Senate Bill No. 175
(By Senators Prezioso, Minard, Kessler and Foster)
[Originating in the Committee on the Judiciary;
reported February 26, 2007.]
A BILL to amend the Code of West Virginia, l931, as amended, by
adding thereto a new article, designated §60A-11-1, §60A-11-2,
§60A-11-3, §60A-11-4, §60A-11-5 and §60A-11-6, all relating to
regulation and procedures for the remediation of clandestine
drug laboratories; defining terms; establishing a program of
certification and licensing of persons engaged in the business
of remediation; providing for legislative rules; authorizing
the Department of Health and Human Resources to establish fees
for certification, licensing and notification requirements;
setting forth the responsibility of law-enforcement agencies
to notify the Department of Health and Human Resources and
residential property owners of the existence of a clandestine
drug laboratory; setting forth the responsibility of
residential property owners for remediation of clandestine
drug laboratories; providing immunity from liability for innocent property owners who successfully remediate a
clandestine drug laboratory; and establishing civil penalties
for persons convicted pursuant to subsection (d),
four, article ten of said chapter and whose actions resulted
in the necessity of remediation of a clandestine drug
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 §60A-11-1, §60A-11-2,
§60A-11-3, §60A-11-4, §60A-11-5 and §60A-11-6, all to read as
ARTICLE 11. CLANDESTINE DRUG LABORATORY REMEDIATION ACT.
§60A-11-1. Legislative findings and purpose.
The Legislature finds that some residential
and business properties are being used for the consumption,
production and manufacture of illegal drugs resulting in
contamination with hazardous chemical residues. These illegal
laboratories present an immediate and ongoing danger to public
health and safety. Innocent members of the public may be harmed
when they are exposed to the chemical residues if the property is
not decontaminated prior to subsequent rental, sale or use of the
The purpose of this article is to protect the
public health, safety and welfare by designating the Department of
Health and Human Resources as the state agency to set forth standards for the remediation of clandestine drug laboratories.
In this article:
(a) "Clandestine drug laboratory" means the area or areas
where controlled substances, or their immediate precursors, have
been, or were attempted to be, manufactured, processed, cooked,
disposed of or stored and all proximate areas that are likely to be
contaminated as a result of such manufacturing, processing,
cooking, disposing or storing.
(b) "Department" means the West Virginia Department of Health
and Human Resources.
(c) "Controlled substance" means the same as that term is
defined in section one hundred one, article one
of this chapter and
article ten, section three of this chapter a drug, substance or
immediate precursor in Schedules I through V of article two
(d) "Immediate precursor" means a substance which the "West
Virginia Board of Pharmacy" (hereinafter in this act referred to as
the State Board of Pharmacy) has found to be and by rule designates
as being the principal compound commonly used or produced primarily
for use and which is an immediate chemical intermediary used or
likely to be used in the manufacture of a controlled substance, the
control of which is necessary to prevent, curtail or limit
(e) "Law-enforcement agency" means the West Virginia State
Police or any other policing agency of the state or of any political subdivision of the state.
(f) "Remediation" means the act of rendering safe and usable
for the purposes for which it is intended residential property, as
defined in subsection (g) of this section, or any structure
appurtenant to the residential property, or other structure on the
residential property that has been used for the manufacture or
consumption of methamphetamines or other illicit drug products.
(g) "Residential property" means any building or structure to
be primarily occupied by people, either as a dwelling or as a
business, including, but not limited to, a storage facility, a
mobile home, manufactured home or recreational vehicle, hotel or
motel that may be sold, leased or rented for any length of time.
(h) "Residential property owner" means the person holding
record title to residential property as that term is defined in
subsection (f) of this section.
§60A-11-3. Remediation of clandestine drug laboratories;
promulgation of legislative rules.
(a) The Department of Health and Human Resources shall propose
rules for legislative approval in accordance with the provisions of
article three, chapter twenty-nine-a of this code to address, at a
minimum, the following issues:
(1) Establishment of scientific guidelines and numeric
decontamination levels for the remediation of clandestine drug
(2) Establishment of a certification program for persons or
contractors who engage in the business of clandestine drug lab remediation;
(3) Establishment of a licensure procedure whereby individuals
and businesses certified to do remediation of clandestine drug
laboratories obtain a license from the Department of Health and
Human Resources to do such work;
(4) Requiring licensed contractors to notify the Department of
Health and Human Resources prior to beginning any remediation
(5) Setting forth certification procedures for the department
to certify that the completed remediation of the residential
property fully meets the scientific guidelines and numeric
decontamination levels set forth in the legislative rule; and
(6) Establishing requirements for property owners, sellers and
landlords to disclose the existence of any former clandestine
laboratory site or activity to any potential occupant of the
(b) Fees may be set by the legislative rule to be charged to
persons or contractors engaged in the business of clandestine drug
laboratory remediation for certification, licensing and
notification as required in this article.
§60A-11-4. Law-enforcement responsibility.
Any law-enforcement agency, upon locating chemicals,
equipment, supplies or precursors indicative of a clandestine drug
laboratory on residential property, shall notify the residential
property owner and the department in a manner prescribed by the
legislative rule authorized by this article.
§60A-11-5. Residential property owner responsibility; owner
immunity; voluntary compliance.
(a) Upon notification to the residential property owner by a
law-enforcement agency that chemicals, equipment, supplies or
precursors indicative of a clandestine drug laboratory have been
located on the residential property owner's property, the
residential property owner shall be responsible for actions
necessary to meet the remediation standards established by the
legislative rule authorized by this article. The residential
property owner is responsible for actions to ensure the residential
property shall remain unoccupied from the time the residential
property owner is notified of the clandestine drug laboratory until
such time as the department certifies that the completed
remediation meets the numeric decontamination levels set forth in
the legislative rule authorized in this article. The department
shall have forty-five days from receipt of all necessary paperwork
and documentation to complete remediation certification: Provided,
That a residential property owner may demolish the residential
property as an alternative to meeting the remediation standards
established by the department.
(b) Once the remediation has been certified complete by the
department, the residential property owner and any representative
or agent of a residential property owner who neither knew or should
have known of the property's illegal use shall be immune from civil
liability for action brought for injuries or loss based upon the
prior use of the residential property as a clandestine drug laboratory by future owners, renters, lessees or any other person
who occupies the residential property.
(c) Any residential property owner who neither knew or should
have known of the property's illegal use who chooses to voluntarily
and successfully complete the remediation prior to notification by
a law-enforcement agency shall have the same immunity from
liability as set forth in subsection (b) of this section if the
remediation meets the certification standards set forth in
legislative rules authorized by this article.
§60A-11-6. Liability for costs of remediation.
Any person convicted pursuant to section four, subsection (d),
article ten of this chapter and whose actions also resulted in the
necessity of remediation of a clandestine drug laboratory, shall be
liable to the person or entity for all costs associated with the
remediation of the clandestine drug laboratory. These costs may
include attorney's fees and court costs reasonably necessary to
bring an action to collect the amount paid for the remediation.
(NOTE: §60A-11-1, §60A-11-2, §60A-11-3, §60A-11-4, §60A-11-5
and §60A-11-6 are new; therefore, strike-throughs and underscoring
have been omitted.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would