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.)