Senate Bill No. 527
(By Senators Edgell, Helmick, Kessler, Ross, Deem, Boley, Minard,
Jenkins, Unger, Sharpe, Oliverio, Bowman, White, Plymale, Hunter,
Fanning, Prezioso and Love)
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[Introduced February 13, 2003; referred to the Committee on the
Judiciary.]
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A BILL to amend and reenact section seven, article twenty-four,
chapter seventeen of the code of West Virginia, one thousand
nine hundred thirty-one, as amended, relating to providing a
limitation of liability for remediation costs for certain
owners of real property where waste tires existed when the
owners were not responsible for the accumulation of the waste
tires on the property.
Be it enacted by the Legislature of West Virginia:
That section seven, article twenty-four, chapter seventeen of
the code of West Virginia, one thousand nine hundred thirty-one, 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
for:
(1) All costs of removal or remedial action incurred by the
division;
(2) Any other necessary costs of remediation, including
properly disposing of waste tires and damage to adjacent property
owners; and
(3) All costs incurred in bringing civil actions under this
article.
(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 remediation costs 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
this section.
The lien shall continue until the liability for the costs or
judgment against the property is satisfied.
(f) 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, 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) 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) 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) 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: Provided, That any person
who 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 may only be 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.
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(NOTE: The purpose of this bill is
to provide a limitation of
liability remediation costs for certain owners of real property
where waste tires existed when the owners were not responsible for
the accumulation of the waste tires on the property.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.)