ENROLLED
COMMITTEE SUBSTITUTE
FOR
H. B. 2222
(By Delegates Campbell and Mahan)
[Passed March 20, 2001; in effect ninety days from passage.]
AN ACT to repeal section twenty-eight, article seven, chapter
twenty of the code of West Virginia, one thousand nine
hundred thirty-one, as amended; to amend and reenact section
three-ff, article one, chapter seven of said code; to amend
article fourteen, chapter seventeen-c of said code by adding
thereto a new section, designated section fourteen; and to
amend and reenact sections twenty-four and twenty-six,
article seven, chapter twenty of said code, all relating to
litter generally; authorizing county commissions to hire
litter control officers; making it a crime to throw litter
from a motor vehicle or other conveyance; assessing three
points against driver's license; creating presumption of
responsibility when more than one person is in vehicle;
requiring division of motor vehicles promulgate a rule;
defining terms; making it a misdemeanor to litter on public
or private property or waters of the state; creating fines and community service penalties for certain violations;
establishing jail sentence for certain violations; providing
that landowners, renters and lessees are not restricted in
lawful use of property; creating exceptions for permitted
industrial discharges; prohibiting litter near waters of the
state and providing exception; providing for verification of
community service litter cleanup; establishing presumption
of intent if litter is thrown from motor vehicle, boat,
airplane or other conveyance; providing for enforcement;
creating presumption of ownership if identifying information
found in litter; creating exemption for logos and
trademarks; increasing civil penalties for litter
conviction; directing moneys from civil penalties to go to
litter control fund and county and regional solid waste
authorities; requiring solid waste authorities expend funds
for litter prevention, cleanup and enforcement; requiring
the division of highways to erect signs throughout the state
setting forth the penalties for littering; requiring the
division of motor vehicles to provide summary of litter law
when registering a motor vehicle or issuing an operator's or
chauffeur's license; authorizing certain state agencies and
political subdivisions to place litter receptacles in public
areas and establishing penalties for failure to do so; and
clarifying that solid waste authorities may expend any
available funds to operate solid waste facilities, litter control programs and recycling programs.
Be it enacted by the Legislature of West Virginia:
That section twenty-eight, article seven, chapter twenty of
the code of West Virginia, one thousand nine hundred thirty-one,
as amended, be repealed; that section three-ff, article one,
chapter seven of said code be amended and reenacted; that article
fourteen, chapter seventeen-c of said code be amended by adding
thereto a new section, designated section fourteen; that sections
twenty-four and twenty-six, article seven, chapter twenty of said
code be amended and reenacted; and to amend and reenact section
twenty-three, article four, chapter twenty-two-c, all to read as
follows:
CHAPTER 7. COUNTY COMMISSIONS AND OFFICERS.
ARTICLE 1. COUNTY COMMISSIONS GENERALLY.
§7-1-3ff. Authority of county commission to enact ordinances
regulating the repair, alteration, improvement, vacating,
closing, removal or demolition of unsafe or unsanitary
structures and the clearance and removal of refuse, debris,
overgrown vegetation, toxic spills or toxic seepage on
private land; authority to create enforcement agency;
procedure for complaints; promulgation of rules governing
investigation and hearing of complaints; remedies for
failure to comply with commission-ordered repairs or
alterations; lien and sale of land to recover costs; entry on land to perform repairs and alterations or to satisfy
lien; receipt of grants and subsidies.
(a) Plenary power and authority are hereby conferred upon
every county commission to adopt ordinances regulating the
repair, alteration or improvement, or the vacating and closing or
removal or demolition, or any combination thereof, of any
dwellings or other buildings, except for buildings utilized for
farm purposes on land actually being used for farming, unfit for
human habitation due to dilapidation, defects increasing the
hazard of fire, accidents or other calamities, lack of
ventilation, light or sanitary facilities or any other conditions
prevailing in any dwelling or building, whether used for human
habitation or not, which would cause the dwellings or other
buildings to be unsafe, unsanitary, dangerous or detrimental to
the public safety or welfare, whether the result of natural or
manmade force or effect.
