ENGROSSED
Senate Bill No. 649
(By Senator Weeks)
____________
[Introduced February 23, 2004; referred to the Committee on
Energy, Industry and Mining.]
____________
A BILL to amend the code of West Virginia, 1931, as amended, by
adding thereto a new article, designated §22-25-1, §22-25-2,
§22-25-3,
§22-25-4,
§22-25-5,
§22-25-6,
§22-25-7,
§22-25-8,
§22-25-9,
§22-25-10,
§22-25-11,
§22-25-12 and
§22-25-13,
all
relating to establishing a program to encourage voluntary
reclamation of lands adversely affected by mining or oil and
gas extraction by limiting the liability which could arise as
a result of the voluntary reclamation of abandoned lands or
reduction and abatement of water pollution; stating
legislative purpose and intent; setting forth legislative
findings; providing definitions for applicable terms; defining
eligibility for the protections and immunities of the proposed
legislation; setting forth specific exemptions from liability for landowners; setting forth specific exemptions from
liability for persons who provide equipment at no cost or at
cost for a reclamation project; and providing exceptions to
coverage under the proposed legislation.
Be it enacted by the Legislature of West Virginia:
That the code of West Virginia, 1931, as amended, be amended
by adding thereto a new article, designated §22-25-1, §22-25-2,
§22-25-3,
§22-25-4,
§22-25-5,
§22-25-6,
§22-25-7,
§22-25-8,
§22-25-9,
§22-25-10,
§22-25-11,
§22-25-12 and
§22-25-13,
all to
read as follows:
ARTICLE 25. ENVIRONMENTAL GOOD SAMARITAN ACT.
§22-25-1. Purpose and intent.
This article is intended to encourage the improvement of land
and water adversely affected by mining and oil and gas extraction,
to aid in the protection of wildlife, to decrease soil erosion, to
aid in the prevention and abatement of the pollution of rivers and
streams, to protect and improve the environmental values of the
citizens of this state and to eliminate or abate hazards to health
and safety. It is the intent of the Legislature to encourage
voluntary reclamation of lands adversely affected by mining or oil
or gas extraction. The purpose of this article is to improve water
quality and to control and eliminate water pollution resulting from
mining or oil or gas extraction or exploration by limiting the liability which could arise as a result of the voluntary
reclamation of abandoned lands or the reduction and abatement of
water pollution. This article is not intended to limit the
liability of a person who under existing law is or may become
responsible to reclaim the land or address the water pollution or
anyone who by contract, order or otherwise is required to or agrees
to perform the reclamation or abate the water pollution.
§22-25-2. Findings
.
The Legislature finds and declares as follows:
(a) The state's long history of mining and the extraction of
oil and gas has left some lands and waters unreclaimed and
polluted.
(b) These abandoned lands and polluted waters are
unproductive, erode the tax base and are serious impediments to the
economic welfare and growth of this state.
(c) The unreclaimed lands and polluted waters present a danger
to the health, safety and welfare of the people and the
environment.
(d) The state of West Virginia does not possess sufficient
resources to reclaim all the abandoned lands and to abate the water
pollution.
(e) Numerous landowners, citizens, watershed associations,
environmental organizations and governmental entities who do not have a legal responsibility to reclaim the abandoned lands or to
abate the water pollution are interested in addressing these
problems but are reluctant to engage in such reclamation and
abatement activities because of potential liabilities associated
with the reclamation and abatement activities.
(f) It is in the best interest of the health, safety and
welfare of the people of this state and the environment to
encourage reclamation of the abandoned lands and abatement of water
pollution.
§22-25-3. Definitions.
As used in this article unless used in a context that clearly
requires a different meaning, the term:
(a) "Abandoned lands" means land adversely affected by mineral
or oil or gas extraction and left or abandoned in an unreclaimed or
inadequately reclaimed condition.
