ENGROSSED
COMMITTEE SUBSTITUTE
FOR
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 288
(By Senators Wiedebusch, Oliverio, Bowman, Buckalew and Ross)
__________
[Originating in the Committee on Finance;
reported March 1, 1995.]
_________
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 voluntary remediation of contaminated property generally,
legislative findings, policies and purposes; defining terms
and applicability of voluntary actions; providing for
rulemaking by the director of the division of environmental
protection; use of institutional and engineering controls in
voluntary actions; implementation of applicable standards of
remediation; rights affected by article; authorizing issuance
of no further action letters and covenants not to sue;
creating a fund to administer the voluntary action program;
allowing for variances from applicable standards; imposing
fees; requiring recordation of covenants not to sue; providing
procedures for revoking covenants not to sue; authorizing
review of voluntary actions; requesting data; providing for
appeals; effect of voluntary actions; establishing
prohibitions; authorizing a right of entry and sampling; providing for criminal and civil penalties; allowing cost
recovery actions; providing relief from tort liability; and
providing 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; and
(3) Establish limitations on liability under environmental
laws and rules 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 pursuant to
subdivisions (a) and (b), section four of this article, section six
of this article or the alternative remediation levels and terms and
conditions set forth in a variance issued under section nine of
this article.
(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 promulgated
pursuant to section four, article eleven of this chapter.
(e) "Certified professional" means a person certified by the
director pursuant to rules promulgated pursuant to subdivision (e),
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
of this chapter.
(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
promulgated by the director pursuant to subdivision (i), 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 subdivision (g), section four 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; or
(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 person or individual; any group of
persons or individuals acting individually or as a group; any
public or private corporation, institution, association, firm or
company organized or existing under the laws of this or any other
state or country; the state of West Virginia and its political
subdivisions; any governmental agency, including federal
facilities; any partnership; any trust; any estate; 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
concentration that can be reliably measured within specified limits
of precision and accuracy recovery under routine modern laboratory
conditions for a specified matrix 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 of the property.
(t) "Related" means the persons are related by consanguinity
within the third degree or closer or by 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 concluded 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 or section eighteen, article eighteen of this chapter
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.
On or before the first day of August, one thousand nine
hundred ninety-six, the director shall promulgate rules, in
accordance with the provisions of article three, chapter twenty-
nine-a of this code, that:
(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 shall be established in conformity with subsection (c),
section three, article one of this chapter;
(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 promulgated pursuant to
subdivision (a) of this section. The risk assessment procedures
shall describe a methodology to establish, on a property-specific
basis, the allowable levels of contamination to remain at a
property which ensure protection of public health and safety, the
environment on the property and the environment 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 promulgated pursuant to this subdivision 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
promulgated pursuant to this subdivision shall be no more stringent
than the background level or the practical quantitation level,
whichever is greater.
Without the approval of the director, risk assessment may not
be used to establish applicable standards at any property on which there was no release of contaminants prior to the first day of
August, one thousand nine hundred ninety-five;
(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 the managers are reasonably available; and
(4) A walkover of the property.
The rules promulgated pursuant to this subdivision 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 promulgated pursuant to 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 and for the issuance of no further action letters.
The rules promulgated pursuant to this subdivision 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 promulgated pursuant to subdivision (b) of
this section if the risk assessment was used in lieu of generic
numerical clean-up standards established in rules promulgated
pursuant to said subdivision;
(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 promulgated under this article 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 promulgated under this article;
(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;
and
(i) Identify hazardous substances. The 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 or natural gas.
§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 any 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 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), 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
regulation requires application of a different standard, in which
case the federal standard applies.
(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 of this chapter 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 article 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
promulgated under this article 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 promulgated under this article.
§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 promulgated under this article. 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 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 or her application,
except that the director may impose any additional or alternative
terms and conditions that he or she 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 hold a public meeting on the
application 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 the 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 owned by
that person 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 or she 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), section eleven of this article 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 the 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 or she owns or operates;
(2) Use a certified professional who is employed by,
affiliated with, or related to him or her, 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 her, or that is owned by a person related to or
affiliated with him or her, 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 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), section twelve of this article, he or she 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 original no further action letter for the voluntary action is
submitted to the director on his of her behalf by the certified
professional.
