H. B. 2435

(By Delegates Rowe, Ashley, Greear,

Kelley, Thompson, Osborne and Beane)

[Introduced February 10, 1995; referred to the
Committee on the Judiciary.]

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, relating to performance of voluntary remediations; definition of terms; rule making by the director of the division of environmental protection, use of institutional and engineering controls in voluntary actions; setting of applicable standards of remediation; issuance of no further action letters and covenants not to sue; creation of a fund to administer the voluntary action program; variances from applicable standards; fees; recordation of covenants not to sue; procedures for revoking covenants not to sue; reviews of voluntary actions; requests for data; appeals; prohibitions; right of entry and sampling; penalties; cost recovery actions; relief from tort liability; and relief for fiduciaries.

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, to read as follows:
ARTICLE 22. REMEDIATION OF CONTAMINATED PROPERTY.
§22-22-1. Legislative findings; legislative statement of policy and purpose.
(a) The Legislature finds that there is property in West Virginia that is not being put to its highest productive use because it is contaminated as a result of past human activity on the property.
The Legislature further finds that remediation of contaminated property is hindered by a lack of clear guidelines and uncertainty regarding the legal effect of remediation.
(b) Therefore, it is the purpose of this article to:
(1) Set standards and risk assessment procedures for remediation of contaminated property;
(2) Assure that remediation undertaken under this article is protective of the citizens and the environment of this state and meets or exceeds all applicable standards;
(3) Establish limitations on liability under environmental laws and regulations for those persons who clean up sites in accordance with applicable standards established under this article.
§22-22-2. Definitions.
(a) "Affiliated" means under common ownership or control.
(b) "Applicable standards," unless the context indicates otherwise, means the remediation levels established in or pursuant to subsections (a) and (b), section four of this article, section six of this article, or alternative remediation levels and terms and conditions set forth in a variance issued under section nine of this article, as applicable.
(c) "Background level" means the concentrations of a substance at a property and areas surrounding a property that are unaffected by any current or past human activities involving releases of contaminants, or the practical quantitation level, whichever is greater.
(d) "Certified laboratory" means any laboratory approved by the director under laboratory certification rules adopted pursuant to section four, article eleven, chapter twenty-two of this code.
(e) "Certified professional" means a person certified by the director pursuant to rules adopted under subsection (e) of section four of this article to issue no further action letters under section eleven of this article.
(f) "Contaminant" or "Contamination" means any hazardous substance, petroleum or natural gas.
(g) "Covenant not to sue" means the relief from liability to the state of West Virginia granted pursuant to section twelve of this article.
(h) "Director" means the director of the division of environmental protection.
(i) "Engineering controls" means those parts of the physical design of a voluntary action that will remain after the voluntary action is completed and are used to meet applicable standards. The term may include, but is not limited to, fences, cap or cover systems and landscaping.
(j) "Groundwater quality standards" means the standards of purity and quality adopted pursuant to section four, article twelve, chapter twenty-two of this code.
(k) "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.A. 9601, as amended, and any substance listed in rules adopted by the director pursuant to subsection (i) of section four of this article.
(l) "Institutional controls" are legal or contractual restrictions on property use that remain effective after the voluntary action is completed and are used to meet applicable standards. The term may include, but is not limited to, deed and water use restrictions.
(m) "Natural gas" means natural gas, natural gas liquids, liquified natural gas, synthetic gas usable for fuel, or mixtures of natural gas and synthetic gas.
(n) "No further action letter" means a letter from a certified professional pursuant to subsection (g) of section four of this article and section eleven of this article.
(o) "Owner or operator" includes both of the following:
(1) Any person owning or holding a legal, equitable, or possessory interest in, or having responsibility for the daily activities on, a property;
(2) 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, any person who owned, operated, or otherwise controlled activities occurring on the property before the conveyance.
(p) "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 individual; group of persons or individuals acting individually or as a group; or any legal entity whatever.
(q) "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 used in the refining or blending of crude petroleum or petroleum stock.
(r) "Practical quantitation level" means the lowest limit that can be reliably achieved within specified limits of precision and accuracy under routine laboratory conditions for a specified matrix and based on quantitation, precision and accuracy, normal operation of a laboratory and the practical need in a compliance-monitoring program to have a sufficient number of samples to conduct the analyses.
(s) "Property" means any parcel of real property, and any improvements thereof.
(t) "Related" means the persons are related by consanguinity or marriage.
(u) "Release" means any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, migrating, dumping, or disposing of any contaminant into the environment, including, without limitation, the abandonment or discarding of barrels, containers or any other closed receptacle containing any contaminant.
(v) "Remedy" or "remediation" means actions that are taken at a property to treat, remove, transport for treatment or disposal, dispose of, contain, or control contaminants; are protective of public health and safety and the environment; and are consistent with a permanent remedy. The terms include, without limitation, excavation, treatment, off-site disposal, the use of engineering or institutional controls or measures, and the entering into and implementation of an operation and maintenance agreement pursuant to section twelve of this article.
(w) "Voluntary action" means a series of measures that may be undertaken to identify and address potential sources of contamination of property and to establish that the property complies with applicable standards. "Voluntary action" may include, without limitation, any one or more of the following: A Phase I property assessment; a Phase II property assessment; a sampling plan; a remedial plan; a risk assessment; a variance; remediation; or other activities deemed necessary or appropriate by the person undertaking the voluntary actions. A voluntary action may include the issuance of a no further action letter under section eleven of this article.
