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S.B. 190
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5 AN ACT RELATING TO HEALTH AND ENVIRONMENT; ESTABLISHING A
6 VOLUNTARY CLEANUP PROGRAM FOR ENVIRONMENTAL RELEASES;
7 ESTABLISHING APPLICATION AND COMPLIANCE PROCEDURES; PROVIDING FOR
8 PARTICIPANT FEES TO FUND THE PROGRAM, AND AN ACCOUNT FOR THE FEES;
9 AND PROVIDING FOR SPECIFIED RELEASE OF LIABILITY FOR PARTIES THAT
10 COMPLETE THE CLEANUP PROCESS.
11 This act affects sections of Utah Code Annotated 1953 as follows:
12 ENACTS:
13 19-8-101, Utah Code Annotated 1953
14 19-8-102, Utah Code Annotated 1953
15 19-8-103, Utah Code Annotated 1953
16 19-8-104, Utah Code Annotated 1953
17 19-8-105, Utah Code Annotated 1953
18 19-8-106, Utah Code Annotated 1953
19 19-8-107, Utah Code Annotated 1953
20 19-8-108, Utah Code Annotated 1953
21 19-8-109, Utah Code Annotated 1953
22 19-8-110, Utah Code Annotated 1953
23 19-8-111, Utah Code Annotated 1953
24 19-8-112, Utah Code Annotated 1953
25 19-8-113, Utah Code Annotated 1953
26 19-8-114, Utah Code Annotated 1953
27 19-8-115, Utah Code Annotated 1953
1 19-8-116, Utah Code Annotated 1953
2 19-8-117, Utah Code Annotated 1953
3 19-8-118, Utah Code Annotated 1953
4 Be it enacted by the Legislature of the state of Utah:
5 Section 1. Section 19-8-101 is enacted to read:
6
7 19-8-101. Title.
8 This chapter is known as the "Voluntary Cleanup Program."
9 Section 2. Section 19-8-102 is enacted to read:
10 19-8-102. Definitions.
11 As used in this chapter:
12 (1) "Account" means the Environmental Voluntary Cleanup restricted account created
13 under Section 19-8-103.
14 (2) "Agreement" means a voluntary cleanup agreement under this chapter.
15 (3) "Applicant" means the person:
16 (a) who submits an application to participate in a voluntary cleanup agreement under this
17 chapter; or
18 (b) who enters into a voluntary cleanup agreement made under this chapter with the
19 executive director.
20 (4) "Completion" means, regarding property covered by an agreement:
21 (a) no further response actions are necessary; or
22 (b) the applicant is satisfactorily maintaining the engineering controls, remediation
23 systems, postclosure care, and institutional controls to the extent required pursuant to the voluntary
24 cleanup agreement.
25 (5) "Contaminant" means:
26 (a) hazardous materials as defined in Section 19-6-302;
27 (b) hazardous substance as defined in Section 19-6-302;
28 (c) hazardous waste as defined in Section 19-6-102;
29 (d) hazardous waste constituent listed in 40 C.F.R. Part 261, Subpart D, or Table One, 40
30 C.F.R. 261.24;
31 (e) pollution as defined in Section 19-5-102;
1 (f) regulated substance as defined in Section 19-6-402; and
2 (g) solid waste as defined in Section 19-6-102.
3 (6) "Environmental assessment" means the assessment described in Section 19-8-107.
4 (7) "Executive director" means the executive director of the Utah Department of
5 Environmental Quality or the executive director's representative.
6 (8) "Program" means the Voluntary Environmental Cleanup Program created under this
7 chapter.
8 (9) "Response action" means the cleanup or removal of a contaminant from the
9 environment.
10 (10) "Solid waste" has the same meaning as defined in Section 19-6-102.
11 Section 3. Section 19-8-103 is enacted to read:
12 19-8-103. Creation of restricted account -- Purposes.
13 (1) There is created within the General Fund the Environmental Voluntary Cleanup
14 restricted account.
15 (2) The account shall be used to fund department administration and oversight of voluntary
16 cleanups initiated under this chapter.
