Senate Bill No. 552
(By Senators Plymale, Browning, Jenkins and Foster)
[Originating in the Committee on the Judiciary;
reported February 24, 2012.]
A BILL to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §31-21-1, §31-21-2, §31-21-3, §31-21-4, §31-21-5, §31-21-6, §31-21-7, §31-21-8, §31-21-9, §31-21-10, §31-21-11, §31-21-12, §31-21-13, §31-21-14, §31-21-15, §31-21-16, §31-21-17, §31-21-18 and §31-21-19, all relating to authorizing the creation of a public nonprofit corporation and governmental instrumentality under the provisions of article two, chapter thirty-one-e of said code, to collectively address several environmental and economic development programs established to promote the productive reuse of idled and underutilized commercial, industrial and mining properties, support more efficient use of existing public infrastructure and encourage increased job creation with living wages, renewed community vitality and tax revenue generation while protecting public health and our natural resources; providing short title; declaring policy and purpose of article; defining terms; creating West Virginia Land Stewardship Corporation; stating certain tax requirements; setting forth powers of West Virginia Land Stewardship Corporation; providing for board of directors and composition of same; providing for creation of voluntary land stewardship program; providing for underwriting review of land stewardship program applicants; authorizing establishment of state certified sites program; setting forth minimum standards for certification under state certified sites program; authorizing establishment of voluntary state land bank program; permitting land stewardship corporation to preserve property value of properties held by land stewardship corporation; providing requirements for handling of contaminated properties by land stewardship corporation; providing for liberal construction of article; providing procedure for dissolution of land stewardship corporation upon completion of purpose; providing provision for conflict of interest of land stewardship corporation officers, employees and board members; stating preservation of sovereign immunity; and providing that obligations of land stewardship are not obligations of Department of Environmental Protection or state.
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 §31-21-1, §31-21-2, §31-21-3, §31-21-4, §31-21-5, §31-21-6, §31-21-7, §31-21-8, §31-21-9, §31-21-10, §31-21-11, §31-21-12, §31-21-13, §31-21-14, §31-21-15, §31-21-16, §31-21-17, §31-21-18 and §31-21-19, all to read as follows:
ARTICLE 21. WEST VIRGINIA LAND STEWARDSHIP CORPORATION.
Part 1. Short Title, Declaration of Policy, Purpose of Article and Definitions.
§31-21-1. Short title.
This article shall be known and may be cited as The West Virginia Land Stewardship Corporation Act.
§31-21-2. Declaration of policy.
(a) The Legislature finds and declares that developable land is one of West Virginia’s most valuable resources in terms of net contributions to the state’s economy and tax base;
(b) The Legislature further finds that:
(1) Due to topography, the state has somewhat limited amounts of developable land and that promoting the productive reuse of idled and underutilized commercial, industrial and mining properties will maximize our most valuable resource and foster reuse of sites with existing public infrastructure;
(2) An entity that specializes in promoting the productive reuse of idled or underutilized commercial, industrial and mining properties will help the state and its citizenry to plan more wisely for sustainable property reuse and economic development efforts;
(3) An entity created to address and reduce regulatory and economic uncertainty by being a repository of site history and remediation information about formerly used properties can be a benefit to attracting new employers or encouraging businesses to relocate, remain or expand within the state;
(4) An entity that assists the state’s Department of Environmental Protection (DEP) with a voluntary land stewardship program for the long-term safeguarding of remediated sites using institutional controls (ICs) and engineering controls (ECs) (collectively IECs) to ensure that the remedy remains protective of human health and the environment is assisting the department to effectively oversee these remediated sites (IEC Sites);
(5) An entity that also assists in identifying formerly used properties that are ready for redevelopment and construction within twelve months or less from acquisition and certifies these properties as “project-ready” for specific industry profiles can increase economic development efforts within the state;
(6) An entity that also acts as a land bank to accept title to formerly used properties as an intermediary step to help seek a purchaser, ready the property for reuse through environmental assessment, remediation, building demolition or other efforts, can be a useful ally to the state, local government, real estate developers and business for transacting property conveyances, redevelopment and creating or retaining jobs; and
(7) The promotion of private investment in our developable land and West Virginia businesses will tend to reduce unemployment by creating new or maintaining existing opportunities for the citizens of this state.
