Senate Bill No. 410
(By Senators Tomblin, Mr. President, and Boley,
By Request of the Executive.)
____________
[Introduced February 15, 1996; referred to the
Committee on the Judiciary; and then
to the Committee on Finance.]
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A BILL to amend chapter twenty-two of the code of West Virginia,
one thousand nine hundred thirty-one, as amended, by adding
thereto a new article, designated article twenty-two; and to
amend and reenact section four, article fifteen, chapter
thirty-one of said code, all relating generally to remediation
of contaminated property; legislative findings and purpose;
defining terms; authorizing the director to promulgate
legislative rules; establishing the voluntary remediation
program; establishing eligibility requirements and the
application process for the remediation of contaminated
property; authorizing the director to establish application
fees and other costs; making information available to the
public; providing for confidentiality of trade secrets;
creating criminal penalties for violating confidentiality of
trade secrets; establishing requirements for site assessments;
establishing the criteria under which the director may reject
an application; providing for notice and partial return of application fee if the application is denied; establishing
brownfield remediation program, application process and fee;
providing for application for remediation loans for brownfield
sites; allowing access to information in possession of the
director; creating voluntary remediation administrative fund;
providing for disbursements from the fund; establishing
brownfield revolving fund; providing for disbursements from
the fund; authorizing employment of specialized persons to
administer and manage the fund; providing for voluntary
remediation agreements; requiring the use of licensed
remediation specialist; establishing the requirements of
voluntary remediation agreements; creating applicants right to
appeal to the environmental quality board upon failure to
reach a voluntary remediation agreement; providing that no
enforcement action will be undertaken when property is in
compliance with a voluntary remediation agreement unless there
is imminent threat to the public; requiring that voluntary
remediation work plans and reports must be submitted to the
director for review; allowing the remediator to terminate the
remediation agreement; allowing the director to recover the
remediation costs incurred prior to termination; providing for
suit in circuit court of Kanawha county or the circuit court
where the site is situated for recovery of clean-up costs;
authorizing the director to take samples at brownfield and
voluntary remediation sites, and share the samples with the
remediator; authorizing the director to inspect and make reports; providing the director access to all records relating
to brownfield and voluntary remediation sites; requiring
license issued by the director in order to work as a
remediation specialist; specifying licensure requirements;
specifying licensed remediation specialist duties,
responsibilities and limitations; providing for licenses
renewal, revocation or suspension; providing for civil and
criminal penalties, license revocation and enforcement orders
for licensing remediation specialists; providing for issuance
of certificate of completion; providing for land-use covenants
to be issued by the director; providing that the land-use
covenant by recorded in the deed; establishing criminal
penalty for violating land-use covenants; providing for
reopening a remediation agreement for a brownfield site for
future action; requiring the assessors of each county and
allowing citizens to notify the director when use of property
changes; providing for notification of the public when a
remediation site is being considered; providing for
environmental liability protection; establishing and limiting
the responsibilities of remediation contractors; establishing
affirmative defenses; providing that nothing in this article
effects the rights, duties, immunities, other defenses or
causes of action; and adding site assessment and site
remediation cost to the definition of "costs of establishing
an industrial development project".
Be it enacted by the Legislature of West Virginia:
That chapter twenty-two of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, be amended by adding
thereto a new article, designated article twenty-two; and that
section four, article fifteen, chapter thirty-one of said code be
amended and reenacted, all to read as follows:
CHAPTER 22. ENVIRONMENTAL RESOURCES.
ARTICLE 22. VOLUNTARY REMEDIATION AND REDEVELOPMENT ACT.
§22-22-1. Legislative findings; legislative statement of
purpose.
(a) The Legislature finds there is property in West Virginia
that is not being put to its highest productive use because it is
contaminated or it is perceived to be contaminated as a result of
past activity on the property.
(b) The Legislature further finds that abandonment or under
use of contaminated or potentially contaminated industrial sites
results in inefficient use of public facilities and services and
increases the pressure for development of uncontaminated pristine
land. Since existing industrial areas frequently have
transportation networks, utilities and an existing infrastructure,
it can be less costly to society to redevelop existing industrial
areas than to relocate amenities for industrial areas at pristine
sites.
(c) The Legislature further finds that the existing legal
structure creates uncertainty regarding the legal effect of
remediation upon liability. Legal uncertainty serves as a further
disincentive to productive redevelopment of brownfields. Therefore, incentives should be put in place to encourage voluntary
redevelopment of contaminated or potentially contaminated sites.
(d) The Legislature further finds that an administrative
program should be established to encourage persons to voluntarily
develop and implement remedial plans without the need for
enforcement action by the division of environmental protection.
Therefore, it is the purpose of this article to:
(1) Establish an administrative program to facilitate
voluntary remediation activities and brownfield revitalization;
(2) Provide financial incentives to entice investment at
brownfield sites; and
(3) Establish limitations on liability under environmental
laws and rules for those persons who remediate sites in accordance
with applicable standards established under this article.
§22-22-2. Definitions.
