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.