Senate Bill No. 564
(By Senator Mitchell and Rowe)
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[Introduced February 11, 2002; referred to the Committee
on Natural Resources.]
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A BILL to amend and reenact section thirteen, article one, chapter
twenty of the code of West Virginia, one thousand nine hundred
thirty-one, as amended; to amend and reenact sections five,
six and eight, article seven of said chapter; and to amend and
reenact section six, article one, chapter twenty-two of said
code, all relating to allowing the division of environmental
protection and the division of natural resources to
investigate, prevent and enforce the West Virginia logging
sediment act.
Be it enacted by the Legislature of West Virginia:
That section thirteen, article one, chapter twenty of the code
of West Virginia, one thousand nine hundred thirty-one, as amended,
be amended and reenacted; that sections five, six, and eight,
article seven of said chapter be amended and reenacted; and that
section six, article one, chapter twenty-two of said code, be amended and reenacted, all to read as follows:
CHAPTER 20. NATURAL RESOURCES.
ARTICLE 1. ORGANIZATION AND ADMINISTRATION.
§20-1-13. Law-enforcement and legal services.
The director shall select and designate a competent and
qualified person to be department law-enforcement officer, who
shall have the title of chief conservation officer and who shall be
responsible for the prompt, orderly and effective enforcement of
all of the provisions of this chapter. Under the supervision of
the director and subject to personnel qualifications and
requirements otherwise prescribed in this chapter, the chief
conservation officer shall be responsible for the selection,
training, assignment, distribution and discipline of conservation
officers and the effective discharge of their duties in carrying
out the law-enforcement policies, practices and programs of the
department in compliance with the provisions of article seven of
this chapter, the West Virginia Logging Sediment Act of article
one-b, chapter nineteen, and other controlling laws. Except as
otherwise provided in this chapter, he or she and his or her
conservation officers are hereby authorized to enter into and upon
private lands and waters to investigate complaints and reports of
conditions, conduct, practices and activities considered to be
adverse to and violative of the provisions of this chapter, the
West Virginia Logging Sediment Act of article one-b, chapter nineteen, and to execute writs and warrants and make arrests
thereupon.
The attorney general and his or her assistants and the
prosecuting attorneys of the several counties shall render to the
director, without additional compensation, such legal services as
the director may require of them in the discharge of his or her
duties and the execution of his or her powers under and his or her
enforcement of the provisions of this chapter. The director, in an
emergency and with prior approval of the attorney general, may
employ an attorney to act in proceedings wherein criminal charges
are brought against personnel of the department because of action
in line of duty. For such attorney services, a reasonable sum, not
exceeding two thousand five hundred dollars, may be expended by the
director in any one case.
The director, if he or she deems considers the action
necessary, may request the attorney general to appoint an assistant
attorney general, who shall perform, under the supervision and
direction of the attorney general, the duties as may be required of
him or her by the director. The attorney general, in pursuance of
the request, may select and appoint an assistant attorney general
to serve at the will and pleasure of the attorney general, and the
assistant shall receive a salary to be paid out of any funds made
available for that purpose by the Legislature to the department.
ARTICLE 7. LAW-ENFORCEMENT, MOTOR BOATING, LITTER.
§20-7-5. Enforcement of chapter.
The director shall be charged with the duty and responsibility
of enforcing the provisions of this chapter and to this end may
call upon the attorney general, the prosecuting attorneys of the
several counties, the department of public safety and all other
law-enforcement officers of the state. He or she shall have
authority to compel compliance with and to prevent violations and
threatened violations of any provisions of this chapter, the West
Logging Sediment Control Act of article one-b, chapter nineteen,
and any lawful rules and regulations promulgated hereunder, and
cease and desist orders issued pursuant hereto. He or she may
invoke the processes of any court for coercive, remedial or
preventive relief by injunction, mandamus or other appropriate
proceedings.
§20-7-6. Prosecutions under chapter; attorney services; costs.