§31-21-3. Purpose of article.
The purposes of this article are to create a special purpose nonprofit corporation with a comprehensive mission to:
(1) Assist the Department of Environmental Protection in utilizing a voluntary land stewardship program for the long-term safeguarding of IEC Sites to ensure that the remedy remains protective of human health and the environment and to facilitate further economic development and reuse opportunities;
(2) Provide the Department of Environmental Protection and other parties with a reliable source of oversight, monitoring and information about IEC Sites under the voluntary land stewardship program;
(3) Establish a land bank as a legal and financial mechanism to accept title to properties and assist to transform idled and underutilized property back to productive reuse;
(4) Facilitate the reuse and redevelopment of certain property by authorizing the conveyance of certain properties to a land bank under a voluntary land bank program and assist the state and local governments with the assembly and clearance of title to property in a coordinated manner;
(5) Promote economic growth by implementing a state Certified Sites program to identify sites that are ready for construction within twelve months or less and that are certified "project-ready" for specific industry profiles as well as other categories of sites identified for economic development opportunities;
(6) Provide voluntary programs on a fee or subscription basis with a nonprofit corporation to protect human health and the environment as well as assist with a variety of economic development efforts throughout the state; and
(7) Prescribe the powers and duties of the nonprofit corporation; provide for the creation and appointment of boards to govern nonprofit corporation and to prescribe their powers and duties; and to extend protections against certain environmental liabilities to the nonprofit corporation in order to protect the entity from liability created by third parties.
The following words used in this article, unless the context clearly indicates a different meaning, are defined as follows:
(1) "Agreement" means any agreement being entered into between the nonprofit corporation and a business, corporation, private party or local state government.
(2) "All Appropriate Inquiries” or “AAI” means the process of evaluating a property’s environmental conditions and assessing the likelihood of any contamination. Every Phase I environmental assessment must be conducted in compliance with the All Appropriate Inquiries Final Rule at 40 CFR Part 312. The All Appropriate Inquiries Final Rule provides that the ASTM E1527-05 standard is consistent with the requirements of the final rule and may be used to comply with the provisions of the rule. The specific reporting requirements for all appropriate inquiries are provided in 40 CFR §312.21 (Results of Inquiry by an Environmental Professional) and §312.31 of the final rule and in §12 of ASTM E1527-05.
(3) "Board of directors” means the board of directors of the corporation to be appointed under the provisions of section seven of this article.
(4) “Certified sites” means such sites that are developable properties that have been prequalified as having proper land use designation, utilities, transportation improvements, availability and pricing. The criteria include established pricing, terms and conditions so that property acquisition can be negotiated quickly and without time-consuming delays.
(5) “Charitable purposes” means the 501(c)(3) subclasses of “lessening the burden of the government” where the government identifies a need for the nonprofit entity to assist with a governmental service and the nonprofit collaborates with the government entity, and the “environmental protection for the benefit of the public” where the corporation’s services benefit the general public by protecting public health and the environment as well as assisting with state and local economic development initiatives.
(6) “Contaminants” has the same meaning as defined in the environmental acts.
(7) "Corporation" means the West Virginia Land Stewardship Corporation, a nonstock, nonprofit corporation to be established under the West Virginia Nonprofit Corporation Act, article thirty-one-e, article two of this code and with nonprofit status under one or more charitable purposes under 501(c) of the Internal Revenue Code of 1986, as amended, or under any corresponding section of any future tax code.
(8) "Corporate directors" means the members of the board of directors of the corporation.
(9) “DEP” means the State of West Virginia, acting by and through the Department of Environmental Protection or any successor agency.
