West Virginia Code 22-22-20 – Affirmative defenses
Any person who is alleged to have violated an environmental law or the common law equivalent, which occurred while acting pursuant to this article, may affirmatively plead the following in response to an alleged violation:
Terms Used In West Virginia Code 22-22-20
- Common law: The legal system that originated in England and is now in use in the United States. It is based on judicial decisions rather than legislative action.
- Development authority: means any authority as defined in article twelve, chapter . 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
- Fiduciary: A trustee, executor, or administrator.
- Foreclosure: A legal process in which property that is collateral or security for a loan may be sold to help repay the loan when the loan is in default. Source: OCC
- 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
- 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
- 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. See West Virginia Code 22-22-2
(a) An act of God;
(b) An intervening act of a public agency;
(c) Migration from property owned by a third party;
(d) Actions taken or omitted in the course of rendering care, assistance or advice in accordance with the environmental laws or at the direction of the division;
(e) An act of a third party who was not an agent or employee of the lender, fiduciary, developer, remediation contractor or development authority; or
(f) If the alleged liability for a lender, fiduciary, developer or development authority arises after foreclosure, and the lender, fiduciary, developer or development authority exercised due care with respect to the lender's, fiduciary's, developer's or development authority's knowledge about the contaminants, and took reasonable precautions based upon such knowledge against foreseeable actions of third parties and the consequences arising therefrom. A lender, fiduciary, developer, remediation contractor or development authority may avoid liability by proving any other defense which may be available to it.