Current through Register Vol. XLI, No. 50, December 13, 2024
Section 60-3-15 - Brownfields Revolving Fund15.1. The Secretary may disburse money from the Brownfields Revolving Fund to an eligible applicant for site assessment or remediation of a brownfield, or for other eligible activities to the extent monies are available in the Brownfields Revolving Fund.15.2. Eligible Applicants. - A person may apply for a loan from the Brownfields Revolving Fund if the applicant meets all of the following conditions: 15.2.a. The site meets the eligibility requirements for the Voluntary Remediation Program outlined in subsection 3.1 of this rule;15.2.b. The applicant is able to certify that neither the applicant him- or her-self nor any member of his or her immediate family caused or contributed to the contamination on the site;15.2.c. The applicant shall provide documentation demonstrating that the applicant: 15.2.c.1. Has a legal right to remediate the subject property through ownership or a legal access agreement;15.2.c.2. Is authorized to incur debt and enter into a legally binding loan agreement;15.2.c.3. Has the ability to repay the loan; and15.2.c.4. Is in compliance with the U.S. EPA's All Appropriate Inquiry Rule to claim liability protection as a bona fide prospective purchaser (BFPP), contiguous property owner (CPO), or innocent landowner (ILO).15.3. Ineligible Applicants. - An applicant is ineligible for Brownfields Revolving Fund moneys if any of the following is true: 15.3.a. Applicant was previously suspended, debarred, or declared ineligible for federal assistance programs; or 15.3.b. Applicant is currently delinquent in taxes, loan payments, or other indebtedness to the State of West Virginia or any political subdivision.15.4. Loan Applications. 15.4.a. As provided in W. Va. Code § 22-22-5(a), after conducting a pre-application conference with the Secretary, any person who satisfies the criteria set forth in subsection 15.2 of this rule may apply to the Secretary for a loan to perform a site assessment or remediation at a brownfield site. The application shall be on a form prescribed by the Secretary.15.4.b. The Secretary shall act upon a completed Brownfields Revolving Fund loan application within 45 days of receiving it. The Secretary may approve the application, reject the application, or accept the application subject to correction. The Secretary shall provide the applicant a reasonable amount of time to make corrections specified by the Secretary.15.4.c. The Secretary shall memorialize each loan in a written document that identifies the amount of the loan, the interest rate, and the repayment schedule.15.5. Loan Conditions. - The Secretary shall include the following conditions in the document memorializing the loan: 15.5.a. The applicant shall periodically report to the Secretary all expenditures of Brownfields Revolving Fund loan funds.15.5.b. Where the applicant is the owner of the property upon which the site assessment is to be performed, the applicant shall execute a deed of trust or provide any other collateral of equal or greater value to secure the loan.15.5.c. Where the applicant is not the owner of the property upon which the site assessment is to be performed, the applicant shall provide appropriate collateral to secure the loan.15.6. Repayment. 15.6.a. The applicant shall repay the loan at a rate of interest determined by the Secretary at the time he or she approves the application. The loan shall be low interest.15.6.b. The applicant shall repay the loan in equal installments over a period of no longer than ten years, as allowed by the Secretary.15.7. Additional Public Involvement and Public Notification Requirements. 15.7.a. The applicant shall pay any costs the Department incurs in carrying out the provisions of this subsection.15.7.b. Public Notice of Application for the Voluntary Remediation Program. - The applicant shall produce and circulate a public notice of its application to the Voluntary Remediation Program in accordance with subsection 7.1 of this rule, which shall also include the following: 15.7.b.1. A summary of the proposed future use of the site; and15.7.b.2. A summary of the public's right under the Act to become involved in the development and remediation and reuse of the site, as well as the time, date, and location of an informational meeting the applicant will hold with regard to the application.15.7.b.3. The applicant shall publish the public notice once a week for four consecutive weeks in a local newspaper of general circulation in the county where the brownfield remediation is proposed. 