Senate Bill No. 659
(By Senators Mitchell, Hunter, Kessler, Rowe and Bowman)
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[Introduced March 26, 2001; referred to the Committee on Natural
Resources; and then to the Committee on the Judiciary.]
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A BILL to amend chapter twenty-two of the code of West Virginia,
one thousand nine hundred thirty-one, as amended, by adding
thereto a new article, designated article eleven-a, relating
to enforcing logging sediment control; civil and criminal
penalties; appeals; and judicial review.
Be it enacted by the Legislature of West Virginia:
That chapter twenty-two of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, be amended by adding
thereto a new article, designated article eleven-a, to read as
follows:
ARTICLE 11A. LOGGING SEDIMENT CONTROL ENFORCEMENT ACT.
§22-11A-1. Short title.
This article shall be known and cited as the "Logging Sediment
Control Enforcement Act."
§22-11A-2. Legislative findings.
The Legislature hereby finds that the commercial harvesting of timber, in particular the construction of haul and skid roads and
landings, is a significant contributor to sedimentation and further
that sediment is a serious source of water pollution. It is the
policy of this state to strengthen and extend the present sediment
control activities of this state and to regulate the commercial
harvesting of timber by implementing, through the division of
environmental protection, the division of forestry and the
department of natural resources, a sediment control enforcement
program to reduce the resulting sedimentation impacts from
timbering to the waters of the state.
§22-11A-3. Inspections.
(a) The chief or the West Virginia division of forestry or the
West Virginia department of natural resources shall perform
inspections of commercial timbering operations to ensure compliance
with article one-b, chapter nineteen of this code and the approved
registration and to determine whether the best management practices
in the registration are effective in reducing sedimentation
resulting from the commercial timbering operation. The chief may
perform inspections to the same extent as provided in chapter
twenty, article five-a of the code of West Virginia and shall
inspect each commercial timbering operation at least once during
the operation. The chief shall take enforcement action, including
imposition of appropriate civil administrative penalties, for any
violation of article one-b, chapter nineteen or noncompliance with
the approved registration, including the failure to install any sediment control device listed in the approved registration form.
If the chief determines that the logger or operator is not
complying with article one-b, chapter nineteen or the approved
registration plan and that this failure to comply is resulting or
could be expected to result in imminent harm to the waters of West
Virginia then the chief shall immediately order that the commercial
timber operation cease until the violation of article one-b,
chapter nineteen or the approved registration plan has been
corrected.
(b) When any person notifies the division of forestry or the
division of environmental protection of a suspected violation of
article one-b, chapter nineteen, the agency notified shall
forthwith perform an inspection of the operation suspected of the
violation of article one-b, chapter nineteen. When any inspection
is undertaken in response to a report of a possible violation of
article one-b, chapter nineteen or other complaint, the person who
made the report or complaint shall be notified of the date of the
inspection and given an opportunity to accompany the employee who
undertakes the inspection. No person may disclose the identity of
the person who notified the state agency of the suspected violation
without the permission of that person.
(c) Any employee of the division of environmental protection
or the division of forestry who regularly carries out inspection or
enforcement actions pursuant to article one-b, chapter nineteen may
initiate enforcement action as described in article one-b, chapter nineteen whether or not the employee's duties routinely include
enforcement of the Logging and Sediment Control Act.
(d) If the director determines that the measures described in
a previously approved registration form are not effectively
controlling sediment from a commercial timbering operation, the
director shall require that the operator submit a modified
registration form describing additional measures to control
sediment. If the commercial timbering operation is completed, and
the director determines that the logger or operator did not
properly perform the measures described in the registration form,
or that measures taken in compliance with the approved registration
form were not adequate to control sediment from the commercial
timbering operation, the director shall require the logger or
operator to reenter the site and institute appropriate measures to
control sediment.
§22-11A-4. Violations; criminal penalties.
(a) Any person who causes pollution or who fails or refuses to
discharge any duty imposed upon him or her by any rule promulgated
pursuant to article one-b, chapter nineteen or who fails to follow
the best management practices or who fails to follow any term of
the registration approved pursuant to article one-b, chapter
nineteen or who fails or refuses to have a commercial timbering
operation approved as required by article one-b, chapter nineteen
is guilty of a misdemeanor and, upon conviction thereof, shall be
punished by a fine of not less than one hundred dollars nor more than one thousand dollars, or by imprisonment in the county or
regional jail for a period not exceeding six months, or by both
fine and imprisonment.