(b) Plenary power and authority are hereby conferred upon
every county commission to adopt ordinances regulating the
removal and clean up of any accumulation of refuse or debris,
overgrown vegetation or toxic spillage or toxic seepage located
on private lands which is determined to be unsafe, unsanitary,
dangerous or detrimental to the public safety or welfare whether
the result of natural or manmade force or effect.
(c) The county commission in formally adopting ordinances
shall designate an enforcement agency, which shall consist of the county engineer (or other technically qualified county employee
or consulting engineer), county health officer or his or her
designee, a fire chief from a county fire company, the county
litter control officer, if the commission chooses to hire one,
and two members at large selected by the county commission to
serve two-year terms. The county sheriff shall serve as an ex
officio member of the enforcement agency and the county officer
charged with enforcing the orders of the county commission under
this section.
(d) Any ordinance adopted pursuant to the provisions of this
section shall provide fair and equitable rules of procedure and
any other standards considered necessary to guide the enforcement
agency, or its agents, in the investigation of dwelling or
building conditions, accumulation of refuse or debris, overgrown
vegetation or toxic spillage or toxic seepage, and shall provide
for fair and equitable rules of procedure for instituting and
conducting hearings in the matters before the county commission.
Any entrance upon premises for the purpose of making examinations
shall be made in a manner as to cause the least possible
inconvenience to the persons in possession.
(e) Any county commission adopting ordinances authorized by
this section shall hear and determine complaints of the
enforcement agency. Complaints shall be initiated by citation
issued by the county litter control officer or petition of the
county engineer (or other technically qualified county employee or consulting engineer) on behalf of and at the direction of the
enforcement agency, but only after that agency has investigated
and determined that any dwelling, building, accumulation of
refuse or debris, overgrown vegetation or toxic spillage or toxic
seepage is unsafe, unsanitary, dangerous or detrimental to the
public safety or welfare and should be repaired, altered,
improved, vacated, removed, closed, cleaned or demolished. The
county commission shall cause the owner or owners of the private
land in question to be served with a copy of the complaint.
Service shall be accomplished in the manner provided in rule four
of the West Virginia rules of civil procedure. The complaint
shall state the findings and recommendations of the enforcement
agency and that unless the owner or owners of the property file
with the clerk of the county commission a written request for a
hearing within ten days of receipt of the complaint, an order
will be issued by the county commission implementing the
recommendations of the enforcement agency. If the owner or
owners of the property file a request for a hearing, the county
commission shall issue an order setting this matter down for
hearing within twenty days. Hearings shall be recorded by
electronic device or by court reporter. The West Virginia rules
of evidence do not apply to the proceedings, but each party has
the right to present evidence and examine and cross examine all
witnesses. The enforcement agency has the burden of proving its
allegation by a preponderance of the evidence and has the duty to go forward with the evidence. At the conclusion of the hearing
the county commission shall make findings of fact, determinations
and conclusions of law as to whether the dwelling or building:
Is unfit for human habitation due to dilapidation; has defects
that increase the hazard of fire, accidents or other calamities,
lacks ventilation, light or sanitary facilities; or any other
conditions prevailing in the dwelling or building, whether used
for human habitation or not, and whether the result of natural or
manmade force or effect, which would cause such dwelling or other
building to be unsafe, unsanitary, dangerous or detrimental to
the public safety or welfare; or whether there is an accumulation
of refuse or debris; overgrown vegetation; toxic spillage or
toxic seepage on private lands which is determined to be unsafe,
unsanitary, dangerous or detrimental to the public safety or
welfare, whether the result of natural or manmade force or
effect. The county commission has authority to order the owner
or owners thereof to repair, alter, improve, vacate, remove,
close, clean up or demolish the dwelling or building in question
or to remove or clean up any accumulation of refuse or debris,
overgrown vegetation or toxic spillage or toxic seepage within a
reasonable time and to impose daily civil monetary penalties on
the owner or owners who fail to obey an order. Appeals from the
county commission to the circuit court shall be in accordance
with the provisions of article three, chapter fifty-eight of this
code.
