Senate Bill No. 480
(By Senators Grubb, Macnaughtan and Withers)
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[Introduced February 21, 1994;
referred to the Committee on the Judiciary;
and then to the Committee on Finance.]
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A BILL to amend chapter twenty of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, by adding
thereto a new article, designated article twelve, relating
to environmental protection; creating the office of
environmental advocate within the attorney general's office;
providing for the appointment of an advocate; prescribing
the powers and qualifications of the advocate; providing for
the administration and staffing of the advocate's office;
and authorizing an assessment against permit holders to
generate funds for the implementation of this article.
Be it enacted by the Legislature of West Virginia:
That chapter twenty of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, be amended by
adding thereto a new article, designated article twelve, to read
as follows:
ARTICLE 12. ENVIRONMENTAL ADVOCATE.
§20-12-1. Short title.
This article shall be known and cited as the "Environmental
Advocate Act."
§20-12-2. Legislative findings and purpose.
The Legislature finds that West Virginia's natural
environment is threatened by a myriad of pollution sources.
The Legislature further finds that:
(a) The protection and preservation of the state's natural
environment is a fundamental responsibility of state government.
(b) A clean environment is one of the cornerstones of
current and future economic development activities.
(c) State agencies and instrumentalities must often balance
competing interests in evaluating practices and policies that
impact the natural environment.
(d) Many times citizens are unable to afford the
representation necessary to adequately defend a threatened and
valuable environmental resource.
Therefore, it is the purpose of the Legislature to establish
an office of environmental advocate to ensure, to the maximum
extent possible, that the state's natural environment is defended
whenever and wherever necessary.
§20-12-3. Environmental advocate; oath of office; salary; office
location.
There is hereby created, under the authority of the attorney
general of the State of West Virginia, the office ofenvironmental advocate. Before entering upon the duties of this
office, the environmental advocate shall subscribe to an oath of
office, which shall be filed in the office of the secretary of
state. The salary of the environmental advocate shall be
determined by the attorney general. The office of the
environmental advocate shall be located in Charleston.
§20-12-4. General powers of advocate.
The environmental advocate has the powers and duties granted
under this article and all other powers necessary to carry out
the purposes of this article. Any enumeration of powers is not
intended to restrict the general powers of the environmental
advocate.
§20-12-5. Authority of advocate.
The environmental advocate has the authority to:
(a) Institute, intervene in, or otherwise participate in,
proceedings in state and federal courts, before administrative
agencies, and before any other body, concerning any act, order,
bill, resolution, practice, activity, or failure to act, that
will have an impact on the state's natural environment.
(b) Take any action he considers appropriate with respect to
environmental complaints.
(c) Institute, participate as an additional party in, or
intervene as a friend of the court in any proceeding involving an
impact on the state's natural environment.
(d) At the request of one or more citizens, or whenever in
the advocate's opinion the public interest is served, representsaid citizens in proceedings arising out of actions impacting the
natural environment.
(e) Exercise all the same rights and powers regarding
examination and cross-examination of witnesses, presentation of
evidence, and other matters as any party in interest appearing
before the agency or body in question.
(f) Educate the general public concerning environmental
protection; and
(g) Conduct studies and issue reports concerning various
topics relevant to protecting and preserving the state's natural
environment.
§20-12-6. Qualifications of advocate and employees of advocate.
(a) No person may be appointed environmental advocate unless
he or she is admitted to practice law in this state.
(b) The environmental advocate shall be a resident of this
state during the term of office, and shall not, during such
period, hold any other office of either trust or profit under the
government of the United States, this state, or any political
subdivision thereof. This section shall not be construed to
preclude the advocate from serving as a member of the reserve of
the armed forces of the United States, the West Virginia national
guard, the air national guard, or the naval militia. The
environmental advocate shall not engage in any other occupation
or business, but shall devote his or her entire time to the
duties of his or her office.
(c) No person who is in the employ of or acting in anofficial capacity with any company subject to a proceeding within
which the environmental advocate could become involved, or who is
pecuniarily interested in, or holds stocks or bonds of any such
company, or is a candidate for elective public office may be
appointed as advocate or be appointed or employed by the
advocate. If any such appointed or employed person becomes,
subsequent to his or her initial appointment or employment, the
owner of such stocks or bonds, or otherwise becomes pecuniarily
interested in such company, he or she shall divest himself or
herself, within a reasonable time period, of such ownership or
interest. If he or she fails to do so, his appointment or
employment shall be terminated. If any such appointed or
employed person becomes a candidate for elective public office
his or her tenure shall be terminated.
§20-12-7. Employees of environmental advocate; salaries;
contracts for outside services; funds.
(a) The environmental advocate may, during the term of
office, employ and fix the salaries of such lawyers, scientists,
engineers, geologists, statisticians, economists, clerks,
secretaries, stenographers, and other employees as are necessary
to carry out the purposes of this article. All employees of the
advocate and the expenses of the office of the environmental
advocate, shall be paid by the treasurer from the funds
appropriated for the use of the advocate after payment has been
approved by the advocate.
(b) The advocate may contract for the services oftechnically qualified persons in the area of environmental
protection to assist in carrying out the purposes of this
article. Such persons shall be paid from funds appropriated for
the use of the advocate after payment has been approved by the
advocate.
§20-12-8. Assessment for payment of all expenses incurred by the
advocate's office and the committee; adjustment of
assessments from surplus.
(a) For the sole purpose of paying salaries and expenses of
the office of environmental advocate, the attorney general shall
establish by rule an assessment or fee, and penalties for
nonpayment thereof, utilizing
an equitable
formula by which an
amount, based on pollution discharge permits and other
environmental permits, shall be assessed on every such permit
holder operating in this state. Such assessment shall be an
amount calculated to produce five hundred thousand dollars for
the fiscal year ending the thirtieth day of June, one thousand
nine hundred and ninety-one. Thereafter, such assessment shall
be in an amount equal to the appropriation for the office in each
fiscal year.
(b) Such fees shall be deposited in a special fund in the
state treasury designated the "Environmental Advocate Fund," to
be appropriated as provided by law for the purpose of paying the
salaries and expenses of the office of environmental advocate.
Any balance remaining in the fund at the end of any fiscal year
shall not revert to the treasury but shall remain in the fund andmay be appropriated and used as provided above in the ensuing
fiscal years.
NOTE: The purpose of this bill is to establish an office of
environmental advocate within the attorney general's office.
This is a new article, therefore strike-throughs and
underscoring have been omitted.