No. 29460 (New Rule): R311-600. Hazardous Substances Mitigation Act: Enforceable Written Assurances

DAR File No.: 29460
Filed: 01/31/2007, 09:51
Received by: NL

RULE ANALYSIS

Purpose of the rule or reason for the change:

The purpose of this rule is to describe the principles and procedures the Executive Director of the Department will use in responding to requests for enforceable written assurances under the Hazardous Substances Mitigation Act, Title 19, Chapter 6, Part 3.

Summary of the rule or change:

The new rule describes the principles and procedures the Department intends to follow in administering requests for enforceable written assurances.

State statutory or constitutional authorization for this rule:

Section 19-6-326

Anticipated cost or savings to:

the state budget:

There is no anticipated cost or savings to the state budget because the department will charge a fee to cover its costs in reviewing an application for an enforceable written assurance.

local governments:

The rule imposes no requirements on local government so a cost or savings to local government is not anticipated.

other persons:

A processing fee of $500 will be charged for each application. As the agency has no way of determining how many applications will be received, the exact cost in the aggregate cannot be provided.

Compliance costs for affected persons:

A fee will be charged to process the application in accordance with the Fee Schedule. The current fee is $500.

Comments by the department head on the fiscal impact the rule may have on businesses:

The fiscal impact on businesses is expected to be positive because the rules will provide businesses with criteria to apply in determining whether and how to seek an enforceable assurance. Dianne R. Nielson, Executive Director

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Environmental Quality
Environmental Response and Remediation
168 N 1950 W
SALT LAKE CITY UT 84116-3085

Direct questions regarding this rule to:

Sandra K. Allen at the above address, by phone at 801-536-4122, by FAX at 801-359-8853, or by Internet E-mail at [e-mail]

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

03/19/2007

Interested persons may attend a public hearing regarding this rule:

3/12/2007 at 9:00 AM, Department of Environmental Quality, Building 2, Airport East Business Complex, Room 101, 168 N 1950 W, Salt Lake City, UT

This rule may become effective on:

03/26/2007

Authorized by:

Dianne R. Nielson, Executive Director

RULE TEXT

R311. Environmental Quality, Environmental Response and Remediation.

R311-600. Hazardous Substance Mitigation Act: Enforceable Written Assurances.

R311-600-1. Purpose, Authority, Scope, and Requirements.

(a) The purpose of these rules is to describe the principles and procedures the Executive Director of the Utah Department of Environmental Quality will use in responding to requests for enforceable written assurances.

(b) The authority for issuing these rules is found in the Hazardous Substance Mitigation Act which was amended in 2005 to expressly allow the Executive Director to issue enforceable written assurances to bona fide prospective purchasers, contiguous property owners, and innocent landowners, terms defined by the federal Comprehensive Environmental Response, Compensation, and Liability Act and incorporated in the Hazardous Substance Mitigation Act. The Department will not bring an enforcement action under the Hazardous Substance Mitigation Act against the holder of an enforceable written assurance, provided the holder continues to satisfy the ongoing obligations associated with the written assurance. In addition, the assurance grants the holder protection from any state law cost recovery and contribution actions under the Hazardous Substance Mitigation Act. The Executive Director's refusal to issue an enforceable written assurance is not indicative of the environmental status of the property, the applicant's responsibility or liability, or the Department's enforcement interest in a particular property or person.

(c) These rules apply to enforceable written assurances. In many situations, other types of letters or agreements may be more appropriate or desirable. In passing these rules, the Executive Director does not intend to limit the authority to compromise and settle claims, to enter voluntary cleanup agreements, to enter prospective purchaser agreements, to enter apportionment determinations or to issue other types of letters. Writings that do not indicate they are enforceable written assurances are not covered by these rules.

(d) The requirements for enforceable written assurances are found in these rules and in the Hazardous Substance Mitigation Act, Title 19 Chapter 6 Part 3.

(e) When the Division of Environmental Response and Remediation is referenced in the Enforceable Written Assurances rules, the Division of Environmental Response and Remediation is the designee of the Executive Director for the purpose stated or implied.