(b) "Consideration" means something of value promised, given
or performed in exchange for something which has the effect of
making a legally enforceable contract. For the purpose of this
article, the term does not include a promise to a landowner to
repair damage caused by a reclamation project or water pollution
abatement project when the promise is made in exchange for access
to the land.
(c) "Department" means the West Virginia department of environmental protection.
(d) "Eligible land and water" means land and water adversely
affected by mineral or oil or gas extraction and left or abandoned
in an unreclaimed or inadequately reclaimed condition or left
discharging water pollution and for which no person has a
continuing reclamation or water pollution abatement obligation.
The term shall also include land and water adversely affected by
mineral or oil or gas extraction and left in an unreclaimed or
inadequately reclaimed condition or left discharging water
pollution for which the West Virginia department of environmental
protection has forfeited and collected the operators bonds and
there is no outstanding litigation concerning the bond forfeiture.
(e) "Landowner" means a person who holds either legal or
equitable interest in real property.
(f) "Mineral" means any aggregate or mass of mineral matter,
whether or not coherent, which is extracted by mining, including,
but not limited to, limestone, dolomite, sand, gravel, slate,
argillite, diabase, gneiss, micaceous sandstone known as bluestone,
rock, stone, earth, fill, slag, iron ore, zinc ore, vermiculite,
clay and anthracite and bituminous coal.
(g) "Permitted activity site" means a site permitted by the
state department of environmental protection under the provisions
of article two, three, six, ten, eleven or twenty-one of this chapter.
(h) "Person" means a natural person, partnership, association,
association members, corporation, an agency, instrumentality or
entity of federal or state government or other legal entity
recognized by law as the subject of rights and liabilities.
(i) "Project work area" means that land necessary for a person
to complete a reclamation project or a water pollution abatement
project.
(j) "Reclamation project" means the restoration of eligible
lands and water to productive use by regrading and revegetating the
land to stable contours that blend in and complement the drainage
pattern of the surrounding terrain with no highwalls, spoil piles
or depressions to accumulate water and by plugging abandoned oil or
gas wells and removing production or storage facilities, supplies
and equipment from areas disturbed in siting, drilling, completing
and producing such wells.
(k) "Water pollution" means the man-made or man-induced
alteration of the chemical, physical, biological and radiological
integrity of the waters of the state.
(l) "Water pollution abatement facilities" means the methods
for treatment or abatement of water pollution located on eligible
lands and water. These methods include, but are not limited to, a
structure, system, practice, technique or method constructed, installed or followed to reduce, treat or abate such water
pollution.
(m) "Water pollution abatement project" means a plan for
treatment or abatement of water pollution located on eligible lands
and water.
§22-25-4. Eligibility and project inventory.
(a) General rule. -- A landowner or person who voluntarily
provides equipment, materials or services at no charge or at cost
for a reclamation project or a water pollution abatement project in
accordance with the provisions of this article may be immune from
civil liability and may raise the protections afforded by the
provisions of this article in any subsequent legal proceeding which
is brought to enforce environmental laws or otherwise impose
liability. A landowner or other person is only eligible for the
protections and immunities provided by sections five and six of
this article if a detailed written plan of the proposed reclamation
project or water pollution abatement project is submitted to and
approved by the department. The project plan shall include the
objective of the project and a description of the work to be
performed to accomplish the objective and shall, additionally,
identify the project location, project boundaries, project
participants and the owners of the land.
(b) Notice. -- The department shall give written notice by
certified mail to adjacent property owners and riparian land owners located downstream of the proposed project provide Class IV public
notice of the proposed project in a newspaper of general
circulation, published in the locality of the proposed project, and
shall, additionally, give public notice in the state register. The
person proposing the project may also provide public notice. Any
person having an interest which may be adversely affected by the
proposed project has the right to file written objections to the
department within thirty days after receipt of the written notice
or within thirty days after the last publication of the Class IV
notice. The department shall provide to the person proposing the
project a copy of each written objection received during the public
comment period, which shall conclude at the expiration of the
applicable thirty-day period provided for in this section.
