Senate Bill No. 288
(By Senators Wiedebusch, Oliverio, Bowman, Buckalew and Ross)
____________
[Introduced February 8, 1995; referred to the Committee
on Natural Resources; and then to the Committee on
Finance.]
____________
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; rulemaking 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
doc
ume
nts
;
tra
nsf
er;
record
kee
pin
g.
(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.