SB373 HFA ELLEM LANE ET ALS. 3-5 #1

    Delegates Ellem, Lane, Poore, Shott, Manypenny, Skinner, Walters and Fleischauer move to amend the committee amendment on page 88, after section 12, after line 9, by inserting the following:

“ARTICLE 32. CIVIL RELIEF FOR CERTAIN PERSONS AFFECTED BY VIOLATIONS OF ARTICLE ONE, CHAPTER SIXTEEN OF THIS CODE OR ARTICLES THIRTY AND THIRTY-ONE OF THIS CHAPTER.

§22-32-1. Definitions.

    For the purposes of this article:

    (a) “Customer of a public water system” means a person who is a paying subscriber for water service from a public water system or a person residing in a dwelling owned, leased or rented by the subscriber;

    (b) “Public water system” means;

    (1) Any water supply or system which regularly supplies or offers to supply water for human consumption through pipes or other constructed conveyances, if serving at least an average of twenty-five individuals per day for at least sixty days per year, or which has at least fifteen service connections, and shall include:

    (A) Any collection, treatment, storage and distribution facilities under the control of the owner or operator of the system and used primarily in connection with the system; and

    (B) Any collection or pretreatment storage facilities not under such control which are used primarily in connection with the system.

    (2) A public water system does not include a system which meets all of the following conditions:

    (A) Consists only of distribution and storage facilities (and does not have any collection and treatment facilities);

    (B) Obtains all of its water from, but is not owned or operated by, a public water system which otherwise meets the definition;

    (C) Does not sell water to any person; and

    (D) Is not a carrier conveying passengers in interstate commerce.

    (c) “Public surface water supply source” means a primary source of water supply for a public water system which is directly drawn from rivers, streams, lakes, ponds, impoundments or other primary sources of water supplies which are found on the surface of the state.

    (d) “Qualified person” means a person residing in a zone of critical concern, or is a customer of a public water system;

    (e) “Tank owner or operator” means a tank owner or operator of a tank that is subject to the provisions of article thirty of this chapter;

    (f) “Zone of Critical Concern” for a public surface water supply to a public water system is a corridor along streams within a watershed that warrant more detailed scrutiny due to its proximity to the surface water intake and the intake’s susceptibility to potential contaminants within that corridor. The Zone of Critical Concern is determined using a mathematical model that accounts for stream flows, gradient and area topography. The length of the Zone of Critical Concern is based on a five-hour time of travel of water in the streams to the water intake, plus an additional 1/4 mile below the water intake. The width of the Zone of Critical Concern is 1,000 feet measured horizontally from each bank of the principal stream and 500 feet measured horizontally from each bank of the tributaries draining into the principal stream.

§22-32-2. Civil causes of action for qualified persons.

    (a) Notwithstanding any other provision of this code to the contrary:

    (1) A qualified person may bring a civil action against any public water system of which the qualified person is a customer or any tank owner or operator or other person in a zone of critical concern in which the qualified person resides or which is in a zone of critical concern of the public water system of which the qualified person is a customer who is in violation the provisions of article one, chapter sixteen of this code or articles thirty and thirty-one of this chapter which has resulted in or which creates the substantial risk or imminent danger of, personal injury to, or damage or destruction to property of, the qualified person. The qualified person may be awarded the following relief:

    (A) Equitable relief including, but not limited to, injunctive relief, an order awarding a writ of mandamus or a writ of prohibition or any other order awarding equitable relief;

    (B) Damages to the qualified person;

    (C) Reasonable attorneys fees and court costs incurred by the qualified person that prevails or substantially prevails upon all or any significant portion of the action; and

    (D) Such other relief as the court finds necessary to provide adequate relief to the qualified person.

    (2) A qualified person may bring a civil action against the Bureau of Public Health to require the enforcement of the provisions of article one, chapter sixteen of this code or against the department to enforce the provisions of articles thirty and thirty-one of this code applicable to any public water system of which the qualified person is a customer or any tank owner or operator or other person in a zone of critical concern in which the qualified person resides or is in a zone of critical concern of the public water system of which the qualified person is a customer for a violation of any provision of those articles which has resulted in or which creates the substantial risk or imminent danger of, damages for personal injury to, or damage or destruction to property of the qualified person. The qualified person may be awarded the following relief:

    (A) Equitable relief including, but not limited to, injunctive relief, an order awarding a writ of mandamus or a writ of prohibition or any other order awarding equitable relief;

    (B) Damages incurred as a result of the failure of the Bureau of Public Health or department to properly enforce the provisions of this code as complained of in the action;

    (C) Reasonable attorneys fees and court costs incurred by the qualified person that prevails or substantially prevails upon all or any significant portion of the action; and

    (D) Such other relief as the court finds necessary to provide adequate relief to the qualified person.

     (b) Venue for a civil action permitted in this article is in the circuit court of the county in which the qualified person resided at the time the violation occurred or in the county in which the violation occurred.

    (c) An action commenced pursuant to subdivision (2), subsection (a) of this section is subject to any requirements of notice of the intention to commence an action against the State of West Virginia prescribed in this code.

    (d) A qualified person may not be required to post a bond to commence an action or as a condition of any interlocutory or final order that may be entered in an action permitted in this article.

    (e) A qualified person has standing to intervene, as a matter of right, in any action commenced by the Bureau of Public Health or the department in which the Bureau or department commenced for violations for which the qualified person could seek relief by an action permitted to this article.”

And

    On page 1, line one, by striking the enacting section and inserting a new enacting section, to read as follows:

    “That §16-1-2 and §16-1-9a of the Code of West Virginia, 1931, as amended, be amended and reenacted; that said code be amended by adding thereto two new sections, designated §16-1-9c and §16-1-9d; that §22-26-2, §22-26-3, §22-26-5, §22-26-6, §22-26-7 and §22-26-8 of said code be amended and reenacted; and that said code be amended by adding thereto a new article, designated §22-30-1, §22-30-2, §22-30-3, §22-30-4, §22-30-5, §22-30-6, §22-30-7, §22-30-8, §22-30-9, §22-30-10, §22-30-11, §22-30-12, §22-30-13, §22-30-14, §22-30-15, §22-30-16, §22-30-17, §22-30-18, §22-30-19, §22-30-20, §22-30-21, §22-30-22, §22-30-23, §22-30-24 and §22-30-25; and that said code be amended and reenacted by adding thereto a new article, designated §22-31-1, §22-31-2, §22-31-3, §22-31-4, §22-31-5, §22-31-6, §22-31-7, §22-31-8, §22-31-9, §22-31-10, §22-31-11 and §22-31-12, and that said code be amended and reenacted by adding thereto a new article, designated §22-32-1 and §22-32-2, all to read as follows:”

Adopted

Rejected