The person who undertook the voluntary action shall send
written notice to the certified professional informing him or her
as to whether the letter should be submitted to the director. If
the person's notice indicates that he of she 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 or she 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 or her 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 promulgated pursuant to
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),
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; and
(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 shall provide by certified mail, 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 or her 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 or she 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
any portion of the property.
(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 promulgated
pursuant to this article regarding no further action letters;
(2) The director determines from information available to him
or her 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), section
fifteen of this article, or subsection (b), 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 the covenant would not be affected by amendments to
rules that became effective after that time which 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
the 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 promulgated pursuant to
subdivision (g), 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 the director.
§22-22-14. Recordation of covenants not to sue and other
documents; transfer; recordkeeping.
(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 filing of the documents is exempt from any transfer taxes. The
no further action letter, covenant not to sue and institutional
controls, if any, 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 promulgated under this
article 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 or
her authorized representative shall visually inspect each 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 or she shall give notice of his or her
findings to persons for whom the certified professional or
certified laboratory has performed work in connection with a
voluntary action.
(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 the 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 promulgated
pursuant to subdivision (e), 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
article, 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 promulgation of rules pursuant to section
four of this article, the director may review no further action
letters in order to determine if the relevant properties, certified
professionals or certified laboratories 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
that 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; or
(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.
The following actions or inactions 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:
(1) The director's issuance or refusal to issue or decision to
revoke, a variance or covenant not to sue;
(2) The director's decision not to allow a risk assessment;
(3) The director's stipulation of terms and conditions of a
covenant not to sue or a variance;
(4) The director's stipulation of terms and conditions of any
order or agreement, or the director's failure to enter into an
order on agreement, required for issuance of a covenant not to sue;
or
(5) The director's refusal to issue, or his or her decision to
revoke, a certified professional's certification or certified
laboratory's certification.
§22-22-19. Effect of voluntary action; discoverable information.
(a) Entering into or participating in a voluntary action under
this article and rules promulgated under this article does not
constitute an admission of criminal or civil liability under the
laws of this state or rules promulgated under the laws of this
state, 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 promulgated under this chapter 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 or an action by the director to revoke
a covenant not to sue.
(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 or her authorized
representative, upon presentation of proper identification and upon
stating the necessity and purpose of an inspection, may enter at
reasonable times upon: (1) Any public or private property at which
a voluntary action has been or is being conducted; (2) 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 (3) 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. The director or his or
her authorized representative may enter the properties set forth in
this section to examine or copy data, information, records or
documents relating to the evaluation, investigation or remediation
of properties under this article and rules promulgated under this
article 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.
Any person who knowingly violates section twenty of this
article is guilty of a misdemeanor, and, upon conviction thereof,
shall be fined not more than twenty-five thousand dollars, or
imprisoned for not more than one year, or both fined and
imprisoned. Each violation is a separate offense. Upon a second
or subsequent conviction for 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, or
both.
§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 is 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 promulgated under this article;
(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 attorney's 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 promulgated under this article 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 or
she 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 or she 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 to which those owners, operators
and others caused or contributed.
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
person on the basis of his or her 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 the property
subject to the voluntary action is located. The person conducting
the voluntary action may commence the civil action at any time
after he or she 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 allows 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; or
(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; and
(3) "Tort action" means a civil action for damages for harm
and includes a civil action under section twenty-three of this
article 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; or
(4) A public utility that is: (a) 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: (i) 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 (ii)
constructing, repairing or replacing its lines, poles, towers,
foundations, pipelines or other structures supporting or sustaining
the lines or the appurtenances to those structures; or (b)
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 or of poles, towers,
foundations or other structures supporting or sustaining the lines
or the 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 considered 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; and
(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 rules.
(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 rules is not required to comply with any provisions of any statutes or rules pertaining to the
identification or remediation of releases or threatened releases of
hazardous substances or petroleum at or upon the property and is
not 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; and
(2) Is not required to comply with any provisions of chapter
twenty-two of this code, or any rules promulgated thereunder,
pertaining to the investigation or remediation of releases of
contaminants upon the property, and is not 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 rule adopted under that chapter, or any other action
taken to protect the secured property.