Senate Bill No. 539
(By Senator Caruth)
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[Introduced March 11, 2009; referred to the Committee on Energy,
Industry and Mining; and then to the Committee on the Judiciary.]
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A BILL to amend and reenact §22-3-17 of the Code of West Virginia,
1931, as amended, relating to requiring the Department of
Environmental Protection to use its authority under the Water
Pollution Control Act to enforce surface mining-related water
pollution violations of effluent limits and water quality.
Be it enacted by the Legislature of West Virginia:
That §22-3-17 of the Code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:
ARTICLE 3. SURFACE COAL MINING AND RECLAMATION ACT.
§22-3-17. Notice of violation; procedure and actions; enforcement;
permit revocation and bond forfeiture; civil and
criminal penalties; appeals to the board; prosecution;
injunctive relief.
(a) If any of the requirements of this article, rules
promulgated pursuant thereto or permit conditions have not been complied with, the director shall cause a notice of violation to be
served upon the operator or the operator's duly authorized agent.
A copy of the notice shall be handed to the operator or the
operator's duly authorized agent in person or served by certified
mail addressed to the operator at the permanent address shown on
the application for a permit. The notice shall specify in what
respects the operator has failed to comply with this article, rules
or permit conditions and shall specify a reasonable time for
abatement of the violation not to exceed thirty days. If the
operator has not abated the violation within the time specified in
the notice, or any reasonable extension thereof, not to exceed
sixty days, the director shall order the cessation of the operation
or the portion thereof causing the violation, unless the operator
affirmatively demonstrates that compliance is unattainable due to
conditions totally beyond the control of the operator. If a
violation is not abated within the time specified or any extension
thereof, or any cessation order is issued, a mandatory civil
penalty of not less than $750 per day per violation shall be
assessed. A cessation order remains in effect until the director
determines that the violation has been abated or until modified,
vacated or terminated by the director or by a court. In any
cessation order issued under this subsection, the director shall
determine the steps necessary to abate the violation in the most
expeditious manner possible and shall include the necessary measures in the order:
Provided, That all water effluent limit
violations and water quality standard violations arising in a
surface coal mining context shall be enforced by the Department of
Environmental Protection through its authority pursuant to article
eleven, chapter twenty-two of this code, the "West Virginia Water
Pollution Control Act", and the rules promulgated under the
authority of the "Water Pollution Control Act."
(b) If the director determines that a pattern of violations of
any requirement of this article or any permit condition exists or
has existed, as a result of the operator's lack of reasonable care
and diligence, or that the violations are willfully caused by the
operator, the director shall immediately issue an order directing
the operator to show cause why the permit should not be suspended
or revoked and giving the operator thirty days in which to request
a public hearing. If a hearing is requested, the director shall
inform all interested parties of the time and place of the hearing.
Any hearing under this section shall be recorded and is subject to
the provisions of chapter twenty-nine-a of this code. Within sixty
days following the public hearing, the director shall issue and
furnish to the permittee and all other parties to the hearing a
written decision, and the reasons therefor, concerning suspension
or revocation of the permit. Upon the operator's failure to show
cause why the permit should not be suspended or revoked, the
director shall immediately suspend or revoke the operator's permit. If the permit is revoked, the director shall initiate procedures in
accordance with rules promulgated by the director to forfeit the
entire amount of the operator's bond, or other security posted
pursuant to section eleven or twelve of this article, and give
notice to the Attorney General, who shall collect the forfeiture
without delay:
Provided, That the entire proceeds of
such
the forfeiture shall be deposited with the Treasurer of the State
of West Virginia to the credit of the Special Reclamation Fund.
All forfeitures collected shall be deposited in the Special
Reclamation Fund and shall be expended back upon the areas for
which the bond was posted:
Provided, however, That any excess
therefrom shall remain in the Special Reclamation Fund.
Within one year following the notice of permit revocation,
subject to the discretion of the director and based upon a petition
for reinstatement, the revoked permit may be reinstated. The
reinstated permit may be assigned to any person who meets the
permit eligibility requirements of this article.
(c) Any person engaged in surface-mining operations who
violates any permit condition or who violates any other provision
of this article or rules promulgated pursuant thereto may also be
assessed a civil penalty. The penalty may not exceed $5,000. Each
day of continuing violation may be
deemed considered a separate
violation for purposes of penalty assessments. In determining the
amount of the penalty, consideration shall be given to the operator's history of previous violations at the particular
surface-mining operation, the seriousness of the violation,
including any irreparable harm to the environment and any hazard to
the health or safety of the public, whether the operator was
negligent, and the demonstrated good faith of the operator charged
in attempting to achieve rapid compliance after notification of the
violation.
(d) (1) Upon the issuance of a notice or order pursuant to
this section, the assessment officer shall, within thirty days, set
a proposed penalty assessment and notify the operator in writing of
such the proposed penalty assessment. The proposed penalty
assessment must be paid in full within thirty days of receipt or,
if the operator wishes to contest either the amount of the penalty
or the fact of violation, an informal conference with the
assessment officer may be requested within fifteen days or a formal
hearing before the surface mine board may be requested within
thirty days. The notice of proposed penalty assessment shall
advise the operator of the right to an informal conference and a
formal hearing pursuant to this section. When an informal
conference is requested, the operator has fifteen days from receipt
of the assessment officer's decision to request a formal hearing
before the board.