(f) Upon the failure of the owner or owners of the private
land to perform the ordered duties and obligations as set forth
in the order of the county commission, the county commission may
advertise for and seek contractors to make the ordered repairs,
alterations or improvements, or the ordered demolition, removal
or clean up. The county commission may enter into any contract
with any contractor to accomplish the ordered repairs,
alterations or improvements, or the ordered demolition, removal
or clean up.
(g) A civil proceeding may be brought in circuit court by
the county commission against the owner or owners of the private
land which is the subject matter of the order of the county
commission to subject the private land in question to a lien for
the amount of the contractor's costs in making these ordered
repairs, alterations or improvements, or ordered demolition,
removal or clean up together with any daily civil monetary
penalty imposed and reasonable attorney fees and court costs and
to order and decree the sale of the private land in question to
satisfy the lien, and to order and decree that the contractor may
enter upon the private land in question at any and all times
necessary to make improvements, or ordered repairs, alterations
or improvements, or ordered demolition, removal or clean up. In
addition, the county commission shall have the authority to
institute a civil action in a court of competent jurisdiction
against the landowner or other responsible party for all costs incurred by the county with respect to the property and for
reasonable attorney fees and court costs incurred in the
prosecution of the action.
(h) County commissions have the power and authority to
receive and accept grants, subsidies, donations and services in
kind consistent with the objectives of this section.
CHAPTER 17C. TRAFFIC REGULATIONS AND LAWS OF THE ROAD.
ARTICLE 14. MISCELLANEOUS RULES.
§17C-14-14. Unlawful to litter from motor vehicle; penalty; rule
making.
(a) It is unlawful for any driver or passenger of a motor
vehicle or other conveyance to place, deposit, dump, throw or
cause to be placed, deposited, dumped or thrown, any litter from
a motor vehicle or other conveyance in or upon any public or
private highway, road, street or alley; any private property; any
public property; or the waters of the state or within one hundred
feet of the waters of this state, except in a proper litter or
other solid waste receptacle.
(b) For purposes of this section, "litter" means all waste
material including, but not limited to, any garbage, refuse,
trash, disposable package, container, can, bottle, paper, ashes,
cigarette or cigar butt, carcass of any dead animal or any part
thereof, or any other offensive or unsightly matter, but not
including the wastes of primary processes of mining, logging,
sawmilling, farming or manufacturing.
(c) In addition to any penalty imposed for littering under
the provisions of article seven, chapter twenty of this code, any
driver of a motor vehicle or other conveyance convicted of
violating this section shall have three points assessed against
his or her driver's license.
(d) The commissioner shall assess points against the
driver's license of any driver of a motor vehicle or other
conveyance found guilty of violating this section upon receiving
notice from a circuit clerk, magistrate court or municipal court
of this state of the conviction. Circuit clerks, magistrate
courts and municipal courts of this state shall promptly notify
the commissioner of the convictions.
(e) When there is more than one occupant in a motor vehicle
or other conveyance and it can not be determined which occupant
is responsible for violating this section, the driver shall be
presumed to be responsible for the violation.
(f) The commissioner of the division of motor vehicles shall
propose or amend legislative rules for promulgation, in
accordance with the provisions of article three, chapter twenty-
nine-a of this code, to effectuate the purposes of this section.
CHAPTER 20. NATURAL RESOURCES.
ARTICLE 7. LAW ENFORCEMENT, MOTORBOATING, LITTER.
§20-7-24. Definitions.
As used in sections twenty-five and twenty-six of this
article, unless the context requires a different meaning:
(a) "Collected for commercial purposes" means taking solid
waste for disposal from any person for remuneration regardless of
whether or not the person taking the solid waste is a common
carrier by motor vehicle governed by article two, chapter
twenty-four-a of this code.
(b) "Court" means any circuit, magistrate or municipal
court.
