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.