Senate Bill No. 88

(By Senators Mitchell, Hunter, Kessler, Rowe and Bowman)

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[Introduced January 9, 2002; referred to the Committee

on Natural Resources; and then to the Committee on Finance.]

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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; and providing for 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 both fined and imprisoned.
(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 both fined and imprisoned.
(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 both fined and imprisoned.
(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 thereof, 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.