 

R311-600-2. Definitions.

(a) The terms used in this rule are defined in section 19-6-302.

(b) For the purposes of the Enforceable Written Assurances rules:

(1) "Applicant" means a person who has applied to receive an enforceable written assurance based upon his status as a bona fide prospective purchaser, contiguous property owner or innocent landowner.

(2) "Characterization" means an investigation to demonstrate contaminants at the site do not pose a risk to human health and the environment. Characterization may include sampling, testing, monitoring, and the collecting of sufficient information to demonstrate compliance with the principles in R311-600-3.

(3) "Contaminants" mean hazardous substances or hazardous materials.

(4) "Department" means the Department of Environmental Quality.

(5) "Enforceable Written Assurance" means a letter issued by the Executive Director to an applicant pursuant to section 19-6-326 acknowledging the applicant's status as a bona fide prospective purchaser, contiguous property owner or innocent landowner based upon the representations of the applicant that it meets and will continue to meet the criteria.

(6) "Environmental Covenant" means a servitude defined in section 57-25-102(4).

(7) "EPA" means the United States Environmental Protection Agency.

(8) "Executive Director" means the Executive Director of the Department of Environmental Quality or a designee.

(9) "Holder" means a person who has received an enforceable written assurance.

(10) "Institutional Control" means the term defined in section 19-10-102(1).

(11) "Property" means the property described in the legal description by the applicant in the enforceable written assurance application.

(12) "Site" means the area, including soil, water or groundwater, where a release of hazardous substances or hazardous materials has come to be located irrespective of property boundaries.

(13) "Utility Corridor" means easements, permits, rights of access, or right by virtue of franchise agreements held by utility companies for the purpose of providing water, electricity, natural gas, sewer, and other services to properties.

(14) "VCP" or "Voluntary Cleanup Program" means the program established under section 19-8-101et seq.

 

R311-600-3. Enforceable Assurance Evaluation Principles.

(a) The issuance of an enforceable written assurance is discretionary and requires a case by case evaluation. The Department views that compliance with the conditions of the exemptions for a bona fide prospective purchaser, contiguous property owner, or innocent landowner (e.g., all appropriate inquiries, notice, care/reasonable steps, cooperation, and compliance with institutional controls) will generally ensure there is no unacceptable risk to human health or the environment. However, even if an applicant meets the definition of a bona fide prospective purchaser, a contiguous property owner, or an innocent landowner as defined in section 19-6-302, before issuing an enforceable written assurance, the Executive Director shall evaluate whether the applicant has demonstrated the following:

(1) After all appropriate inquiries, there is no indication of a release, a threatened release, or the possibility of a release at the property, or;

(2) If there is a threatened release or the possibility of a release at the property, there has been sufficient characterization to demonstrate that there is no reason to take action, or;

(3) If there has been a release, the release has been or is being cleaned up with oversight provided by the Department and the applicant is sufficiently informed to take reasonable steps to avoid exposing the contamination to the public, avoid contributing to or exacerbating the contamination, and to avoid interfering with or substantially increasing the costs of response actions, or;

(4) If the release has not been and is not being cleaned up, there has been sufficient characterization to demonstrate that the release is not ongoing, there are no uninterrupted exposure pathways, and the applicant is sufficiently informed to take reasonable steps to avoid exposing the contamination to the public, avoid contributing to or exacerbating the contamination, and to avoid interfering with or substantially increasing the costs of response actions, or; there has been sufficient characterization to demonstrate that there is no reason to take action.

(b) If the criteria in subsection (a) are satisfied and if the applicant qualifies as a bona fide prospective purchaser under federal law and is not a liable person under the Utah Hazardous Substance Mitigation Act, the Executive Director may issue an enforceable written assurance to the applicant.

(c) If the criteria in subsection (a) are not satisfied, the Executive Director may issue an enforceable written assurance to the applicant that provides that an ongoing reasonable step is to complete additional characterization and response actions through the VCP to satisfy the criteria in subsection (a) above. The failure of the applicant to complete additional characterization and response actions through the VCP may result in a revocation or nullification of the enforceable written assurance.