(10) “Enforcement tools” means any order, permit, consent decree or environmental covenant or similar mechanisms which restrict or control certain land uses implemented at IEC Sites.
(11) “Engineering controls” or “ECs” means physical controls or measures designed to eliminate the potential for human exposure to contamination by limiting direct contact with contaminated areas, or controlling contaminants from migrating through environmental media into soil, groundwater or off-site.
(12) “Enrolled sites” means properties enrolled and accepted for participation in the voluntary Land Stewardship Program.
(13) “Environmental acts” means the Surface Coal Mining and Reclamation Act set forth in article three, chapter twenty-two of this code; the Air Pollution Control Act set forth in article five, chapter twenty-two of this code; the Water Pollution Control Act set forth in article eleven, chapter twenty-two of this code; the Groundwater Protection Act set forth in article twelve, chapter twenty-two of this code; the Solid Waste Landfill Closure Assistance Program set forth in article sixteen, chapter twenty-two of this code; the Hazardous Waste Management Act set forth in article eighteen, chapter twenty-two of this code; section 103(a) of the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (42 U. S. C. A. §9603(a)); section 304 of the Emergency Planning and Community Right-To-Know Act of 1986 (42 U. S. C. A. §§11001 to 11050); the Occupational Safety and Health Act set forth in 29 U. S. C. A. §§ 651 to 678; the Resource Conservation and Recovery Act, as amended, set forth in 42 U. S. C. A. §§6901, et seq.; and the Toxic Substances Control Act set forth in 15 U. S. C. A. §§2601, et seq. and any applicable regulation promulgated thereunder.
(14) “Governmental controls” means any state laws, ordinances, orders, permits, consent decrees and similar mechanisms which restrict or control certain land uses implemented at IEC Sites.
(15) “IEC Sites” means sites remediated or closed under a federal or state environmental program, including brownfields, underground storage tanks, closed landfills, open dumps, hazardous waste sites, and former mining sites with ongoing water treatment as part of mine reclamation efforts.
(16) “Informational devices” means deed notices or other written documents that describe the remediation that was conducted on an IEC Site, the constituents of concern and the remediation standards that were achieved. Informational devices are filed with property records as an advisory to provide environmental information to future buyers or users of the IEC Site.
(17) “Institutional Controls” or “ICs” means administrative and legal controls that do not involve construction or physically changing the site and are generally divided into four (4) categories: 1) Government controls, 2) Proprietary controls, 3) Enforcement tools, and 4) Informational devices. ICs are nonengineering measures that help minimize the potential for human exposure to contamination and/or protect the integrity of the remedy by limiting land or resource use.
(18) "Nonprofit corporation” means a corporation established under the West Virginia Nonprofit Corporation Act, article thirty-one-e, article two of this code to fulfill the purposes of this article.
(19) “Pollutants” has the same meaning as defined in the environmental acts.
(20) “Proprietary controls” means legal property interests created under real property laws that rely on legal documents recorded in the chain of title for the site, and “run with the land” to bind future landowners. Examples of proprietary controls may include environmental covenants, deed land use restrictions, water withdrawal prohibitions and continuing right-of-entry easements for former owners or regulators to inspect, monitor and maintain the IECs.
(21) “Regulated substances” has the same meaning as defined in the environmental acts.
(22) “Releases” has the same meaning as defined in the environmental acts.
Part 2. West Virginia Land Stewardship Corporation.
§31-21-5. Creation of the West Virginia Land Stewardship Corporation.
(a) The corporation shall be organized as a nonprofit corporation under the West Virginia Nonprofit Corporation Act, article thirty-one-e, article two of this code to fulfill the purposes of this article.
(b) The corporation shall seek nonprofit status under one or more charitable purposes within the meaning of section 501(c) of the Internal Revenue Code of 1986, as amended, or under any corresponding section of any future tax code.
(c) The corporate name for the corporation shall be the West Virginia Land Stewardship Corporation.
