violation occurs on separate days or is continuing in
nature, the fine shall be no more than twenty-five thousand dollars
for each day of such violation.
(2) Any person who knowingly violates any provision of this
article, any permit or any rule or order issued pursuant to this
article or article one, chapter twenty-two-b of this code is guilty
of a misdemeanor and, upon conviction thereof, shall be fined not more than twenty-five thousand dollars for each day of such
violation or imprisoned in the county jail not more than one year
or both fined and imprisoned.
(c) Upon a request in writing from the director it is the duty
of the attorney general and the prosecuting attorney of the county
in which any such action for penalties accruing under this section
or section seven of this article may be brought to institute and
prosecute all such actions on behalf of the director.
(d) For the purpose of this section, violations on separate
days are separate offenses.
§22-5-15. Motor vehicle pollution, inspection and maintenance.
(a) As the state of knowledge and technology relating to the
control of emissions from motor vehicles may permit or make
appropriate and in furtherance of the purposes of this article, the
director may provide by legislative rule for the control of
emissions from motor vehicles. Such The legislative rule may
prescribe requirements for the installation and use of equipment
designed to reduce or eliminate emissions and for the proper
maintenance of such equipment and of vehicles. Any legislative
rule pursuant to this section shall be consistent with provisions
of federal law, if any, relating to control of emissions from the vehicles concerned. The director shall not require, as a condition
precedent to the initial sale of a vehicle or vehicular equipment,
the inspection, certification or other approval of any feature or
equipment designed for the control of emissions from motor
vehicles, if such feature or equipment has been certified, approved
or otherwise authorized pursuant to federal law.
(b) Except as permitted or authorized by law or legislative
rule, no person shall fail to maintain in good working order or
remove, dismantle or otherwise cause to be inoperative any
equipment or feature constituting an operational element of the air
pollution control system or mechanism of a motor vehicle required
by rules of the director to be maintained in or on the vehicle.
Any such failure to maintain in good working order or removal,
dismantling or causing of in operability subjects the owner or
operator to suspension or cancellation of the registration for the
vehicle by the department of transportation, division of motor
vehicles. The vehicle is not thereafter eligible for registration
until all parts and equipment constituting operational elements of
the motor vehicle have been restored, replaced or repaired and are
in good working order.
(c) The department of transportation, division of motor vehicles, department of administration, information and
communication services division and the
department of public safety
state police shall make available technical information and records
to the director to implement the legislative rule regarding motor
vehicle pollution, inspection and maintenance. The director
shall
may promulgate a legislative rule establishing motor vehicle
pollution, inspection and maintenance standards and imposing an
inspection fee at a rate sufficient to implement the motor vehicle
inspection program
and shall do so when required pursuant to
federal law regarding attainment of ambient air quality standards.
(d) The director shall may promulgate a legislative rule
requiring maintenance of features of equipment in or on motor
vehicles for the purpose of controlling emissions therefrom and
shall do so when required pursuant to federal law regarding
attainment of ambient air quality standards, and no motor vehicle
may be issued a division of motor vehicles registration
certificate, or the existing registration certificate shall be
revoked, unless the motor vehicle has been found to be in
compliance with the director's legislative rule.
(e) The remedies and penalties provided in this section and
section one, article three, chapter seventeen-a of this code, apply to violations hereof and the provisions of sections six or seven of
this article do not apply thereto.
(f) As used in this section "motor vehicle" has the same
meaning as in chapter seventeen-c of this code.
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(NOTE: The purpose of this bill is to make the issuance of a
cease and desist order optional instead of mandatory; to clarify
that the criminal penalty related to the knowing misrepresentation
of a material fact in a report or other document is a maximum
penalty of $25,000.00 for each day of such violation; and to make
the promulgation of any rules pertaining to emissions from motor
vehicles optional instead of mandatory.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.)