COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 505
(By Senator Fanning)
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[Originating in the Committee on Finance;
reported February 25, 2010.]
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A BILL to amend and reenact §19-1B-3, §19-1B-4, §19-1B-5, §19-1B-7,
§19-1B-11 and §19-1B-12a of the Code of West Virginia, 1931,
as amended, all relating to updating the Logging Sediment
Control Act; providing exclusion for ten acres or less of
privately owned land; establishing biennial licensure and fee;
and making technical corrections.
Be it enacted by the Legislature of West Virginia:
That §19-1B-3, §19-1B-4, §19-1B-5, §19-1B-7, §19-1B-11 and
§19-1B-12a of the Code of West Virginia, 1931, as amended, be
amended and reenacted, all to read as follows:
ARTICLE 1B. SEDIMENT CONTROL DURING COMMERCIAL TIMBER HARVESTING
OPERATIONS.
§19-1B-3. Definitions.
(a) "Best management practices" means sediment control
measures, structural or nonstructural, used singly or in combination, to reduce soil runoff from land disturbances
associated with commercial timber harvesting.
(b) "Chief" means the
chief of the office of water resources
of the Division Director of the Division of Water and Waste
Management of the Department of Environmental Protection, or his or
her designee.
(c) "Director" means the Director of the Division of Forestry
of the Department of Commerce
labor and environmental resources or
his or her
authorized designee.
(d) "Operator" means any person who conducts timbering
operations.
(e) "Timbering
operations operation" or "logging operation,"
or the plural, means activities directly related to the severing or
removal of standing trees from the forest as a raw material for
commercial processes or purposes. For the purpose of this article,
timbering operations do not include the severing of evergreens grown
for and severed for the traditional Christmas holiday season, or the
severing of trees incidental to ground-disturbing construction
activities, including well sites, access roads and gathering lines
for oil and natural gas operations, or the severing of trees for
maintaining existing, or during construction of, rights-of-way for
public highways or public utilities or any company subject to the
jurisdiction of the federal energy regulatory commission unless the
trees so severed are being sold or provided as raw material for commercial wood product purposes, or the severing of trees by an
individual on the individual's own property for his or her
individual use provided that the individual does not have the
severing done by a person whose business is the severing or removal
of trees.
(f) "Sediment" means solid particulate matter, usually soil or
minute rock fragments, moved by wind, rainfall or snowmelt into the
streams of the state.
§19-1B-4. Timbering license required; requirement for license;
exemption; annual fee; rules.
(a)
No A person may
not conduct timbering operations, purchase
timber or buy logs for resale until he or she has obtained the
license pursuant to this article from the division and met all other
requirements pertaining to his or her timbering operation or other
wood product business
contained in pursuant to this article:
Provided, That a person who severs or removes, or hires or contracts
with another to sever or remove, standing trees from his or her own
land is specifically exempted from the timbering operations
licensure requirement of this section during any calendar year in
which all trees severed or removed by or for this owner have an
aggregate stumpage value that does not exceed fifteen thousand five
hundred twenty-eight dollars:
Provided, however, That a person
hired or contracted to sever or remove standing trees from the land
of another is specifically exempted from the timbering operations licensure requirement of this section during any calendar year in
which all trees severed or removed by this hired or contracted
person have an aggregate stumpage value that does not exceed fifteen
thousand five hundred twenty-eight dollars.
(b) An applicant for a license shall submit an application on
a form to be designed and provided by the director. A fee of
fifty
dollars $150 shall be submitted with each application and with each
annual biennial renewal of the license. The application shall, at
a minimum, contain the following information:
(1) Name, address and telephone number of the applicant and if
the applicant is a business entity other than a sole proprietor, the
names and addresses of the principals, officers and resident agent
of the business entity;
(2) The applicant's West Virginia business registration number
or a copy of the current West Virginia business registration
certificate. The Division of Forestry shall submit this information
and a list of all applicants to the Tax Commissioner each
quarter
month of the calendar year to ensure compliance with payment of
severance, income withholding and all other applicable state taxes;
and
(3) Any other information required by the director.
(c) The director shall
promulgate legislative rules propose
rules for legislative approval pursuant to the provisions of article
three, chapter twenty-nine-a of this code which provide procedures by which a license may be acquired, suspended or revoked under this
article. The Legislature expressly finds that these legislative
rules are the proper subject of emergency legislative rules which
may be promulgated in accordance with the provision of section
fifteen, article three, section twenty-nine-a of this code.