(d) The corporation shall be a nonprofit and the corporation shall not have or issue shares of stock or make distributions from such shares of stock.
(e) Except as otherwise provided in this article, the corporation may do all things necessary or convenient to implement the purposes, objectives and provisions of this article and the purposes, objectives and powers delegated to the board of directors of a nonprofit corporation by other laws or executive orders, including, but not limited to, all of the following:
(1) Adopt, amend and repeal bylaws for the regulation of its affairs and the conduct of its business;
(2) Establish the service offerings and related fees for such services under each of the voluntary programs described herein;
(3) Sue and be sued in its own name and plead and be impleaded, including, but not limited to, defending the corporation in an action arising or resulting from the services, programs and responsibilities arising under this article;
(4) Solicit and accept gifts, grants, labor, loans, services and other aid from any person, or the federal government, this state or a political subdivision of this state or any agency of the federal government or a state institution of higher education or nonprofit affiliates or an intergovernmental entity created under the laws of this state or participate in any other way in a program of the federal government;
(5) Procure insurance against risk and loss in connection with the programs, property, assets or activities of the corporation;
(6) Invest money of the corporation, at the discretion of the board of directors in instruments, obligations, securities or property determined proper by the board of directors of the corporation and name and use depositories for its money;
(7) Employ legal and technical experts, contractors, consultants, agents or employees, permanent or temporary, paid from the funds of the corporation. The corporation shall determine the qualifications, duties and compensation of those it employs;
(8) Contract for goods and services and engage personnel as necessary, contract with Regional Brownfield Assistance Centers as set out in section seven, article eleven, chapter eighteen-b, and engage the services of private consultants, managers, legal counsel, engineers, accountants and auditors for rendering professional environmental, legal and financial assistance and advice payable from funds of the corporation;
(9) Create limited liability companies or other sole purpose entities or devices to accept real property as part of administering its programs;
(10) Study, develop and prepare the reports or plans the corporation considers necessary to assist it in the exercise of its powers under this article and to monitor and evaluate progress under this article;
(11) Enter into contracts for the management of, the collection of rent from, or the sale of real property held by the corporation; and
(12) Do all other things necessary or convenient to achieve the objectives and purposes of the corporation or other laws that relate to the purposes and responsibility of the corporation.
(a) The enumeration of a power in this article may not be construed as a limitation upon the general powers of the corporation. The powers granted under this article are in addition to those powers granted by any other statute or as provided in articles of incorporation filed with the Secretary of State.
(b) The property of the corporation and its income and operations are exempt from all taxation by this state or any of its political subdivisions.
(c) The corporation may not levy any power to issue tax-exempt financing or issue bonds.
(d) The corporation does not have the power of eminent domain or the ability to condemn property.
(e) The exercise by the corporation of powers and duties under this article and its activities under the programs described herein shall be considered a necessary public purpose and for the benefit of the public.
(f) The corporation shall report biannually to the Legislature on the activities of the corporation.
(g) The operations of the corporation are subject to an audit by an independent auditor or the State of West Virginia as determined by the Department of Environmental Protection.
(h) The corporation is not liable under the environmental acts or common law equivalents to the state or to any other person by virtue of the fact that the corporation is fulfilling the purposes of this article including, but not limited to, providing land stewardship services or accepting title to property under any program herein unless:
(1) The corporation, its employees or agents directly cause an immediate release or directly exacerbate a release of regulated substances on or from a property that is an enrolled site or accepted into the land bank program; or
(2) The corporation, its employees or agents knowingly and willfully do an action which caused an immediate release of regulated substances or violates an environmental act. Liability pursuant to this article is limited to the cost for a response action which may be directly attributable to the corporation’s activities, and only if these activities are the proximate and efficient cause of the release or violation. Ownership or control of the property after accepting title in the land bank program does not by itself trigger liability.
(i) The corporation shall adopt a code of ethics for its directors, officers and employees.