17 (3) The account may earn interest, which shall be deposited in the account, to be used for
18 the purposes under this section.
19 Section 4. Section 19-8-104 is enacted to read:
20 19-8-104. Program.
21 (1) There is created under this chapter and within the Department of Environmental
22 Quality the Voluntary Environmental Cleanup Program.
23 (2) The program shall be administered by the executive director.
24 (3) The program shall be funded by application fees and imposed oversight costs as
25 provided in this chapter.
26 Section 5. Section 19-8-105 is enacted to read:
27 19-8-105. Eligibility and exceptions -- Grounds for application rejection by executive
28 director.
29 Subject to Section 19-8-106, any site is eligible for participation in the voluntary cleanup
30 program created under this chapter except:
31 (1) a treatment, storage, or disposal facility regulated under 42 U.S.C. 6901 et seq.;
1 (2) that portion of a site that is on the national priorities list; or
2 (3) that portion of a site for which an administrative, state, or federal enforcement action
3 is existing or pending against the applicant for remediation of the contaminants described in the
4 application.
5 Section 6. Section 19-8-106 is enacted to read:
6 19-8-106. Rejection of application -- Notice to applicant -- Resubmission procedure.
7 (1) The executive director may in his sole discretion reject an application prior to
8 accepting the application fee, and return the application fee to the applicant if:
9 (a) the executive director has reason to believe that a working relationship with the
10 applicant cannot be achieved; or
11 (b) the application site is not eligible under Section 19-8-105.
12 (2) (a) The executive director may reject an application after processing the application
13 if the executive secretary determines:
14 (i) the application is not complete or is not accurate; or
15 (ii) the applicant has not demonstrated financial capability to perform the voluntary
16 cleanup.
17 (b) The applicant is not entitled to refund of an application fee for an application rejected
18 under this Subsection (2).
19 (3) An application rejected under Subsection (1) or (2) shall be promptly returned to the
20 applicant with a letter of explanation.
21 (4) (a) If the executive director rejects an application because it is incomplete or
22 inaccurate, the executive director shall, not later than 60 days after receipt of the application,
23 provide to the applicant a list in writing of all information needed to make the application complete
24 or accurate, as appropriate.
25 (b) The applicant may submit for a second time an application rejected due to inaccuracy
26 or incompleteness without submitting an additional application fee.
27 Section 7. Section 19-8-107 is enacted to read:
28 19-8-107. Participation application -- Procedure.
29 (1) To participate in the voluntary cleanup program an applicant shall:
30 (a) submit to the department an application and application fee under Subsection (2); and
31 (b) pay to the department all costs of the department's oversight of the voluntary cleanup.
1 (2) An application submitted under this section shall:
2 (a) be on a form provided by the executive director;
3 (b) contain pertinent information regarding the applicant and the applicant's ability to
4 perform the voluntary cleanup, including the applicant's financial capability;
5 (c) include pertinent information regarding the site, including property ownership, current
6 property use, proposed property use, prior and present contact with regulatory programs that relate
7 to the environmental condition of the property, and response action objectives;
8 (d) provide any other background information requested by the executive director;
9 (e) include an environmental assessment of the actual or threatened release of the
10 contaminant at the site addressed by the application;
11 (f) be accompanied by an application fee as established under Section 19-8-117; and
12 (g) be submitted according to schedules set by department rules.
13 (3) The environmental assessment required under Subsection (2) shall include:
14 (a) a legal description of the site;
15 (b) a description of the physical characteristics of the site;
16 (c) the operational history of the site to the extent known by the applicant;
17 (d) information of which the applicant is aware concerning the nature and extent of any
18 relevant contamination or release at the site and immediately contiguous to the site, and where the
19 contamination is located; and
20 (e) relevant information of which the applicant is aware concerning the potential for
21 human and environmental exposure to contamination at the site.
22 (4) If the executive director accepts an application fee, the department shall take action on
23 the application in the order in which it is received, but in all circumstances within 60 days of the
24 receipt of the application by the department.