(c) Advice. -- The department may provide advice to the
landowner or to other interested persons based upon the
department's knowledge and experience in performing reclamation
projects and water pollution abatement projects.
(d) Departmental review. -- The department shall review each
proposed reclamation project and approve the project if the
department determines the proposed project:
(1) Will result in the appropriate reclamation and regrading
of the land according to all applicable laws and regulations;
(2) Will result in the appropriate revegetation of the site;
(3) Is not likely to result in pollution as defined in article eleven of this chapter; and
(4) Is likely to improve the water quality and is not likely
to make the water pollution worse.
(e) Additional review. -- The department shall review each
project plan in accordance with section ten of this article.
(f) Project inventory. -- The department shall develop and
maintain a system to inventory and record each project, the project
location and boundaries, each landowner and each person identified
in a project plan provided to the department. The inventory shall
include the results of the department's review of the proposed
project and, where applicable, include the department's findings
under subsection b, section ten of this article.
(g) Appeal. -- A person aggrieved by a department decision to
approve or disapprove a reclamation project or a water pollution
abatement project has the right to file an appeal with the
environmental quality board under the provisions of article one,
chapter twenty-two-b of this code. §22-25-5. Landowner liability
limitation and exceptions.
(a) General rule. -- Except as specifically provided in
subsections (b) and (c) of this section, a landowner who provides
access to the land, without charge or other consideration, which
results in the implementation of a reclamation project or a water
pollution abatement project:
(1) Is immune from liability for any injury or damage suffered by the person implementing the reclamation project or the water
pollution abatement project while the person is within the project
work area;
(2) Is immune from liability for any injury to or damage
suffered by a third party which arises out of or occurs as a result
of an act or omission of a person implementing a reclamation
project or water pollution abatement project which occurs during
the implementation of the reclamation project or the water
pollution abatement project;
(3) Is immune from liability for any injury to or damage
suffered by a third party which arises out of or occurs as a result
of a reclamation project or a water pollution abatement project;
(4) Is immune from liability for any pollution resulting from
a reclamation project or water pollution abatement project;
(5) Is immune from liability for the operation, maintenance or
repair of the water pollution abatement facilities constructed or
installed during the project unless the landowner negligently
damages or destroys the water pollution abatement facilities or
denies access to those persons who operate, maintain or repair the
water pollution abatement facilities.
(b) Duty to warn. -- A landowner shall warn a person
implementing a reclamation project or water pollution abatement
project of known, latent, dangerous conditions located on the
project work area which are not the subject of the reclamation project or the water pollution abatement project. Nothing in this
article shall limit a landowner's liability which results from the
landowner's failure to warn of such known, latent, dangerous
conditions.
(c) Exceptions to immunity. -- Nothing in this article may
limit a landowner's liability which results from a reclamation
project or water pollution abatement project and which would
otherwise exist:
(1) For injury or damage resulting from the landowner's acts
or omissions which are reckless or constitute gross negligence or
willful misconduct.
(2) Where the landowner charges an access fee or requires
other consideration before allowing access to the land for the
purpose of implementing a reclamation project or water pollution
abatement project or to operate, maintain or repair water pollution
abatement facilities constructed or installed during a water
pollution abatement project.
(3) For the landowner's unlawful activities.
(4) For damage to adjacent landowners or downstream riparian
landowners which results from a reclamation project or water
pollution abatement project where written notice or public notice
of the proposed project was not provided.
§22-25-6. Project Liability Limitation and Exceptions.
(a) General rule. -- Except as specifically provided in subsection (b) of this section, a person who provides equipment,
materials or services at no cost or at cost for a reclamation
project or a water pollution abatement project:
(1) Is immune from liability for any injury to or damage
suffered by a person which arises out of or occurs as a result of
the water pollution abatement facilities constructed or installed
during the water pollution abatement project;
(2) Is immune from liability for any pollution emanating from
the water pollution abatement facilities constructed or installed
during the water pollution abatement project unless the person
affects an area that is hydrologically connected to the water
pollution abatement project work area and causes increased
pollution by activities which are unrelated to the implementation
of a water pollution abatement project;
(3) Is immune from liability for the operation, maintenance
and repair of the water pollution abatement facilities constructed
or installed during the water pollution abatement project.