(c) "Litter" means all waste material including, but not
limited to, any garbage, refuse, trash, disposable package,
container, can, bottle, paper, ashes, cigarette or cigar butt,
carcass of any dead animal or any part thereof, or any other
offensive or unsightly matter, but not including the wastes of
primary processes of mining, logging, sawmilling, farming or
manufacturing.
(d) "Litter receptacle" means those containers suitable for
the depositing of litter at each respective public area
designated by the director's rules promulgated pursuant to
subdivision eight, subsection (a), section twenty-five of this
article.
(e) "Public area" means an area outside of a municipality,
including public road and highway rights-of-way, parks and
recreation areas owned or controlled by this state or any county
of this state, or an area held open for unrestricted access by
the general public.
(f) "Waters of the state" means generally, without limitation, natural or artificial lakes, rivers, streams, creeks,
branches, brooks, ponds, impounding reservoirs, springs, wells,
watercourses and wetlands.
§20-7-26. Unlawful disposal of litter; civil and criminal
penalty; litter control fund; evidence; notice
violations; litter receptacle placement; penalty;
duty to enforce violations.
(a) (1) No person shall place, deposit, dump, throw or cause
to be placed, deposited, dumped or thrown any litter as defined
in section twenty-four of this article, in or upon any public or
private highway, road, street or alley; any private property; any
public property; or the waters of the state or within one hundred
feet of the waters of this state, except in a proper litter or
other solid waste receptacle.
(2) It is unlawful for any person to place, deposit, dump,
throw or cause to be placed, deposited, dumped or thrown any
litter from a motor vehicle or other conveyance or to perform any
act which constitutes a violation of the motor vehicle laws
contained in section fourteen, article fourteen, chapter
seventeen-c of this code.
(3) If any litter is placed, deposited, dumped, discharged,
thrown or caused to be placed, deposited, dumped or thrown from
a motor vehicle, boat, airplane or other conveyance, it is prima
facie evidence that the owner or the operator of the motor
vehicle, boat, airplane or other conveyance intended to violate the provisions of this section.
(4) Any person who violates the provisions of this section
by placing, depositing, dumping or throwing or causing to be
placed, deposited, dumped or thrown any litter, not collected for
commercial purposes, in an amount not exceeding one hundred
pounds in weight or twenty-seven cubic feet in size, is guilty of
a misdemeanor. Upon conviction, he or she is subject to a fine
of not less than fifty dollars nor more than one thousand
dollars, or in the discretion of the court, sentenced to perform
community service by cleaning up litter from any public highway,
road, street, alley or any other public park or public property,
or waters of the state, as designated by the court, for not less
than eight nor more than sixteen hours, or both.
(5) Any person who violates the provisions of this section
by placing, depositing, dumping or throwing or causing to be
placed, deposited, dumped or thrown any litter, not collected for
commercial purposes, in an amount greater than one hundred pounds
in weight or twenty-seven cubic feet in size, but less than five
hundred pounds in weight or two hundred sixteen cubic feet in
size is guilty of a misdemeanor. Upon conviction he or she is
subject to a fine of not less than five hundred dollars nor more
than two thousand dollars, or in the discretion of the court, may
be sentenced to perform community service by cleaning up litter
from any public highway, road, street, alley or any other public
park or public property, or waters of the state, as designated by the court, for not less than sixteen nor more than thirty-two
hours, or both.
(6) Any person who violates the provisions of this section
by placing, depositing, dumping or throwing or causing to be
placed, deposited, dumped or thrown any litter in an amount
greater than five hundred pounds in weight or two hundred sixteen
cubic feet in size or any amount which had been collected for
commercial purposes, is guilty of a misdemeanor. Upon conviction
the person is subject to a fine not less than twenty-five hundred
dollars or not more than twenty-five thousand dollars, or
confinement in a county or regional jail for not more than one
year or both. In addition, the violator may be guilty of
creating or contributing to an open dump as defined in section
two, article fifteen, chapter twenty-two of this code and subject
to the enforcement provisions of section fifteen of said article.
(7) Any person convicted of a second or subsequent violation
of this section is subject to double the authorized range of
fines and community service for the subsection violated.