§22-22-3. Applicability of voluntary actions.
(a) A voluntary action may not be performed where prohibited by federal law, or where a voluntary action would prevent implementation of federal law.
(b) The provisions of this article do not apply where the director has issued an order pursuant to section nineteen, article eleven, chapter twenty-two of this code or section eighteen, article eighteen, chapter twenty-two of this code because a release or threatened release of a contaminant from or at the property poses a substantial and imminent threat to public health or safety or the environment.
(c) The application of any provision of subsection (a) or (b) of this section to a portion of property does not preclude participation in the voluntary action program under this article in connection with other portions of the property where those provisions do not apply.
§22-22-4. 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 adopt, and subsequently may amend, suspend or rescind, rules that do the following:
(a) Adopt appropriate generic numerical clean-up standards for the remediation of soils, sediments and water media for contaminants. The rules shall establish separate generic numerical clean-up standards based upon the intended use of properties after the completion of voluntary actions, including industrial, commercial and residential uses and such other categories of land use as the director considers to be appropriate. The generic numerical clean-up standards established for each category of land use shall be the concentration or other appropriate measurement of each contaminant that may be present on a property that shall ensure protection of public health and safety and the environment for that category of land use.
The generic numerical clean-up standards established under this subsection shall be no more stringent than any applicable standard established by federal environmental laws and regulations adopted under them, including, without limitation, the "Federal Water Pollution Control Act Amendments of 1972," 86 Stat. 886, 33 U.S.C.A. 1251, as amended; the "Resource Conservation and Recovery Act of 1976," 90 Stat. 2806, 42 U.S.C.A. 6921, as amended; the "Toxic Substances Control Act," 90 Stat. 2003 (1976), 15 U.S.C.A. 2601, as amended; the "Comprehensive Environmental Response, Compensation and Liability Act of 1980," 94 Stat. 2779, 42 U.S.C.A. 9601, as amended; and the "Safe Drinking Water Act," 88 Stat. 1660 (1974), 42 U.S.C.A. 300f. as amended.
(b) Establish procedures for performing property-specific risk assessments to demonstrate that the remedy evaluated in a risk assessment results in protection of public health and safety and the environment and may be substituted for the generic numerical clean-up standards established in the rules adopted under subsection (a) of this section. The risk assessment procedures shall describe a methodology to establish, on a property-specific basis, allowable levels of contamination to remain at a property to ensure protection of public health and safety and the environment on the property and off the property when the contamination is emanating off the property, taking into account engineering and institutional controls, if any.
The risk assessment procedures and levels of acceptable risk set forth in the rules adopted under this subsection may allow differing levels of remediation when an existing land use is continued compared to when a different land use follows the remediation. Any standards established pursuant to rules adopted under this subsection shall be no more stringent than the generic standards established under subsection (a) of this section or the standards established under other environmental statutes of this state and rules adopted under them for the same contaminant in the same environmental medium that are in effect at the time the risk assessment is conducted.
(c) Establish minimum standards for Phase I property assessments. The standards shall specify the information needed to demonstrate that there is no reason to believe that contamination exists on a property. These standards shall, at a minimum, require that a Phase I property assessment include all of the following:
(1) A review and analysis of any previous environmental assessments, property assessments, environmental studies, or geologic studies of the property and any land within two thousand feet of the boundaries of the property that are publicly available or that are known to and reasonably available to the owner or operator;
(2) A review of current and past environmental compliance histories of persons who owned or operated the property, as evidenced in records of environmental agencies of this state;
(3) Interviews with managers of activities conducted at the property who have knowledge of environmental conditions at the property, where such managers are reasonably available; and
(4) A walkover of the property.
The rules adopted under this subsection shall establish criteria to determine when a Phase II property assessment shall be conducted if a Phase I property assessment reveals facts that establish a reason to believe that a contaminant has been released on the property and the person undertaking the Phase I property assessment wishes to obtain a covenant not to sue under section twelve of this article.
(d) Establish minimum standards for Phase II property assessments. The standards shall specify the information needed to demonstrate that any contamination present at the property does not exceed applicable standards or that the remedial activities conducted at the property have achieved compliance with applicable standards. The rules adopted under this subsection, at a minimum, shall require that a Phase II property assessment include all of the following:
(1) A review and analysis of all documentation prepared in connection with a Phase I property assessment conducted within the one hundred eighty days before the Phase II property assessment begins. If a period of more than one hundred eighty days has passed between the time that the Phase I assessment of the property was completed and the Phase II assessment begins, the Phase II assessment shall include a reasonable inquiry into the change in the environmental condition of the property during the intervening period;
(2) Quality assurance objectives for measurements taken in connection with a Phase II assessment;
(3) Sampling procedures to ensure the representative sampling of potentially contaminated environmental media;
(4) Quality assurance and quality control requirements for samples collected in connection with Phase II assessments;
(5) Analytical and data assessment procedures; and
(6) Data objectives to ensure that samples collected in connection with Phase II assessments are biased toward areas where information indicates that contamination by hazardous substances or petroleum is likely to exist.
(e) Establish standards governing the conduct of certified professionals, criteria and procedures for the certification of professionals to issue no further action letters, and criteria for the suspension, revocation and reinstatement of those certifications. The rules adopted under this subsection shall:
(1) Require the director to act promptly on a request for certification; and
(2) Establish an annual fee to be paid by certified professionals. The fee shall be no more than that required to defray the costs to the director for the required reviews of the qualifications of the certified professionals and for the issuance of the certifications.
