H. B. 4167
(By Delegates Staton, Marshall, Doyle,
Fleischauer, Houston and Compton)
[Introduced January 26, 2000; referred
to the Committee on the Judiciary.]
A BILL to amend and reenact section twenty-two, article eleven,
chapter twenty-two of the code of West Virginia, one thousand
nine hundred thirty-one, as amended, relating to increasing
certain civil penalties of the water pollution control act.
Be it enacted by the Legislature of West Virginia:
That section twenty-two, article eleven, chapter twenty-two of
the code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted to read as follows:
Article 11. WATER POLLUTION CONTROL ACT.
§22-11-22.CIVIL PENALTIES AND INJUNCTIVE RELIEF.
Any person who violates any provision of any permit issued
under or subject to the provisions of this article is subject to a
civil penalty not to exceed ten twenty-five thousand dollars per day
of such violation, and any person who violates any provision of this
article or of any rule or who violates any standard or order promulgated or made and entered under the provisions of this article
or articles one or three, chapter twenty-two-b of this code is
subject to a civil penalty not to exceed ten twenty-five thousand
dollars per day of such violation. Any such civil penalty may be
imposed and collected only by a civil action instituted by the
director in the circuit court of the county in which the violation
occurred or is occurring or of the county in which the waters
thereof are polluted as the result of such violation.
Upon application by the director, the circuit courts of the
state or the judges thereof in vacation may by injunction compel
compliance with and enjoin violations of the provisions of this
article, the rules of the board or director, effluent limitations,
the terms and conditions of any permit granted under the provisions
of this article, or any order of the director or board, and the
venue of any such actions shall be the county in which the
violations or noncompliance exists or is taking place or in any
county in which the waters thereof are polluted as the result of
such violation or noncompliance. The court or the judge thereof in
vacation may issue a temporary or preliminary injunction in any case
pending a decision on the merits of any injunction application
filed. Any other section of this code to the contrary
notwithstanding, the state is not required to furnish bond as a
prerequisite to obtaining injunctive relief under this article. An
application for an injunction under the provisions of this section may be filed and injunctive relief granted notwithstanding that all
of the administrative remedies provided for in this article have not
been pursued or invoked against the person or persons against whom
such relief is sought and notwithstanding that the person or persons
against whom such relief is sought have not been prosecuted or
convicted under the provisions of this article.
The judgment of the circuit court upon any application filed or
in any civil action instituted under the provisions of this section
is final unless reversed, vacated or modified on appeal to the
supreme court of appeals. Any such appeal shall be sought in the
manner provided by law for appeals from circuit courts in other
civil cases, except that the petition seeking review in any
injunctive proceeding must be filed with said supreme court of
appeals within ninety days from the date of entry of the judgment of
the circuit court.
Legal counsel and services for the chief, director or the board
in all civil penalty and injunction proceedings in the circuit court
and in the supreme court of appeals of this state shall be provided
by the attorney general or his or her assistants and by the
prosecuting attorneys of the several counties as well, all without
additional compensation, or the chief, director or the board, with
the written approval of the attorney general, may employ counsel to
represent him or her or it in a particular proceeding.
Note: The purpose of this bill is to make this article consistent with other articles in chapter twenty-two as related to
civil penalties and also to ensure that civil penalties parallel
those contained in the Federal Water Pollution Control Act, PL92-
500, as amended.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.