(8) The sentence of litter cleanup shall be verified by
conservation officers from the division of natural resources or
environmental inspectors from the division of environmental
protection. Any defendant receiving the sentence of litter
cleanup shall provide within a time to be set by the court
written acknowledgment from a conservation officer or
environmental inspector that the sentence has been completed and the litter has been disposed of lawfully.
(9) Any person who has been found by the court to have
willfully failed to comply with the terms of a litter cleanup
sentence imposed by the court pursuant to this section is subject
to, at the discretion of the court, double the amount of the
original fines and community service penalties.
(10) All law-enforcement agencies, officers and
environmental inspectors shall enforce compliance with this
section within the limits of each agency's statutory authority.
(11) No portion of this section restricts an owner, renter
or lessee in the lawful use of his or her own private property or
rented or leased property or to prohibit the disposal of any
industrial and other wastes into waters of this state in a manner
consistent with the provisions of article eleven, chapter
twenty-two of this code. But if any owner, renter or lessee,
private or otherwise, knowingly permits any such materials or
substances to be placed, deposited, dumped or thrown in such
location that high water or normal drainage conditions will cause
any such materials or substances to wash into any waters of the
state, it is prima facie evidence that the owner, renter or
lessee intended to violate the provisions of this section:
Provided, That if a landowner, renter or lessee, private or
otherwise, reports any placing, depositing, dumping or throwing
of these substances or materials upon his or her property to the
prosecuting attorney, county commission or the division of natural resources or the division of environmental protection,
then the landowner, renter or lessee will be presumed to not have
knowingly permitted the placing, depositing, dumping or throwing
of the materials or substances.
(b) Any indication of ownership found in litter shall be
prima facie evidence that the person identified violated the
provisions of this section:
Provided, That no inference may be
drawn solely from the presence of any logo, trademark, trade name
or other similar mass reproduced things of identifying character
appearing on the found litter.
(c) Every person who is convicted of or pleads guilty to
disposing of litter in violation of subsection (a) of this
section shall pay a civil penalty in the sum of not less than one
hundred dollars nor more than one thousand dollars as costs for
cleanup, investigation and prosecution of the case, in addition
to any other court costs that the court is otherwise required by
law to impose upon a convicted person.
The clerk of the circuit court, magistrate court or
municipal court in which these additional costs are imposed
shall, on or before the last day of each month, transmit fifty
percent of a civil penalty received pursuant to this section to
the state treasurer for deposit in the state treasury to the
credit of a special revenue fund to be known as the litter
control fund which is hereby continued. Expenditures for
purposes set forth in this section are not authorized from collections but are to be made only in accordance with
appropriation and in accordance with the provisions of article
three, chapter twelve of this code and upon fulfillment of the
provisions set forth in article two, chapter five-a of this code.
Amounts collected which are found from time to time to exceed the
funds needed for the purposes set forth in this article may be
transferred to other accounts or funds and designated for other
purposes by appropriation of the Legislature.
(d) The remaining fifty percent of each civil penalty
collected pursuant to this section shall be transmitted to the
county or regional solid waste authority in the county where the
litter violation occurred. Moneys shall be expended by the
county or regional solid waste authority for the purpose of
litter prevention, cleanup and enforcement. The county
commission shall cooperate with the county or regional solid
waste authority serving the respective county to develop a
coordinated litter control program pursuant to section eight,
article four, chapter twenty-two-c of this code.
(e) The commissioner of the division of motor vehicles, upon
registering a motor vehicle or issuing an operator's or
chauffeur's license, shall issue to the owner or licensee, as the
case may be, a summary of this section and section fourteen,
article fourteen, chapter seventeen-c of the code.
(f) The commissioner of the division of highways shall cause
appropriate signs to be placed at the state boundary on each primary and secondary road, and at other locations throughout the
state, informing those entering the state of the maximum penalty
provided for disposing of litter in violation of subsection (a)
of this section.