(d) If the criteria in subsection (a) are not satisfied because reports provided by the applicant indicate a potential environmental problem, but subsequent information easily and quickly supports a conclusion that the potential for unacceptable risk is highly unlikely and also provides an understanding of reasonable steps, the Executive Director may issue an enforceable written assurance.

(e) The Executive Director may issue certain, general, non-specific comfort letters describing the liability provisions of the Hazardous Substance Mitigation Act. A person may request this type of letter without applying for an enforceable written assurance and without the submission of a fee or may request this type of letter anytime during the enforceable assurance review process.

 

R311-600-4. Application.

(a) An applicant shall submit to the Division of Environmental Response and Remediation an application as prescribed by this section.

(b) An application submitted under this section shall:

(1) Be on a form provided by the Division of Environmental Response and Remediation;

(2) Contain:

(A) General information concerning the applicant and its affiliates, and current and past owners, and operators of the site;

(B) The address, property tax identification number, and legal description of the property;

(C) A statement and information that demonstrates that the applicant has not caused or contributed to the contamination on the property or the site, and is otherwise eligible for an enforceable written assurance;

(D) A statement indicating and information demonstrating that the applicant is applying as a bona fide prospective purchaser, a contiguous property owner, or an innocent landowner, and a certification that the applicant meets and will continue to meet the requirements;

(E) The current and proposed future land use;

(F) Information indicating the involvement, if any, that the Department or the EPA has had with the property or the applicant;

(G) The fee required in the fee schedule approved by the legislature;

(H) A site eligibility report.

(c) The site eligibility report shall include the following:

(1) Results of the applicant's All Appropriate Inquires, including a detailed discussion of each specific activity required by Standards and Practices for Conducting "All Appropriate Inquiries" under the Comprehensive Environmental Response, Compensation, and Liability Act, 70 Fed. Reg. 66070 (11/1/05) codified at 40 C.F.R. 312.

(2) Sufficient information demonstrating compliance with the principles in R311-600-3, including information identifying whether the release is on-going or likely to be on-going.

(3) Laboratory analytical results from environmental media sampled at the site.

(4) Proposed reasonable steps to mitigate potential risk to human health and the environment based on present and future intended land use, including utility corridors.

(5) Description of activity and use limitations or engineering controls, and how the limitations or controls will be enforced over time.

 

R311-600-5. Review of Documents.

(a) The Executive Director may accept and review the application and site eligibility report. If the Executive Director accepts the application and site eligibility report, the Executive Director may notify the applicant of additional information required to issue an enforceable written assurance.

(b) If at any point the Executive Director determines that additional, substantial characterization is required, the Executive Director may deny the issuance of an enforceable written assurance.

 

R311-600-6. Withdrawal of Application.

The applicant may withdraw the application by giving written notice to the Executive Director. The withdrawal is effective on the date the Executive Director receives the notice. The fee will not be refunded.

 

R311-600-7. Enforceable Written Assurance.

(a) The enforceable written assurance shall state that it is issued pursuant to section 19-6-326.

(b) The enforceable written assurance may clarify what the applicant must do (or not do) to retain the assurance in effect.

(c) The enforceable written assurance is contingent upon the applicant's compliance with ongoing requirements imposed herein and in section 19-6-302 on a bona fide prospective purchaser, contiguous property owner, and innocent landowner.

 

R311-600-8. Rejection of Application.

(a) The Executive Director may choose not to review and application.

(b) Applications that are not reviewed are considered rejected.

(c) The Executive Director has sole discretion to reject an application for any reason.

(d) If an application is rejected, the Executive Director shall promptly notify the applicant.

(e) Rejection of an application is not indicative of the environmental status of the property, applicant's responsibility or liability, or the Department's enforcement interest in the applicant.

 

R311-600-9. Denial of Application.

(a) The Executive Director may reject or deny the issuance of an enforceable written assurance for any reason.