25 (5) Fees collected under this section shall be deposited in the General Fund in the
26 Environmental Voluntary Cleanup Account created under Section 19-8-103.
27 Section 8. Section 19-8-108 is enacted to read:
28 19-8-108. Voluntary agreement -- Procedure and establishment.
29 (1) (a) Before the executive director may evaluate any detailed plan or report regarding
30 the remediation goals and proposed methods of remediation, the applicant and the executive
31 director shall have entered into a voluntary cleanup agreement under this chapter.
1 (b) The agreement shall establish the terms and conditions for the evaluation of
2 investigation, remediation, and status reports.
3 (2) Before the applicant may initiate any response action covered by an agreement, a
4 voluntary cleanup agreement shall have been signed by the applicant and the executive director,
5 except that the applicant may take emergency measures as necessary, but shall coordinate these
6 measures with the appropriate emergency response authorities.
7 (3) A voluntary cleanup agreement shall provide for:
8 (a) recovery by the department of all reasonable costs:
9 (i) incurred in the voluntary cleanup in the review and oversight of the applicant's work
10 plan and reports and as a result of the department's field activities regarding the cleanup;
11 (ii) attributable to the voluntary cleanup agreement; and
12 (iii) in excess of the amount of fees submitted by the applicant under Section 19-8-107;
13 and
14 (b) a schedule of payments by the applicant to the department, to be made by the applicant
15 for recovery of all department costs attributable to the voluntary cleanup program, including:
16 (i) direct and indirect costs of overhead, salaries, equipment, and utilities;
17 (ii) legal, management, and support costs; and
18 (iii) appropriate tasks, deliverables, and schedules.
19 (4) A voluntary cleanup agreement shall:
20 (a) identify all statutes and rules with which the applicant shall comply;
21 (b) describe any work plan or report the applicant shall submit to the executive director
22 for review, including a final report that provides all information necessary for the executive
23 director to confirm that all work contemplated by the voluntary cleanup agreement has been
24 completed;
25 (c) include a schedule for submitting the information required by Subsection (4)(b); and
26 (d) state the technical standards to be applied in evaluating the work plans and reports.
27 (5) If an agreement under this section is not established between the applicant and the
28 executive director within 30 days after good faith negotiations between the parties have been
29 initiated:
30 (a) the applicant or the executive director may, upon providing written notice to the other
31 party, withdraw from the negotiations; and
1 (b) the applicant's application fee is not refundable.
2 (6) The department may not initiate an enforcement action against an applicant regarding
3 a contamination or release, or any activity that resulted in the contamination or release if the
4 applicant:
5 (a) is in compliance with this chapter regarding the contamination or release; and
6 (b) has entered into a voluntary cleanup agreement that is in effect under this chapter
7 regarding the contamination or release.
8 Section 9. Section 19-8-109 is enacted to read:
9 19-8-109. Termination of agreement -- Cost recovery.
10 (1) An agreement established under this chapter may be terminated by the executive
11 director or the applicant by giving 15 days prior notice, in writing, to the other party.
12 (2) (a) Only those costs incurred or obligated by the executive director prior to the date
13 of termination of the agreement are recoverable under an agreement terminated under this section.
14 Any unused amounts already paid by the applicant to the department as of the date of termination,
15 other than the application fee, are refundable to the applicant.
16 (b) The executive director shall provide to the applicant written and itemized notification
17 of all costs for which the applicant is liable under this Subsection (2) within 90 days after the date
18 the agreement is terminated.
19 (3) If the applicant does not pay to the executive director the department's costs incurred
20 in the voluntary cleanup within 90 days after the date the applicant receives written notice under
21 Subsection (2)(b), the executive director may request the state attorney general to bring a court
22 action in the name of the state to recover the amount the applicant owes under this section, and
23 reasonable attorney's fees and court costs.
24 (4) Termination of an agreement under this section does not affect any right of the:
25 (a) executive director to recover costs under any other law; or
26 (b) department to take enforcement and other action as allowed by law.