As used in this article, unless otherwise provided or
indicated by the context:
(a) "Applicable standards", mean the remediation levels
established in or pursuant to section three of this article;
(b) "Brownfield" means any industrial or commercial property
which is abandoned or not being actively used by the owner as of
the effective date of this article, but shall not include sites
subject to a unilateral enforcement order under §104 through §106
of the "Comprehensive Environmental Response, Compensation and
Liability Act", 94 Stat. 2779, 42 U.S.C. §9601, as amended, or has
been listed or proposed to be listed by the United States environmental protection agency on the priorities list of Title I
of said act, or subject to a unilateral enforcement order under
§3008 and §7003 of the "Resource Conservation Recovery Act" or any
unilateral enforcement order for corrective action under this
chapter;
(c) "Certified laboratory" means any laboratory approved by
the director under laboratory certification rules adopted pursuant
to section fifteen, article one of this chapter;
(d) "Contaminant" or "contamination" means any man made or
man induced alteration of the chemical, physical or biological
integrity of soils, sediments, air and surface water or groundwater
resulting from activities regulated under this article, in excess
of applicable standards in this chapter, including any hazardous
substance, petroleum, or natural gas;
(e) "Controls" means to apply engineering measures, such as
capping or treatment, or institutional measures, such as deed
restrictions, to contaminated sites;
(f) "Development authority" means any authority as defined in
article twelve, chapter seven of this code or the state development
office as defined in article two, chapter five-b of this code.
(g) "Director" means the director of the division of
environmental protection or such other person to whom the director
has delegated authority or duties pursuant to this article.
(h) "Division" means the division of environmental protection
of the state of West Virginia.
(i) "Engineering controls" means remedial actions directed exclusively toward containing or controlling the migration of
regulated substances through the environment. These include, but
are not limited to, slurry walls, liner systems, caps, leachate
collection systems and groundwater recovery trenches;
(j) "Hazardous substance" means any substance identified as a
hazardous substance pursuant to the "Comprehensive Environmental
Response, Compensation and Liability Act", 94 Stat. 2779, 42 U.S.C.
§9601, as amended;
(k) "Institutional controls" means legal or contractual
restrictions on property use that remain effective after the
remediation action is completed and are used to meet applicable
standards. The term may include, but is not limited to, deed and
water use restrictions;
(l) "Industrial activity" means commercial, manufacturing,
public utility, mining or any other activity done to further either
the development, manufacturing or distribution of goods and
services, intermediate and final products and solid waste created
during such activities, including, but not limited to,
administration of business activities, research and development,
warehousing, shipping, transport, remanufacturing, stockpiling of
raw materials, storage, repair and maintenance of commercial
machinery or equipment and solid waste management;
(m) "Land-use covenant" means a document or deed restriction
issued by the director on remediated sites which have attained and
demonstrate continuing compliance with site-specific standards for
any contaminants at the site. The covenant shall be recorded by deed in the office of the county clerk of the county wherein the
site is situated. The document or covenant shall be included by
any grantor or lessor in any deed or other instrument of conveyance
or any lease or other instrument whereby real property is let for
a period of one year or more, as more fully set forth in sections
thirteen and fourteen of this article;
(n) "Licensed remediation specialist" means a person certified
by the director pursuant to rules adopted under section three of
this article as qualified to perform professional services and to
supervise the remediation of contaminated sites;
(o) "Mitigation measure" means any remediation action
performed by a person prior to or during implementation of a
remediation plan to protect human health and the environment;
(p) "Natural gas" means natural gas, natural gas liquids,
liquefied natural gas, coalbed methane, synthetic gas usable for
fuel or mixtures of natural gas and synthetic gas;
(q) "Nonresidential property" means any real property on which
commercial, industrial, manufacturing or any other activity is done
to further the development, manufacturing or distribution of goods
and services, intermediate and final business activities, research
and development, warehousing, shipping, transport, remanufacturing,
stockpiling of raw materials, storage, repair and maintenance of
commercial machinery and equipment, and solid waste management.
This term shall not include schools, day care centers, nursing
homes, or other residential-style facilities or recreational areas;
(r) "Owner" means any person owning or holding legal or equitable title or possessory interest in property or, where title
or control of property was conveyed due to bankruptcy, foreclosure,
tax delinquency, abandonment, or similar means to this state or a
political subdivision of this state, or any person who owned the
property before the conveyance;
(s) "Operator" means the person responsible for the overall
operation of a facility site;
(t) "Person" means any public or private corporation,
institution, association, firm or company organized or existing
under the laws of this or any other state or country; state of West
Virginia; governmental agency, including federal facilities;
political subdivision; county commission; municipal corporation;
partnership; trust; estate; person or individuals acting
individually or as a group; or any legal entity whatever;
(u) "Petroleum" means oil or petroleum of any kind and in any
form, including, without limitation, crude oil or any fraction
thereof, oil sludge, oil refuse, used oil, substances or additives
in the refining or blending of crude petroleum or petroleum stock;
(v) "Practical quantitation level" means the lowest analytical
level that can be reliably achieved within specified limits of
precision and accuracy under routine laboratory conditions for a
specified matrix. It is based on quantitation, precision and
accuracy under normal operation of a laboratory and the practical
need in a compliance-monitoring program to have a sufficient number
of laboratories available to conduct the analyses;
(w) "Property" means any parcel of real property, and any improvements thereof;
(x) "Related" means the persons who are related to the third
degree of consanguinity or marriage.
