Senate Bill No. 483
(By Senator Helmick)
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[Introduced March 22, 1993; referred to the Committee
on Natural Resources.]
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A BILL to amend article five, chapter forty-four of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new section, designated section fourteen, relating to providing fiduciaries with specific statutory powers to respond to environmental problems.

Be it enacted by the Legislature of West Virginia:
That article five, chapter forty-four of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended by adding thereto a new section, designated section fourteen, to read as follows:

ARTICLE 5. GENERAL PROVISIONS AS TO FIDUCIARIES.

§44-5-14. Powers of fiduciaries regarding environmental laws.

(a) For purposes of this subsection, "environmental law" means any federal, state or local law, rule, regulation or ordinance relating to the protection of the environment or human health. For purposes of this subsection, "hazardous substances" means any substance defined as "hazardous" or "toxic" orotherwise regulated by any environmental law.
(b) In addition to powers, remedies and rights which might be set forth in any will, trust agreement or other document which is the source of authority, a trustee, executor, administrator, guardian, or one acting in any other fiduciary capacity, whether an individual, corporation or other entity ("fiduciary") has the following powers, rights and remedies whether or not set forth in the will, trust agreement or other document which is the source of authority:
(1) To inspect property held by the fiduciary including interests in sole proprietorships, partnerships or corporations and any assets owned by any such business enterprise, for the purpose of determining compliance with environmental law affecting such property and to respond to any actual or potential violation of any environmental law affecting property held by the fiduciary;
(2) To take, on behalf of the estate or trust, any action necessary to prevent, abate or otherwise remedy any actual or threatened violation of any environmental law affecting property held by the fiduciary, either before or after the initiation of an enforcement action by any governmental body;
(3) To refuse to accept property in trust if the fiduciary determines any property to be donated or conveyed to the trust is contaminated by any hazardous substance or is being used or has been used for any activity directly or indirectly involving any hazardous substance which could result in liability to the trustor otherwise or impair the value of the assets held therein;
(4) To settle or compromise at any time any and all claims against the trust or estate which may be asserted by any governmental body or private party involving the alleged violation of any environmental law affecting property held in trust or in an estate;
(5) To disclaim any power granted by any document, statute, or rule of law which, in the sole discretion of the fiduciary, may cause the fiduciary to incur personal liability under any environmental law;
(6) To decline to serve as a fiduciary if the fiduciary reasonably believes that there is or may be a conflict of interest between it and its fiduciary capacity and in its individual capacity because of potential claims or liabilities which may be asserted against it on behalf of the trust or estate because of the type or condition of assets held therein.
(c) The fiduciary is entitled to charge the cost of any inspection, review, abatement, response, cleanup or remedial action authorized herein against the income or principal of the trust or estate.
(d) A fiduciary is not personally liable to any beneficiary or other party for any decrease in value of assets in trust or in an estate by reason of the fiduciary's compliance with any environmental law, specifically including any reporting requirement under such law.
(e) Neither the acceptance by the fiduciary of property northe failure by the fiduciary to inspect property creates any inference as to whether or not there is or may be any liability under any environmental law with respect to such property.

NOTE: The purpose of this bill is to make clear that fiduciaries have the authority to handle environmental matters which may affect property held by a fiduciary. The bill provides that a fiduciary will not be personally liable for the expenditure of resources held in fiduciary capacity to inspect and remedy any environmental contamination and as otherwise may be required to comply with applicable environmental laws. The bill also permits a fiduciary to refuse to accept or hold contaminated property, to settle disputes relating to contaminated property and to decline to serve or resign if personal liability may arise or if the prospect of personal liability creates a conflict of interest.

This section is new; therefore, strike-throughs and underscoring have been omitted.