Bill Summary – FastDemocracy

WEST VIRGINIA LEGISLATURE
REGULAR SESSION
                 ENROLLED
         Committee Substitute for House Bill 4967
 BY DELEGATES ANDERSON, ZATEZALO, HECKERT, RILEY,
  FEHRENBACHER, STREET, BARNHART, CRISS, HORST,
                    AND WARNER
  [Passed March 8, 2024; in effect ninety days from passage.]
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  AN ACT to amend and reenact §22-22-1, §22-22-2, §22-22-3, §22-22-4, §22-22-5, §22-22-6, §22-
         22-7, §22-22-8, §22-22-9, §22-22-10, §22-22-11, §22-22-12, §22-22-13, §22-22-14, §22-
         22-15, §22-22-16, of the Code of West Virginia, 1931, as amended, to repeal §22-22-17
         of said code, and amend and reenact §22-22-18 and §22-22-20, all relating to the
         administration of the Voluntary Remediation and Redevelopment Act to provide new
         liability protections for those who wish to purchase and redevelop former industrial
         properties; defining terms; providing for rulemaking by the Secretary of the Department of
         Environmental Protection; clarifying procedures involving the Brownfields Revolving Fund;
         revising public notice provisions concerning the fund; providing that the Secretary may
        limit the liability of lenders, innocent purchasers, landowners, de minimis contributors, or
        others who have limited responsibility for contamination under the Hazardous Waste
        Management Act, the Water Pollution Control Act, the Groundwater Protection Act or any
        other applicable law; providing that bona fide prospective purchasers are not liable for a
        containment at a brownfield site if certain conditions are met; providing that an innocent
        land owner who holds title or security interest in a brownfield site are not liable for
        contamination at a brownfield site if defined conditions are met; providing that a person
        that owns contiguous real property that is contaminated by a release of a hazardous
        substance from real property that is not owned by that person is not liable for
        contamination under defined conditions; and providing that the Secretary may require
        anyone responsible for contamination to remediate sites where substances have been
        improperly managed.
     Be it enacted by the Legislature of West Virginia:
     ARTICLE 22. VOLUNTARY REMEDIATION AND REDEVELOPMENT ACT.
     §22-22-1. Legislative findings; legislative statement of purpose.
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          (a) The Legislature finds there is property in West Virginia that is not being put to its highest
  productive use because it is contaminated or it is perceived to be contaminated as a result of past
  activity on the property.
          (b) The Legislature further finds that abandonment or underutilization of contaminated or
  potentially contaminated industrial sites results in inefficient use of public facilities and services
  and increases the pressure for development of uncontaminated pristine land. Since existing
  industrial areas frequently have transportation networks, utilities, and an existing infrastructure, it
  can be less costly to society to redevelop existing industrial areas than to relocate amenities for
  industrial areas at pristine sites.
         (c) The Legislature further finds that the existing legal structure creates uncertainty
 regarding the legal effect of remediation upon liability. Legal uncertainty serves as a further
 disincentive to productive redevelopment of brownfields. Therefore, incentives should be put in
 place to encourage voluntary redevelopment of contaminated or potentially contaminated sites.
         (d) The Legislature further finds that an administrative program should be established to
 encourage persons to voluntarily develop and implement remedial plans without the need for
 enforcement action by the Department of Environmental Protection. Therefore, it is the purpose
 of this article to:
         (1) Establish an administrative program to facilitate voluntary remediation activities and
 brownfield revitalization;
         (2) Provide financial incentives to entice investment at brownfield sites; and
         (3) Establish limitations on liability under environmental laws and rules for those persons
 who remediate sites in accordance with applicable standards established under this article.
     §22-22-2. Definitions.
          As used in this article, unless otherwise provided or indicated by the context:
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          "Abandoned property" means real property for which the current owner cannot be
  determined or cannot be located or property which has been forfeited to or acquired by the State
  for the nonpayment of taxes pursuant to State law;
          "Applicable standards", mean the remediation levels established in or pursuant to section
  three of this article;
          "Bona fide prospective purchaser" means a person or a tenant of a person who acquires
  ownership, or proposes to acquire ownership, of real property after the release of hazardous
  substances occurred;
         "Brownfield" means any property, the expansion, redevelopment, or reuse of which may
 be complicated by the presence or potential presence of a hazardous substance, pollutant, or
 contaminant;
         "Brownfields Revolving Fund" means the special revenue fund established to provide
 loans for site assessments and remediation of eligible brownfield sites;
         "Contaminant" or "contamination" means any man made or man induced alteration of the
 chemical, physical, or biological integrity of soils, sediments, air, and surface water or
 groundwater resulting from activities regulated under this article, in excess of applicable standards
 in this chapter, including any hazardous substance, petroleum, or natural gas;
         "Controls" means to apply engineering measures, such as capping or treatment, or
 institutional measures, such as deed restrictions, to contaminated sites;
         "Department" means the West Virginia Department of Environmental Protection;
         "Development Authority" means any authority as defined in §7-12-1, et seq. of this code
 or the state Development Office as defined in §2-5B-1, et seq. of this code.