(b) Exceptions. --
(1) Nothing in this article shall limit in any way the
liability of a person who provides equipment, materials or services
at no cost or at cost for a reclamation project or a water
pollution abatement project which liability results from the
reclamation project or the water pollution abatement project and
which would otherwise exist:
(A) For injury or damage resulting from the person's acts or
omissions which are reckless or constitute gross negligence or
willful misconduct.
(B) For the person's unlawful activities.
(C) For damages to adjacent landowners or downstream riparian
landowners which result from a reclamation project or a water
pollution abatement project where written notice or public notice
of the proposed project was not provided.
(2) Nothing in this article shall limit in any way the
liability of a person who the department has found to be in
violation of a provision or provisions of article one, three, six,
ten, eleven or twenty-one of this chapter.
§22-25-7. Permits and zoning.
Nothing in this article may be construed as waiving any
existing permit requirements or waiving any local zoning
requirements.
§22-25-8. Relationship to federal and state programs.
The provisions of this article shall not prevent the
department from enforcing requirements necessary or imposed by the
federal government as a condition to receiving or maintaining
program authorization, delegation, primacy or federal funds.
§22-25-9. General permits.
If the department determines it will further the purposes of
this article, the department may issue a general permit for each reclamation project or water pollution abatement project, which
shall:
(1) Encompass all of the activities included in the
reclamation project or water pollution abatement project.
(2) Be issued in place of any required stream encroachment,
earth disturbance or national pollution discharge elimination
system permits.
§22-25-10. Exceptions.
(a) General rule. -- Any person who under existing law shall
be or may become responsible to reclaim the land or treat or abate
the water pollution or any person who for payment or consideration
or who receives some other benefit through a contract or any person
who through a consent order and agreement or is ordered to perform
or complete reclamation or treat or abate water pollution as well
as a surety which provided a bond for the site shall not be
eligible for nor shall that person receive the benefit of the
protections and immunities available under this article.
(b) Projects near mining or coal refuse sites. -- This article
shall not apply to a reclamation project or a water pollution
abatement project that is located adjacent to, hydrologically
connected to or in close proximity to a site permitted under
section one, article two of this chapter, et seq., known as the
abandoned mine lands and reclamation act, section one, article
three of this chapter, et seq., known as the surface coal mining and reclamation act, section one, article four of this chapter, et
seq., known as the quarry reclamation act, unless:
(1) The reclamation project or water pollution abatement
project is submitted to the department in writing before the
project is started; and
(2) The department finds:
(A) The reclamation project or the water pollution abatement
project will not adversely affect the permittee's obligations under
the permit and the applicable law;
(B) The activities on the project work area cannot be used by
the permittee to avoid the permittee's reclamation or water
pollution treatment or abatement obligations; and
(3) The department issues a written notice of its findings and
the approval of the project.
(c) Projects in lieu of civil penalties. -- This article shall
not apply to a reclamation project or a water pollution abatement
project that is performed in lieu of paying civil penalties.
(d) The provisions of article twenty-one of this chapter do
not apply to reclamation projects or water pollution abatement
projects implemented under the provisions of this article.
§22-25-11. Water supply replacement.
A public or private water supply affected by contamination or
the diminution caused by the implementation of a reclamation
project or the implementation of a water pollution abatement project shall be restored or replaced by the department with an
alternate source of water adequate in quantity and quality for the
purposes served by the water supply.
§22-25-12. Abandoned oil and gas wells.
A reclamation project or water pollution abatement project may
not be implemented in a manner which will limit access to an
abandoned gas well or an abandoned oil well.
§22-25-13. Rules.
The department may propose legislative rules in accordance
with article three, chapter twenty-nine-a of this code designed to
implement the provisions of this article.