West Virginia Code 22-22-15 – Reopeners
Any person who completes remediation in compliance with this article shall not be required to undertake additional remediation actions for contaminants subject to the remediation, unless the director demonstrates that:
Terms Used In West Virginia Code 22-22-15
- 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
- Controls: means to apply engineering measures, such as capping or treatment, or institutional measures, such as deed restrictions, to contaminated sites. See West Virginia Code 22-22-2
- 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
- Fraud: Intentional deception resulting in injury to another.
- Industrial activity: means commercial, manufacturing, public utility, mining or any other activity done to further either 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. 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
- Property: means any parcel of real property, and any improvements thereof. 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
- Risk: means the probability that a contaminant, when released into the environment, will cause an adverse effect in exposed humans or other living organisms. 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
(a) Fraud was committed in demonstrating attainment of a standard at the site that resulted in avoiding the need for further remediation of the site;
(b) New information confirms the existence of an area of a previously unknown contamination which contains contaminants that have been shown to exceed the standards applied to the previous remediation at the site;
(c) The level of risk is increased significantly beyond the established level of protection at the site due to substantial changes in exposure conditions, such as, a change in land use, or new information is obtained about a contaminant associated with the site which revises exposure assumptions beyond the acceptable range. Any person who changes the use of the property causing the level of risk to increase beyond established protection levels shall be required by the division to undertake additional remediation measures under the provisions of this article;
(d) The release occurred after the effective date of this article on a site not used for industrial activity prior to the effective date of this article; the remedy relied, in whole or in part, upon institutional or engineering controls instead of treatment or removal of contamination; and treatment, removal or destruction has become technically and economically practicable; or
(e) The remediation method failed to meet the remediation standard or combination of standards.
In the event that any of the foregoing circumstances occur, the remediation agreement will be reopened and revised to the extent necessary to return the site to its previously agreed to state of remediation or other appropriate standard.