(y) "Release" means any spilling, leaking, pumping, pouring,
emitting, emptying, discharging, injecting, escaping, leaching,
migrating, dumping or disposing of any contaminant or regulated
substance into the environment, including, without limitation, the
abandonment or improper discarding of barrels, containers or any
other closed receptacle containing any contaminant;
(z) "Remediation" means to cleanup, mitigate, correct, abate,
minimize, eliminate, control and contain or prevent a release of a
contaminant into the environment in order to protect the present or
future public health, safety, welfare, or the environment,
including preliminary actions to study or assess the release;
(aa) "Remediation contractor" means any person who enters
into and is carrying out a contract to cleanup, remediate, respond
to or remove a release or threatened release of a contaminant and
includes any person who the contractor retained or hired to provide
services under a remediation contract;
(bb) "Residential" means any real property or portion thereof
which is designed for the housing of human beings and does not meet
the definition of "nonresidential" property set forth above;
(cc) "Risk" means the probability that a contaminant, when
released into the environment, will cause an adverse effect in
exposed humans or other living organisms;
(dd) "Site" means any property or portion thereof which contains or may contain contaminants and is eligible for
remediation as provided under this article;
(ee) "Unilateral enforcement order" means a written final
order issued by a federal or state agency charged with enforcing
environmental law, which compels the fulfillment of an obligation
imposed by law, rule against a person without their voluntary
consent; and
(ff) "Voluntary remediation" means a series of measures that
may be self-initiated by a person to identify and address
potential sources of contamination of property and to establish
that the property complies with applicable remediation standards.
§22-22-3. Rule-making authority of the director.
Within one year after the effective date of this section, the
director, in accordance with chapter twenty-nine-a of this code,
shall propose, and subsequently may amend, suspend or rescind,
rules that do the following:
(a) Establish an administrative program for both brownfield
revitalization and voluntary remediation, including application
procedures;
(b) Establish procedures for the licensure of remediation
specialists, including, but not limited to establishing licensing
fees, testing procedures, disciplinary procedures and methods for
revocation of licenses;
(c) Establish procedures for community notification and
involvement;
(d) Establish risk-based standards for remediation;
(e) Establish standards for the remediation of property;
(f) Establish a risk protocol for conducting risk assessments
and establishing risk-based standards. The risk protocol shall:
(1) Require consideration of existing and reasonably
anticipated future human exposures based on current and reasonably
anticipated future land and water uses and significant adverse
effects to ecological receptor health and viability;
(2) Include, at a minimum, both central tendency and
reasonable upper bound estimates of exposure;
(3) Require risk assessments to consider, to the extent
practicable, the range of probabilities of risks actually
occurring, the range or size of populations likely to be exposed to
risk, and quantitative and qualitative descriptions of
uncertainties;
(4) Establish criteria for what constitutes appropriate
sources of toxicity information;
(5) Address the use of probabilistic modeling;
(6) Establish criteria for what constitutes appropriate
criteria for the selection and application of fate and transport
models;
(7) Address the use of population risk estimates in addition
to individual risk estimates;
(8) To the extent deemed appropriate and feasible by the
director considering available scientific information, define
appropriate approaches for addressing cumulative risks posed by
multiple contaminants or multiple exposure pathways;
(9) Establish appropriate sampling approaches and data quality
requirements; and
(10) This protocol shall include public notification and
involvement provisions so that the public can understand how
remediation standards are applied to a site and provide for clear
communication of site risk issues, including key risk assessment
assumptions, uncertainties, populations considered, the context of
site risks to other risks and how the remedy will address site
risks;
(g) Establish chemical and site specific information, where
appropriate for purpose of risk assessment. Risk assessments
should use chemical and site specific data and analysis, such as
toxicity, exposure and fate and transport evaluations in preference
to default assumptions. Where chemical and site specific data are
not available, a range and distribution of realistic and plausible
assumptions should be employed;
(h) Establish criteria to evaluate and approve methods for the
measurement of contaminants using the practical quantitation level
and related laboratory standards and practices to be used by
certified laboratories;
(i) Establish standards and procedures for the utilization of
certificates of completion, land use covenants and other legal
documents necessary to effectuate the purposes of this article; and
(j) Establish any other rules necessary to carry out the
requirements and the legislative intent of this act.
§22-22-4. Voluntary remediation program; eligibility application and fee; information available to public; confidentiality of
trade secrets; information; criminal penalties; requirements
of site assessment; rejection or return of application; appeal
of rejection.
(a) Any site is eligible for participation in the voluntary
remediation program, except those sites subject to a federal
environmental protection agency unilateral enforcement order, under
§104 through §106 of the "Comprehensive Environmental Response,
Compensation and Liability Act", 94 Stat. 2779, 42 U.S.C. §9601, as
amended, or has been listed or proposed to be listed by the United
States environmental protection agency on the priorities list of
Title I of said act, or subject to a unilateral enforcement order
under §3008 and §7003 of the "Resource Conservation Recovery Act"
or any unilateral enforcement order for corrective action under
this chapter: Provided, That the release which is subject to
remediation were not created through gross negligence or willful
misconduct. In order to participate in the voluntary remediation
program, a person must submit an application to the director and
enter into a voluntary remediation agreement as set forth in
section seven of this article.
(b) Any person who desires to participate in the voluntary
remediation program must submit to the division an application and
an application fee established by the director. The application
shall be on a form provided by the director and contain the
following information: The applicant's name, address, financial and
technical capability to perform the voluntary remediation, a general description of the site, a site assessment of the actual
or potential contaminants made by a licensed remediation specialist
and all other information required by the director.
(c) The director shall promulgate a legislative rule
establishing a reasonable application fee. Fees collected under
this section shall be deposited to the credit of the voluntary
remediation fund in the state treasury as established in section
six of this article.