         "Engineering controls" means remedial actions directed exclusively toward containing or
 controlling the migration of contaminants through the environment. These include, but are not
 limited to, slurry walls, liner systems, caps, leachate collection systems, and groundwater
 recovery trenches;
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        "Hazardous substance" means any substance identified as a hazardous substance
 pursuant to the "Comprehensive Environmental Response, Compensation and Liability Act," 42
 U.S.C. § 9604-9606;
        "Innocent land owner" means a person who holds any title, security interest, or any other
 interest in a brownfield site and who acquired ownership of the real property after the release of
 hazardous substances occurred;
        "Industrial activity" means commercial, manufacturing, public utility, mining, or any other
 activity done to further the development, manufacturing, or distribution of goods and services,
 intermediate and final products, and solid waste created during such activities, including, but not
 limited to administration of business activities; research and development; warehousing; shipping;
 transport; remanufacturing; stockpiling of raw materials; storage, repair, and maintenance of
 commercial machinery or equipment; and solid waste management;
        "Institutional controls" means legal or contractual restrictions on property use that remain
 effective after the remediation action is completed and are used to meet applicable standards.
 The term may include, but is not limited to, deed and water use restrictions;
        "Land-use covenant" means an environmental covenant within the meaning of §22-22B-
 2(4) of this code, and is a document or deed restriction issued by the Secretary on remediated
 sites which have attained and demonstrate continuing compliance with site-specific standards for
 any contaminants at the site and which is agreed to by the owner of the property. The covenant
 shall be recorded by deed in the office of the county clerk of the county wherein the site is situated.
 The document or covenant shall be included by any grantor or lessor in any deed or other
 instrument of conveyance or any lease or other instrument whereby real property is let for a period
 of one year or more, as more fully set forth in sections thirteen and fourteen of this article;
        "Licensed remediation specialist" means a person certified by the Secretary pursuant to
 rules adopted under section three of this article as qualified to perform professional services and
 to supervise the remediation of contaminated sites;
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         "Natural gas" means natural gas, natural gas liquids, liquefied natural gas, coalbed
 methane, synthetic gas usable for fuel, or mixtures of natural gas and synthetic gas;
         (r) "Nonresidential property" means any real property on which industrial activity is
 performed. This term shall not include schools, day care centers, nursing homes, or other
 residential-style facilities or recreational areas;
         "Operator" means the person responsible for the overall operation of a facility site. A
 person who executes a voluntary remediation agreement with the Secretary may be considered
 an operator for the purpose of carrying out the activities required by the government;
         "Owner" means any person owning or holding legal or equitable title or possessory interest
 in property or, 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;
         "Person" means any public or private corporation, institution, association, firm, or company
 organized or existing under the laws of this or any other state or country; the state of West Virginia;
 governmental agency, including federal facilities; political subdivision; county commission;
 municipal corporation; partnership; trust; estate; person or individuals acting individually or as a
 group; or any legal entity whatever;
         "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
 in the refining or blending of crude petroleum or petroleum stock;
         "Practical quantitation level" means the lowest analytical level that can be reliably
 achieved within specified limits of precision and accuracy under routine laboratory conditions for
 a specified matrix. It is based on quantitation, precision, and accuracy under normal operation of
 a laboratory and the practical need in a compliance-monitoring program to have a sufficient
 number of laboratories available to conduct the analyses;
         "Property" means any parcel of real property, and any improvements thereof;
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           "Release" means any spilling, leaking, pumping, pouring, emitting, emptying, discharging,
  injecting, escaping, leaching, migrating, dumping, or disposing of any contaminant or regulated
  substance into the environment, including, without limitation, the abandonment or improper
  discarding of barrels, containers, or any other closed receptacle containing any contaminant;
           "Remediation" or "remedial action" means to cleanup, mitigate, correct, abate, minimize,
  eliminate, control, and contain or prevent a release of a contaminant into the environment in order
  to protect the present or future public health, safety, welfare, or the environment, including
  preliminary actions to study or assess the release;
           "Remediation contractor" means any person who enters into and is carrying out a contract