(f) Identify information to be included in a no further action letter, including, without limitation, all of the following:
(1) A summary of the information that demonstrates that the requirements for issuance of a no further action letter have been satisfied;
(2) Notification that a risk assessment was performed in accordance with rules adopted under subsection (b) of this section if such an assessment was used in lieu of generic numerical clean- up standards established in rules adopted under subsection (b) of this section;
(3) The contaminants addressed at the property, if any, their source, if known, and their levels prior to remediation;
(4) The identity of any other person who performed significant work to support the request for the no further action letter and the nature and scope of the work performed by that person; and
(5) A list of the data, information, records and documents relied upon by the certified professional in preparing the no further action letter.
(g) Set fees for the services provided by the director under this article and rules adopted under it that are no greater than necessary to defray the direct and indirect costs incurred by the agency for the administration and enforcement of this article and rules adopted under it.
(h) Establish criteria for selecting the no further action letters that will be reviewed under section sixteen of this article, and the scope and procedures for conducting those reviews.
(i) Identify hazardous substances. Such rules shall include all hazardous substances identified under the federal Comprehensive Environmental Response, Compensation and Liability Act of 1980, 94 Stat. 2779, 42 U.S.C.A. 9601, as amended, but shall not include petroleum.
§22-22-5. Use of institutional and engineering controls in voluntary action.
A voluntary action conducted under this article may attain applicable standards through the use of institutional or engineering controls or other remedy. Any institutional controls that restrict the use of a property shall ensure that the property is used only for purposes that are consistent with the applicable standards pertaining to the intended use of the property after the completion of the voluntary action, as the intended use is specified in the documents establishing the institutional controls. If a property is subject to institutional controls that restrict its use, and the property is put to a use that does not comply with the use restrictions specified in the documents establishing the institutional controls, the covenant not to sue for that property may be declared to be void by order of the director on and after the date of the commencement of the noncomplying use. If engineering controls are used to meet applicable standards the engineering controls must be referenced in the covenant not to sue as provided in subsection (b) of section twelve of this article.
§22-22-6. Implementation of applicable standards; applicable
standards not to be set below background levels or groundwater quality standards.
(a) Applicable standards shall apply to any remediation of releases of contaminants in this state, regardless of whether a voluntary action is being performed, unless a federal statute or rule requires application of a different standard, in which case the federal standard shall apply.
(b) Applicable standards for a contaminant may not be more stringent than the background level of the contaminant; in addition, applicable standards for contaminants in groundwater may not be more stringent than groundwater quality standards or, for any individual site or activity, the variance granted pursuant to section five, article twelve, chapter twenty-two of this code for that site or activity.
§22-22-7. Effect of this article; rights not affected.
(a) Nothing in this article shall be construed as abrogating any obligation or right established in federal law.
(b) Nothing in this article shall be construed as releasing a person to whom the director has issued any final order on or before the effective date of this section from the obligation to comply with any requirements established in the order.
§22-22-8. Creation of voluntary action program administration fund.
Money collected by the director under this article and rules adopted under it shall be deposited in the voluntary action program administration fund, which is hereby created in the state treasury. The director shall expend moneys in the fund exclusively for the implementation, administration and enforcement of this article and rules adopted under it.
§22-22-9. Variances.
(a) A person who proposes to enter into or who is participating in the voluntary action, may apply to the director for a variance from applicable standards otherwise established in this article and rules adopted under it. The application for a variance shall be prepared by a certified professional. The director shall issue a variance from those applicable standards only if:
(1) The application demonstrates to the director's satisfaction that it is technically infeasible to comply with the applicable standards otherwise established at the property named in the application;
(2) The costs of complying with the applicable standards otherwise established at the property substantially exceed the economic benefits;
(3) The proposed alternative standard set forth in the application will result in an improvement of environmental conditions at the property and ensure that public health and safety will be protected; or
(4) The establishment of and compliance with the alternative standard or set of standards and terms and conditions are necessary to promote, protect, preserve, or enhance employment opportunities or the reuse of the property named in the application.
A variance issued under this section shall state the specific standard or standards being varied and shall set forth the specific alternative standard or set of standards and the terms and conditions imposed on the applicant in their place. A variance issued under this section shall include only standards and terms and conditions proposed by the applicant in his application, except that the director may impose any additional or alternative terms and conditions that he determines to be necessary to ensure that public health and safety will be protected. If the director finds that compliance with any standard or term or condition proposed by the applicant will not protect public health and safety and that the imposition of additional or alternative terms and conditions will not ensure that public health or safety will be protected, the director shall disapprove the application and shall include in the order of denial the specific findings on which the denial was based.
(b) Upon determining that an application for a variance is complete, the director shall schedule a public meeting on the application to be held within ninety days after the director determines that the application is complete in the county in which is located the property to which the application pertains.
(c) Not less than thirty days before the date scheduled for the public meeting on an application for a variance, the director shall publish notice of the public meeting and that the director will receive written comments on the application for a period of forty-five days commencing on the date of the publication of the notice. The notice shall contain, at a minimum, the address of the property to which the application pertains; a brief summary of the alternative standards and terms and conditions proposed by the applicant; and the date, time, and location of the public meeting. The notice shall be published in a newspaper of general circulation in the county in which the property is located and, if the property is located in close proximity to an adjacent county, as determined by the director, shall be published in a newspaper of general circulation in the adjacent county. Concurrently with the publication of the notice of the public meeting, the director shall mail notice of the application, comment period and public meeting to the owner of each parcel of land that is adjacent to the affected property and to the legislative authority of the municipal corporation, if any, and county in which the affected property is located. The notices mailed to the adjacent land owners and to municipalities and counties shall contain the same information as the published notice.