(b) Any person who intentionally misrepresents any material
fact in registration plan or other document filed or required to be
maintained under the provisions of article one-b, chapter nineteen
or any rules promulgated by the director thereunder is guilty of a
misdemeanor and, upon conviction thereof, shall be punished by a
fine of not less than one thousand dollars nor more than ten
thousand dollars or by imprisonment in the county or regional jail
not exceeding six months or by both fine and imprisonment.
(c) Any person who willfully or negligently violates any
provision of article one-b, chapter nineteen or any rule
promulgated pursuant to that article is guilty of a misdemeanor
and, upon conviction thereof, shall be punished by a fine of not
less than two thousand five hundred dollars nor more than
twenty-five thousand dollars per day of violation or by
imprisonment in the county or regional jail not exceeding one year
or by both fine and imprisonment.
(d) Any person convicted of a second or subsequent willful
violation of subsections (b) or (c) of this section or knowingly
and willfully violates any provision of article one-b, chapter
nineteen or any rule or order issued under or subject to the
provisions of article one-b, chapter nineteen, or knowingly and
willfully violates any provision of article one-b, chapter nineteen, is guilty of a felony and, upon conviction shall be
imprisoned in a correctional facility not less than one nor more
than three years, or fined not more than fifty thousand dollars for
each day of violation, or both fined and imprisoned.
(e) Any person may be prosecuted and convicted under the
provisions of this section notwithstanding that none of the
administrative remedies provided in article one-b, chapter nineteen
have been pursued or invoked against said person and
notwithstanding that civil action for the imposition and collection
of a civil penalty or an application for an injunction under the
provisions of article one-b, chapter nineteen has not been filed
against such person.
§22-11A-5. Civil penalties; equitable relief; criminal penalties.
(a) Persons violating article one-b, chapter nineteen are
subject to the civil penalties and injunctive relief provided for
in section twenty-two, article eleven, chapter twenty-two of this
code; and the criminal penalties provided for under section
twenty-four, article eleven, chapter twenty-two of this code. In
seeking injunctive relief for any violation or a registration, it
is not necessary for the chief to allege or prove, at any stage of
the proceeding, that irreparable harm will occur if injunctive
relief is not granted.
(b) Within six months of the effective date of article one-b,
chapter nineteen, the director shall propose legislative rules in
accordance with the provisions of chapter twenty-nine-a of this code, establishing civil administrative penalties, enforceable by
the chief, to be used as an alternative enforcement mechanism to
those civil penalties described in subsection (a) of this section.
The legislative rules shall include a provision which makes the
failure to obtain approval of a registration form before beginning
a commercial timbering operation subject to an administrative
penalty of two thousand five hundred dollars, in addition to any
other penalties, civil or criminal, which may be provided for by
article one-b, chapter nineteen.
(c) There is hereby created in the state treasury a special
account known as the "Logging and Sediment Control Enforcement
Fund." Moneys received as a result of the imposition of civil
administrative penalties in accordance with the provisions of
article one-b, chapter nineteen shall be deposited in the logging
and sediment control enforcement fund and must be used by the
director either for enforcement of article one-b, chapter nineteen
or correcting the failure of any commercial timbering operation to
comply with best management practices or the requirements of
article one-b, chapter nineteen and to ameliorate any damage caused
by such failure to comply.
§22-11A-6. Appeal and judicial review.
(a) Any person having an interest which is or may be adversely
affected, or who is aggrieved by an order of the director or chief,
or by the approval or denial of a registration, may appeal to the
water resources board in the same manner as appeals are taken under the water pollution control act, section twenty-one, article
eleven, chapter twenty-two of this code.
(b) Any party, including the director or the chief, adversely
affected by an order made and entered by the environmental quality
board may obtain judicial review thereof in the same manner as
provided for under section twenty-two, article eleven of the water
pollution control act.
NOTE:
The purpose of this bill is to
improve enforcement of
sediment control during commercial timber harvesting.
This article is new; therefore, strike-throughs and
underscoring have been omitted.