§5-1-26. Fuel emergency; power of the governor to declare an emergency; duties of the governor with respect to such emergency; assistance of other state agencies and local law-enforcement agencies; injunctive relief; penalties; jurisdiction


Published: 2015

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WEST VIRGINIA CODE











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WVC 5-1-26

§5-1-26. Fuel emergency; power of the governor to declare an

emergency; duties of the governor with respect to such

emergency; assistance of other state agencies and local

law-enforcement agencies; injunctive relief; penalties;

jurisdiction.

(a) The Legislature hereby finds and declares that the

purposes of this section are to protect and promote the public

peace, safety, economy, revenue, health and welfare and interest of

the people of this state and, to do so, it is necessary to ensure

free and competitive access to gasoline and special fuel for and to

the users of gasoline or special fuel in this state during the time

of any fuel emergency as declared by the governor pursuant to the

power and authority herein granted.

(b) As used herein or as used in any proclamation, order, rule

or regulation issued by the governor pursuant to this section,

unless the context requires a different meaning, the terms or

phrases "actual metered gallons," "distributor," "producer,"

"gallon," "gasoline," "importer," "person," "petroleum carrier,"

"purchase," "receive," "retail dealer," "sale," "special fuel,"

"supply tank," "tank wagon" and "user" shall have the same meanings

ascribed to those terms or phrases in section two, article

fourteen, chapter eleven of this code.

(c) When the public peace, safety, economy, revenue, health,

welfare or interest of the people of this state is impaired or

imperiled because of a shortage of gasoline or special fuel, and

the governor so finds, the governor is hereby empowered and authorized and it shall be his duty to issue a proclamation

declaring the existence of a fuel emergency in this state or any

part thereof. Upon the issuance of such proclamation by the

governor, the governor is hereby granted plenary power and

authority to issue, amend, suspend or revoke orders, rules and

regulations to:

(1) Allocate or distribute gasoline or special fuel to the

extent permitted by any federal law relating to the allocation or

distribution of gasoline or special fuel and rules and regulations

promulgated thereunder or to the extent permitted by the

appropriate federal agency.

(2) Control, restrict and regulate the sale by distributors,

producers, importers and retail dealers of gasoline and special

fuel to users by any appropriate means including, but not limited

to, the establishment of quotas, rationing, specifications that

certain users may purchase gasoline or special fuel only on certain

days, and other conditions upon the purchase of gasoline or special

fuel to the extent permitted by any federal law relating to the

allocation or distribution of gasoline or special fuel and rules

and regulations promulgated thereunder or to the extent permitted

by the appropriate federal agency.

Any such order, rule or regulation shall have such statewide,

regional, county or other area application, as the governor shall

specify therein. Whenever the nature and severity of a fuel

emergency varies from area to area in the state, the governor shall have plenary power and authority, within the limitations of

subdivisions (1) and (2) above, to establish different allocation

or distribution formulae, controls, restrictions and regulations

for different areas of the state at different times.

(d) Any orders, rules or regulations issued pursuant to this

section shall be valid only during the period of any such fuel

emergency and may be issued or promulgated without complying with

the provisions of chapter twenty-nine-a of this code: Provided,

That a copy of every such order, rule or regulation shall be filed

in the office of the secretary of state before the same is

effective and the secretary of state shall, within five days

thereafter, forward a certified copy thereof to the clerk of the

county court of each county and every such clerk shall forthwith

admit such order, rule or regulation to record in the miscellaneous

records of the county court kept in the office of each such clerk,

but such filing in the office of the secretary of state shall alone

constitute constructive notice to any person affected by such

order, rule or regulation: Provided, however, That the county

court of each county shall, when the first such order, rule or

regulation is admitted to record, forthwith cause to be published

a notice to the effect that such order, rule or regulation is, and

that all further orders, rules and regulations or record copies

thereof shall be, available for inspection in the office of the

county clerk of such county. Such notice shall be published as a

Class I legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code, and the publication

area for such publication shall be such county. A copy of any such

order, rule or regulation certified by the secretary of state shall

be admissible in any court in this state as proof of the contents

thereof.

(e) The governor is hereby granted plenary power and authority

to enforce any order, rule or regulation issued pursuant to this

section and, in so doing, may secure the assistance of any state

agency, the attorney general or his designate, the prosecuting

attorneys of the several counties and any state or local

law-enforcement agencies or officers. Such persons shall assist

the governor in enforcing the provisions of any such order, rule or

regulation so issued and promulgated by the governor when called

upon to do so by the governor. The governor may petition any

circuit court of this state for the issuance of a temporary

restraining order or injunction or for any other remedy, as may be

appropriate, to compel any person to comply with any such order,

rule or regulation, and it shall be the duty of the attorney

general and the prosecuting attorneys of the various counties to

assist and cooperate with the governor in obtaining such relief.

No injunction bond shall be required, and in the event of an appeal

to the West Virginia supreme court of appeals, the filing of such

appeal shall not stay enforcement of the final judgment of the

circuit court enforcing any such order, rule or regulation.

(f) Whenever it appears to the governor that there exists a serious, direct and immediate threat to the health and safety of

any persons in this state because of the failure or refusal of a

producer or distributor to comply, in a timely manner, with an

order, rule or regulation issued pursuant to the provisions of

subsection (c) of this section, the governor shall have the

authority to distribute or cause to have distributed from the

supplies of gasoline or special fuel owned, retained or possessed

by such producer or distributor a sufficient amount of gasoline or

special fuel as may be required to alleviate any such emergency.

Such producer or distributor shall be compensated by the user,

consumer or retail dealer receiving such gasoline or special fuel

at the then existing average market value, either retail value or

wholesale value, as the case may be: Provided, That there shall be

deducted from such compensation the amount necessary to pay for the

cost of distribution of such gasoline or special fuel: Provided,

however, That the governor shall be required to serve written

notice of his intent to exercise the powers granted by this

subsection to the parties involved: Provided further, That upon

the issuance of such notice, the governor shall cause to be

initiated those legal proceedings relevant to the enforcement of

any order, rule or regulation as required by and hereinbefore set

out in subsection (e) of this section: And provided further, That

such order, rule or regulation issued by the governor shall not

conflict with or be contrary to any federal law relating to the

allocation or distribution of gasoline or special fuel and rules and regulations promulgated thereunder or to any power granted the

governor by any federal agency.

(g) Any producer or distributor violating any provision of any

such order, rule or regulation of the governor issued or

promulgated pursuant to this section, shall be guilty of a

misdemeanor, and, upon conviction thereof, shall be fined not less

than one hundred dollars nor more than twenty-five thousand

dollars, or imprisoned in the county jail for not more than one

year, or both fined and imprisoned. Any retail dealer violating

any provision of any such order, rule or regulation of the governor

issued or promulgated pursuant to this section, shall be guilty of

a misdemeanor, and, upon conviction thereof, shall be fined not

less than twenty-five dollars nor more than one hundred dollars.

Each day or part thereof that any such violation shall take place,

or continue to take place, shall be deemed to constitute a distinct

and separate offense and shall be punishable accordingly.

(h) When the governor determines that any such fuel emergency

no longer exists, he shall issue a proclamation terminating all

orders, rules or regulations issued pursuant to the provisions of

this section.

(i) The provisions of this section shall expire on July one,

one thousand nine hundred seventy-four.





Note: WV Code updated with legislation passed through the 2015 Regular Session

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