(j) The corporation shall establish policies and procedures requiring the disclosure of relationships that may give rise to a conflict of interest. The governing body of the corporation shall require that any member of the governing body with a direct or indirect interest in any matter before the corporation disclose the member's interest to the governing body before the board takes any action on the matter.
(k) The programs that are established under this article and administered by the corporation are voluntary programs. Parties can participate in the land stewardship program, certified sites program and land bank program at their option.
(l) The state may contract with the corporation for services for properties for which the state is responsible and may enter into long-term contracts for services that are funded under a trust agreement or provided in an escrow account.
§31-21-7. Board of directors.
(a) The purposes, powers and duties of the corporation shall be exercised by a board of directors. The corporation’s board consists of the following eleven members:
(1) The Governor shall appoint four residents of this state;
(2) The West Virginia Chamber of Commerce shall appoint one member;
(3) The West Virginia Manufacturers’ Association shall appoint one member;
(4) The West Virginia Environmental Council shall appoint one member;
(5) The Secretary of the Department of Environmental Protection or his or her designee who shall serve as an ex officio nonvoting member;
(6) The Secretary of the Department of Commerce or his or her designee who shall serve as an ex officio nonvoting member;
(7) One member of the Senate appointed by the Senate President who shall serve as a nonvoting member; and
(8) One member of the House of Delegates appointed by the Speaker who shall serve as a nonvoting member.
(b) The members appointed by the Governor, the West Virginia Chamber of Commerce and the West Virginia Manufacturers’ Association shall serve terms of four years: Provided, That for the initial appointments the parties making the appointments shall designate three to serve for four years, two to serve for three years and two to serve for two years.
(c) Corporate directors shall serve without compensation, but shall be reimbursed for actual and necessary expenses.
(d) The corporate directors shall appoint a person to serve as the executive director of the corporation. A member of the board is not eligible to hold the position of executive director.
(e) Subject to the approval of the board, the executive director shall supervise, and be responsible for, the performance of the functions and programs of the corporation under this article. The executive director shall attend the meetings of the board and shall provide the board of directors with a regular report describing the activities and financial condition of the corporation. The executive director shall furnish the board of directors with information or reports governing the operation of the corporation as the board requires.
(f) The rights conferred on the corporation or any person described hereunder are not exclusive of and shall be in addition to any other right which the person may have or may hereafter acquire under any statute, provision of articles of incorporation, bylaws, agreement, vote of corporate directors or otherwise.
Part 3. Voluntary Land Stewardship Program.
§31-21-8. Voluntary land stewardship program.
(a) When the voluntary land stewardship program is implemented, remediation parties and site owners of IEC Sites will have the option, for a fee, to participate in this program. The fee will be established by the corporation for services provided for an enrolled site as that term is defined in section four of this article.
(b) The universe of sites or properties covered under this section of the statute includes, but is not limited, to those with IEC Sites remediated or closed under a federal or state environmental program, including brownfields, underground storage tanks, closed landfills, open dumps, hazardous waste sites, and former mining sites with ongoing water treatment as part of mine reclamation efforts.
