H. B. 2551
(By
Delegates Long, Amores, Brown, Browning, Morgan, Pino, Tabb,
Hamilton and Sobonya)
____________
[Introduced January 26, 2007;
referred to the Committee on the Judiciary.]
A BILL to amend and reenact §22-17-22 of the code of West Virginia,
1931, as amended,
relating to the underground storage tank
insurance fund; providing for expiration of the fund and
disposal of its assets; directing the department of
environmental protection to assist certain policy holders
reclaim sites insured by the fund; providing that the
department of environmental protection is not liable for
claims against the fund nor may be bound to policy terms;
providing legislative findings; directing the secretary of the
department of environmental protection develop a plan to cause
remediation of these sites; authorizing the secretary of the
department of environmental protection to place conditions on
remediation recipients; establishing criteria and
preconditions for remediations; allowing persons who have
undertaken remediation or expended funds to undertake
remediation of sites to be reimbursed expenses; and allowing the secretary to establish conditions for reimbursement for
prior or future remediations of insured sites.
Be it enacted by the Legislature of West Virginia:
That §22-17-22 of the Code of West Virginia, 1931, as amended,
be amended and reenacted, to read as follows:
§22-17-22. Underground storage tank insurance fund.
(a) The
director secretary may establish an underground
storage tank insurance fund for the purpose of satisfying the
financial responsibility requirements established pursuant to
section ten of this article. In addition to the capitalization fee
to be assessed against all owners or operators of underground
storage tanks provided by subdivision (6), subsection (b), section
six of this article, the
director secretary
shall promulgate rules
establishing an annual financial responsibility assessment to be
assessed on and paid by owners or operators of underground storage
tanks who are unable to obtain insurance or otherwise meet the
financial responsibility requirements established pursuant to
section ten of this article. Such Assessments shall be paid into
the state treasury into a special fund designated "the underground
storage tank insurance fund".
(b) At the end of each fiscal year, any unexpended balance of
such assessment shall not be transferred to the general revenue
fund but shall remain in the underground storage tank insurance
fund.
Upon the effective date of the enactment of the amendment to
this section passed during the 2007 regular session of the West
Virginia Legislature, the "underground storage tank insurance fund" shall cease to operate as an insurance fund. Any remaining
assets of the fund shall be administered by the secretary pursuant
to subsections (c), (d), (e), (f), (g) and (h)
this section.
Because the fund was intended to be self funding, the secretary is
not bound by
any terms, limitations or conditions contained in any
insurance policies issued by the fund
, but in no case may reimburse
any person for an amount in excess of the limits of liability.
(c) Legislative Findings Regarding Cessation of the Fund- The
underground storage tank insurance fund was established by the
Legislature to assist storage tank owners who were mandated by
federal law to have insurance but were unable to find insurance in
the private market, and was
funded solely by assessments of
policyholders paid to the fund
. P
olicies were issued from the
years nineteen-hundred ninety to two thousand. A
s private
insurance coverage became available and a number of the insured
left the business, premiums paid into the fund decreased. These
factors combined with greater than anticipated remediation costs at
sites remediated during the fund's solvency, caused claims against
the fund to exceed moneys collected. As a result, the fund became
insolvent. Although the fund was not intended to and does not
create any legal obligation for the state for any claims made
against the fund, it is the finding of the Legislature that the
state has a moral obligation to individuals who entered into a good
faith agreement for insurance with the fund to assist them with the
remediation of these sites, and to prevent potential adverse
environmental impacts and harm to human health that could result from a failure to remediate. This assistance by the state in
funding these remediations is intended to provide an option for the
insured to fulfill their legal duty to reclaim these sites, and the
Department of Environmental Protection may not assume any legal
liability for remediation of these sites beyond the assistance
provided pursuant to subsections (d), (e), (f),(g) and (h) of this
section.
(d) The secretary shall request from the Legislature funding
to cause remediation of these existing sites, as identified by the
secretary.
The secretary shall submit a proposal to undertake or
cause to be undertaken these remediations to the Joint Committee of
Government and Finance by the first day of November, two-thousand
seven.
The secretary's proposal shall provide at a minimum,
budget amounts needed each year for completing these remediation
activities by the thirty-first day of December, two thousand nine
but in no case later than the thirty-first day of December, two
thousand twelve.
(e) The secretary shall also request funding to reimburse
insured persons and vendors who have incurred costs not yet
reimbursed as of the effective date of this section, by the fund
for work undertaken at insured sites previously authorized by the
secretary.
(f) Any agreements with insured persons for payment of
remediations shall provide that prior to any remediation activities
on any site or for reimbursement for expenses previously incurred,
that an agreement be executed that provides that the insured person or persons agree that the site will be remediated pursuant to
either subsection (g) or (h) of this section.
(g) The secretary may cause remediation of an insured site to
a voluntary remediation standard as provided in article twenty-two
of this chapter, including any appropriate land-use covenant and
other deed restrictions and any other conditions as established by
the secretary prior to payment for any costs associated with a site
remediation.
(h) If an insured person demonstrates to the secretary that it
is more cost-effective to cleanup a site through an alternative
program or method that will result in remediation at a standard
equal to or greater than provided for in subsection (g) of this
section, then the secretary may as an alternative, authorize use of
that method or program. The secretary may place any appropriate
requirements upon the insured person as a condition for undertaking
a remediation by an alternative program or method.
NOTE: The purpose of this bill is to expire the Underground
Insurance Fund and direct the Department of Environmental Protection
to develop a plan to assist those persons who have claims pending
against the fund.
This bill was recommended for passage by the Joint Judiciary
Committee.
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