The director may cause complaints to be made and proceedings
to be instituted and prosecuted against any violators of this
chapter or the West Virginia Logging Sediment Control Act of
article one-b, chapter nineteen, and without the sanction of the
prosecuting attorney of the county wherein such proceedings are
instituted, and in all such cases no security for costs shall be
required of the director. In any unusual or emergency situation or
case wherein a prosecuting attorney or the attorney general may not
be available to the director for legal services, the director may employ another attorney or other attorneys to represent the state
in prosecutions and proceedings under provisions of this chapter
and shall pay costs and fees for such services from department
funds.
§20-7-8. Seizure and disposition of property used for illegal
purpose.
Any officer, when he or she arrests or otherwise takes a
person into custody for violating any provision or provisions of
this chapter or the West Virginia Logging Sediment Control Act of
article one-b, chapter nineteen, and is hereby also authorized and
empowered to take and impound any property found in the possession
of the accused and susceptible of use in committing the offense of
which the person is accused. Such property shall include firearms,
fishing equipment, traps, boats or any other device, appliance or
conveyance, but shall not include dogs.
If the accused is acquitted, the property seized shall be
returned. If the accused is convicted and pays the fine, costs and
other penalties, the property shall be returned, but if the accused
fails to pay the fine and costs, the property shall be sold at
public auction in such manner as the director may prescribe. The
proceeds of the sale shall be applied toward the payment of the
fine and costs. The remainder, if any, shall be paid to the owner
of the seized property.
Whenever a person is convicted of a violation of this chapter or the West Virginia Logging Sediment Control Act of article one-b,
chapter nineteen, a second time, the property seized at the time of
arrest shall in any case be declared forfeited to the State and
shall be sold in the manner provided by this section.
Property seized, the use of which is forbidden by this
chapter, or which is unfit or unsafe for further use, shall be
declared forfeited to the state and shall be disposed of by the
director.
CHAPTER 22. ENVIRONMENTAL RESOURCES.
ARTICLE 1. DIVISION OF ENVIRONMENTAL PROTECTION.
§22-1-6. Secretary of the division of environmental protection.
(a) The secretary is the chief executive officer of the
department division. Subject to section seven of this article and
other provisions of law, the secretary shall organize the division
into those offices, sections, agencies and other units of activity
found by the secretary to be desirable for the orderly, efficient
and economical administration of the department division and for
the accomplishment of its objects and purposes. The secretary may
appoint a deputy secretary, chief of staff, assistants, hearing
officers, clerks, stenographers and other officers, technical
personnel and employees needed for the operation of the department
division and may prescribe their powers and duties and fix their
compensation within amounts appropriated.
(b) The secretary may designate supervisory officers or other officers or employees of the department division to substitute for
him or her on any board or commission established under this code
or to sit in his or her place in any hearings, appeals, meetings or
other activities with the substitute having the same powers,
duties, authority and responsibility as the director. The
secretary has the power to delegate, as he or she considers
appropriate, to supervisory officers or other officers or employees
of the department division his or her powers, duties, authority and
responsibility relating to issuing permits, hiring and training
inspectors and other employees of the department division,
conducting hearings and appeals and such other duties and functions
set forth in this chapter or elsewhere in this code.
(c) The secretary has responsibility for the conduct of the
intergovernmental relations of the department division, including
assuring:
(1) That the department division carries out its functions in
a manner which supplements and complements the environmental
policies, programs and procedures of the federal government, other
state governments and other instrumentalities of this state; and
(2) That appropriate officers and employees of the department
division consult with individuals responsible for making policy
relating to environmental issues in the federal government, other
state governments and other instrumentalities of this state
concerning differences over environmental policies, programs and procedures and concerning the impact of statutory law and rules
upon the environment of this state.
