§22-30A-5. Identification of inactive or abandoned sites and liable parties by director; development and implementation of cleanup plan; public comment period; orders; notice and hearing; payment and reimbursement of expenses; appeal; recovery of expenses by order or civil action; penalties.

(a) The director shall identify inactive or abandoned hazardous substance sites, as defined herein, within the State of Alabama. Once identified the director shall refer to the most current national priorities list ("NPL") of the United States Environmental Protection Agency under the Comprehensive Environmental Response, Compensation and Liability Act of 1980, ("CERCLA") 42 U.S.C. §9601 et seq. Any Alabama site identified by the director that also appears on the NPL shall not be subject to this chapter, except for the matching funds provision of Section 22-30A-3(c).

(b) For all sites so identified by the director, not appearing on the NPL, the director shall attempt to identify all potentially liable parties. If the potentially liable parties can be identified within a reasonable time, the director may:

(1) Order the potentially liable party or parties to develop a hazardous substance cleanup plan detailing how the liable party or parties will investigate, identify, contain and cleanup the site, including post-cleanup monitoring and maintenance of the site; and

(2) Order the potentially liable parties to implement the plan, subject to approval by the department, within a reasonable time as specified in the order; and

(3) Provide a 30-day public comment period on the plan in the county where the site is located, provided that such public comment period may be waived if the director finds that such delay would significantly increase the threat to human health or the environment. Notice of the public comment period shall be given by a one-time publication in a newspaper of general circulation in the county where the site is located and to the governing body of the county or municipality where the inactive or abandoned hazardous substance site is located.

(c) No order may be issued under this section until a potentially liable party is provided notice and an opportunity for an informal hearing before the department. Provided, however, that whenever the director, after investigation, finds that the threat to human health or the environment is imminent, the director may issue the order without a hearing. In the event the director makes such a determination, the facts supporting this conclusion shall be set forth in the order in detail.

(d) Whenever any liable party fails to comply with an order to develop a hazardous substance cleanup plan for a site, the department may develop such a plan. The reasonable expenses of developing the plan by the department shall be paid from the fund if available and reimbursed by the liable party. This reimbursement of expenses is in addition to any penalties assessed under subsection (i) of this section.

(e) Whenever the liable party fails to comply with an order to implement a hazardous substance cleanup plan for a site, the department may implement such a plan. The provisions of subdivision (b)(3) of this section regarding public comment shall apply to the department's plan. The reasonable expenses of implementing the plan by the department shall be paid from the fund if available and reimbursed by the liable party. This reimbursement of expenses is in addition to any penalties assessed for failure to comply with the order.

(f) In the event that no liable party can be identified, or if the liable party cannot be identified within a reasonable time, or if the director determines there is an imminent threat to human health or the environment, and sufficient moneys are available in the fund, the department may develop and implement a hazardous substance cleanup plan. The provisions of subdivision (b)(3) of this section regarding public comment shall apply to the department's plan. The reasonable expenses of developing and implementing such plan shall be paid from the fund if available and reimbursed by the liable party when and if identified. This reimbursement of expenses is in addition to any penalties assessed under this chapter.

(g) Orders issued under this section may be appealed as provided in Section 22-22A-7(c).

(h) The department is authorized to recover expenses as set out in this section by administrative order or by civil action in the circuit court of the county where the site is located or where the liable party resides or does business.

(i) No administrative or civil penalties shall be assessed against a liable party until and unless the liable party fails to comply with provisions of an order issued by the department pursuant to this chapter. In the event, the department may seek, in addition to the recovery of expenses, administrative or civil penalties as provided for in Section 22-22A-5 however, nothing herein shall prevent the imposition of administrative or civil penalties for the violation of any other relevant statute or regulation.

(Acts 1988, 1st Ex. Sess., No. 88-859, p. 348, §5.)