(g) Any state agency or political subdivision that owns,
operates or otherwise controls any public area as may be
designated by the director by rule promulgated pursuant to
subdivision (8), subsection (a), section twenty-five of this
article, shall procure and place litter receptacles at its own
expense upon its premises and shall remove and dispose of litter
collected in the litter receptacles. After receiving two written
warnings from any law-enforcement officer or officers to comply
with this subsection or the rules of the director, any person who
fails to place and maintain the litter receptacles upon his or
her premises in violation of this subsection or the rules of the
director shall be fined fifteen dollars per day of the violation.
CHAPTER 22C. ENVIRONMENTAL RESOURCES; BOARDS,
AUTHORITIES, COMMISSIONS AND COMPACTS.
ARTICLE 4. COUNTY AND REGIONAL SOLID WASTE AUTHORITIES.
§22C-4-23. Powers, duties and responsibilities of authority
generally.
The authority may exercise all powers necessary or
appropriate to carry out the purposes and duties provided in this
article, including the following:
(1) Sue and be sued, plead and be impleaded and have and use a common seal.
(2) To conduct its business in the name of the county solid
waste authority or the regional solid waste authority, as the
case may be, in the names of the appropriate counties.
(3) The authority board of directors shall promulgate rules
to implement the provisions of sections nine and ten of this
article and is authorized to promulgate rules for purposes of
this article and the general operation and administration of
authority affairs.
(4) Adopt, and from time to time, amend and repeal bylaws
necessary and proper for the conduct of its affairs consistent
with this article.
(5) To promulgate such rules as may be proper and necessary
to implement the purposes and duties of this article.
(6) Acquire, construct, reconstruct, enlarge, improve,
furnish, equip, maintain, repair, operate, lease or rent or
contract for the operation by any person, partnership,
corporation or governmental agency, any solid waste facility or
collection, transportation and processing facilities related
thereto.
(7) Issue negotiable bonds, notes, debentures or other
evidences of indebtedness and provide for the rights of the
holders thereof, incur any proper indebtedness and issue any
obligations and give any security therefor which it may deem
necessary or advisable in connection with exercising powers as provided herein.
(8) Make available the use or services of any solid waste
facility collection, transportation and processing facilities
related thereto, to any person, partnership, corporation or
governmental agency consistent with this article.
(9) Acquire by gift or purchase, hold and dispose of real
and personal property in the exercise of its powers and duties.
(10) Make and enter all contracts, leases and agreements and
to execute all instruments necessary or incidental to the
performance of its duties and powers.
(11) Employ managers, engineers, accountants, attorneys,
planners and such other professional and support personnel as are
necessary in its judgment to carry out the provisions of this
article.
(12) Receive and accept from any source such grants, fees,
real and personal property, contributions, funds transferred from
a solid waste facility
and funds of any nature as may become
available to the authority, in order to carry out the purposes of
this article including but not limited to the development,
operation or management of litter control programs and recycling
programs: Provided, That nothing contained in this subsection
shall be construed to extend the authority or jurisdiction of the
public service commission to activities under this subsection
solely because the activities are funded by moneys transferred
from a solid waste facility, nor may the use of transferred funds by a solid waste authority be considered by the public service
commission in carrying out its duties under section one-f,
article two, chapter twenty-four of this code.
(13) Cooperate with and make such recommendations to local,
state and federal government and the private sector in the
technical, planning and public policy aspects of litter control
and solid waste management as the authority may find appropriate
and effective to carry out the purposes of this article.
(14) Charge, alter and collect rentals, fees, service
charges and other charges for the use or services of any solid
waste facilities or any solid waste collection, transportation
and processing services provided by the authority.
(15) Prohibit the dumping of solid waste outside the hours
of operation of a solid waste facility.
(16) Enforce the hours of operation of a solid waste
facility and the mandatory disposal provision in section ten of
this article by referring violations to the division of
environmental protection or the appropriate law-enforcement
authorities.
(17) Do all acts necessary and proper to carry out the
powers expressly granted to the authority by this article and
powers conferred upon the authority by this article.
All rules promulgated by the authority pursuant to this
article are exempt from the provisions of article three, chapter
twenty-nine-a of this code.
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