27 Section 10. Section 19-8-110 is enacted to read:
28 19-8-110. Voluntary cleanup work plans and reports.
29 (1) After the applicant and the executive director have signed the voluntary cleanup
30 agreement, the applicant shall prepare and submit the appropriate work plans and reports to the
31 executive director as provided in the agreement.
1 (2) The executive director shall review and evaluate the work plans and reports for
2 accuracy, quality, and completeness.
3 (3) The executive director may approve a voluntary cleanup work plan or report, or if he
4 does not approve the work plan or a report, he shall notify the applicant in writing concerning
5 additional information or commitments necessary to obtain approval.
6 (4) At any time during the evaluation of a work plan or report, the executive director may
7 request the applicant to submit additional or corrected information.
8 (5) After considering the proposed future use of the property that is the subject of the
9 agreement, the executive director may approve work plans and reports submitted under this section
10 that do not require removal or remedy of all discharges, releases, and threatened releases on the
11 property if the applicant's response actions under the agreement:
12 (a) will be completed in a manner that protects human health and the environment;
13 (b) will not cause, contribute to, or exacerbate discharges, releases, or threatened releases
14 on the property that are not required to be removed or remedied under the work plan; and
15 (c) will not interfere with or substantially increase the costs of response actions to address
16 any remaining discharges, releases, or threatened releases resulting from releases initially
17 generated on the property.
18 Section 11. Section 19-8-111 is enacted to read:
19 19-8-111. Certificate of completion.
20 (1) If the executive director determines that an applicant has completed a voluntary
21 cleanup in accordance with the agreement entered into under this chapter, the executive director
22 shall within 30 days after the determination issue to the applicant a certificate of completion.
23 (2) The certificate of completion shall:
24 (a) acknowledge the protection from liability provided by Section 19-8-113;
25 (b) state the proposed future use of the property as defined under the voluntary cleanup
26 agreement;
27 (c) provide a legal description of the property and identify the owner of the property; and
28 (d) state the applicant has complied with the voluntary cleanup agreement and has met the
29 requirements of Sections 19-8-108 and 19-8-110.
30 (3) The executive director shall upon issuance of the certificate of completion record a
31 copy in the real property records of the county in which the site is located.
1 Section 12. Section 19-8-112 is enacted to read:
2 19-8-112. Denial of certificate of completion -- Appeal.
3 (1) If the executive director determines the applicant has not successfully completed a
4 voluntary cleanup in accordance with an agreement entered into under this chapter, the executive
5 director shall:
6 (a) notify the applicant and the current owner of the property that is the subject of the
7 agreement of the denial of a certificate of completion; and
8 (b) provide to the applicant a list in writing of the reasons for the denial.
9 (2) The applicant may appeal the determination of the executive director as provided in
10 Title 63, Chapter 46b, Administrative Procedures Act.
11 Section 13. Section 19-8-113 is enacted to read:
12 19-8-113. Applicant's release from liability.
13 (1) An applicant who is not responsible for the contaminant or contamination under the
14 provisions listed in Subsection (1)(b) at the time the applicant applies to enter into a voluntary
15 cleanup agreement under this chapter, is released by issuance of a certificate of completion under
16 Section 19-8-111 from all liability to the state for cleanup of property covered by the certificate,
17 except for any releases or consequences the applicant causes.
18 (b) Provisions referred to in Subsection (1)(a) are: Title 19, Chapter 5, Part 1, Water
19 Quality Act; Title 19, Chapter 6, Part 1, Solid and Hazardous Waste Act; Title 19, Chapter 6, Part
20 3, Hazardous Substances Mitigation Act; or Title 19, Chapter 6, Part 4, Underground Storage Tank
21 Act.
22 (2) There is no release from liability under this chapter if a certificate of completion is
23 obtained by fraud, misrepresentation, or the knowing failure to disclose material information.
