ENROLLED
SENATE BILL NO. 490
(By
Senators Hunter, Foster, Kessler, Minard, Oliverio, White, Caruth, Deem
and Jenkins)
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[Passed March 8, 2007; in effect ninety days from passage.]
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AN ACT to amend and reenact §22-17-22 of the Code of West Virginia,
1931, as amended,
relating to the Underground Storage Tank
Insurance Fund; providing for expiration of the fund and
disposal of its assets; directing the Department of
Environmental Protection to assist certain policyholders
reclaim sites insured by the fund; providing that the
Department of Environmental Protection is not liable for
claims against the fund nor may be bound to policy terms;
providing legislative findings; directing the Secretary of the
Department of Environmental Protection to develop a plan to
cause remediation of these sites; authorizing the Secretary of
the Department of Environmental Protection to place conditions
on remediation recipients; establishing criteria and
preconditions for remediations; allowing persons who have
undertaken remediation or expended funds to undertake
remediation of sites to be reimbursed expenses; and allowing
the secretary to establish conditions for reimbursement for
prior or future remediations of insured sites.
Be it enacted by the Legislature of West Virginia:
That §22-17-22 of the Code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:
ARTICLE 17. UNDERGROUND STORAGE TANK ACT.
§22-17-22. Underground storage tank insurance fund.
(a) The secretary may establish an Underground Storage Tank
Insurance Fund for the purpose of satisfying the financial
responsibility requirements established pursuant to section ten of
this article. In addition to the capitalization fee to be assessed
against all owners or operators of underground storage tanks
provided by subdivision (6), subsection (b), section six of this
article, the
secretary
shall promulgate rules establishing an
annual financial responsibility assessment to be assessed on and
paid by owners or operators of underground storage tanks who are
unable to obtain insurance or otherwise meet the financial
responsibility requirements established pursuant to section ten of
this article. Assessments shall be paid into the State Treasury
into a special fund designated the Underground Storage Tank
Insurance Fund.
(b) At the end of each fiscal year, any unexpended balance of
such assessment shall not be transferred to the General Revenue
Fund but shall remain in the Underground Storage Tank Insurance
Fund. Upon the effective date of the enactment of the amendment to
this section passed during the two thousand seven regular session
of the West Virginia Legislature, the Underground Storage Tank
Insurance Fund shall cease to operate as an insurance fund. Any remaining assets of the fund shall be administered by the secretary
pursuant to subsections (c), (d), (e), (f), (g) and (h) of this
section. Because the fund was intended to be self funding, the
secretary is not bound by
any terms, limitations or conditions
contained in any insurance policies issued by the fund
, but in no
case may reimburse any person for an amount in excess of the limits
of liability.
(c) Legislative Findings Regarding Cessation of the Fund - The
Underground Storage Tank Insurance Fund was established by the
Legislature to assist storage tank owners who were mandated by
federal law to have insurance but were unable to find insurance in
the private market, and was funded solely by assessments of
policyholders paid to the fund. Policies were issued from the years
one thousand nine hundred ninety to two thousand. As private
insurance coverage became available and a number of the insured
left the business, premiums paid into the fund decreased. These
factors, combined with greater than anticipated remediation costs
at sites remediated during the fund's solvency, caused claims
against the fund to exceed moneys collected. As a result, the fund
became insolvent. Although the fund was not intended to and does
not create any legal obligation for the state for any claims made
against the fund, it is the
sense of the Legislature that to the
extent public funds are determined by the Legislature to be
available, they may be appropriated to assist individuals
with the
remediation of these sites and to prevent potential adverse
environmental impacts and harm to human health that could result from a failure to remediate. This assistance by the state in
funding these remediations would be intended to provide an option
for the insured to fulfill their legal duty to reclaim these sites
and the Department of Environmental Protection may not assume any
legal liability for remediation of these sites beyond the
assistance provided pursuant to subsections (d), (e), (f), (g) and
(h) of this section.
(d) The secretary shall request
that the Governor include in
each budget submitted to the Legislature
funding to cause
remediation of these existing sites as identified by the secretary.
The secretary shall submit a proposal to undertake or cause to be
undertaken these remediations to the Joint Committee of Government
and Finance by the first day of November, two thousand seven. The
secretary's proposal shall provide, at a minimum, budget amounts
needed each year for completing these remediation activities by the
thirty-first day of December, two thousand nine, but in no case
later than the thirty-first day of December, two thousand twelve.
(e) The secretary shall also request funding to reimburse
insured persons and vendors who have incurred costs not yet
reimbursed as of the effective date of this section by the fund for
work undertaken at insured sites previously authorized by the
secretary.
(f) Any agreements with insured persons for payment of
remediations shall provide that, prior to any remediation
activities on any site or for reimbursement for expenses previously
incurred, an agreement be executed that provides that the insured person or persons agree that the site will be remediated pursuant
to either subsection (g) or (h) of this section.
(g) The secretary may cause remediation of an insured site to
a voluntary remediation standard as provided in article twenty-two
of this chapter, including any appropriate land-use covenant and
other deed restrictions and any other conditions as established by
the secretary prior to payment for any costs associated with a site
remediation.
(h) If an insured person demonstrates to the secretary that it
is more cost effective to clean up a site through an alternative
program or method that will result in remediation at a standard
equal to or greater than provided for in subsection (g) of this
section, then the secretary may, as an alternative, authorize use
of that method or program. The secretary may place any appropriate
requirements upon the insured person as a condition for undertaking
a remediation by an alternative program or method.