(d) At the public meeting on an application for a variance, the applicant, or a representative of the applicant who is knowledgeable about the affected property and the application, shall present information regarding the application and the basis of the request for the variance and shall respond to questions from the public regarding the affected property and the application. A representative of the director who is familiar with the affected property and the application shall attend the public meeting to hear the public's comments and to respond to questions from the public regarding the affected property and the application. A stenographic record of the proceedings at the public meeting shall be kept and shall be made a part of the administrative record regarding the application.
(e) Within ninety days after conducting the public meeting on an application for a variance under subsection (d) of this section, the director shall issue a proposed action to the applicant that indicates the director's intent with regard to the issuance or denial of the application. When considering whether to issue or deny the application or whether to impose terms and conditions of the variance that are in addition or alternative to those proposed by the applicant, the director shall consider the comments on the application made by the public at the public meeting and written comments on the application received from the public.
§22-22-10. Right to perform voluntary action; no further action letters.
(a) Except as otherwise provided in section three of this article, any person may undertake a voluntary action to identify and address potential sources of contamination of soil, sediments, surface water or groundwater on or underlying property and to establish that the property meets applicable standards.
(b) When the person undertaking a voluntary action determines that the property meets applicable standards, he may seek a no further action letter from a certified professional. A no further action letter shall be issued for the property if the requirements of subsection (a) of section eleven are satisfied.
(c) A person who is performing a voluntary action shall use the services of a certified laboratory to perform any analyses that form the basis for the issuance of a no further action letter for a property and use the services of a certified professional to verify that the property and any remedial activities undertaken at the property in connection with a voluntary action comply with applicable standards and, if those standards are met, to issue to the person a no further action letter for the property. For the purposes of such a verification, the certified professional shall perform or review all work that was conducted to support the request for the no further action letter or shall ensure that the work has been performed and reviewed by other persons with expertise and competence in areas other than those of the certified professional's expertise and competence as necessary for the issuance of the no further action letter.
(d) No person who is participating in the voluntary action program shall do any of the following:
(1) If the person is a certified professional, prepare a no further action letter in connection with a voluntary action conducted at a property that he owns or operates;
(2) Use a certified professional who is employed by, affiliated with, or related to him, or who was employed by or affiliated with him during the previous year, in any capacity other than that of a certified professional;
(3) Use a certified laboratory that is owned by or affiliated with him, or that is owned by a person related to or affiliated with him, to perform any analyses that form the basis for the issuance of a no further action letter in connection with a voluntary action.
(e) Subject to the restrictions imposed by subsection (d) of this section, a person who is participating in the voluntary action program may employ the same certified professional to perform a remediation and issue a no further action letter upon completion of the remediation.
(f) If a remedy relies on institutional controls, a no further action letter may not be issued without a demonstration that the use restrictions have been recorded in the office of the county recorder of the county in which the property is located. If the remedy relies on engineering controls, a no further action letter may not be issued without a plan for the proper operation and maintenance of the engineering controls.
§22-22-11. Issuance of no further action letters.
(a) If, following review of all available information about a property, the certified professional concludes that there is no information indicating that there has been a release of contaminants upon the property in excess of applicable standards, or he concludes that applicable standards have been achieved or will be achieved in accordance with the time frames established in an operation and maintenance agreement entered into under subsection (b) of section twelve of this article, he shall prepare a no further action letter.
Upon completion of a no further action letter, the certified professional shall send a copy of the letter to the person who undertook the voluntary action. The letter shall be accompanied by a written request that the person notify the certified professional as to whether the person wishes to submit the no further action letter to the director and notifying that person that the original letter may be submitted to the director only by a certified professional and that the person may receive a covenant not to sue from the director in connection with the voluntary action only if the no further action letter for the voluntary action is submitted to the director on his behalf by the certified professional.
The person who undertook the voluntary action shall send written notice to the certified professional informing him as to whether the letter should be submitted to the director. If the person's notice indicates that he wishes to have the no further action letter sent to the director, promptly after receipt of the notice the certified professional shall submit the original no further action letter to the director by certified mail on behalf of the person who undertook the voluntary action. If the person who undertook the voluntary action notifies the certified professional that he does not wish to submit the no further action letter to the director, the certified professional shall send the original letter to the person promptly after receiving the notice.
(b) If the certified professional finds that the property where the voluntary action was undertaken does not comply with applicable standards, the certified professional shall send to the person who undertook the voluntary action written notice of that fact and of the reasons the certified professional is unable to issue a no further action letter for the property. The person for whom the voluntary action was undertaken may correct any deficiencies and ask the certified professional to reconsider the refusal to issue a no further action letter.
(c) A certified professional shall maintain all documents and data prepared or acquired by him in connection with a no further action letter for not less than five years after the date of issuance of the letter or after the notice required under subsection (b) of this section has been sent, as applicable, or for a longer period as determined in rules adopted under section four of this article.
§22-22-12. Issuance and revocation of covenants not to sue.
(a) Except as provided in subsection (f) of this section, the director shall issue to a person on behalf of whom a certified professional has submitted to the director an original no further action letter and accompanying verification under subsection (a) of section eleven of this article a covenant not to sue for the property that is named in the letter. A covenant not to sue shall contain a provision relieving the person who undertook the voluntary action from all civil liability to this state to perform additional investigation or remediation to address a release of contaminants on the property where a voluntary action was performed, or any liability for damages to this state for any release of any contaminant.