(b) The Executive Director will deny or reject the issuance of an enforceable written assurance for the following reasons:

(1) If the application is not complete, or;

(2) The applicant does not provide sufficient evidence for the Executive Director to acknowledge that:

(A) The applicant has demonstrated compliance with the Enforceable Assurance Evaluation Principles in R311-600-3, or;

(B) The applicant is a bona fide prospective purchaser, an innocent landowner, or a contiguous property owner based upon the applicant's representations, or;

(3) If information obtained subsequent to filing demonstrates that:

(A) The applicant has not demonstrated compliance with the Enforceable Assurance Evaluation Principles in R311-600-3, or;

(B) That the applicant is not a bona fide prospective purchaser, an innocent landowner, or a contiguous property owner, or;

(4) The applicant does not:

(A) Demonstrate the ability and willingness to exercise appropriate care with respect to the contamination at the facility, including taking reasonable steps to:

(i) Stop any continuing release;

(ii) Prevent any threatened future release; and

(iii) Prevent or limit human, environmental, or natural resource exposure to any previously released hazardous substance or hazardous material or;

(B) Grant and ensure reasonable access, or;

(C) Demonstrate willingness to:

(i) Comply with any land use restrictions established or relied on in connection with the response action, and;

(ii) Not impede the effectiveness of integrity of any institutional control or environmental covenant employed in connection with a response action, and;

(iii) Record at the request of the Executive Director an Environmental Covenant for any land use restrictions established or relied on in connection with the response action.

 

R311-600-10. Revocation of Assurance.

(a) The enforceable written assurance shall remain valid unless revoked.

(b) The Executive Director may revoke the enforceable written assurance for good cause, including the following:

(1) The holder:

(A) Acquired the enforceable written assurance by fraud, misrepresentation, or failure to disclose material information;

(B) Does not exercise appropriate care with respect to contaminants found at the facility by taking reasonable steps to:

(i) Stop any continuing release;

(ii) Prevent any threatened future release, and;

(iii) Prevent or limit human, environmental, or natural resource exposure to any previously released contaminants;

(C) Does not comply with any land use restrictions or institutional controls established or relied on in connection with the response action, or; impedes the effectiveness or integrity of any institutional control, or environmental covenant employed in connection with a response action, or; does not record an Environmental Covenant for any land use restrictions established or relied on in connection with the response action if requested to do so by the Executive Director;

(D) Does not cooperate with persons providing remedial or investigative action;

(E) Does not pay the required fees within a reasonable time;

(F) Does not provide and ensure reasonable access as requested by the Executive Director;

(G) Does not provide legally required notices with respect to the discovery or release of any contaminants at the facility, or;

(2) New information demonstrates that the holder may not be a bona fide prospective purchaser, innocent landowner, or contiguous property owner.

(c) The holder shall have the burden of proving by a preponderance of evidence that at the time the enforceable assurance was granted and thereafter, the holder satisfied criteria for being considered a bona fide prospective purchaser, an innocent landowner, or a contiguous property owner.

(d) The procedures followed to revoke an enforceable written assurance shall comply with the Administrative Procedures Act and shall include written notice to the holder and an opportunity to contest the Department's notice.

(e) An administrative action to revoke the enforceable written assurance may be issued concurrently with an order to abate under section 19-6-310 of the Hazardous Substance Mitigation Act.

 

R311-600-11. Access.

The applicant and holder shall ensure reasonable access to the site to persons that are authorized to conduct response actions or natural resource restoration at the property, including the cooperation and access necessary for the installation, integrity, operation, and maintenance of any complete or partial response actions or natural resource restoration at the property.

 

R311-600-12. Institutional Controls.

The applicant and holder shall comply with any existing land use restriction established or relied on in connection with the response action, any existing institutional control created under section 19-10-101 to -108 or any environmental covenant created under section 57-25-101 to -114, and shall implement and record an environmental covenant as requested by the Executive Director.

 

R311-600-13. Funding.

(a) The applicant shall pay the required fees in accordance with the legislatively approved fee schedule. The initial fee shall be remitted with the application. If the fee schedule allows imposition of additional fees based upon additional expenses and costs incurred by the Department, the applicant shall pay the fees within the time requested by the Department.

