Senate Bill No. 574
(By Senators Snyder, Rowe and Mitchell)
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[Introduced March 23, 2001; referred to the Committee on the
Judiciary.]
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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;
and authorizing rules for the development of administrative
resolution as an alternative to civil action.
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; administrative
penalties.
(a) 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.
(b) Notwithstanding any other provision of this code, the
director shall propose rules for legislative approval in accordance
with the provisions of article three, chapter twenty-nine-a of this
code, to establish a mechanism for the administrative resolution of
violations set forth in subsection (a) of this section through
consent order or agreement as an alternative to instituting a civil
action.
NOTE: The purpose of this bill is to make this article
consistent with other articles in chapter twenty-two as related to
civil and administrative penalties and also to ensure that civil
and administrative penalties are consistent with those contained in the Federal Water Pollution Control Act, PL92-500, as marked.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.