(d) Information obtained by the division under this article
shall be available to the public, unless the director certifies
such information to be confidential. The director may make such
certification where any person shows, to the satisfaction of the
director, that the information or parts thereof, if made public,
would divulge methods, processes or activities entitled to
protection as trade secrets. In submitting data under this article,
any person required to provide such confidential data may designate
the data which that person believes is entitled to protection under
this section and submit such designated data separately from other
data submitted under this article. This designation request shall
be made in writing. Any person who divulges or discloses any
information entitled to protection under this section is guilty of
a misdemeanor, and, upon conviction thereof, shall be fined not
more than five thousand dollars or imprisoned in a county jail for
not more than one year, or both fined and imprisoned.
(e) The site assessment must include a legal description of
the site; a description of the physical characteristics of the site and the general operational history of the site to the extent that
the history is known by the applicant, and information of which the
applicant is aware concerning the nature and extent of any known
contamination at the site and immediately contiguous to the site,
or wherever the contamination came to be located.
(f) The director may reject or return an application if:
(1) A federal requirement precludes the eligibility of the
site;
(2) The application is not complete and accurate; or
(3) The site is ineligible under the provisions of this
article.
(g) The director shall act upon all applications within forty-
five days of receipt, unless an extension of time is mutually
agreed to and confirmed in writing. If an application is returned
by the director because it is not complete or accurate, the
director shall provide the applicant a list of all information that
is needed to make the application complete or accurate. The
applicant may resubmit an application without submitting an
additional application fee.
(h) If the director rejects the application, then he or she
shall notify the applicant that the application has been rejected
and provide an explanation of the reasons for the rejection. The
applicant may, within twenty-five days of rejection, indicate his
desire to resubmit the application. Upon final determination by
the director, if the application is rejected, the director shall
return one half of the application fee. The applicant may appeal the director's rejection of the application to the environmental
quality board established under article three, chapter twenty-two-b
of this code.
(i) Upon withdrawal of an application, the applicant is
entitled to the refund of one half of the application fee.
§22-22-5. Brownfield application; remediation process; brownfield
remediation; eligibility; application; remediation loan; and
obtaining information from director.
(a) For brownfield property, any environmental remediation
undertaken pursuant to this article, by a development authority or
any person who did not cause or contribute to the contamination on
the property shall comply with the appropriate standards
established by the director pursuant to this article and rules
promulgated hereunder. After conferring with the director, the
person may apply to the director for a site assessment loan under
section six of this article. A site assessment must be conducted
to establish existing contamination of the site. An application
for brownfield remediation must be submitted along with the
application fee. The procedures established for voluntary
remediation set forth in section four must be followed. The
director shall establish a reasonable application fee.
(b) Brownfield sites being remediated by persons who did not
cause or contribute to the contamination of the site are eligible
for consideration for remediation loans established under article
fifteen, chapter thirty-one of this code.
(c) Persons undertaking brownfield remediation, who did not cause or contribute to the contamination of the brownfield site,
may obtain all information relating to contamination at the site in
the possession of the director prior to engaging in a site
assessment.
§22-22-6. Voluntary remediation administrative fund established;
voluntary remediation fees authorized; brownfields revolving
fund established; disbursement of funds moneys; employment of
specialized persons authorized.
(a) There is hereby created in the state treasury a special
revenue fund known as the "Voluntary Remediation Administrative
Fund". The fund shall operate as a special fund whereby all
deposits and payments thereto do not expire to the general revenue
fund, but shall remain in the fund and be available for expenditure
in succeeding fiscal years. This fund shall consist of fees
collected by the director in accordance with the provisions of this
article as well as interest earned on investments made from moneys
deposited in the fund. Moneys from this fund shall be expended by
the director for the administration, licensing, enforcement,
inspection, monitoring, planning, research and other activities
required by this article.
The director shall promulgate legislative rules in accordance
with the provisions of chapter twenty-nine-a of this code
establishing a schedule of voluntary remediation fees applicable to
persons who conduct activities subject to the provisions of this
article. The fees may include an appropriate assessment of other
program costs not otherwise attributable to any specific site but necessary for the administrative activities required to carry out
the provisions of this article.
(b) There is hereby created in the state treasury a special
revenue fund known as the "Brownfields Revolving Fund". The fund
shall be comprised of moneys allocated to the state by the federal
government expressly for the purposes of establishing and
maintaining a state brownfields redevelopment revolving fund, all
receipts from loans made from the fund to local and state
government development authorities, any moneys appropriated by the
Legislature, all income from the investment of moneys held in the
fund, and all other sums designated for deposit to the fund from
any source, public or private. The fund shall operate as a special
fund whereby all deposits and payments thereto do not expire to the
general revenue fund, but shall remain in the account and be
available for expenditure in succeeding fiscal years. Moneys in
the fund, to the extent that moneys are available, shall be used
solely to make loans to state and local development authorities to
finance site assessments of eligible brownfield sites and such
other activities as authorized by any federal grant received or any
legislative appropriation: Provided, That moneys in the fund may be
utilized to defray those costs incurred by the division in
administering the provisions of this subsection. The director
shall promulgate rules in accordance with the provisions of chapter
twenty-nine-a of this code, to govern the disbursement of moneys
from the fund, and establish a state brownfields redevelopment
assistance program to direct the distribution of loans from the fund to particular state and local development authorities, and
establish the interest rates and repayment terms of such loans:
Provided, however, That amounts in the fund, other than those
appropriated by the federal government, and which are found from
time to time to exceed the amount needed for the purposes set forth
in this article, may be transferred to other accounts or funds and
redesignated for other purposes through appropriations of the
Legislature.
In order to carry out the administration and management of the
fund, the division is authorized to employ officers, agents,
advisors and consultants including attorneys, financial advisors,
engineers, other technical advisors and public accountants and, not
withstanding any provisions of this code to the contrary, to
determine their duties and compensation without the approval of any
other agency or instrumentality.
