Senate Bill No. 406
(By Senators Dempsey and Unger)
[Introduced February 28, 2005; referred to the Committee on
Energy, Industry and Mining; and then to the
Committee on the Judiciary.]
A BILL to amend of the Code of West Virginia, 1931, as amended, by
adding thereto a new article, designated §22-22B-1, §22-22B-2,
§22-22B-3, §22-22B-4, §22-22B-
9, §22-22B-10, §22-22B-11, §22-22B-12,
relating to the Uniform Environmental
Covenants Act generally; defining certain terms; explaining
rights and responsibilities of persons who sign environmental
covenant; providing for subordination of interests;
establishing requirements of environmental covenant; providing
that environmental covenant runs with the land and is valid if
meets requirements of act; setting forth effect of
environmental covenant on other instruments; establishing
relationship between environmental covenants and other land-
use law; requiring environmental covenants be provided to
certain persons; requiring environmental covenant amendments and terminations be recorded; providing environmental covenant
is perpetual unless certain conditions met; authorizing
amendment or termination by court or by consent; providing for
enforcement of environmental covenant; providing for
uniformity of application and construction of act; authorizing
modification or application of certain parts of federal
Electronic Signatures in Global and National Commerce Act; and
providing for severability.
Be it enacted by the Legislature of West Virginia:
That the code of West Virginia, 1931, as amended, be amended
by adding thereto a new article, designated §22-22B-1, §22-22B-2,
§22-22B-3, §22-22B-4, §22-22B-
9, §22-22B-10, §22-22B-11,
all to read as follows:
ARTICLE 22B. UNIFORM ENVIRONMENTAL COVENANTS ACT.
§22-22B-1. Short title.
This article may be cited as the Uniform Environmental
As used in this article and insofar as they are not in
conflict with article twenty-two of this chapter, the following
terms shall mean:
(1) "Activity and use limitations" means restrictions or
obligations created under this article with respect to real property.
(2) "Agency" means the Department of Environmental Protection
or any federal agency that determines or approves the environmental
response project pursuant to which the environmental covenant is
(3) "Common interest community" means a condominium,
cooperative, or other real property with respect to which a person,
by virtue of the person's ownership of a parcel of real property,
is obligated to pay property taxes or insurance premiums, or for
maintenance or improvement of other real property described in a
recorded covenant that creates the common interest community.
(4) "Environmental covenant" means a servitude arising under
an environmental response project that imposes activity and use
(5) "Environmental response project" means a plan or work
performed for environmental remediation of real property and
(A) Under a federal or state program governing environmental
remediation of real property, including article twenty-two of this
(B) Incident to closure of a solid or hazardous waste
management unit, if the closure is conducted with approval of an
(C) Under a state voluntary clean-up program authorized in article twenty-two of this chapter.
(6) "Holder" means the grantee of an environmental covenant as
specified in subsection (a), section three of this article.
(7) "Person" means an individual, corporation, business trust,
estate, trust, partnership, limited liability company, association,
joint venture, public corporation, government, governmental
subdivision, agency or instrumentality or any other legal or
(8) "Record" means information that is inscribed on a tangible
medium or that is stored in an electronic or other medium and is
retrievable in perceivable form.
(9) "State" means a state of the United States, the District
of Columbia, Puerto Rico, the United States Virgin Islands or any
territory or insular possession subject to the jurisdiction of the
§22-22B-3. Nature of rights; subordination of interests.
(a) Any person, including a person that owns an interest in
the real property, the agency, or a municipality or other unit of
local government, may be a holder. An environmental covenant may
identify more than one holder. The interest of a holder is an
interest in real property.
(b) A right of an agency under this article or under an
environmental covenant, other than a right as a holder, is not an
interest in real property.
(c) An agency is bound by any obligation it assumes in an
environmental covenant, but an agency does not assume obligations
merely by signing an environmental covenant. Any other person that
signs an environmental covenant is bound by the obligations the
person assumes in the covenant, but signing the covenant does not
change obligations, rights or protections granted or imposed under
law other than this article except as provided in the covenant.
(d) The following rules apply to interests in real property in
existence at the time an environmental covenant is created or
(1) An interest that has priority under other law is not
affected by an environmental covenant unless the person that owns
the interest subordinates that interest to the covenant.
(2) This article does not require a person that owns a prior
interest to subordinate that interest to an environmental covenant
or to agree to be bound by the covenant.
