Preapproval options; process; requirements; schedules; corrective action priority

(Conditionally Rpld.)

A. An owner, an operator or the designated representative of either or a person prescribed by section 49-1052, subsection I may elect the preapproval process pursuant to this section or may elect to conduct corrective actions pursuant to the preapproval process described in rules adopted pursuant to this article. Beginning on July 1, 2005, a person taking corrective action pursuant to section 49-1052, subsection I shall proceed only in accordance with the preapproval process described in rule for any claims made for costs incurred in excess of one hundred thousand dollars at a single facility.

B. An owner, an operator or the designated representative of either is not required to seek preapproval for eligible costs.

C. An owner or operator may not elect either preapproval process if the corrective action costs included in the application for coverage pertain to a site that is the subject of an order issued pursuant to section 49-1013 or if the owner or operator has formally consented in writing to an administrative order.

D. Except as provided by subsection J of this section, compliance with or noncompliance with preapproval procedures is not a basis for determining priority among the applications for coverage pursuant to this article.

E. This section shall not be construed to relieve an owner, an operator or the designated representative of either from any of the requirements of this chapter.

F. While the application is pending the department shall not take enforcement action or impose penalties against the owner, operator or designated representative who submitted the application for preapproval. The department shall not consider the passage of time while the preapproval application is pending to be a basis for taking an enforcement action. For any corrective action submitted for preapproval pursuant to rule, the period of time for compliance with corrective actions associated with that preapproval begins to run from the date of preapproval of the corrective action.

G. If an owner or operator elects to perform corrective actions pursuant to this section, the owner or operator shall do all of the following:

1. Install up to four groundwater monitoring wells as are necessary to determine the extent of groundwater contamination on the property on which the release occurred.

2. Investigate the vertical extent of soil contamination.

3. Submit an on-site investigation report to the department.

H. The on-site investigation report shall describe the findings of the investigation conducted pursuant to this section and shall include a description of current and reasonably foreseeable future receptors within one-quarter mile of the property on which the release occurred and existing and potential exposure pathways.

I. Based on the results of the on-site investigation, the owner or operator shall request closure and include a report of the extent of soil and groundwater contamination or submit a preapproval application for additional corrective action. A preapproval application submitted pursuant to this section shall be submitted as part of an on-site investigation report and shall include a contingency work plan for sampling and monitoring of groundwater monitoring wells.

J. An owner or operator who elects the preapproval process pursuant to this section and who is financially needy shall be paid, without being subject to ranking, in the next regular round in the order received by the department. The payment shall be for the reasonable and necessary costs incurred to perform the on-site investigation activities required by this section. The financial need evaluation shall be conducted in a manner consistent with section 49-1052, subsection G. The owner or operator may submit financial information necessary for the department to make a financial need determination.

K. All financial documentation and the on-site investigation report or the preapproval application shall be submitted to the department pursuant to one of the following schedules:

1. For releases reported on or after July 1, 1999, the materials shall be submitted to the department within one hundred eighty days of the release in order for the applicant to be eligible for participation in the preapproval option provided by this section. Failure to submit the materials within this time period shall not be deemed by the department to be evidence of noncompliance with the corrective action requirements of this chapter.

2. The materials shall be submitted on or before March 1, 2000 for releases reported prior to July 1, 1999 and for which the owner or operator has submitted a preapproval application prior to July 1, 1999 which includes on-site investigation activities.

3. The materials shall be submitted on or before March 1, 2000 for releases reported prior to July 1, 1999 and for which the owner or operator has not submitted a preapproval application or conducted an initial investigation of the release.

L. The department shall determine the corrective action priority of the release within ninety days of the receipt of the materials required by this section. The corrective action priority shall provide one of the following options:

1. No further corrective action is necessary for the release.

2. The time for compliance with corrective action, other than sampling and monitoring of groundwater monitoring wells, is tolled until the date monies are encumbered for the preapproval application.

3. The owner or operator must continue corrective action before the monies are encumbered for the preapproval application.

M. The corrective action priority shall be based upon all of the following:

1. Consideration of site specific contamination.

2. Geologic and hydrologic conditions.

3. Location and potential effect on present and reasonably foreseeable future receptors.

4. The presence of preexisting contamination of groundwater by hazardous substances as defined in section 49-281.

N. Any determination made by the department pursuant to this section constitutes a written interim determination relating to preapproval pursuant to section 49-1091.

O.