West Virginia Code 24C-1-9 – Civil enforcement
(a) Any person who violates this article by failure to notify the one-call system, or who violates the rules proposed or promulgated under this article, shall be subject to civil penalty as follows:
Terms Used In West Virginia Code 24C-1-9
- demolition: means any operation by which a structure or mass of material is wrecked, razed, rendered, moved, or removed by means of any tools, equipment or discharge of explosives which could damage underground facilities: Provided, That "demolish" and "demolition" do not include earth-disturbing activities authorized pursuant to the provisions of §. See West Virginia Code 24C-1-2
- excavation: means any operation in which earth, rock, or other material in the ground is moved, removed, or otherwise displaced by means of any tools, equipment, or explosives, and includes, without limitation, boring, backfilling, grading, trenching, trenchless technology, digging, ditching, dredging, drilling, auguring, tunneling, moleing, scraping, cable or pipe plowing and driving, wrecking, razing, rendering, moving, or removing any structure or mass of material, but does not include underground or surface mining operations or related activities or the tilling of soil for agricultural purposes or for domestic gardening. See West Virginia Code 24C-1-2
- Excavator: means any person intending to engage or engaged in excavation or demolition work. See West Virginia Code 24C-1-2
- One-call system: means a communication system that receives notification from excavators of intended excavation work and prepares and transmits such notification to operators of underground facilities in accordance with this article. See West Virginia Code 24C-1-2
- Person: means any individual, firm, joint venture, partnership, corporation, association, state agency, county, municipality, cooperative association, or joint stock association, and any trustee, receiver, assignee, agency, or personal representative thereof. See West Virginia Code 24C-1-2
- State: when applied to a part of the United States and not restricted by the context, includes the District of Columbia and the several territories, and the words "United States" also include the said district and territories. See West Virginia Code 2-2-10
(1) For a first violation, the violator shall complete a course of training concerning compliance with this article as determined by the board;
(2) For a second violation occurring within a five-year period, the violator shall complete a course of training concerning compliance with this article as determined by the board or pay a civil penalty in an amount set by the board, not to exceed $500 per incident, or both;
(3) For a third or subsequent violation occurring within a five-year period, the violator shall pay a civil penalty in an amount set by the board, not to exceed $2,500 per incident; and
(4) Notwithstanding this section, if any violation was the result of gross negligence or willful or wanton misconduct as determined by the board, the board shall require the violator to complete a course of training concerning compliance with this article as determined by the board and pay a civil penalty not to exceed $5,000 per incident.
(b) Any person who is required to complete a course of training under this section shall be responsible for the cost of the training. As used in this section, “course of training” means training developed by or under the direction of the board.
(c) Any excavator who violates this article by failing to notify the one-call system of the intended excavation or demolition may be required to cease work on any excavation, or not start a proposed excavation, until the excavator complies with this article.
(d) Nothing in this article shall limit any person’s right to pursue any additional civil remedy otherwise allowed by law.
(e)(1) If the person to whom the citation is issued under this section does not pay the citation or submit to training as ordered or both, within 30 days, the board shall appoint a hearing officer to conduct a hearing and issue an initial order pursuant to the State Administrative Procedures Act. The hearing shall be held at the time and place set forth in the citation notice of hearing in the county where excavation referenced in the citation occurred, unless otherwise agreed to by the person to whom the citation was issued.
(2) A person aggrieved by the final order may, within 30 days, file a petition for judicial review pursuant to § 29A-1-1 et seq. of this code.