COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 175
(By Senators Prezioso, Minard, Kessler and Foster)
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[Originating in the Committee on Government Organization;
reported February 1, 2007.]
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A BILL to amend the Code of West Virginia, l931, as amended, by
adding thereto a new article, designated §60A-11-1, §60A-11-2,
§60A-11-3, §60A-11-4, §60A-11-5 and §60A-11-6, all relating to
regulation and procedures for the remediation of clandestine
drug laboratories; defining terms; establishing a program of
certification and licensing of persons engaged in the business
of remediation; providing for legislative rules; authorizing
the Department of Health and Human Resources to establish fees
for certification, licensing and notification requirements;
setting forth the responsibility of law-enforcement agencies
to notify the Department of Health and Human Resources and
residential property owners of the existence of a clandestine
drug laboratory; setting forth the responsibility of
residential property owners for remediation of clandestine
drug laboratories; providing immunity from liability for
property owners who successfully remediate a clandestine drug laboratory; and establishing civil penalties for persons
convicted pursuant to subsection (d),
section four, article
ten of said chapter and whose actions resulted in the
necessity of remediation of a clandestine drug laboratory.
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 §60A-11-1, §60A-11-2,
§60A-11-3, §60A-11-4, §60A-11-5 and §60A-11-6, all to read as
follows:
ARTICLE 11. CLANDESTINE DRUG LABORATORY REMEDIATION ACT.
§60A-11-1. Legislative findings and purpose.
(a) Findings.-- The Legislature finds that some residential
and business properties are being used for the consumption,
production and manufacture of illegal drugs resulting in
contamination with hazardous chemical residues. These illegal
laboratories present an immediate and ongoing danger to public
health and safety. Innocent members of the public may be harmed
when they are exposed to the chemical residues if the property is
not decontaminated prior to subsequent rental, sale or use of the
property.
(b) Purpose.-- The purpose of this article is to protect the
public health, safety and welfare by designating the Department of
Health and Human Resources as the state agency to set forth
standards for the remediation of clandestine drug laboratories.
§60A-11-2. Definitions.
In this article:
(a) "Clandestine drug laboratory" means the area or areas
where controlled substances, or their immediate precursors, have
been, or were attempted to be, manufactured, processed, cooked,
disposed of or stored, and all proximate areas that are likely to
be contaminated as a result of such manufacturing, processing,
cooking, disposing or storing.
(b) "Department" means the West Virginia Department of Health
and Human Resources.
(c) "Controlled substance" means the same as that term is
defined in article one, section one hundred one, and article ten,
section three, a drug, substance or immediate precursor in
Schedules I through V of article two
of this chapter.
(d) "Immediate precursor" means a substance which the "West
Virginia Board of Pharmacy" (hereinafter in this act referred to as
the State Board of Pharmacy) has found to be and by rule designates
as being the principal compound commonly used or produced primarily
for use and which is an immediate chemical intermediary used or
likely to be used in the manufacture of a controlled substance, the
control of which is necessary to prevent, curtail or limit
manufacture.
(e) "Law-enforcement agency" means the West Virginia State
Police or any other policing agency of the state or of any
political subdivision of the state.
(f) "Remediation" means the act of rendering safe and usable
for the purposes for which it is intended residential property, as defined in subsection (f) of this section, or any structure
appurtenant to the residential property, or other structure on the
residential property that has been used for the manufacture or
consumption of methamphetamines or other illicit drug products.
(g) "Residential property" means any building or structure to
be primarily occupied by people, either as a dwelling or as a
business, including but not limited to a storage facility, a mobile
home, manufactured home or recreational vehicle, hotel or motel
that may be sold, leased or rented for any length of time.
(h) "Residential property owner" means the person holding
record title to residential property as that term is defined in
subsection (f) of this section.
§60A-11-3. Remediation of clandestine drug laboratories;
promulgation of legislative rules.
(a) The Department of Health and Human Resources, shall
propose rules for legislative approval in accordance with the
provisions of article three, chapter twenty-nine-a of this code to
address, at a minimum, the following issues:
(1) Establishment of scientific guidelines and numeric
decontamination levels for the remediation of clandestine drug
laboratories;
(2) Establishment of a certification program for persons or
contractors who engage in the business of clandestine drug lab
remediation;
(3) Establishment of a licensure procedure whereby individuals
and businesses certified to do remediation of clandestine drug laboratories obtain a license from the Department of Health and
Human Resources to do such work;
(4) Requiring licensed contractors to notify the Department of
Health and Human Resources prior to beginning any remediation
project;
(5) Setting forth certification procedures for the department
to certify that the completed remediation of the residential
property fully meets the scientific guidelines and numeric
decontamination levels set forth in the legislative rule; and,
(6) Establishing requirements for property owners, sellers and
landlords to disclose the existence of any former clandestine
laboratory site or activity to any potential occupant of the
residential property.
(b) Fees may be set by the legislative rule to be charged to
persons or contractors engaged in the business of clandestine drug
laboratory remediation for certification, licensing and
notification as required in this article.
§60A-11-4. Law enforcement responsibility.
Any law-enforcement agency, upon locating chemicals,
equipment, supplies or precursors indicative of a clandestine drug
laboratory on residential property, shall notify the residential
property owner and the department in a manner prescribed by the
legislative rule authorized by this article.
§60A-11-5. Residential property owner responsibility; owner
immunity; voluntary compliance.
(a) Upon notification to the residential property owner by a
law-enforcement agency that chemicals, equipment, supplies or
precursors indicative of a clandestine drug laboratory have been
located on the residential property owner's property, the
residential property owner shall be responsible for actions
necessary to meet the remediation standards established by the
legislative rule authorized by this article. The residential
property owner is responsible for actions to ensure the residential
property shall remain unoccupied from the time the residential
property owner is notified of the clandestine drug laboratory until
such time as the department certifies that the completed
remediation meets the numeric decontamination levels set forth in
the legislative rule authorized in this article. The department
shall have forty-five days from receipt of all necessary paperwork
and documentation to complete remediation certification: Provided,
That a residential property owner may demolish the residential
property as an alternative to meeting the remediation standards
established by the department.
(b) Once the remediation has been certified complete by the
department, the residential property owner and any representative
or agent of the residential property owner shall be immune from
civil liability for action brought for injuries or loss based upon
the prior use of the residential property as a clandestine drug
laboratory by future owners, renters, lessees, or any other person
who occupies the residential property.
(c) Any residential property owner who chooses to voluntarily and successfully complete the remediation prior to notification by
a law-enforcement agency shall have the same immunity from
liability as set forth in subsection (b) of this section if the
remediation meets the certification standards set forth in
legislative rules authorized by this article.
§60A-11-6. Liability for costs of remediation.
Any person convicted pursuant to section four, subsection (d)
of article ten of this chapter, and whose actions also resulted in
the necessity of remediation of a clandestine drug laboratory,
shall be liable to the person or entity for all costs associated
with the remediation of the clandestine drug laboratory. These
costs may include attorney's fees and court costs reasonably
necessary to bring action to collect the amount paid for the
remediation.