A. The director may undertake corrective action in response to a release from an underground storage tank that migrates on or under a person‘s property as the result of an occurrence at another property or that the department determines is likely to migrate on or under a person’s property, if all of the following occur:

Terms Used In Arizona Laws 49-1022

  • Action: includes any matter or proceeding in a court, civil or criminal. See Arizona Laws 1-215
  • Appeal: A request made after a trial, asking another court (usually the court of appeals) to decide whether the trial was conducted properly. To make such a request is "to appeal" or "to take an appeal." One who appeals is called the appellant.
  • Director: means the director of environmental quality who is also the director of the department. See Arizona Laws 49-101
  • Occurrence: means an incident or accident, including continuous or repeated exposure to conditions, which results in a release from an underground storage tank. See Arizona Laws 49-1001
  • Operator: means a person in control of, or having responsibility for, the day-to-day operation of an underground storage tank. See Arizona Laws 49-1001
  • Person: means an individual, trust, firm, joint stock company, corporation, joint venture, partnership, association, consortium, state, municipality, interstate body, commission, political subdivision of a state and the United States government. See Arizona Laws 49-1001
  • Property: includes both real and personal property. See Arizona Laws 1-215
  • Regulated substance: means :

    (a) Petroleum. See Arizona Laws 49-1001

  • Release: means a spill, leak, emission, discharge, escape, leach or disposal of a regulated substance from an underground storage tank into groundwater, surface water or soils. See Arizona Laws 49-1001
  • Tank: means a stationary device constructed of wood, concrete, steel, plastic or other nonearthen materials and used to contain regulated substances. See Arizona Laws 49-1001
  • Underground storage tank: means a tank or combination of tanks and underground pipes and impact valves connected to tanks being used or having been used to contain regulated substances and which has at least ten percent of the total volume of the tank and underground portions of pipes connected to the tank underground. See Arizona Laws 49-1001

1. The person has authority to allow access to the property so that corrective action may be taken on the person’s property.

2. The owner or operator of the underground storage tank that is the source of the release makes a written request that the department attempt to obtain access to the property. As part of the written request, the owner or operator shall demonstrate to the department the following before the department attempts to obtain access to the property:

(a) The owner or operator has sent and the person has received at least two written requests to allow the owner or operator to have access to the property at reasonable times and under reasonable conditions.

(b) The owner or operator has made an offer of reasonable compensation to the person.

(c) Contamination is likely to spread or increase in severity if access to the property is not obtained.

3. The person has received a written request from the department to have access to the property, at reasonable times and under reasonable conditions in a manner that does not constitute a taking as provided by law, to take corrective action with respect to only the release that has migrated on that person’s property.

4. The person has refused to allow the owner or operator or the department to have access to the property or does not respond to the department within sixty days after receiving the request for access.

B. The department shall issue a notice describing the proposed corrective action to the owner or operator and the person on whose property the department will undertake corrective action if it elects to undertake corrective action pursuant to subsection A of this section. The owner or operator or the person on whose property the department undertakes corrective action may appeal pursuant to Title 41, Chapter 6, Article 10, within thirty days after the notice or within thirty days after the performance of the corrective action. If, after an appeal, it is determined that the department failed to return the property to substantially the same condition the property was in before being accessed, the person on whose property the department undertakes the corrective action may be eligible for payment from the underground storage tank revolving fund only to the extent the department failed to return the property to substantially the same condition the property was in before being accessed.

C. The owner or operator shall reimburse the department for any costs paid from the underground storage tank revolving fund pursuant to this section.

D. The department shall promptly provide to a person whose property is accessed under this section a copy of the results of any analysis of the soil or groundwater relating to the accessed property arising from the department’s access or corrective action undertaken at the property. The department shall not sue the person for any secondary contamination created by the access or corrective action.

E. If a release of a regulated substance has migrated on or under a person’s property, the department shall relieve the owner or operator of the underground storage tank from responsibility from performing corrective action at the property where the release has migrated or where the department has determined it is likely to have migrated, if the owner or operator is unable to gain access to the property after complying with subsection A, paragraph 2, subdivisions (a) and (b) of this section. Nothing in this section relieves the owner or operator from liability for completing the requirements of section 49-1005 relating to the owner’s or operator’s property or any other property to which the contamination may have migrated. The department may require that the owner or operator investigate any other properties potentially impacted by the release in order to complete the requirements of section 49-1005.