(d) In addition to other powers, duties and responsibilities
granted and assigned to the secretary by this chapter, the
secretary is hereby authorized and empowered to:
(1) Sign and execute in the name of the state by the
"department division of environmental protection" any contract or
agreement with the federal government or its departments or
agencies, subdivisions of the state, corporations, associations,
partnerships or individuals: Provided, That the powers granted to
the secretary to enter into agreements or contracts and to make
expenditures and obligations of public funds under this subdivision
may not exceed or be interpreted as authority to exceed the powers
granted by the Legislature to the various commissioners, directors
or board members of the various departments, agencies or boards
that comprise and are incorporated into each secretary's department
pursuant to the provisions of chapter five-f of this code;
(2) Conduct research in improved environmental protection
methods and disseminate information to the citizens of this state;
(3) Enter private lands to make surveys and inspections for
environmental protection purposes; to investigate for violations of
statutes or rules which the division is charged with enforcing; to
serve and execute warrants and processes; to make arrests; issue
orders, which for the purposes of this chapter include consent agreements; and to otherwise enforce the statutes or rules which
the division is charged with enforcing;
(4) Enter private lands to make surveys and inspections to
investigate for violations of the West Virginia Logging Sediment
Control Act of article one-b, chapter nineteen, and issue cease and
desist orders upon discovery of apparent violations which the
director of the West Virginia division of forestry is authorized to
take pursuant to article one-b, chapter nineteen;
(4) (5) Acquire for the state in the name of the "department
division of environmental protection" by purchase, condemnation,
lease or agreement, or accept or reject for the state, in the name
of the department division of environmental protection, gifts,
donations, contributions, bequests or devises of money, security or
property, both real and personal, and any interest in property;
(5) (6) Provide for workshops, training programs and other
educational programs, apart from or in cooperation with other
governmental agencies, necessary to insure adequate standards of
public service in the department. The secretary may provide for
technical training and specialized instruction of any employee.
Approved educational programs, training and instruction time may be
compensated for as a part of regular employment. The secretary is
authorized to pay out of federal or state funds, or both, as the
funds are available, fees and expenses incidental to such
educational programs, training, and instruction. Eligibility for participation by employees will be in accordance with guidelines
established by the secretary;
(6) (7) Issue certifications required under 33 U.S.C. §1341 of
the federal Clean Water Act and enter into agreements in accordance
with the provisions of section seven-a, article eleven of this
chapter. Prior to issuing any certification the secretary shall
solicit from the division of natural resources reports and comments
concerning the possible certification. The division of natural
resources shall direct the reports and comments to the secretary
for consideration; and
(7) (8) Notwithstanding any provisions of this code to the
contrary, employ in-house counsel to perform all legal services for
the secretary and the department division, including, but not
limited to, representing the secretary, any chief, the department
division or any office of the division in any administrative
proceeding or in any proceeding in any state or federal court.
Additionally, the secretary may call upon the attorney general for
legal assistance and representation as provided by law.
(e) The secretary shall be appointed by the governor, by and
with the advice and consent of the Senate, and serves at the will
and pleasure of the governor.
(f) At the time of his or her initial appointment, the
secretary must be at least thirty years old and must be selected
with special reference and consideration given to his or her administrative experience and ability, to his or her demonstrated
interest in the effective and responsible regulation of the energy
industry and the conservation and wise use of natural resources.
The secretary must have at least a bachelor's degree in a related
field and at least three years of experience in a position of
responsible charge in at least one discipline relating to the
duties and responsibilities for which the secretary will be
responsible upon assumption of the office. The secretary may not
be a candidate for or hold any other public office, may not be a
member of any political party committee and shall immediately
forfeit and vacate his or her office as secretary in the event he
or she becomes a candidate for or accepts appointment to any other
public office or political party committee.
(g) The secretary shall be allowed and paid necessary expenses
incident to the performance of his or her official duties. Prior
to the assumption of the duties of his or her office, the secretary
shall take and subscribe to the oath required of public officers
prescribed by section five, article IV of the constitution of West
Virginia and shall execute a bond, with surety approved by the
governor, in the penal sum of ten thousand dollars, the executed
oath and bond shall be filed in the office of the secretary of
state. Premiums on the bond shall be paid from the department
division funds.
NOTE: The purpose of this bill is to
allow the division of
environmental protection and the division of natural resources to
investigate, prevent and enforce the West Virginia Logging Sediment
Act.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.