15.7.c. Public Notice Provided by the Secretary. - The Secretary shall provide the Public Notice of Application outlined in paragraphs 15.7.b.1 through 15.7.b.3 above to: 15.7.c.1. The municipality and county commission where the site is located; and15.7.c.2. The county and/or municipality land use agency or the area's Regional Planning and Development Council created by W. Va. Code § 8-25-5.15.7.c.3. The Secretary may provide the summary to the U.S. EPA, the U.S. Army Corps of Engineers, the State Bureau for Public Health, and other State or federal agencies that may have an interest in the remediation project.15.7.d. Signage. - The applicant shall erect a sign on the brownfield site that: 15.7.d.1. Informs that community the site is entering the State's Voluntary Remediation Program;15.7.d.2. Is placed on the property so that it is clearly visible and legible and is at least three feet by four feet in dimension; and15.7.d.3. Includes the telephone number and address of the Department's Office of Environmental Remediation.15.7.e. Comment Period and Informational Meeting on Public Notice of Application. - The applicant shall provide a 30-day public comment period and hold an informational meeting on the application. The public notice and comment period shall meet the following conditions: 15.7.e.1. The 30-day comment period will begin either on the initial date of publication of the Public Notice of Application or upon erection of a sign on the brownfield site, whichever occurs last.15.7.e.2. The informational meeting shall occur in the community where the brownfield is located by day 21 of the 30-day comment period. The applicant shall provide a minimum of 15 days' notice for the meeting. The informational meeting shall address how remediation concerns apply to the site, including site risk issues such as key exposure assumptions, uncertainties, populations considered, the context of site risk to other risks, and how the remedy will address site risks.15.7.f. Public Participation in Remediation and Reuse Planning. - Any person may ask to be involved in the development of the brownfield remediation and reuse plan by making the request to participate in writing to the Secretary during the 30-day comment period. Any person who files a request may participate in the development of the remediation and reuse plan in person or by representative. 15.7.g. Public Involvement Plan. - The applicant shall establish a Public Involvement Plan if requested by the public, county, municipality, or Secretary. The applicant, in consultation with the persons requesting to be involved in the remediation and reuse of a brownfield site, shall develop the Public Involvement Plan within 30 days of receiving notice from the Secretary that a Public Involvement Plan has been requested. The Public Involvement Plan shall include, but is not limited to, the following: 15.7.g.1. Provisions for further meetings in the community; and15.7.g.2. Opportunities for participants to review and comment on each work plan, as well as review and comment on the Voluntary Remediation Agreement before it is finalized and accepted by the Secretary.15.7.g.3. The applicant shall submit the Public Involvement Plan to the Secretary for review and approval prior to its implementation.15.7.g.4. The approved Public Involvement Plan shall remain in effect until the Secretary issues the Certificate of Completion, or until the applicant withdraws from the Voluntary Remediation Program.15.7.g.5. The Secretary shall consider comments from participants, as well as the applicant's responses to comments, regarding the Voluntary Remediation Agreement, work plans, and reports prior to accepting the submission of these documents.15.7.h. Technical Assistance. - At any time during the life of the Public Involvement Plan, participants other than the applicant may petition the Secretary for technical assistance related to: 15.7.h.1. Reviewing site-related documents;15.7.h.2. Explaining technical information to stakeholders;15.7.h.3. Providing assistance in communicating the concerns of stakeholders to the appropriate persons; or 15.7.h.4. Any other areas deemed appropriate by the Secretary.15.7.h.5. Upon receipt of a petition for technical assistance, the Secretary and applicant, by mutual agreement, will develop a technical assistance component to the Public Involvement Plan. The Secretary and the applicant shall consider comments from participants in the development of the technical assistance component.15.7.g. Notice of Certificate of Completion. - Upon the Secretary's issuance of the Certificate of Completion, he or she shall notify the municipality, county commission, and county or municipal land use agency or the area's Regional Planning and Development Council created by W. Va. Code § 8-25-5.