Senate Bill No. 440
(By Senator Ross)
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[Introduced February 5, 1999;
referred to the Committee on the Judiciary.]
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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 may make
and enter an order directing such the person to cease and desist
such the activity. 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 for each day of such
violation or imprisoned in the county jail not more than six
months or both fined and imprisoned.
(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 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.
(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
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.
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.