§22-22-7. Voluntary remediation agreement; required use of
licensed remediation specialist; required provisions of a
voluntary remediation agreement; failure to reach agreement;
appeal to the environmental quality board; no enforcement
action when subject of agreement.
Upon acceptance of an application, the director shall enter
into an agreement with the applicant for the remediation of the
site which sets forth the following:
(a) A person desiring to participate in the voluntary
remediation program must enter into a voluntary remediation
agreement that sets forth the terms and conditions of the evaluation of the reports and the implementation of work plans;
(b) Any voluntary remediation agreement approved by the
director shall provide for the services of a licensed remediation
specialist for supervision of all activities described in the
agreement;
(c) A voluntary remediation agreement must provide for cost
recovery of all reasonable costs incurred by the division in review
and oversight of the person's work plan and reports as a result of
field activities or attributable to the voluntary remediation
agreement, which are in excess of the fees submitted by the
applicant along with a schedule of payments; appropriate tasks,
deliverables and schedules for performance of the remediation; a
listing of all statutes and rules for which compliance is mandated;
a description of any work plan or report to be submitted for review
by the director, including a final report that provides all
information necessary to verify that all work contemplated by the
agreement has been completed; the licensed remediation specialist's
supervision of remediation contractors; and a listing of the
technical standards to be applied in evaluating the work plans and
reports, with reference to the proposed future land use to be
achieved. The voluntary remediation agreement may also provide for
alternate dispute resolutions between the parties to the agreement;
(d) No voluntary remediation agreement may be modified or
amended, unless the amendment or modification is reduced to writing
and mutually agreed upon by the parties to the agreement: Provided,
That when the director determines that there is an imminent threat to the public, he or she may unilaterally modify or amend the
agreement;
(e) Upon acceptance of an application, the director and the
applicant shall develop a remediation agreement. If an agreement
is not reached between the applicant and the director on or before
the thirty-first day after the application has been accepted,
either party may withdraw from negotiations. Should this occur,
the agency retains the application fee. The applicant may appeal
the failure to reach agreement to the environmental quality board
as established under article three, chapter twenty-two-b of this
code. By mutual agreement, when it becomes impractical to reach an
agreement within thirty-one days, the time limit may be extended in
writing; and
(f) The division may not initiate an enforcement action
against a person who is in compliance with this section for the
contamination that is the subject of the voluntary remediation
agreement or for the activity that resulted in the contamination,
unless there is an imminent threat to the public.
§22-22-8.Voluntary remediation work plans and reports.
After signing a voluntary remediation agreement, the person
undertaking remediation shall prepare and submit the appropriate
work plans and reports to the director. The director shall review
and evaluate the work plans and reports for accuracy, quality and
completeness. The director may approve a voluntary remediation
work plan or report or disapprove and notify the person of
additional information needed to obtain approval.
§22-22-9.Termination of agreement; cost of recovery; legal
actions.
The person undertaking remediation may, in their sole
discretion, terminate the agreement as provided by the terms of the
agreement and by giving fifteen days advance written notice of
termination. Only those costs incurred or obligated by the
director before notice of termination of the agreement are
recoverable, if the agreement is terminated. The termination of the
agreement does not affect any right the director may have under any
other law to recover costs. The person undertaking the remediation
must pay the division's costs associated with the voluntary
remediation within thirty-one days after receiving notice that the
costs are due and owing. The director may bring an action in
Kanawha county circuit court or in the circuit court in the county
wherein the property is situated to recover the amount owed to the
division and reasonable legal expenses.
§22-22-10. Inspections; right of entry; sampling; reports and
analyses.
(a) The director, upon presentation of proper credentials may
enter any building, property, premises, place or facility where
brownfield or voluntary remediation activities are being or have
been performed for the purpose of making an inspection to ascertain
the compliance by any person with the provisions of this article or
the rules promulgated by the director.
(b) The director shall make periodic inspections at sites
subject to this article. After an inspection is made, a report shall be filed with the director and a copy shall be provided to
the person who is responsible pursuant to the voluntary agreement
for remediation activities. The reports shall not disclose any
confidential information protected under the provisions of
subsection (d), section four of this article. The inspection
reports shall be available to the public in accordance with the
provisions of article one, chapter twenty-nine-b of this code.
(c) The director may, upon presentation of proper credentials,
enter any building, motor vehicle, property, premises or site where
brownfield or voluntary remediation activities are being or have
been performed and take samples of wastes, soils, air, surface
water and groundwater. In taking such samples, the director may
utilize such sampling methods as are necessary in exercising good
scientific technique. Following the taking of any sample, the
director shall give the person responsible in the voluntary
agreement for remediation activities a receipt describing the
sample obtained and if requested, a portion of each sample equal in
volume or weight to the portion retained. The director shall
promptly provide a copy of any analysis made to the responsible
person named in the voluntary agreement.
(d) Upon presentation of proper credentials, the director
shall be given access to all records relating to a brownfield or
voluntary remediation.
§22-22-11. Licensed remediation specialist, licensure procedures.
(a) No person may practice as a licensed remediation
specialist without a license issued by the director. Any violation of this provision shall be subject to the enforcement orders as set
forth in section twelve of this article.
(b) To obtain a license, a person must apply to the director
in writing on forms approved and supplied by the director. Each
application for examination for license shall contain:
(1) The full name of the person applying for the license;
(2) The principal business address of the applicant;
(3) All formal academic education and experience of the
applicant to demonstrate professional expertise of the applicant;
(4) If waiver of the examination is being requested, any
license or certification that the person desires to be considered
as part of the waiver request;
(5) The examination fee; and
(6) Any other necessary information prescribed by the
director.