(d) The director shall prescribe a form providing the contents
and manner of posting notice at the timbering operation. The notice
shall include, at a minimum, the operator's name and license number.
§19-1B-5. Compliance orders, suspension of timbering operating
license.
(a) Upon a finding by the chief that failure to use a
particular best management practice is causing or contributing, or
has the potential to cause or contribute, to soil erosion or water
pollution, the chief shall notify the director of the location of
the site, the problem associated with the site, and any suggested
corrective action. Upon the failure of the director to take
appropriate action within three days of providing notice to the
director, the chief may seek relief through the conference panel in
accordance with section eleven of this article.
(b) Upon notification of the chief or upon a finding by the
director that failure to use a particular best management practice
is causing or contributing, or has the potential to cause or
contribute, to soil erosion or water pollution, the director shall
issue a written compliance order requiring the person conducting the timber operation to take corrective action. The order shall mandate
compliance within a reasonable and practical time, not to exceed ten
days. The person subject to the order may appeal the order within
forty-eight hours of its issuance to the conference panel in
accordance with section eleven of this article.
(c) In any circumstance where observed damage or circumstances
on a logging operation, in the opinion of the director, are
sufficient to endanger life or result in uncorrectable soil erosion
or water pollution, or if the operator is not licensed pursuant to
this article, or if a certified logger is not supervising the
operation, the director shall order the immediate suspension of the
timber operation and the operation shall remain suspended until the
corrective action mandated in the compliance order suspending the
operation is instituted. The director shall not issue an order
cancelling the suspension order until compliance is satisfactory or
until overruled on appeal. Failure to comply with any compliance
order is a violation of this article. The person subject to the
order may appeal to the conference panel in accordance with the
provisions of section eleven of this article.
(d) The director may suspend the license of any person
conducting a timbering operation or the certification of any
certified logger supervising a timbering operation, for no less than
thirty nor more than ninety days, if the person is found in
violation of this article or article eleven, chapter twenty-two of this code, for a second time within any two-year period:
Provided,
That one or more violations for the same occurrence is only one
violation for purposes of this subsection.
(e) The director may revoke the license of any person
conducting timbering operations or the certification of any
certified logger if the person is found in violation of this article
or article eleven, chapter twenty-two of this code, for a third time
within any two-year period:
Provided, That one or more violations
for the same occurrence is only one violation for purposes of this
subsection. A revoked license is not subject to reissue during the
licensing period for which it was issued.
(f) The director shall notify the chief of any order issued or
any suspension or revocation of a license pursuant to this section
within
three thirty days of the date of the director's action.
§19-1B-7. Certification of persons supervising timbering
operations, timbering operations to be supervised,
promulgation of rules.
(a) Any individual supervising any licensed timbering
operation, or any individual supervising any timbering operation
that is not exempted from the licensing requirements set forth in
section four of this article, must be certified pursuant to this
section.
(b) The director is responsible for the development of
standards and criteria for establishment of a regularly scheduled program of education, training and examination that all persons must
successfully complete in order to be certified to supervise any
timbering operation. The program for certified loggers shall
provide, at a minimum, for education and training in the safe
conduct of timbering operations, in first aid procedures and in the
use of best management practices to prevent, insofar as possible,
soil erosion on timbering operations. The goals of this program
will be to assure that timbering operations are conducted in
accordance with applicable state and federal safety regulations in
a manner that is safest for the individuals conducting the
operations and that they are performed in an environmentally sound
manner.
(c) The director shall provide for such programs by using the
resources of the division, other appropriate state agencies,
educational systems and other qualified persons. Each inspector
under the jurisdiction of the chief shall attend a certification
program free of charge and complete the certification requirements
of this section.
(d) The director shall
promulgate legislative rules propose
rules for legislative approval in accordance with article three,
chapter twenty-nine-a of this code, which provide the procedure by
which certification pursuant to this article may be obtained and
shall require the payment of an application fee and
an annual a
biennial renewal fee of
fifty dollars $150.
(e) Upon a person's successful completion of the certification
requirements, the director shall provide that person with proof of
the completion by issuing a numbered certificate and a wallet-sized
card to that person. The division shall maintain a record of each
certificate issued and the person to whom it was issued.