(b) If the voluntary action involves the use of engineering controls, the covenant shall contain:
(1) A provision requiring that the person enter into an operation and maintenance agreement with the director that ensures that all engineering controls are maintained so that the remedy is protective of public health and safety and the environment; provisions requiring the person to conduct monitoring for compliance with the engineering controls and the applicable standards upon which issuance of the covenant was based, and periodically to report the findings of the monitoring to the director, as specified in the agreement; and financial assurances that the remedy will remain operational and functional;
(2) A provision requiring any person who is issued a covenant not to sue that contains an operation and maintenance agreement for engineering controls to notify the director of the transfer or assignment of the covenant or the property to which it applies;
(3) A provision revoking the covenant if the engineering controls are violated or are no longer in place and the controls are not reinstated within a reasonable period of time as determined in accordance with the covenant.
(c) The release provided under subsection (a) of this section remains effective only for as long as the property or portion thereof to which the covenant pertains continues to comply with the applicable standards upon which the issuance of the covenant was based. Upon finding that a property or portion thereof to which a covenant not to sue pertains no longer complies with the applicable standards upon which issuance of the covenant was based, the director, by certified mail, shall provide notice of that fact to the person responsible for maintaining compliance with those standards.
(d) Unless the recipient of a notice provided under subsection (c) of this section, within thirty days after receipt of the notice, notifies the director of his intention to return the property or portion thereof to compliance with the applicable standards upon which issuance of the covenant was based and offers to enter into a compliance schedule agreement with the director, the director shall revoke the covenant. The compliance schedule agreement shall establish a reasonable period of time for returning to compliance with those applicable standards.
(e) Upon finding that a person with whom he has entered into a compliance schedule agreement under subsection (d) of this section has failed to substantially comply with that agreement, the director shall revoke the covenant applicable to the property or portion thereof.
(f) The director shall deny a covenant not to sue as a final action for any of the following reasons:
(1) The no further action letter submitted on behalf of the person seeking the covenant not to sue does not substantially comply with section eleven of this article and rules adopted under this article regarding no further action letters;
(2) The director determines from information available to him that a remedy identified in the no further action letter does not protect public health and safety and the environment; or
(3) The no further action letter was submitted fraudulently.
(g) Unless a covenant issued under this section is revoked as provided in subsection (e) of this section, subsection (b) of section fifteen of this article, or subsection (b) of section seventeen of this article, the covenant shall remain effective as long as the property complies with the applicable standards that were in effect when the person who undertook the voluntary action submitted the required information and demonstrations to the certified professional who prepared the no further action letter. In particular such covenant would not be affected by amendments to rules that became effective after that time altered applicable standards for a contaminant addressed by the voluntary action or the procedures or levels of acceptable risk that govern the property-specific risk assessments.
(h) Unless revoked, a covenant not to sue issued pursuant to this section extends to all owners and operators of a property on which a voluntary action has been performed, all future owners of such property and all persons who have participated in the voluntary action for which the covenant was granted, including those who have contributed to the cost of the voluntary action as a result of an action brought under section twenty-three of this article.
§22-22-13. Time of issuance of covenants not to sue; fees.
(a) Where no engineering controls or institutional controls are used to comply with applicable standards, the director shall issue a covenant not to sue within thirty days after the director receives the no further action letter for the property and accompanying verification from the certified professional who prepared the letter. Where engineering controls or institutional controls are used to comply with applicable standards, the director shall issue a covenant not to sue within ninety days after the director receives the no further action letter for the property and accompanying verification from the certified professional who prepared the letter.
(b) Each person who is issued a covenant not to sue shall pay the fee established pursuant to rules adopted under subsection (g) of section four of this article. Until those rules become effective, each person who is issued a covenant not to sue shall pay a fee of two thousand dollars. The fee shall be paid at the time that the no further action letter and accompanying verification are submitted to him.
§22-22-14. Recordation of covenants not to sue and other

docum ents; trans fer; recor d keepi ng.

(a) A no further action letter, a covenant not to sue, and any institutional controls shall be filed in the office of the clerk of the county commission for the county in which the property is located by the person to whom the covenant not to sue was issued and shall be recorded in the same manner as a deed to the property. The no further action letter, covenant not to sue and institutional controls, if any, shall run with the property.
(b) A no further action letter, responsibility for engineering or institutional controls, and any agreement authorized to be entered into under this article and rules adopted under it may be transferred by the recipient to any other person by assignment.
(c) The director shall maintain a record of the properties for which covenants not to sue were issued that involve institutional or engineering controls. The records pertaining to those properties shall indicate the use restrictions applicable to each of them. At least once every five years, the director or his authorized representative shall visually inspect each such property to determine whether the property is being used in compliance with the applicable institutional controls and whether engineering controls are still viable.
§22-22-15. Director to give notice of improper issuance of no further action letters.
(a) If the director finds that the performance of a certified professional or certified laboratory has resulted in the issuance of no further action letters that are not consistent with applicable standards, he shall notify persons for whom the certified professional or certified laboratory has performed work in connection with a voluntary action of his findings.