(c) The director shall establish the date, time and location
of licensed remediation specialist examinations.
(d) The applicant must demonstrate that he or she possesses a
practical knowledge of the remediation activities; procedures
necessary to remediate a site; and the management of regulated
substances at a site, including, but not limited to, site
investigation, health and safety protocol, quality assurance,
feasibility studies and remedial design.
(e) If the director does not certify the remediation
specialist applicant, the director shall inform the applicant in
writing of the reasons therefor. The director may not deny a license without cause.
(f) It is the licensed remediation specialist's duty to
protect the safety, health and welfare of the public as set forth
in this article, in the performance of his or her professional
duties. The licensed remediation specialist is responsible for any
release of contaminants during remediation activities undertaken
pursuant to the approved remediation agreement, work plans or
reports. If a licensed remediation specialist faces a situation
where he or she is unable to meet this duty, the licensed
remediation specialist may either sever the relationship with the
client or employer or refuse professional responsibility for work
plan, report or design. The specialist shall notify the division,
if there is a threat to the environment or the health, safety or
welfare of the public.
(g) A licensed remediation specialist shall only perform
assignments for which the specialist is qualified by training and
experience in those specific technical fields; be objective in
work plans, reports and opinions; and avoid any conflict of
interest with employer, clients and suppliers. A licensed
remediation specialist shall not solicit or accept gratuities,
directly or indirectly from contractors, agents or other parties
dealing directly with the employer or client in regard to
professional services being performed at the work site; accept any
type of bribe; falsify or permit misrepresentation of professional
qualifications; intentionally provide false information to the
director; or knowingly associate with one who is engaging in business or professional practices of a fraudulent or dishonest
nature.
(h) A licensed remediation specialist shall not charge any
special fees above usual and customary professional rates for being
licensed.
(i) The license issued by the director may be renewed every
two years for any licensed remediation specialist in good standing.
The director, by rule, shall establish license fees.
(j) The director is authorized to revoke a license; suspend a
license for not more than five years or impose lesser sanctions as
may be appropriate for acts or omissions in violation of this
article.
§22-22-12. Enforcement orders for licensed remediation specialists;
cease and desist order; criminal penalties.
(a) If the director, upon inspection, investigation or through
other means observes, discovers or learns that a licensed
remediation specialist has violated the provisions of this article
or any rules promulgated hereunder, the director may:
(1) Issue an order stating with reasonable specificity the
nature of the violation and requiring compliance immediately or
within a specified time. An order under this section includes, but
is not limited to, orders suspending or revoking licenses, orders
requiring a person to take remedial action or cease and desist
orders; or
(2) Request the prosecuting attorney of the county in which
the alleged violation occurred bring a criminal action as provided for herein.
(b) Any person issued an order may file a request for
reconsideration with the director within seven days of the receipt
of the order. The director shall conduct a hearing on the merits
of the order within ten days of the filing of the request for
reconsideration. The filing of a notice of request for
reconsideration does not stay or suspend the execution or
enforcement of the order.
(c) Any licensed remediation specialist who fraudulently
misrepresents that work has been completed and such action results
in an unjustified and inexcusable disregard for the safety of
others, thereby placing another in imminent danger or contributing
to ongoing harm to the environment, he or she shall be guilty of a
felony, and, upon conviction thereof, shall be fined not more than
fifty thousand dollars or imprisoned not less than one nor more
than two years, or both such fine and imprisonment.
(d) If any person associated with remediation of a brownfield
or voluntary remediation site engages in fraudulent acts or
representations to the division, he or she shall be guilty of a
felony, and, upon conviction thereof, shall be fined not more than
fifty thousand dollars or imprisoned not less than one nor more
than two years, or both.
§22-22-13. Certificate of completion.
(a) The licensed remediation specialist shall issue a final
report to the person undertaking the voluntary remediation when the
property meets the applicable standards and all work has been completed as contemplated in the voluntary remediation agreement or
the site assessment shows that all applicable standards are being
met. Upon receipt of the final report, the person may seek a
certificate of completion from the director.
(b) The director may delegate the responsibility for issuance
of a certificate of completion to a licensed remediation specialist
in limited circumstances, as specified by rule pursuant to this
article.
(c) The certificate of completion may contain a provision
relieving a person who undertook the remediation and subsequent
successors and assigns from all civil liability to the state as
provided under this article which shall remain effective as long as
the property complies with the applicable standards in effect at
the time the certificate of completion was issued. This
certificate is subject to reopener provisions of section fifteen of
this article and may, if applicable, result in a land-use covenant
as provided in section fourteen of this article.
§22-22-14. Land-use covenant; criminal penalties.
(a) The director shall establish by rule, criteria for deed
recordation of land-use covenants and containing all necessary deed
restrictions. The director shall cause all land-use covenants to
appear in the chain of title by deed to be properly recorded in the
office of the county clerk where the remediation site is located.
If institutional and engineering controls are used, in whole or in
part, to achieve a remediation standard, the director shall direct
that a land-use covenant be applied. The covenant shall include whether residential or nonresidential exposure factors were used to
comply with the site-specific standard. The covenant shall contain
a provision relieving the person who undertook the remediation and
subsequent successors and assigns from all civil liability to the
state as provided under this article and shall remain effective as
long as the property complies with the applicable standards in
effect at the time the covenant was issued.