  to cleanup, remediate, respond to or remove a release or threatened release of a contaminant
  and includes any person who the contractor retained or hired to provide services under a
  remediation contract;
            "Residential" means any real property or portion thereof which is designed for the
  housing of human beings and does not meet the definition of "nonresidential" property set forth
  above;
           "Risk" means the probability that a contaminant, when released into the environment, will
  cause an adverse effect in exposed humans or other living organisms;
           "Secretary" means the Secretary of the Department of Environmental Protection or any
  other person to whom he or she has delegated authority or duties in accordance with §22-1-6 or
  §22-1-8 of this code;
           "Site" means any property or portion thereof which contains or may contain contaminants
 and is eligible to participate in the voluntary remediation program as provided under this article;
          "Unilateral enforcement order" means a written final order issued by a federal or state
 agency charged with enforcing environmental law, which compels the fulfillment of an obligation
 imposed by law, rule against a person without their voluntary consent; and
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        "Voluntary remediation" means a series of measures that may be self-initiated by a person
 to identify and address potential sources of contamination of property and to establish that the
 property complies with applicable remediation standards.
      §22-22-3. Rule-making authority of the Secretary.
         The Secretary, in accordance with chapter twenty-nine-a of this code, shall propose, and
  subsequently may amend, suspend, or rescind, rules that do the following:
         (a) Establish an administrative program for both brownfield revitalization and voluntary
  remediation, including application procedures;
         (b) Establish procedures for the licensure of remediation specialists, including, but not
  limited to establishing licensing fees, testing procedures, disciplinary procedures, and methods
  for revocation of licenses;
         (c) Establish procedures for community notification and involvement;
         (d) Establish risk-based standards for remediation;
         (e) Establish standards for the remediation of property;
         (f) Establish a risk protocol for conducting risk assessments and establishing risk-based
  standards. The risk protocol shall:
         (1) Require consideration of existing and reasonably anticipated future human exposures
  based on current and reasonably anticipated future land and water uses and significant adverse
  effects to ecological receptor health and viability;
         (2) Include, at a minimum, both central tendency and reasonable upper bound estimates
  of exposure;
         (3) Require risk assessments to consider, to the extent practicable, the range of
  probabilities of risks actually occurring, the range or size of populations likely to be exposed to
  risk, and quantitative and qualitative descriptions of uncertainties;
         (4) Establish criteria for what constitutes appropriate sources of toxicity information;
         (5) Address the use of probabilistic modeling;
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         (6) Establish criteria for what constitutes appropriate criteria for the selection and
 application of fate and transport models;
         (7) Address the use of population risk estimates in addition to individual risk estimates;
         (8) To the extent considered appropriate and feasible by the Secretary considering
 available scientific information, define appropriate approaches for addressing cumulative risks
 posed by multiple contaminants or multiple exposure pathways;
         (9) Establish appropriate sampling approaches and data quality requirements; and
         (10) Include public notification and involvement provisions so that the public can
 understand how remediation standards are applied to a site and provide for clear communication
 of site risk issues, including key risk assessment assumptions, uncertainties, populations
 considered, the context of site risks to other risks, and how the remedy will address site risks;
         (g) Establish chemical and site-specific information, where appropriate for purpose of risk
 assessment. Risk assessments should use chemical and site-specific data and analysis, such as
 toxicity, exposure, and fate and transport evaluations in preference to default assumptions. Where
 chemical and site-specific data are not available, a range and distribution of realistic and plausible
 assumptions should be employed;
         (h) Establish criteria to evaluate and approve methods for the measurement of
 contaminants using the practical quantitation level and related laboratory standards and practices
 to be used by certified laboratories;
         (i) Establish standards and procedures for the use of certificates of completion, land use
 covenants, and other legal documents necessary to effectuate the purposes of this article; and
         (j) Establish any other rules necessary to carry out the requirements and the legislative
 intent of this act.
     §22-22-4. Voluntary remediation program; eligibility application and fee; information available to public; confidentiality of trade secrets; information; criminal penalties;
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