ENGROSSED

Senate Bill No. 774

(By Senators Kessler, Dempsey, Fanning, Minard, White, Barnes,

Caruth, Deem, Harrison, Lanham, McKenzie and Weeks)

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[Originating in the Committee on the Judiciary;


reported February 22, 2006.]

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A BILL to amend and reenact §22-1-2, §22-1-6, §22-1-7 and §22-1-8 of the Code of West Virginia, 1931, as amended, all relating to the organization of offices within the Department of Environmental Protection; and defining certain terms.

Be it enacted by the Legislature of West Virginia:
That §22-1-2, §22-1-6, §22-1-7 and §22-1-8 of the Code of West Virginia, 1931, as amended, be amended and reenacted, all to read as follows:
ARTICLE 1. DEPARTMENT OF ENVIRONMENTAL PROTECTION.
 §22-1-2. Definitions.
As used in this article chapter, unless otherwise provided or indicated by the context:
(1)"Chief" means the person named by the Secretary of the Department of Environmental Protection as the chief executive officer of an office, division or section within the department.
(1) (2) "Department" means the Department of Environmental Protection.
(2) (3) "Director" means the Secretary of the Department of Environmental Protection or his or her designee.
(3) (4) "Division" means the Department of Environmental Protection.
(4) (5) "Function" includes means any duty, obligation, power, authority, responsibility, right, privilege, activity or program.
(5) (6) "Office" includes means any office, division, board, agency, unit, organizational entity or component thereof within the Department of Environmental Protection.
(6) (7) "Secretary" means the Secretary of the Department of Environmental Protection.
§22-1-6. Secretary of the Department of Environmental Protection.
(a) The secretary is the chief executive officer of the division department. Subject to section seven of this article and other provisions of law, the secretary shall organize the department into such offices, divisions, sections, agencies and other units of activity as may be found by the secretary to be desirable for the orderly, efficient and economical administration of the department 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 and may prescribe their powers and duties and fix their compensation within amounts appropriated.
(b) The secretary has the power to and may designate supervisory officers or other officers or employees of the department 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 such substitute having the same powers, duties, authority and responsibility as the secretary. The secretary has the power to delegate, as he or she considers appropriate, to supervisory officers or other officers or employees of the department his or her powers, duties, authority and responsibility relating to issuing permits, hiring and training inspectors and other employees of the department, 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, including assuring:
(1) That the department 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 division department 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 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 department 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 department is charged with enforcing;
(4) Acquire for the state in the name of the "Department of Environmental Protection" by purchase, condemnation, lease or agreement, or accept or reject for the state, in the name of the Department of Environmental Protection, gifts, donations, contributions, bequests or devises of money, security or property, both real and personal, and any interest in property;
(5) 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 such 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) 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) Notwithstanding any provisions of this code to the contrary, employ in-house counsel to perform all legal services for the secretary and the department, including, but not limited to, representing the secretary, any chief, director or other office head, the department or any office thereof 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 will shall receive an annual salary of eighty-five thousand dollars as provided in section two-a, article seven, chapter six of this code and will 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, which executed oath and bond will be filed in the office of the Secretary of State. Premiums on the bond will be paid from the department funds.
§22-1-7. Offices within department.
(a) Consistent with the provisions of this article, the director secretary shall, at a minimum, maintain the following offices, sections or divisions within the division department to carry out the following responsibilities:
(1) The office of abandoned Abandoned mine lands and reclamation, which is charged, at a minimum, with administering and enforcing, under the supervision of the director secretary, the provisions of article two of this chapter;
(2) The office of mining Mining and reclamation, which is charged, at a minimum, with administering and enforcing, under the supervision of the director secretary, the provisions of articles three and four of this chapter;
(3) The office of air Air quality, which is charged, at a minimum, with administering and enforcing, under the supervision of the director secretary, the provisions of article five of this chapter;
(4) The office of oil Oil and gas, which is charged, at a minimum, with administering and enforcing, under the supervision of the director secretary, the provisions of articles six, seven, eight, nine and ten of this chapter;
(5) The office of water Water resources, which is charged, at a minimum, with administering and enforcing, under the supervision of the director secretary, the provisions of articles eleven, twelve, thirteen and fourteen of this chapter;
(6) The office of waste Waste management, which is charged, at a minimum, with administering and enforcing, under the supervision of the director secretary, the provisions of articles fifteen, sixteen, seventeen, eighteen, nineteen and twenty of this chapter; and
(7) The office of explosives Explosives and blasting, which is charged, at a minimum, with administering and enforcing, under the supervision of the director secretary, the provisions of article three-a of this chapter.
(b) The secretary may organize and designate internal, organizational names for the offices, sections or divisions of the department so long as the duties and responsibilities prescribed for the department in this chapter and chapters twenty-two-a, twenty-two-b and twenty-two-c of this code are fulfilled.
 §22-1-8. Supervisory officers.
(a) The director secretary shall appoint a competent and qualified person to be the chief executive officer of each office specified in section seven of this article. The chief executive officer is the principal administrative officer of that office and is accountable and responsible for the orderly and efficient performance of the duties, functions and services of her or his office.
(b) There shall be in the division department such other supervisory officers as the director secretary determines is necessary to administer the functions of the division department. Such supervisory officers are "administrators" as such term is defined in section two, article six, chapter twenty-nine of this code, notwithstanding the fact that the positions filled by such persons are not statutorily created. Any such supervisory officer may be designated by the director secretary as a deputy director, assistant director, chief, administrator, or other administrative title or designation. Each of the supervisory officers shall be appointed by the director and serve at the will and pleasure of the director. The compensation of such supervisory officers shall be fixed by the director. A single individual may be appointed to serve simultaneously in two distinct supervisory positions, but in a case where such a dual appointment is made, such the supervisory officer shall not receive additional compensation above that which would be paid for serving in one supervisory position.
(c) A supervisory officer appointed pursuant to the provisions of this section shall report directly to the director secretary and shall, in addition to any functions vested in or required to be delegated to such officer, perform such additional functions as the director secretary may prescribe.
(d) The supervisory officers Each supervisory officer of the division department shall, before entering upon the discharge of their his or her duties, take the oath of office prescribed by section five, article IV of the Constitution of West Virginia and shall execute a bond in the penalty of two thousand dollars, with security to be approved by the Governor, conditioned upon the faithful discharge of their duties, a certificate of which the oath and which bond shall be filed in the office of the Secretary of State. Premiums on such the bond shall be paid from the division department funds.