(3) A subordination agreement may be contained in an
environmental covenant covering real property or in a separate
record. If the environmental covenant covers commonly owned
property in a common interest community, the record may be signed
by any person authorized by the governing board of the owners'
(4) An agreement by a person to subordinate a prior interest
to an environmental covenant affects the priority of that person's interest but does not by itself impose any affirmative obligation
on the person with respect to the environmental covenant.
§22-22B-4. Contents of environmental covenant.
(a) An environmental covenant must:
(1) State that the instrument is an environmental covenant
executed pursuant to this article;
(2) Contain a legally sufficient description of the real
property subject to the covenant;
(3) Describe the activity and use limitations on the real
(4) Identify every holder;
(5) Be signed by the agency, every holder, and unless waived
by the agency every owner of the fee simple of the real property
subject to the covenant; and
(6) Identify the name and location of any administrative
record for the environmental response project reflected in the
(b) In addition to the information required by subsection (a)
of this section, an environmental covenant may contain other
information, restrictions and requirements agreed to by the persons
who signed it, including any:
(1) Requirements for notice following transfer of a specified
interest in, or concerning proposed changes in use of, applications
for building permits for, or proposals for any site work affecting the contamination on, the property subject to the covenant;
(2) Requirements for periodic reporting describing compliance
with the covenant;
(3) Rights of access to the property granted in connection
with implementation or enforcement of the covenant;
(4) A brief narrative description of the contamination and
remedy, including the contaminants of concern, the pathways of
exposure, limits on exposure and the location and extent of the
(5) Limitation on amendment or termination of the covenant in
addition to those contained in sections nine and ten of this
(6) Rights of the holder in addition to its right to enforce
the covenant pursuant to section eleven of this article.
(c) In addition to other conditions for its approval of an
environmental covenant, the agency may require those persons
specified by the agency who have interests in the real property to
sign the covenant.
§22-22B-5. Validity; effect on other instruments.
(a) An environmental covenant that complies with this article
runs with the land.
(b) An environmental covenant that is otherwise effective is
valid and enforceable even if:
(1) It is not appurtenant to an interest in real property;
(2) It can be or has been assigned to a person other than the
(3) It is not of a character that has been recognized
traditionally at common law;
(4) It imposes a negative burden;
(5) It imposes an affirmative obligation on a person having an
interest in the real property or on the holder;
(6) The benefit or burden does not touch or concern real
(7) There is no privity of estate or contract;
(8) The holder dies, ceases to exist, resigns or is replaced;
(9) The owner of an interest subject to the environmental
covenant and the holder are the same person.
(c) An instrument that creates restrictions or obligations
with respect to real property that would qualify as activity and
use limitations except for the fact that the instrument was
recorded before the effective date of the enactment of this article
during the regular session of the Legislature in two thousand five
is not invalid or unenforceable because of any of the limitations
on enforcement of interests described in subsection (b) of this
section or because it was identified as an easement, servitude,
deed restriction or other interest. This article does not apply in
any other respect to such an instrument.
(d) This article does not invalidate or render unenforceable
any interest, whether designated as an environmental covenant or
other interest, that is otherwise enforceable under the law of this
§22-22B-6. Relationship to other land-use law.
This article does not authorize a use of real property that is
otherwise prohibited by zoning, by law other than this article
regulating use of real property, or by a recorded instrument that
has priority over the environmental covenant. An environmental
covenant may prohibit or restrict uses of real property which are
authorized by zoning or by law other than this article.
(a) A copy of an environmental covenant shall be provided by
the persons and in the manner required by the agency to:
(1) Each person that signed the covenant;
(2) Each person holding a recorded interest in the real
property subject to the covenant;
(3) Each person in possession of the real property subject to
(4) Each municipality or other unit of local government in
which real property subject to the covenant is located; and
(5) Any other person the agency requires.
(b) The validity of a covenant is not affected by failure to
provide a copy of the covenant as required under this section.
(a) An environmental covenant and any amendment or termination
of the covenant must be recorded in every county in which any
portion of the real property subject to the covenant is located.
For purposes of indexing, a holder shall be treated as a grantee.
(b) Except as otherwise provided in subsection (c), section
nine of this article, an environmental covenant is subject to the
laws of this state governing recording and priority of interests in
§22-22B-9. Duration; amendment by court action.
