West Virginia Code 22-22-4 – Voluntary remediation program; eligibility application and fee; information available to public; confidentiality of trade secrets; information; criminal penalties; requirements of site assessment; rejection or return of a…
(a) Any site is eligible for participation in the voluntary remediation program, except those sites subject to a federal environmental protection agency unilateral enforcement order, under §104 through §106 of the "Comprehensive Environmental Response, Compensation and Liability Act", 94 Stat. 2779, 42 U.S.C. § 9601, as amended, or have been listed or proposed to be listed by the United States environmental protection agency on the priorities list of Title I of said act, or subject to a unilateral enforcement order under §3008 and §7003 of the "Resource Conservation Recovery Act" or any unilateral enforcement order for corrective action under this chapter: Provided, That the release which is subject to remediation was not created through gross negligence or willful misconduct. In order to participate in the voluntary remediation program, a person must submit an application to the director and enter into a voluntary remediation agreement as set forth in section seven of this article.
Terms Used In West Virginia Code 22-22-4
- Appeal: A request made after a trial, asking another court (usually the court of appeals) to decide whether the trial was conducted properly. To make such a request is "to appeal" or "to take an appeal." One who appeals is called the appellant.
- 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. See West Virginia Code 22-22-2
- Conviction: A judgement of guilt against a criminal defendant.
- Director: means the director of the Division of Environmental Protection or such other person to whom the director has delegated authority or duties pursuant to this article. See West Virginia Code 22-22-2
- Division: means the Division of Environmental Protection of the State of West Virginia. See West Virginia Code 22-22-2
- in writing: includes any representation of words, letters, or figures, whether by printing, engraving, writing, or otherwise. See West Virginia Code 2-2-10
- Licensed remediation specialist: means a person certified by the director pursuant to rules adopted under section three of this article as qualified to perform professional services and to supervise the remediation of contaminated sites. See West Virginia Code 22-22-2
- 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. See West Virginia Code 22-22-2
- 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. See West Virginia Code 22-22-2
- Remediation: 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. See West Virginia Code 22-22-2
- Site: means any property or portion thereof which contains or may contain contaminants and is eligible for remediation as provided under this article. See West Virginia Code 22-22-2
- State: when applied to a part of the United States and not restricted by the context, includes the District of Columbia and the several territories, and the words "United States" also include the said district and territories. See West Virginia Code 2-2-10
- 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. See West Virginia Code 22-22-2
- 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. See West Virginia Code 22-22-2
(b) Any person who desires to participate in the voluntary remediation program must submit to the division an application and an application fee established by the director. The application shall be on a form provided by the director and contain the following information: The applicant's name, address, financial and technical capability to perform the voluntary remediation, a general description of the site, a site assessment of the actual or potential contaminants made by a licensed remediation specialist and all other information required by the director.
(c) The director shall promulgate a legislative rule establishing a reasonable application fee. Fees collected under this section shall be deposited to the credit of the voluntary remediation fund in the State Treasury as established in section six of this article.
(d) Information obtained by the division under this article shall be available to the public, unless the director certifies such information to be confidential. The director may make such certification where any person shows, to the satisfaction of the director, that the information or parts thereof, if made public, would divulge methods, processes or activities entitled to protection as trade secrets. In submitting data under this article, any person required to provide such confidential data may designate the data which that person believes is entitled to protection under this section and submit such designated data separately from other data submitted under this article. This designation request shall be made in writing. Any person who divulges or discloses any information entitled to protection under this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $5,000 or imprisoned in a county jail for not more than one year, or both fined and imprisoned.
(e) The site assessment must include a legal description of the site; a description of the physical characteristics of the site and the general operational history of the site to the extent that the history is known by the applicant, and information of which the applicant is aware concerning the nature and extent of any known contamination at the site and immediately contiguous to the site, or wherever the contamination came to be located.
(f) The director may reject or return an application if:
(1) A federal requirement precludes the eligibility of the site;
(2) The application is not complete and accurate; or
(3) The site is ineligible under the provisions of this article.
(g) The director shall act upon all applications within forty-five days of receipt, unless an extension of time is mutually agreed to and confirmed in writing. If an application is returned by the director because it is not complete or accurate, the director shall provide the applicant a list of all information that is needed to make the application complete or accurate. The applicant may resubmit an application without submitting an additional application fee.
(h) If the director rejects the application, then he or she shall notify the applicant that the application has been rejected and provide an explanation of the reasons for the rejection. The applicant may, within twenty-five days of rejection, indicate his desire to resubmit the application. Upon final determination by the director, if the application is rejected, the director shall return one half of the application fee. The applicant may appeal the director's rejection of the application to the environmental quality board established under article three, chapter twenty-two-b of this code.
(i) Upon withdrawal of an application, the applicant is entitled to the refund of one half of the application fee.