(A) When an informal conference is held, the assessment
officer has authority to affirm, modify or vacate the notice, order or proposed penalty assessment.
(B) When a formal hearing is requested, the amount of the
proposed penalty assessment shall be forwarded to the director for
placement in an escrow account. Formal hearings shall be of record
and subject to the provisions of article five, chapter
twenty-nine-a of this code. Following the hearing the board shall
affirm, modify or vacate the notice, order or proposed penalty
assessment and, when appropriate, incorporate an assessment order
requiring that the assessment be paid.
(2) Civil penalties owed under this section may be recovered
by the director in the circuit court of Kanawha County. Civil
penalties collected under this article shall be deposited with the
Treasurer of the State of West Virginia to the credit of the
Special Reclamation Fund established in section eleven of this
article. If, through the administrative or judicial review of the
proposed penalty it is determined that no violation occurred or
that the amount of the penalty should be reduced, the director
shall within thirty days remit the appropriate amount to the
person, with interest at the rate of six percent or at the
prevailing United States Department of the Treasury rate, whichever
is greater. Failure to forward the money to the director within
thirty days is a waiver of all legal rights to contest the
violation or the amount of the penalty.
(e) Any person having an interest which is or may be adversely affected by any order of the director or the surface mine board may
file an appeal only in accordance with the provisions of article
one, chapter twenty-two-b of this code, within thirty days after
receipt of the order.
(f) The filing of an appeal or a request for an informal
conference or formal hearing provided for in this section does not
stay execution of the order appealed from. Pending completion of
the investigation and conference or hearing required by this
section, the applicant may file with the director a written request
that the director grant temporary relief from any notice or order
issued under section sixteen or seventeen of this article, together
with a detailed statement giving reasons for granting such relief.
The director shall issue an order or decision granting or denying
such relief expeditiously:
Provided, That where the applicant
requests relief from an order for cessation of surface-mining and
reclamation operations, the decision on the request shall be issued
within five days of its receipt. The director may grant such
relief, under such conditions as he or she may prescribe if:
(1) All parties to the proceedings have been notified and
given an opportunity to be heard on a request for temporary relief;
(2) The person requesting the relief shows that there is a
substantial likelihood that they will prevail on the merits in the
final determination of the proceedings;
(3) The relief will not adversely affect the public health or safety or cause significant imminent environmental harm to land,
air or water resources; and
(4) The relief sought is not the issuance of a permit where a
permit has been denied, in whole or in part, by the director.
(g) Any person who willfully and knowingly violates a
condition of a permit issued pursuant to this article or rules
promulgated pursuant thereto, or fails or refuses to comply with
any order issued under said article and rules or any order
incorporated in a final decision issued by the director, is guilty
of a misdemeanor and, upon conviction thereof, shall be fined not
less than $100 nor more than $10,000, or
imprisoned confined in
the
county jail not more than one year, or both fined and
imprisoned
confined.
(h) Whenever a corporate operator violates a condition of a
permit issued pursuant to this article, rules promulgated pursuant
thereto, or any order incorporated in a final decision issued by
the director, any director, officer or agent of the corporation who
willfully and knowingly authorized, ordered or carried out the
failure or refusal, is subject to the same civil penalties, fines
and
imprisonment confinement that may be imposed upon a person
under subsections (c) and (g) of this section.
(i) Any person who knowingly makes any false statement,
representation or certification, or knowingly fails to make any
statement, representation or certification in any application, petition, record, report, plan or other document filed or required
to be maintained pursuant to this article or rules promulgated
pursuant thereto, is guilty of a misdemeanor and, upon conviction
thereof, shall be fined not less than $100 nor more than $10,000,
or
imprisoned confined in
the county jail not more than one year,
or both fined and
imprisoned confined.
(j) Whenever any person: (A) Violates or fails or refuses to
comply with any order or decision issued by the director under this
article; or (B) interferes with, hinders or delays the director in
carrying out the provisions of this article; or (C) refuses to
admit the director to the mine; or (D) refuses to permit inspection
of the mine by the director; or (E) refuses to furnish any
reasonable information or report requested by the director in
furtherance of the provisions of this article; or (F) refuses to
permit access to, and copying of,
such any records as the director
determines necessary in carrying out the provisions of this
article; or (G) violates any other provisions of this article, the
rules promulgated pursuant thereto, or the terms and conditions of
any permit, the director, the Attorney General or the prosecuting
attorney of the county in which the major portion of the permit
area is located may institute a civil action for relief, including
a permanent or temporary injunction, restraining order or any other
appropriate order, in the circuit court of Kanawha County or any
court of competent jurisdiction to compel compliance with and enjoin such violations, failures or refusals. The court or the
judge thereof may issue a preliminary injunction in any case
pending a decision on the merits of any application filed without
requiring the filing of a bond or other equivalent security.
(k) Any person who, except as permitted by law, willfully
resists, prevents, impedes or interferes with the director or any
of his or her agents in the performance of duties pursuant to this
article is guilty of a misdemeanor and, upon conviction thereof,
shall be punished by a fine of not more than $5,000 or by
imprisonment confinement for not more than one year, or both.
NOTE: The purpose of this bill is to require the Department of
Environmental Protection to use its authority under the Water
Pollution Control Act pursuant to article eleven, chapter twenty-
two of the code to enforce surface mining related water pollution
violations of effluent limits and water quality standards.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.