(b) The director may review a voluntary action conducted on any property for which a covenant not to sue was issued that was based upon a no further action letter that was prepared by a certified professional whose certification was subsequently suspended or revoked, or that was based upon a no further action letter for a voluntary action for which analyses were performed by a certified laboratory for which the certification was subsequently suspended or revoked, and may revoke said covenant not to sue if it was based on the issuance of a no further action letter that is not consistent with applicable standards.
(c) Nothing in subsection (b) of this section precludes a person whose covenant not to sue was revoked from having a new no further action letter prepared regarding the relevant property and issued by another certified professional, or using another certified laboratory, for the purpose of obtaining a new covenant not to sue for the property.
§22-22-16. Reviews of voluntary actions and no further action letters.
(a) The director shall conduct reviews of no further action letters and voluntary actions for all of the following purposes:
(1) Determining whether the properties where the voluntary actions were conducted meet applicable standards;
(2) Reviewing the qualifications of and work performed by certified professionals to ascertain whether they possess the qualifications for certification pursuant to rules adopted under subsection (e) of section four of this article or their performance under the program has resulted in the issuance of no further action letters that are not consistent with applicable standards; and
(3) Reviewing the qualifications of and work performed by certified laboratories in connection with voluntary actions to ascertain whether their performance in connection with the program has resulted in the issuance of no further action letters that are inconsistent with applicable standards.
(b) Commencing one year after the effective date of this section, the director annually shall review no less than ten percent of the no further action letters pertaining to voluntary actions that involved remedial activities, and no less than ten percent of the letters pertaining to voluntary actions that did not involve remedial activities.
(c) Prior to the adoption of rules under section four of this article, the director may review no further action letters in order to determine if the relevant properties, certified professionals, certified laboratories or any combination of them comply with the standards established in section seven of this article.
(d) The director may contract with other persons to review no further action letters. The director shall not select as a contractor to conduct reviews under this section a person who, in connection with a review to be performed, undertook the voluntary action, issued the no action letter or otherwise participated in the voluntary action, or any person employed by or affiliated with such person.
§22-22-17. Requests for information and data.
(a) The director may request a certified professional or certified laboratory to provide documents and data for the purposes of verifying the qualifications of the professional or laboratory or auditing the performance of the professional or laboratory in connection with voluntary actions or may request any other person who performed work that was conducted to support a request for a no further action letter to submit documents and data relating to the no further action letter.
(b) In addition to any other remedy provided by law, the director may do either or both of the following in connection with willful failure to comply with a request under subsection (a) of this section:
(1) Revoke or suspend the certification of the certified professional or certified laboratory, as applicable;
(2) Revoke or suspend any covenant not to sue pertaining to the director's request for information under subsection (a) of this section.
(c) Nothing in subsection (b) of this section precludes a person whose covenant not to sue was revoked from having a new no further action letter prepared regarding the relevant property and issued by another certified professional, or using another certified laboratory, for the purpose of obtaining a new covenant not to sue for the property.
§22-22-18. Appeals.
Any action by the director taken pursuant to this article other than rule making, including, but not limited to, a decision regarding issuance or revocation of a covenant not to sue or a variance, imposition of terms and conditions in a covenant not to sue or a variance, or issuance or revocation of a certified professional's certification, may be appealed by any adversely affected person to the environmental quality board, as provided in section seven, article one, chapter twenty-two-b of this code.
§22-22-19. Effect of voluntary action; discoverability of information.
(a) Entering into or participating in a voluntary action under this article and rules adopted under it does not constitute an admission of criminal or civil liability under the laws of this state or rules adopted under them, or under the ordinances, resolutions and rules of a political subdivision of this state, or under the common law of this state.
(b) The fact that a person entered into or is participating in a voluntary action may not be used to establish that a violation of any of the provisions of chapter twenty-two of the code has occurred.
(c) Any information, documents, reports, or data produced or any samples collected, as a result of entering into and participating in the voluntary action program under this chapter and rules adopted under it are not admissible against the person undertaking the voluntary action, and are not discoverable, in any civil, criminal or administrative proceeding against the person undertaking the voluntary action, except a judicial or administrative proceeding initiated under section twenty-two of this article.
(d) Entering into or participating in a voluntary action shall not be construed to be an acknowledgement that the conditions at the property identified and addressed by the voluntary action constitute a threat or danger to public health or safety or the environment.
(e) Nothing in this article shall abridge the privileges accorded environmental audit reports and their preparers under article six, chapter fifty-seven of this code.
§22-22-20. Prohibition of fraud or destruction of information or

records.

(a) No person shall, with intent to deceive, materially falsify, tamper with, or render inaccurate any information, data, documents or reports generated for the purposes of or used in documenting or preparing a no further action letter.
(b) No person, with intent to deceive a certified professional, certified laboratory, or a contractor thereof, or the director or a contractor thereof, shall withhold, conceal or destroy any data, information, records or documents relating to a voluntary action.
§22-22-21. Right of entry, inspection and sampling.
In addition to the authority established in section seventeen of this article, the director or his authorized representative, upon presentation of proper identification and upon stating the necessity and purpose of an inspection, and upon presenting a search warrant, if requested, may enter at reasonable times upon any public or private property at which a voluntary action has been or is being conducted; upon any public or private property, real or personal, that is owned or operated by a person who is participating or has participated in the voluntary action program where data, information, records or documents relating to the person's participation in the voluntary action program are kept; or upon any public or private property, real or personal, upon which is located a certified laboratory or the offices of a certified professional, to inspect the credentials of the certified professional or the credentials and facilities of the certified laboratory; to examine or copy data, information, records or documents relating to the evaluation, investigation or remediation of properties under this article and rules adopted under it; or to obtain samples of soil, water or other environmental media at properties where voluntary actions have been or are being conducted.