(b) The fees are not refundable unless the application is rejected without review.

 

R311-600-14. Transfer of Property after Issuance of Enforceable Written Assurance.

The enforceable written assurance is not transferable to another party but shall survive any conveyance or other disposition of the property identified in the enforceable written assurance as to the holder.

 

R311-600-15. Notice.

In providing notice to applicants and holders, the Executive Director may rely upon the address provided by the applicant in the application or upon subsequent written changes of address filed with the Division of Environmental Response and Remediation by the applicant or holder. A change of address filed by the applicant or holder shall indicate the name and new address of the applicant or holder, and shall also include the property address, legal description, property tax identification number, the date the assurance was issued, and the date the application was filed.

 

R311-600-16. Orders Issued Under Section 19-6-309.

Issuance of an enforceable written assurance shall not preclude the issuance of an order under section 19-6-309 of the Hazardous Substance Mitigation Act because ongoing obligations of a bona fide prospective purchaser require taking reasonable steps to stop continuing releases, prevent threatened future releases, and prevent or limit human, environmental, or natural resources exposure to earlier releases.

 

R311-600-17. Apportionment Policy.

In an apportionment proceeding conducted by the Executive Director, the Executive Director intends to apportion zero liability to a party who proves that he has satisfied the obligations, including the continuing obligations, of a bona fide prospective purchaser, contiguous property owner, or innocent landowner, and has satisfied the enforceable assurance evaluation principles in R311-600-3 regardless of whether the party has previously obtained an enforceable written assurance.

 

R311-600-18. Utility Company Enforcement Policy.

(a) The Department does not intend to bring enforcement or cost recovery action against, and will not hold liable, a utility company under the Hazardous Substance Mitigation Act based solely upon the utility company's interest in a utility corridor for the purpose of supplying utility services.

(b) The Department's policy is subject to the following conditions:

(1) The utility company did not cause or contribute to the release and does not take actions that exacerbate the release.

(2) The utility company complies with applicable regulations, land use restrictions,institutional controls, environmental covenants, and sire management plans under the VCP in handling contaminated media.

(3) The utility company takes reasonable steps to prevent or limit human, environmental, or natural resource exposure to any previously released hazardous substances or hazardous materials.

 

R311-600-19. Relationship to Voluntary Cleanup Program.

Upon the request of the applicant, the Executive Director may condition the issuance of an enforceable written assurance upon completion of additional work through the Department's VCP. A conditional enforceable assurance is not a substitute for completion of work under the VCP. The Executive Director reserves thee discretion to withdraw or revoke the conditional enforceable assurance at any time if the applicant is unable to prove that the conditions have been satisfied. The Executive Director reserves the discretion to issue an amended enforceable assurance that eliminates the requirement for additional work through the Department's VCP at such time as the Executive Director has adequate information and documentation to determine that the additional work is no longer necessary.

 

R311-600-20. Long Term Tenants.

Long Term tenants shall be treated as the equivalent of an owner or operator for the purpose of these rules.

 

R311-600-21. Innocent Landowners.

(a) An applicant who seeks or obtains an enforceable assurance as an innocent landowner shall:

(1) Take reasonable steps to:

(A) Stop any continuing release;

(B) Prevent any threatened future release; and,

(C) Prevent or limit human, environmental, or natural resource exposure to any hazardous substance or hazardous material released on or from the property owned by the applicant.

(2) Provide full cooperation, assistance, and access to persons that are authorized to conduct response actions or natural resource restoration at the property from which there has been a release or threatened release.

(3) Comply with any land use restrictions established or relied on in connection with the response action at the facility and cooperate to establish such restrictions and not impede the effectiveness or integrity of any institutional control or environmental covenant employed in connection with a response action.

(b) An applicant who seeks or obtains an enforceable assurance as an innocent landowner and fails to satisfy the above condition shall not be eligible to receive or retain an enforceable written assurance.

 

KEY: bona fide prospective purchaser

Date of Enactment or Last Substantive Amendment: 2007

Authorizing, and Implemented or Interpreted law: 19-6-326