Senate Bill No. 42
(By Senator Edgell)
[Introduced February 9, 2005; referred to the Committee
on the Judiciary.]
A BILL to amend and reenact §17-24-7 of the Code of West Virginia,
1931, as amended, relating to providing a limitation of
liability for remediation costs for certain owners of real
property where the waste tire accumulation occurred as the
result of the activities of others and the current owners were
not responsible for the accumulation; authorizing the Division
of Highways to recover from prior owners of the property in
certain circumstances; and requiring notice of the existence
of illegal waste tire piles to be filed by the Division with
the county clerk.
Be it enacted by the Legislature of West Virginia:
That §17-24-7 of the Code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:
ARTICLE 24. WASTE TIRE REMEDIATION.
§17-24-7. Remediation; liability for remediation and court costs.
(a) Any person who has, prior or subsequent to the effective
date of this act, illegally disposed of waste tires or has waste
tires illegally disposed on his or her property shall be liable
(1) All costs of removal or remedial action incurred by the
(2) Any other necessary costs of remediation, including
properly disposing of waste tires and damage to adjacent property
(3) All costs incurred in bringing civil actions under this
(b) The Division shall notify any person who owns real
property or rights to property where a waste tire pile is located
that remediation of the waste tire pile is necessary. The Division
shall make and enter an order directing such person or persons to
remove and properly dispose of the waste tires. The Division shall
set a time limit for completion of the remediation. The order
shall be served by registered or certified mail, return receipt
requested, or by a county sheriff or deputy sheriff.
(c) If the remediation is not completed within the time limit
or the person cannot be located or the person notifies the Division
that he or she is unable to comply with the order, the Division may
expend funds, as provided herein, to complete the remediation. Any
amounts so expended shall be promptly repaid by the person or persons responsible for the waste tire pile. Any person owing
and or damages shall be liable at law until such
time as all costs and or damages are fully paid.
(d) Authorized representatives of the Division have the right,
upon presentation of proper identification, to enter upon any
property for the purpose of conducting studies or exploratory work
to determine the existence of adverse effects of a waste tire pile,
to determine the feasibility of the remediation or prevention of
such adverse effects and to conduct remediation activities provided
for herein. Such entry is an exercise of the police power of the
state and for the protection of public health, safety and general
welfare and is not an act of condemnation of property or trespass
thereon. Nothing contained in this section eliminates any
obligation to follow any process that may be required by law.
(e) There is hereby created a statutory lien upon all real
property and rights to the property from which a waste tire pile
was remediated for all reclamation costs and damages incurred by
the Division. The lien created by this section shall arise at the
later of the following:
(1) The time costs are first incurred by the Division; or
(2) The time the person is provided, by certified or
registered mail or personal service, written notice as required by
The lien shall continue until the liability for the costs or judgment against the property is satisfied.
(f) Any person, who in good faith acquired real property prior
to the first day of July, two thousand one, who did not cause,
permit or profit from the illegal disposal of waste tires on the
property is only liable for the costs of remediation to the extent
that the fair market value of the property, when remediation is
completed, exceeds the fair market value of the property that
existed on the first day of July, two thousand one.
shall have a cause of action against any previous owner who caused,
permitted, contributed or profited from the illegal disposal of
waste tires on the property for the difference in the amount
recovered from the purchaser and the cost of remediation.
(f) (g) Liens created by this section shall be duly recorded
in the office of the clerk of the county commission in the county
where the real property is located and be liens of equal dignity,
rank and priority with the lien on such premises of state, county,
school and municipal taxes for the amount thereof upon the real
property served. The Division shall have the power and authority
to enforce such liens in a civil action to recover the money due
for remediation costs and damages plus court fees and costs and
reasonable attorney's fees.
(g) (h) The Division may foreclose upon the premises by
bringing a civil action, in the circuit court of the county where
the property is located, for foreclosure and an order to sell the property to satisfy the lien.
(h) (i) Any proceeds from any sale of property obtained as a
result of execution of a lien or judgment under this section for
remediation costs, excluding costs of obtaining judgment and
perfecting the lien, shall be deposited into the A. James Manchin
fund of the state Treasury.
(i) (j) The provisions of this section do not apply and no
lien may attach to the right-of-way, easement or other property
interest of a utility, whether electric, gas, water, sewer,
telephone, television cable or other public service, unless the
utility contributed to the illegal tire pile.
(k) Upon determining the existence of a waste tire pile, the
Division shall file a notice of the location of the waste tire pile
in the office of the county clerk
in the county where property
containing a waste tire pile is situate
. The Division shall
immediately file the notice for all property known to have waste
tire piles as of the day the Legislature enacted the amendment to
this section during the two thousand five legislative session. The
notice shall contain the property owner's name, a location and
description of the property and the waste tire pile and the
potential liability for remediation. The county clerk shall record
the notice in the same manner as a lien and index the notice by the
name of the property owner.
(NOTE: The purpose of this bill is to
provide a limitation of
liability for remediation costs for certain owners of real property
where waste tires were left by others and the owners were not
responsible for the accumulation of the waste tires. The bill also
authorizes the Division of Highways to recover from prior owners of
the property in certain circumstances, while requiring notice of
the existence of illegal waste tire piles to be filed in the office
of the county clerk.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would