W. Va. Code R. § 157-8-6

Current through Register Vol. XLI, No. 45, November 8, 2024

Section 157-8-6 - Right of Entry

6.1 For Studies and Exploratory Work. Division of Highways employees, their authorized representatives, contractors and sub-contractors, upon presentation of proper identification, have the right of entry upon any property suspected of having a waste tire pile for the purpose of:

6.1.a conducting studies;

6.1.b performing exploratory work to determine the existence of waste tire piles and their adverse effects;

6.1.c determining the feasibility of remediation;

6.1.d determining the potential adverse effects of remediation; and

6.1.e establishing identification information.

6.2 For Remediation. The right of entry for remediation of waste tire piles is:

6.2.a an exercise of the police powers of the State;

6.2.b for the protection of the public health, safety and general welfare of the citizens of West Virginia;

6.2.c not an act of condemnation of said property;

6.2.d not an act of trespassing thereon;

6.2.e an obligation to follow due process of law.

6.3 Contacting Property Owners

6.3.a Contacting property owners may be attempted by telephone and/or fax and/or in person.

6.3.a.1 The property owner will be afforded the right to accompany any authorized parties during any phases including remediation,

6.3.a.2 The property owner may not interfere with any authorized parties during any stages of remediation or investigations and/or studies.

6.3.a.3 Any interference by the property owner during remediation will be addressed by due process of law including but not limited to injunctions and peace warrants.

6.3.a.4 Any interference causing additional costs will be borne by the responsible party.

6.4 Requesting Voluntary Entry. The Division may first seek voluntary right of entry in written form from the property owner(s).

6.5 Voluntary Entry Not Obtainable. When voluntary written right of entry is not obtainable, the Division will issue, with proper service, the Notice of Right of Entry pursuant to WV Code § 17-2A-8(4), § 17-12-7(d) and § 54-1-3.

6.5.a The right of entry is good for three years from the date issued/signed, or until completion of remediation.

6.6 Termination of Right of Entry. When the site has been remediated, cleaned up, seeded and mulched, the Division will notify the owner that the right of entry is terminated, by proper service,

6.7 Property Owner's Limitations. Once right of entry is obtained, the owner:

6.7.a may not stop, impede or hinder said remediation/clean up work;

6.7.b must voluntarily surrender the physical possession of the waste tire pile(s) and the property on which it is located;

6.7.c must accept remediation efforts and allow the Division adequate ingress/egress to any and all waste tire piles that exist on the property; and

6.7.d must hold the Division harmless for any and all damages in the clean up of the referenced tire pile(s).

6.8 Adequate Ingress/Egress. The Division, having right of entry, is entitled to adequate means of ingress/egress from the waste tire pile for remediation and clean up purposes. Adequate ingress/egress will include the right to:

6.8.a upgrade the traveled road and/or provide a new workable access to the waste tire pile; and

6.8.b leave all materials used in upgrading said travelable roads/access roads with no future right or obligation by the State to maintain such. The State is rendered harmless.

6.9 State's Responsibility. The State is responsible for:

6.9.a cleaning up, dressing, seeding, and mulching the remediation site; and

6.9.b grading, draining, controlling sediment and other required activities in accordance with WV Legislative Rule 33CSR1, paragraph 4.5.b.3.

6.9.c Pre-existing conditions, hazardous waste, and other environmental conditions are not the responsibility of the Division or the Contractor; these are the responsibility of the property owner(s).

6.10 Ingress and Egress Part of Tire Pile. In as much as the means of ingress and egress is an integral part of the waste tire pile, its development, and its remediation, the access is considered a part of said waste tire pile.

6.11 Adjoining Properties. In cases where the access via ingress and egress is across property (ies) other than the actual parcel(s) on which the waste tires pile is located, the property owner(s) of the access will be served right-of-entry notices.

6.11.a Property owners that have allowed access to the property on which waste tire piles are located, will be deemed to be contributors to the creation and development of a waste tire pile and are therefore subject to the same penalties under law.

6.12. Solid Waste - Owner's Responsibility. All solid waste items in the environs of the waste tire pile are the responsibility of the owner(s) as are the costs of clean up.

6.12.a The owner(s) may enter into an agreement/contract with the Division and/or its contractor to remove and properly dispose of all solid waste encountered.

6.12.b. The owner is responsible for all costs incurred in the clean up of any hazardous materials associated with the referenced waste tire pile.

6.12.c. The site is to be cleaned up of all solid waste and hazardous waste at the time the tire pile is remediated, i.e., the site is to be totally and properly remediated.

W. Va. Code R. § 157-8-6