(f) A certification granted pursuant to this section is
renewable only for
two four succeeding years. For the
third second
renewal and every
third other renewal thereafter, the licensee shall
first attend a program designed by the director to update the
training.
(g) Every timbering operation that is required to be licensed
under section four of this article must have at least one person
certified pursuant to this section supervising the operation at any
time the timbering operation is being conducted and all timbering
operators shall be guided by the West Virginia forest practice
standards and the West Virginia silvicultural best management
practices in selecting practices appropriate and adequate for
reducing sediment movement during a timber operation.
(h) The director shall, at no more than
three-year five
year intervals after the effective date of this article, convene a
committee to review the best management practices so as to ensure
that they reflect and incorporate the most current technologies. The
committee shall, at a minimum, include a person doing research in
the field of silvicultural best management practices, a person doing research in the field of silviculture, two loggers certified under
this article, a representative of the office of water resources of
the Division of Environmental Protection and a representative of an
environmentally active organization. The director shall chair the
committee and may adjust the then current best management practices
according to the suggestions of the committee in time for the next
certification cycle.
§19-1B-11. Creation of conference panels; authority.
(a) Each forestry
district region in this state shall contain
an informal conference panel composed of three persons which shall
act on behalf of the state to decide appeals of orders of the
director. One member of the panel shall be selected by the
director, one member shall be selected by the chief and one member
shall be selected by agreement between the chief and the director.
If a vacancy exists on the panel, the vacancy shall be filled by
whomever made the initial selection. The members of the panel shall
serve without compensation.
(b) Upon appeal of a decision under this section or upon
petition by the chief, pursuant to the provisions of subsection (a),
section five of this article, the panel shall hold an informal
conference affirming, modifying or vacating an order of the
director, or issuing an order in the name of the director. The
panel shall forthwith notify the parties of its decision and as soon
as practicable send written notice of its decision to the parties. The decision of the panel
shall be is final unless reversed, vacated
or modified on appeal to the circuit court of the county wherein the
cause for the decision arose.
(c) A party aggrieved by a decision of a panel may appeal to
the circuit court of the county wherein the cause for the order
arose. Such appeal must be filed with the circuit court within
twenty days of the date of decision of the panel and shall be heard
de novo by the court. The court may reverse, vacate or modify the
decision of the panel. The decision of the circuit court shall be
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.
§19-1B-12a. Criminal penalties.
(a)
After July 1, 2002, any A person who knowingly or willingly
commits one of the following violations is guilty of a misdemeanor
and, upon conviction thereof, shall be fined not less than $250 and
not more than $500 for each violation:
(1) Conducts timbering operations or purchases timber or buys
logs for resale in this state without holding a valid license from
the Director of the Division of Forestry, as required by subsection
(a), section four of this article;
(2) Conducts timbering operations or severs trees for sale at
a location in this state, without providing the Director of the Division of Forestry with notice of the location where the timbering
or harvesting operations are to be conducted, as required by section
six of this article;
(3) Conducts a timbering operation in this state that is not
supervised by a certified logger who holds a valid certificate from
the Director of the Division of Forestry, as required by section
seven of this article; or
(4) Continues to conduct timbering or logging operations in
violation of an existing suspension or revocation order that has
been issued by the Director of the Division of Forestry or a
conference panel under section five, ten or eleven of this article.
(b) For the purposes of this section, each day that a person
conducts logging or timbering operations in this state without a
license
that is as required by this article, without the supervision
of a certified logger as required by this article, without providing
notice of the location to the director
of forestry as required by
this article, or in violation of an outstanding suspension or
revocation order shall constitute a separate offense.
(c) In addition to any other law-enforcement agencies that have
jurisdiction over criminal violations, any forester or forest
ranger
technician employed by the Division of Forestry, who, as a part of
his or her official duties is authorized
or designated by the
Director of the Division of Forestry to inspect logging or timbering
activities, is
hereby authorized to issue citations for any of the listed violations
set forth above in this section that he or she has
personally witnessed. The limited authority granted by this section
to employees of the Division of Forestry to issue citations to
enforce the provisions of this section does not include the power
to place any individual or person under arrest.
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(NOTE: The purpose of this bill is to update the Logging
Sediment Control Act, including an exclusion for ten acres or less
of privately-owned land, establishing biennial licensure and fee and
making technical corrections.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.)