(b) Whoever knowingly violates a land-use covenant by
converting nonresidential property to residential property is
guilty of a felony, and, upon conviction thereof, shall be fined
not more than twenty-five thousand dollars, imprisoned for not more
than five years, or both.
§22-22-15. Reopeners.
Any person who completes remediation in compliance with this
article shall not be required to undertake additional remediation
actions for contaminants subject to the remediation, unless the
director demonstrates that:
(a) Fraud was committed in demonstrating attainment of a
standard at the site that resulted in avoiding the need for further
remediation of the site;
(b) New information confirms the existence of an area of a
previously unknown contamination which contains contaminants that
have been shown to exceed the standards applied to the previous
remediation at the site;
(c) The level of risk is increased significantly beyond the
established level of protection at the site due to substantial changes in exposure conditions, such as, a change in land use, or
new information is obtained about a regulated substance associated
with the site which revises exposure assumptions beyond the
acceptable range. Any person who changes the use of the property
causing the level of risk to increase beyond established protection
levels shall be required by the division to undertake additional
remediation measures under the provisions of this article;
(d) The release occurred after the effective date of this
article on a site not used for industrial activity prior to the
effective date of this article; the remedy relied, in whole or in
part, upon institutional or engineering controls instead of
treatment or removal of contamination; and treatment, removal or
destruction has become technically and economically practicable; or
(e) The remediation method failed to meet the remediation
standard or combination of standards.
In the event that any of the foregoing circumstances occur,
the remediation agreement will be reopened and revised to the
extent necessary to return the site to its previously agreed to
state of remediation or other appropriate standard.
§22-22-16. Duty of assessor and citizens to notify director when
change of property use occurs.
If an assessor in any county becomes aware of a change of
remediated property use from nonresidential property to
residential, the assessor shall check the land record of the county
to ascertain if a land-use covenant appears to have been violated.
Should it appear that a violation has occurred, the assessor shall notify the director in writing of the suspected violation. If any
citizen becomes aware of a change of property use from
nonresidential to residential, the citizen may check the land
record of the county to ascertain if a land use covenant appears to
have been violated and may notify the director in writing. The
director shall then investigate and proceed with any necessary
enforcement action.
§22-22-17. Public notification for brownfields.
Persons undertaking the remediation and revitalization of
brownfield sites shall comply with the following public notice and
review requirements:
(a) A notice of intent to remediate a site shall be submitted
to the division which provides, to the extent known, a brief
description of the location of the site, a listing of the
contaminants involved and the proposed remediation measures. The
division shall publish an acknowledgment noting the receipt of the
notice of intent in a division publication of general circulation.
At the time a notice of intent to remediate a site is submitted to
the division, a copy of such notice shall be provided to the
municipality and the county in which the site is located and a
summary of the notice of intent shall be published in a newspaper
of general circulation serving the area in which the site is
located.
(b) The notice required by this subsection shall include a
thirty-day public, county and municipal comment period during which
the public, county and municipality can request to be involved in the development of the remediation and reuse plans for the site.
If requested by the public, county, municipality or the director,
the person undertaking the remediation shall develop and implement
a public involvement program plan which meets the requirements set
forth by the director.
§22-22-18. Environmental liability protection.
(a) Any person demonstrating compliance with the applicable
standards established in section three of this article, whether by
remediation or where the site assessment shows that the
contamination at the site meets applicable standards, shall be
relieved of further liability for the remediation of the site under
this chapter. Contamination identified in the remediation
agreement submitted to and approved by the division shall not be
subject to citizen suits or contribution actions. The protection
from further remediation liability provided by this article applies
to the following persons:
(1) The current or future owner or operator of the site,
including development authorities and fiduciaries, who participated
in the remediation of the site;
(2) A person who develops or otherwise occupies the site;
(3) A successor or assign of any person to whom the liability
protection applies;
(4) A public utility, as defined in section two, article one,
chapter twenty-four of this code, and for the purpose of this
article, a utility engaged in the storage and transportation of
natural gas, to the extent the public utility performs activities on the site;
(5) A remediation contractor;
(6) A licensed remediation specialist; and
(7) A lender or developer who engages in the routine practices
of commercial lending, including, but not limited to, providing
financial services, holding of security interests, workout
practices, foreclosure or the recovery of funds from the sale of a
site.
(b) A person shall not be considered a person responsible for
a release or a threatened release of contaminants simply by virtue
of conducting or having a site assessment conducted. Nothing in
this section relieves a person of any liability for failure to
exercise due diligence in performing a site assessment.
§22-22-19. Establishing and limiting the responsibilities of
remediation contractors.
(a) A person who is engaged in the business of remediation
contractor under this article is not responsible for a release or
threatened release of contaminants at the site described in the
voluntary remediation agreement for work properly performed
pursuant to the agreement.
(b) A person who is engaged in the business of remediation
contractor under this article is not liable for any harm, damage or
injury caused by a release of a contaminant which occurred prior to
the contractor undertaking work at the site.
(c) Limitation of liability, pursuant to subsections (a) and
(b) of this section does not apply to a release or threatened release of contaminants at the site described in the voluntary
remediation agreement that is directly caused by an act or omission
which constitutes gross negligence or by the willful misconduct of
the remediation contractor.
(d) A remediation contractor is not required to obtain a
permit for remediation activities, if a permit is required under
article five, eleven, fifteen or eighteen, of this chapter.
However, an owner or operator of the site to be remediated is not
relieved of the permit requirements, if any, for remediation
activities undertaken at the site. A remediation contractor must
comply with all applicable state and federal laws in the
transportation, treatment, storage and disposal of contaminants
generated as a consequence of the remediation activities.