§22-22-22. Penalties.
(a) Whoever knowingly violates section twenty of this article is guilty of a misdemeanor, and, shall be fined not more than twenty-five thousand dollars, or imprisoned for not more than one year, or both. Each violation is a separate offense. Upon a second or subsequent conviction for such an offense, the offender shall be fined at least twenty-five thousand dollars, but not more than fifty thousand dollars or imprisoned for at least one year.
§22-22-23. Cost recovery actions.
(a) As used in this section, "costs of conducting the voluntary action" means the costs incurred for performing a voluntary action that are effective and reasonably necessary to protect public health and safety and the environment, including, without limitation, the costs for all of the following:
(1) Identifying potential sources of contamination of the property where a voluntary action is being or was undertaken under this article and rules adopted under it;
(2) Investigating the nature and extent of contamination of the property in order to screen and select remedial alternatives;
(3) Preparing a remedial plan for the property;
(4) Conducting the remedial activities, including, without limitation, the future operation and maintenance costs of any engineering controls installed to contain or control the release of contaminants at or from the property;
(5) The preparation and submission of a no further action letter by a certified professional in connection with the voluntary action;
(6) Any oversight costs paid to the director; and
(7) Reasonable attorneys' fees, court costs and other expenses in connection with the action brought under this section.
"Cost of conducting the voluntary action" does not include the costs of any work performed at the property to render it suitable for a higher use than its current use or its most recent demonstrable use that is in addition to the work that is cost effective and reasonably necessary to protect public health and safety and the environment.
(b) Any person who, at the time any of the contaminants identified and addressed by a voluntary action conducted under this article and rules adopted under it were released at or upon the property that is the subject of the voluntary action, was the owner or operator of the property, and any other person who caused or contributed to a release of contaminants at or upon the property, is liable to the person who conducted the voluntary action for the costs of conducting the voluntary action. If the person who conducted the voluntary action did not cause or contribute to any release of contaminants at or upon the property that were identified and addressed by the voluntary action, he may recover in a civil action the costs of conducting the voluntary action from the owners or operators of the property at the time those releases occurred and any other persons who caused or contributed to the releases. If the person who conducted the voluntary action caused or contributed to any release of contaminants at or upon the property that were identified and addressed by the voluntary action, he may recover in a civil action from the owners and operators of the property when those releases occurred, and from other persons who caused or contributed to the releases, the costs of conducting the voluntary action that are attributable to the releases that those owners, operators and others caused or contributed to.
If two or more persons are found to have caused or contributed to a release of contaminants at or upon the property, the costs of conducting the voluntary action shall be apportioned among each such person on the basis of his respective degree of responsibility for the costs.
(c) A civil action authorized by this section shall be commenced in the circuit court of the county in which is located the property at which the voluntary action is conducted. The person conducting the voluntary action may commence the civil action at any time after the person has commenced the voluntary action. A civil action shall be commenced under this section within three years after the no further action letter was submitted to the director in connection with the voluntary action.
(d) All of the owners and operators of the property when the releases of contaminants identified and addressed by the voluntary action occurred, and the other persons who caused or contributed to those releases, may be joined as defendants in a civil action commenced under this section. The liability of those owners, operators and others for the costs of conducting the voluntary action shall be based upon their respective degrees of responsibility for the costs. When determining the respective degrees of responsibility for the costs of those owners, operators and others, the jury or, in a nonjury action, the court, may consider the nature and amount of contaminants stored, treated, disposed of, used and released by each person; the length of time that each person owned or operated the property; each person's history of compliance with applicable federal and state environmental laws and rules in the use and operation of the property; and any other factors that the jury or court considers to be appropriate.
(e) This section shall allow the filing of claims for recovery of the costs of conducting a voluntary action that identifies and addresses releases of contaminants that occurred prior to, on or after the effective date of this section.
(f) The existence of a claim for relief under this section shall not preclude persons from allocating the costs of conducting a voluntary action among themselves by contract. Contractual allocations of those costs do not affect the rights, liabilities or obligations to this state of the parties to the contractual allocations.
(g) This section does not create a claim for relief to recover the costs of conducting a voluntary action against any of the following:
(1) A person who neither caused nor contributed to in any material respect a release of contaminants on, in or under the property that was identified and addressed by the voluntary action nor who expressly undertook contractual liabilities for conducting the voluntary action;
(2) Notwithstanding a landlord's rights against a tenant, a landlord if the landlord did not know, and could not reasonably have known, of the acts or omissions of a tenant that caused or contributed to, or were likely to have caused or contributed to, a release of contaminants that resulted in the conduct of the voluntary action at the property;
(3) This state or a political subdivision of this state if it involuntarily acquires ownership or control of property by virtue of its function as a sovereign through such means as escheat, bankruptcy, tax delinquency or abandonment.
(4) This state or a political subdivision of this state if it voluntarily acquires ownership or control of property through purchase, appropriation or other means;
(5) A fiduciary or trustee who is in compliance with the requirements of section twenty-five of this article.
§22-22-24. Relief from tort liability.
(a) For purposes of this section:
(1) "Harm" means injury, death or loss to person or property caused by exposure to a contaminant.
(2) "Public utility" includes all entities regulated pursuant to chapter twenty-four of this code, and includes, for purposes of this section only, a person engaged in the storage and transportation of natural gas.