(a) An environmental covenant is perpetual unless it is:
(1) By its terms limited to a specific duration or terminated
by the occurrence of a specific event;
(2) Terminated by consent pursuant to section ten of this
(3) Terminated pursuant to subsection (b) of this section;
(4) Terminated by foreclosure of an interest that has priority
over the environmental covenant; or
(5) Terminated or modified in an eminent domain proceeding,
but only if:
(A) The agency that signed the covenant is a party to the
(B) All persons identified in subsections (a) and (b), section
ten of this article are given notice of the pendency of the proceeding; and
(C) The court determines, after hearing, that the termination
or modification will not adversely affect human health or the
(b) If the agency that signed an environmental covenant has
determined that the intended benefits of the covenant can no longer
be realized, a court, under the doctrine of changed circumstances,
in an action in which all persons identified in subsections (a) and
(b), section ten of this article have been given notice, may
terminate the covenant or reduce its burden on the real property
subject to the covenant. The agency's determination or its failure
to make a determination upon request is subject to review pursuant
to article five, chapter twenty-nine-a of this code.
(c) Except as otherwise provided in subsections (a) and (b) of
this section, an environmental covenant may not be extinguished,
limited or impaired through issuance of a tax deed, foreclosure of
a tax lien, or application of the doctrine of adverse possession,
prescription, abandonment, waiver, lack of enforcement, or
acquiescence, or a similar doctrine.
(d) An environmental covenant may not be extinguished,
limited, or impaired except as authorized by this article.
§22-22B-10. Amendment or termination by consent.
(a) An environmental covenant may be amended or terminated by
consent only if the amendment or termination is signed by:
(1) The agency;
(2) Unless waived by the agency, the current owner of the fee
simple of the real property subject to the covenant;
(3) Each person that originally signed the covenant, unless
the person waived in a signed record the right to consent or a
court finds that the person no longer exists or cannot be located
or identified with the exercise of reasonable diligence; and
(4) Except as otherwise provided in subdivision (2),
subsection (d) of this section, the holder.
(b) If an interest in real property is subject to an
environmental covenant, the interest is not affected by an
amendment of the covenant unless the current owner of the interest
consents to the amendment or has waived in a signed record the
right to consent to amendments.
(c) Except for an assignment undertaken pursuant to a
governmental reorganization, assignment of an environmental
covenant to a new holder is an amendment.
(d) Except as otherwise provided in an environmental covenant:
(1) A holder may not assign its interest without consent of
the other parties;
(2) A holder may be removed and replaced by agreement of the
other parties specified in subsection (a) of this section; and
(e) A court of competent jurisdiction may fill a vacancy in
the position of holder.
§22-22B-11. Enforcement of environmental covenant.
(a) A civil action for injunctive or other equitable relief
for violation of an environmental covenant may be maintained by:
(1) A party to the covenant;
(2) The agency or, if it is not the agency, the Department of
(3) Any person to whom the covenant expressly grants power to
(4) A person whose interest in the real property or whose
collateral or liability may be affected by the alleged violation of
the covenant; or
(5) A municipality or other unit of local government in which
the real property subject to the covenant is located.
(b) This article does not limit the regulatory authority of
the agency or the Department of Environmental Protection under law
other than this article with respect to an environmental response
(c) A person is not responsible for or subject to liability
for environmental remediation solely because it has the right to
enforce an environmental covenant.
§22-22B-12. Uniformity of application and construction.
In applying and construing this uniform act, consideration
must be given to the need to promote uniformity of the law with
respect to its subject matter among states that enact it.
§22-22B-13. Relation to Electronic Signatures in Global and
National Commerce Act.
This article modifies, limits or supersedes the federal
Electronic Signatures in Global and National Commerce Act (15 U. S.
C. Section 7001, et seq.) but does not modify, limit or supersede
Section 101 of said Act (15 U.S.C. Section 7001(a)) or authorize
electronic delivery of any of the notices described in Section 103
of said Act (15 U. S. C. Section 7003(b)).
If any provision of this article or its application to any
person or circumstance is held invalid, the invalidity does not
affect other provisions or applications of this article which can
be given effect without the invalid provision or application, and
to this end the provisions of this article are severable.
(NOTE: The purpose of this bill is to enhance existing risk-
based voluntary remediation of contaminated industrial sites and
encourage their re-use by offering a clear and objective process
for creating, modifying or terminating environmental covenants and
for recording these actions in instruments which will be reflected
in the title abstract of the property.
Article 22B is new; therefore, strike-throughs and
underscoring have been omitted.
This bill has been recommended for passage this session by the
Joint Commission on Interstate Cooperation.)
JUDICIARY COMMITTEE AMENDMENT
On page six, section four, line twelve, after the word
"signed" by inserting the words "and notarized".