Brownfield Projects Voluntary Cleanup Oversight and Assistance Program
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There is established a voluntary cleanup oversight and assistance program for the voluntary cleanup of brownfield projects. The commissioner may enter into voluntary agreements or consent orders for the investigation and/or remediation of such sites or projects with any willing and able person; provided, however, that a voluntary agreement may not be employed with a person who generated, transported or released contamination that is to be addressed at the site.
A person entering into a voluntary agreement or consent order shall submit to the commissioner a summary description of all known existing environmental investigations, studies, reports or documents concerning the site's environmental condition. Such summary description shall include, but shall not be limited to:
Date of the material;
Title of the material;
Person or entity that produced the material;
Results or conclusions contained in the material;
Any remedial action recommended including any monitoring and/or maintenance; and
Other information which could reasonably be construed to be material to the commissioner's decision to enter into a voluntary agreement or consent order.
The voluntary agreements or consent orders shall outline the agreed upon investigation, remediation, monitoring, and/or maintenance, and shall be consistent with § 68-212-201. Such voluntary agreements or consent orders shall address public notice and public input. All activities shall be subject to any otherwise applicable and appropriate zoning, land use regulations and cleanup standards, including without limitation all provisions regarding public notice and opportunity for public input. All such voluntary agreements or consent orders may provide for the reimbursement of the department's oversight costs. These agreements shall not limit liability for contamination of a site occurring after the date of the voluntary agreement or consent order or for contamination not identified and addressed in the voluntary agreement or consent order.
No voluntary agreement or consent order shall be entered into concerning a site listed on the federal National Priorities List, or after a site has been proposed for such listing, without the concurrence of the United States environmental protection agency (EPA). Sites that the EPA has identified and advised the commissioner as eligible to be proposed for listing on the federal National Priorities List will be managed in a cooperative process with the EPA.
For inactive hazardous substance sites, the commissioner has the discretion and is authorized to establish an apportionment of liability consistent with § 68-212-207(b) in a voluntary agreement or consent order. Further, the commissioner may limit the liability of the participant in any voluntary agreement or consent order entered into pursuant to this section. Such a voluntary agreement or consent order may limit the participant's liability to the obligations set forth therein and exempt the participant from any further liability under any statute administered by the department, for investigation, remediation, monitoring and/or maintenance of contamination identified and addressed in the voluntary agreement or consent order. The commissioner may extend this liability protection to successors in interest or in title to the participant, contractors conducting response actions at the site, developers, future owners, tenants, and lenders, fiduciaries or insurers, conditioned upon performance of the voluntary agreement or consent order and compliance with any land use restrictions required thereby; provided, that such liability protection to other persons does not apply to liability that arose prior to the voluntary agreement or consent order. Nothing in this section shall impair the rights of third parties with respect to tort liability claims for damage to person or property arising from the contamination addressed by the voluntary agreements or consent orders.
A person who enters into a voluntary agreement or consent order with the commissioner that contains an apportionment or limitation of liability, pursuant to this section, shall not be liable to third parties for contribution regarding matters addressed in the voluntary agreement or consent order; provided, that the third party was given actual or constructive notice of the voluntary agreement or consent order, and the third party had an actual or constructive opportunity to comment upon the voluntary agreement or consent order. Constructive notice may be accomplished by, among other means, publishing a summary of the voluntary agreement or consent order in a newspaper of general circulation within the geographical area of the site or project at least thirty (30) days prior to the effective date of the agreement or order. For inactive hazardous substance sites, such voluntary agreements or consent orders shall, to the extent provided therein, constitute an approved administrative settlement pursuant to 42 U.S.C. § 9613(f).
Except in an action to enforce a voluntary agreement or consent order, such agreement or order shall not be admissible as evidence in any suit, hearing or other proceeding against a person who received liability protection pursuant to this section. Voluntary agreements and consent orders are not admissible as evidence of comparative fault in any third party tort suit, hearing or other proceeding.
There is levied a fee of five thousand dollars ($5,000) for participation in this program. This fee shall be in addition to and not in lieu of any moneys expended from the remedial action fund and shall be in addition to any other fee assessed pursuant to this part. The commissioner may waive any part, or all, of this fee if the commissioner determines that such waiver serves the public welfare.
The participation fees shall be used to establish a voluntary cleanup oversight and assistance fund. The purpose of this fund is to pay for state oversight of any cleanup efforts.
Any unencumbered funds and any unexpended balance of this fund remaining at the end of any fiscal year shall not revert to the general fund, but shall be carried forward until expended in accordance with this part.
Interest accruing on investments and deposits of the voluntary cleanup oversight and assistance fund shall be returned to this fund and remain a part of this fund.
Moneys expended from the remedial action fund for investigation prior to a party's participation in this program shall be recovered and deposited to that fund.
Once a consent order has been entered, the commissioner has the discretion and is authorized to expend moneys from the remedial action fund to pay that portion of the investigation, cleanup, monitoring, maintenance and oversight of an inactive hazardous substance site to the extent such expenditures are not allocated under the consent order to the potentially liable party conducting the investigation and cleanup of the inactive hazardous substance site pursuant to this program. The commissioner is authorized to seek recovery of such expenditures from the remedial action fund from other liable parties in the full amount of their respective allocated share of liability by any legal remedy through the exercise of the commissioner's powers and duties as established by this part; provided, that if the consent order establishes an allocation of liability for the potentially liable party participating in the voluntary program, the commissioner may not assess the participant for a share of liability greater than the allocation established in the consent order.
The criteria for selecting containment and cleanup actions, including monitoring and maintenance options to be followed under the voluntary cleanup and oversight assistance program, shall be those specified in § 68-212-206(d).
In the event a person does not fulfill all the requirements established in a voluntary agreement or consent order, the commissioner may seek to enforce the voluntary agreement or consent order through any legal remedy.
Upon completion of all terms and conditions of a voluntary agreement or consent order under this program, the commissioner shall issue a letter to the participant stating that the obligations under the voluntary agreement or consent order have been completed and, if appropriate, that no further action will be required of the participant. Upon reasonable request of the participant, the commissioner shall issue from time to time interim letters stating what specific obligations remain to achieve completion.
Any consent order, voluntary agreement, the creation or removal of deed restrictions, and any other final agency action is subject to review pursuant to the Uniform Administrative Procedures Act, compiled in title 4, chapter 5. When public notice is required to be given pursuant to this section, at a minimum, notice shall be sent by certified mail to all local governments having jurisdiction over any part of the subject property and to all owners of adjoining properties.