(3) "Tort action" means a civil action for damages for harm and includes a civil action under section twenty-three of this code for recovery of the costs of conducting a voluntary action, but does not include a civil action for damages for a breach of contract or another agreement between persons or for a breach of a warranty that exists pursuant to this code or common law of this state.
(b) None of the following, nor any officer or employee thereof, is liable in a tort action resulting from the presence of contaminants at, or the release of contaminants from, a property where a voluntary action is being or has been conducted unless an action or omission of the person, state agency, political subdivision, or public utility, or an officer or employee thereof, constitutes willful or wanton misconduct or intentionally tortious conduct:
(1) A person who is working as a contractor for another in conducting any activity in connection with a voluntary action;
(2) A state agency or political subdivision that is conducting a voluntary action or maintenance activities on lands, easements, or rights-of-way owned, leased or otherwise held by the state agency or political subdivision;
(3) A state agency when an officer or employee of the state agency, provides technical assistance to a person undertaking a voluntary action or to a contractor, officer, employee or agency thereof, in connection with the voluntary action;
(4) A public utility that is performing work in an easement or right-of-way of the public utility across property where a voluntary action is being or has been conducted and where the public utility is constructing or has main or distribution lines above or below the surface of the ground for purposes of maintaining the easement or right-of-way or for construction, repair or replacement of its lines; of poles, towers, foundations, pipelines or other structures supporting or sustaining any such lines; or of appurtenances to those structures or is performing work on property where a voluntary action is being conducted that is necessary to establish or maintain utility service to the property, including, without limitation, the construction, repair or replacement of main or distribution lines above or below the surface of the ground; of poles, towers, foundations or other structures supporting or sustaining any such lines; or of appurtenances to those structures.
(c) (1) This section does not create, and shall not be construed as creating, a new cause of action against or substantive legal right against this state or a person, political subdivision of this state, or public utility or an officer or employee thereof.
(2) This section does not affect, and shall not be construed as affecting, any immunities from civil liability or defenses established by another section of the code or available at common law, to which this state or a person, political subdivision or public utility, or officer or employee thereof, may be entitled under circumstances not covered by this section.
(d) No person shall be deemed to be an owner or operator solely as the result of conducting a voluntary action at the property.
§22-22-25. Relief from liability for fiduciaries and trustees.
(a) A fiduciary or trustee who acquires ownership or control of property without having owned, operated or participated in the management of the property, prior to acquiring ownership or control of it, is not liable for the costs of conducting a voluntary action in a civil action brought under section twenty-three of this article in connection with a voluntary action undertaken at the property or for the costs of identifying or remediating a release or threatened release of contaminants at or upon the property in a civil action otherwise brought under the code or common law of this state, provided that both of the following conditions apply:
(1) No action or omission of the fiduciary or trustee constituting willful or wanton misconduct or intentionally tortious conduct caused, contributed to, or exacerbated a release or threatened release of hazardous substances or petroleum at or upon the property;
(2) The fiduciary or trustee conducts or causes to be conducted all activities occurring at the property not related to the identification or remediation of released or threatened releases of contaminants at or upon the property in compliance with the applicable statutes and regulations.
(b) A fiduciary or trustee who, after acquiring ownership or control of property, conducts or causes to be conducted all nonremedial activities at the property in compliance with applicable statutes and regulations, is not required to comply with any provisions of any statutes or regulations pertaining to the identification or remediation of releases or threatened releases of hazardous substances or petroleum at or upon the property and shall not be subject to the issuance of an enforcement order, or a civil action for injunctive relief, under any of those chapters requiring the identification or remediation of any release or threatened release of contaminants at or upon the property.
(c) Nothing in this section precludes the filing of claims against the assets that constitute the estate or corpus of the trust held by the fiduciary or the filing of claims under section twenty-three of this article for the costs of conducting a voluntary action at the property or the filing of claims for the costs of remediation under other provisions of the code or common law of this state against the fiduciary or trustee in its representative capacity.
(d) (1) This section does not create a new cause of action against or substantive legal right against a fiduciary or trustee.
(2) This section does not affect any immunities from civil liability or defenses established by another section of the code or available at common law to which a fiduciary or trustee may be entitled under circumstances not covered by this section.
§22-22-26. Secured parties; liability for releases of contaminants.
(a) Any person who, without participating in the management of a property, holds indicia of ownership in a property primarily to protect a security interest in the property, and any person who held indicia of ownership in a property primarily to protect a security interest, without participating in the management of the property, and subsequently takes title to that property as a result of foreclosure or similar proceeding:
(1) Is not liable for the costs of conducting a voluntary action at that property, except to the extent that person caused contaminants to be released;
(2) Is not required to comply with any provisions of chapter twenty-two of this code, or any rules adopted pursuant thereto, pertaining to the investigation or remediation of releases of contaminants upon the property, and shall not be subject to civil, criminal or administrative action under any of the provisions of those statutes or rules requiring the identification or remediation of any release of contaminants at the property, except to the extent that person caused contaminants to be released.
(b) For purposes of this section, "participating in the management of a property" does not include any action by the person holding the security interest to cause the property owner or operator to comply with the requirements of chapter twenty-two of this code or regulations adopted thereunder, or any other action taken to protect the secured property.

NOTE: The purpose of this bill is to establish clean-up levels for remediation of contaminated property, and issuance of covenants not to sue for persons who properly perform voluntary remediations.

This article is new; therefore, strike-throughs and underscoring have been omitted.