24 (3) (a) After a certificate of completion is issued under this chapter, an owner who then
25 acquires property covered by the certificate, or a lender who then makes a loan secured by property
26 covered by the certificate, is released from all liability to the state regarding property covered by
27 the certificate for cleanup of contamination released before the date of the certificate, except under
28 Subsection (3)(b).
29 (b) A release of liability under Subsection (3)(a) is not available to an owner or lender
30 under Subsection (3)(a) who:
31 (i) was originally responsible for a release or contamination under Title 19, Chapter 5, Part
1 1, Water Quality Act; Title 19, Chapter 6, Part 1, Solid and Hazardous Waste Act; Title 19,
2 Chapter 6, Part 3, Hazardous Substances Mitigation Act; or Title 19, Chapter 6, Part 4,
3 Underground Storage Tank Act;
4 (ii) changes the land use from the use specified in the certificate of completion if the
5 changed use or uses may reasonably be expected to result in increased risks to human health or the
6 environment; or
7 (iii) causes further releases on the property covered by the certification.
8 (c) A release under this Subsection (3) is subject to the limitations of Subsection (2).
9 Section 14. Section 19-8-114 is enacted to read:
10 19-8-114. Additional permits not required.
11 (1) Response action conducted as part of a voluntary cleanup agreement under this chapter
12 does not require a state or local environmental permit, except as required by a program delegated
13 to the state by the federal government under this title.
14 (2) The department shall by rule require that the applicant conducting the voluntary
15 cleanup under this chapter comply with any federal or state standard, requirement, criterion, or
16 limitation to which the response action would otherwise be subject if a permit were required.
17 Section 15. Section 19-8-115 is enacted to read:
18 19-8-115. Rules -- Public notice -- Participation.
19 The department shall make rules as necessary to administer this chapter. The rules shall
20 include provisions for public participation by, and notice to, affected property owners regarding
21 voluntary cleanup decisions.
22 Section 16. Section 19-8-116 is enacted to read:
23 19-8-116. Reservation of applicant's and department's causes of action.
24 (1) This chapter does not release, discharge, or in any way affect any claims, causes of
25 action, or demands in law or equity the applicant or the department may have against any person
26 not a party to the agreement, for any liability it may have arising out of or relating in any way to
27 the generation, storage, treatment, handling, transportation, release, or disposal of any
28 contaminants, including transportation to or from the site covered by the agreement.
29 (2) This chapter does not affect the applicant's right to seek contribution, indemnity, or any
30 other available remedy against any party other than the department, who is responsible or liable
31 for contribution, indemnity, or otherwise for any amounts which have been or will be expended
1 by the applicant in connection with the site.
2 Section 17. Section 19-8-117 is enacted to read:
3 19-8-117. Program report and budget allocations -- Fee schedule.
4 (1) (a) For applications submitted on or after May 5, 1997 through June 30, 1998, the
5 application fee under this chapter is $2,000.
6 (b) Regarding applications submitted on and after July 1, 1998, the executive director shall
7 annually calculate the costs to administer the voluntary cleanup program under this chapter and
8 shall establish the fees for the program under Section 63-38-3.2.
9 (2) All fees under Subsection (1) shall be deposited in the account created under Section
10 19-8-103.
11 Section 18. Section 19-8-118 is enacted to read:
12 19-8-118. Cleanups conducted prior to May 5, 1997.
13 (1) A person who has completed a response action prior to May 5, 1997, at a site that
14 would have been eligible for participation in the program under this chapter, may submit an
15 application to the executive director under Section 19-8-107 for a certificate of completion under
16 Section 19-8-111.
17 (2) The application shall include information required by department rules concerning the
18 property addressed by the application and the response action conducted at the site.
19 (3) The executive director and applicant shall identify in the voluntary agreement any
20 necessary studies to be conducted by the applicant to demonstrate the cleanup has been completed
21 as provided in Section 19-8-110.
22 (4) Applications submitted under this section are subject to Sections 19-8-110 through
23 19-8-113 to the extent those sections are applicable.
Legislative Review Note
as of 2-6-97 11:20 AM
A limited legal review of this bill raises no obvious constitutional or statutory concerns.
Office of Legislative Research and General Counsel
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