(c) The corporation is further authorized to provide at a minimum the following voluntary land stewardship services for enrolled sites:
(1) Establish or maintain any ICs by filing the appropriate documents or updating such documents when the site is leased, conveyed, subdivided or when remediation occurs: Provided, That the corporation’s responsibilities for such activities are expressly identified for the entity itself and provided in agreements for the IEC Site that will be negotiated when a site is enrolled in the voluntary land stewardship program;
(2) Conduct physical inspections of the enrolled sites, including inspecting or monitoring any ECs (e.g., media treatment systems, fences, caps and other mechanisms used as part of the remedy at the IEC Site) and site activities to assure that the enrolled sites continue to comply with the IECs, such as maintenance of ECs and inspecting for compliance with restrictions of specific land uses;
(3) Monitor and operate any required media treatment systems and/or conduct routine surface water, groundwater and or gas monitoring and prepare any monitoring or inspection reports that may be part of the corporation’s responsibilities under site enrollment agreements;
(4) Conduct periodic reviews of the county land records to monitor transfers or deed filings to assure that such records are consistent with the required IECs for the enrolled sites, and provide notices to the clerk of the county commission about the results of monitoring or tracking of such records;
(5) Develop administrative records concerning the remediation at enrolled sites in an electronic database, respond to inquiries and coordinate the sharing of such data among various stakeholders, including the Department of Environmental Protection, current owners, the remediating parties, if not the owners, other state or local agencies (such as economic development agencies), assessors, potential purchasers, landowners and tenants;
(6) Develop and maintain records and information about enrolled sites for posting on the Department of Environmental Protection environmental registry, or any other registry that is used for tracking IECs for IEC Sites in West Virginia and provide for public access to such information; and
(7) Coordinate and share data with West Virginia Miss Utility, the “One-Call” System, including verifying the location of ECs on enrolled sites, providing information about the remediation, and sharing any health and safety plans or soils management plans that may be associated with an enrolled site in order to assist any planned excavation at the enrolled site.
The enrollment and acceptance process to the land stewardship program will be developed and include an underwriting review that focuses on: (1) The nature and extent of contamination; (2) the selected remedy; (3) the type of services selected and duration thereof; and (4) the financial costs and risks associated with fulfilling the services.
Part 4. State Certified Sites Program.
§31-21-10. State certified sites program.
(a) This article hereby authorizes the establishment of a state certified sites program. The program shall consist of the development and preparation of certain site specific decision ready documentation or reports that will enable the expedited property transaction for sites that participate in the certified sites program.
(b) The objectives of the certified sites program are to:
(1) Establish an inventory of identified sites that are ready for redevelopment and construction within twelve months or less from acquisition and certifies these properties as “project-ready” for specific industry profiles and other categories of developable properties available that can increase economic development efforts within the state;
(2) Improve the state’s competitive edge by giving more certainty in time, steps and costs to businesses expanding or locating within the state;
(3) Develop standard criteria that most real estate developers or businesses need when selecting a site for development;
(4) Develop a central source of certified sites and assist local government in identifying potential redevelopment properties; and
(5) Demonstrate that the state is committed to promoting and expediting economic development projects for the benefit of its citizenry.
(c) The corporation shall issue a site certification if it determines that the decision ready document has been prepared and completed in accord with the requirements set forth by the corporation. The corporation may require some or all of the following information based on the site specific circumstances of the property to be certified.
(d) The issuance of a site certification shall be based on the review and approval of the information submitted to the corporation in an application for the site certification.
§31-21-11. Minimum standards.
(a) The minimum standards listed below must be met for a site to be considered for certification:
(1) Letter of support from a mayor, county commissioner or local economic development official;
(2) Site ownership/control:
(A) Preliminary fifty-year title report and description of liens and encumbrances;
(B) Letter from property owner/option holder stating that site is for sale/lease. If possible, proposed pricing or transactional requirements with a description of any on-site improvements, current level of investment, and whether property can be parceled;
(C) Acreage; and
(D) Full legal property description.
(A) ALTA map;
(B) Site map showing lot layout, transportation access, roads and likely access points;
(C) USGS topographical map; and
(D) Aerial map.
(4) Phase I environmental site assessment performed by a certified professional within the prior six months, if appropriate, a Phase II environmental site assessment performed by a certified professional within the prior six months. For any properties being remediated, documentation about the status and cleanup objectives. Remediated sites provide documentation of liability protection.
(5) Wetland delineation demonstrating that impacts to waters of the state will be avoided or mitigation plan approved by the Department of Environmental Protection.
(6) Water and wastewater infrastructure to property line or demonstrate the ability to construct and pay for the infrastructure up to property line. Capacity clearly defined.
(7) Transportation infrastructure to property line, including type of roads near site such as whether the roads are local, state or U. S. roads.