(e) A remediation contractor is not a "generator" for the
purposes of the generator assessments imposed pursuant to article
twenty of this chapter.
§22-22-20. Affirmative defenses.
Any person who is alleged to have violated an environmental
law or the common law equivalent, which occurred while acting
pursuant to this article, may affirmatively plead the following in
response to an alleged violation:
(a) An act of God;
(b) An intervening act of a public agency;
(c) Migration from property owned by a third party;
(d) Actions taken or omitted in the course of rendering care,
assistance or advice in accordance with the environmental laws or at the direction of the division;
(e) An act of a third party who was not an agent or employee
of the lender, fiduciary, developer, remediation contractor or
development authority; or
(f) If the alleged liability for a lender, fiduciary,
developer or development authority arises after foreclosure, and
the lender, fiduciary, developer or development authority exercised
due care with respect to the lender's, fiduciary's, developer's or
development authority's knowledge about the contaminants, and took
reasonable precautions based upon such knowledge against
foreseeable actions of third parties and the consequences arising
therefrom. A lender, fiduciary, developer, remediation contractor
or development authority may avoid liability by proving any other
defense which may be available to it.
§22-22-21. Savings clause.
Nothing in this article shall affect the rights, duties,
defenses, immunities or causes of action under other statutes or
the common law of this state which may be applicable to persons
conducting remediation of a site.
CHAPTER 31. CORPORATIONS
ARTICLE 15. ECONOMIC DEVELOPMENT AUTHORITY.
§31-15-4. Definitions.
Unless the context clearly indicates otherwise, as used in this
article:
(a) "Authority" means the West Virginia economic development
authority;
(b) "Board" means the governing body of the authority;
(c) "Board of investments" means the board of investments
established by article six, chapter twelve of this code;
(d) "Bonds" means bonds or other debt instruments of the
authority issued under this article, whether the interest thereon
is taxable or tax-exempt for federal income tax purposes;
(e) "Business plan" means a document detailing the sales,
production and distribution plans of an enterprise, together with
the expenditures necessary to carry out those plans (including
budget and cash flow projections) on an annual basis, and an
employment plan setting forth steps to be taken by the enterprise
to retain jobs or reduce unemployment in this state;
(f) "Costs of establishing an industrial development project"
means the cost of acquiring existing facilities, cost of machinery,
cost of equipment and fixtures, the cost of construction ,including
with out limitation, cost of improvements, repairs, and
renovations, costs of all lands, water areas, property rights and
easements, financing charges, interest prior to and during
construction, cost of architectural, engineering, legal and
financial or other consulting services, plans, site assessments,
site remediation costs, specifications and surveys, estimates of
costs and any other expenses necessary or incident to determining
the feasibility or practicability of any project, together with
such other costs and expenses as may be necessary or incidental to
the financing and the construction or acquisition of the project
and the placing of the same in operation;
(g) "County" means any county of this state;
(h) "Enterprise" means an entity which is or proposes to be
engaged in this state in any business activity for profit. The
entity may be owned, operated, controlled or under the management
of a person, partnership, corporation, trust, community-based
development organization or council, local commerce group, employee
stock ownership plan, pension or profit-sharing plan, trust, group
of participating employees who desire to own an entity which does
not presently exist, or any similar entity or organization;
(i) "Federal agency" means the United States of America and
any department, corporation, agency or instrumentality created,
designated or established by the United States of America;
(j) "Financing plan" means a plan designed to meet the
financing needs of an enterprise as reflected in the business plan;
(k) "Fund" means the economic development fund provided for in
section twenty-three of this article;
(l) "Government" means state and federal government, and any
political subdivision, agency or instrumentality thereof, corporate
or otherwise;
(m) "Industrial development agency" means any incorporated
organization, foundation, association or agency to whose members or
shareholders no profit inures, which has as its primary function
the promotion, encouragement and development of industrial,
commercial, manufacturing and tourist enterprises or projects in
this state.
(n) "Insurance fund" means the insurance fund created in this article;
(o) "Loan" means an extension of financing by the authority to
an industrial development agency or an enterprise, including, but
not limited to a loan, a lease or an installment sale;
(p) "Municipality" means any city or town in this state;
(q) "Notes" means any notes, including commercial paper, of
the authority issued under this article whether the interest
thereon is taxable or tax-exempt for federal income tax purposes;
(r) "Project" means a commercial or industrial undertaking and
all of the assets reasonably and necessarily required therefor, all
as determined by the authority, which determination shall be
conclusive, and shall include, without limiting the generality of
the foregoing, industrial projects and commercial projects as
presently defined in section three, article two-c, chapter
thirteen;
(s) "Revenues" means all fees, premiums, charges, moneys,
profits, payment or principal of or interest on, loans and other
investments, gifts, grants, appropriations, contributions and all
other income derived or to be derived by the authority under this
article; and
(t) "Security interest" means an interest in the loan
portfolio of the authority which interest is secured by an
underlying loan or loans and is evidenced by a note issued by the
authority.
Note: This bill provides for the reuse of contaminated or
potentially contaminated commercial and industrial sites by providing an administrative program to encourage persons to
voluntarily develop and implement remedial plans by use of
incentives in the legal structure and to provide financial
incentives to entice investment on said properties.
Article twenty-two of chapter twenty-two is new; therefore
strike-throughs and underscoring have been omitted. Section four,
article fifteen, chapter thirty-one has been amended; underscoring
indicates new language that would be added.