(8) Electric infrastructure to property line. Capacity clearly identified.
(9) Natural gas infrastructure to property line. Capacity clearly identified.
(10) Water infrastructure to property line. Capacity clearly identified.
(11) Sewer infrastructure to property line. Capacity clearly identified.
(12) Telecommunications and/or high speed communications infrastructure to property line. Capacity clearly identified.
(b) The complete list of certified sites criteria will be developed into a program application along with appropriate fees for participation as the certified sites program is implemented, and will be revised from time to time as warranted.
Part 5. Land Bank Program.
§31-21-12. Land bank program.
(a) This article hereby authorizes the establishment of a voluntary state land bank program. The corporation under the land bank program is authorized to acquire properties, hold title and prepare them for future use. Prior to acquiring any properties, the corporation shall conduct all appropriate inquiry to determine the environmental conditions or issues associated with a property.
(b) The objective of the land bank program is to assist state and local government efforts for economic development by accepting formerly used or developable properties and prepare the properties so they can be conveyed to other parties to locate or expand businesses and create or retain jobs in the state;
(c) The corporation may acquire by gift, devise, transfer, exchange, foreclosure, purchase or otherwise on terms and conditions and in a manner the corporation considers proper, real or personal property or rights or interests in real or personal property.
(d) Real property acquired by the corporation may be by purchase and sale agreement, lease purchase agreement, installment sales contract, land contract or otherwise as may be negotiated or structured. The corporation may acquire real property or rights or interests in real property for any purpose the corporation considers necessary to carry out the purposes of this article including, but not limited to, one or more of the following purposes:
(1) Use or development of property the corporation has otherwise acquired;
(2) Facilitate the assembly of property for sale or lease to any other public or private person, including, but not limited to, a nonprofit or for profit corporation;
(3) Conduct environmental remediation and monitoring activities.
(e) The corporation may also acquire by purchase, on terms and conditions and in a manner the corporation considers proper, property or rights or interest in property.
(f) The corporation may hold and own in its name any property acquired by it or conveyed to it by this state, a foreclosing governmental unit, a local unit of government, an intergovernmental entity created under the laws of this state or any other public or private person including, but not limited to, tax reverted property and property with or without clear title.
(g) All deeds, mortgages, contracts, leases, purchases or other agreements regarding property of the corporation, including agreements to acquire or dispose of real property, may be approved by and executed in the name of the corporation or any single purpose entity created for the transaction.
(h) All property held by the corporation shall be inventoried and classified by the nonprofit according to title status and suitability for use.
(i) A document including, but not limited to, a deed evidencing the transfer under this article of one or more parcels of property to the corporation by this state or a political subdivision of this state may be recorded with the register of deeds office in the county in which the property is located without the payment of a fee.
§31-21-13. Preserve property value.
(a) The corporation may, without the approval of a local unit of government in which property held by the corporation is located, control, hold, manage, maintain, operate, repair, lease as lessor, secure, prevent the waste or deterioration of, demolish and take all other actions necessary to preserve the value of the property it holds or owns.
(b) The corporation may take or perform the following with respect to property held or owned by the corporation:
(1) Grant or acquire a license, easement, or option with respect to property as the corporation determines is reasonably necessary to achieve the purposes of this article;
(2) Fix, charge, and collect rents, fees and charges for use of property under the control of the corporation or for services provided by the corporation;
(3) Pay any tax or special assessment due on property acquired or owned by the corporation;
(4) Take any action, provide any notice or institute any proceeding required to clear or quiet title to property held by the corporation in order to establish ownership by and vest title to property in the corporation; and
(5) Remediate environmental contamination on any property held by the corporation.
(c) Except as the corporation otherwise agrees by agreement or otherwise, on terms and conditions, and in a manner and for an amount of consideration the corporation considers proper, fair and valuable, including for no monetary consideration, the corporation may convey, sell, transfer, exchange, lease as lessor or otherwise dispose of property or rights or interests in property in which the corporation holds a legal interest to any public or private person for value determined by the corporation.
(d) The corporation shall be made a party to and shall defend any action or proceeding concerning title claims against property held by the corporation.
§31-21-14. Contaminated property.
(a) If the Department of Environmental Protection determines that conditions on a property transferred to the corporation under this article represents an immediate threat to public health, safety and welfare, or to the environment, the corporation may not convey, sell, transfer, exchange, lease or otherwise dispose of the property until after a determination by the Department of Environmental Protection that the threat has been remediated and/or eliminated and that conveyance, sale, transfer, exchange, lease or other disposal of the property by the corporation will not interfere with any of the Department of Environmental Protection’s response activities and will coordinate with the Department of Environmental Protection about the corporations activities at such property.
(b) If the corporation has reason to believe that property held by the corporation may be the site of environmental contamination, the corporation shall provide the Department of Environmental Protection with any information in the possession of the corporation that suggests that the property may be the site of environmental contamination.
(c) If property held by the corporation is a facility as defined under environmental acts as a site impacted by contamination, pollution, hazardous substances, hazardous or other wastes prior to the sale or transfer of the property under this section, the property is subject to all of the following:
(1) Upon reasonable written notice from the Department of Environmental Protection, the corporation shall provide access to the Department of Environmental Protection, its employees, its contractors and any other person expressly authorized by the Department of Environmental Protection to conduct an investigation and/or response activities at the property. Reasonable written notice may include, but is not limited to, notice by electronic mail or facsimile, in advance of access as the Department of Environmental Protection and corporation may agree.
(2) If the Department of Environmental Protection determines necessary to protect public health, safety and welfare or the environment, the corporation shall place and record deed restrictions on the property as authorized under state environmental statute.
§31-21-15. Liberal construction.
This article shall be construed liberally to effectuate the legislative intent and the purposes as complete and independent authorization for the performance of every act and thing authorized by this article, and all powers granted shall be broadly interpreted to effectuate the intent and purposes and not as a limitation of powers in the exercise of its powers and duties under this article and its powers relating to property held by the authority, the authority has complete control as if it represented a private property owner and may not be subject to restrictions imposed on the authority by the charter, ordinances or resolutions of a local unit of government.
§31-21-16. Completed purpose.
If the corporation has completed the purposes for which the corporation was organized, the board of directors, by vote of at least a majority of a quorum of the directors and with the written consent of the Governor, may provide for the dissolution of the corporation and may provide for the transfer of any property held by the corporation as required by agreement or, if there are no related agreements, then to the Department of Environmental Protection or state agency or to another nonprofit corporation as directed by the Department of Environmental Protection.
§31-21-17. Conflicts of interest.
Notwithstanding any other provision of this article to the contrary, officers and employees of the corporation and its board of directors may hold appointments to offices of any other corporation or business and be corporate directors or officers or employees of other entities but are prohibited to be a party or otherwise participate in the transfer of real property and funds from the corporation to the corporation or business for which they work.
§31-21-18. No waiver of sovereign immunity.
Nothing contained in this article may be determined or construed to waive or abrogate in any way the sovereign immunity of the state or to deprive a governing board of a state created nonprofit corporation or any officer or employee thereof of sovereign immunity.
§31-21-19. Not obligation of the state.
Obligations of the corporation are not debts or obligations of the Department of Environmental Protection or the state.
(NOTE: The purpose of this bill is to authorize the creation of a public nonprofit corporation and governmental instrumentality under the provisions of article two, chapter thirty-one-e of the code, to collectively address several environmental and economic development programs. The corporation is established to promote the productive reuse of idled and underutilized commercial, industrial and mining properties; to support more efficient use of existing public infrastructure; encourage increased job creation with living wages; and renewed community vitality and tax revenue generation while protecting public health and our natural resources.
This article is new; therefore, strike-throughs and underscoring have been omitted.)