§22-30D-4. Election of coverage; administration of chapter; rules and regulations.

(a)(1) All owners and operators and all wholesale distributors shall elect by May 24, 2001, to be covered or not to be covered by this chapter and shall do so by notifying the department in writing that such owner or operator or wholesale distributor elects to be covered or not to be covered by this chapter. Following May 24, 2001, any owner or operator or wholesale distributor who may have initially elected not to be covered by this chapter or who may have inadvertently failed to notify the department may notify the department that such owner or operator or wholesale distributor has reconsidered and desires to be covered by the fund, but any such owner or operator or wholesale distributor shall, with its notice of request for coverage, be required to pay to the Department of Revenue the registration fees which would otherwise have been due to the fund had such owner or operator or wholesale distributor elected to be covered by this chapter prior to May 24, 2001. Coverage by this chapter shall be effective on the date that a written notice of an election to be covered is received by the department. The department shall maintain a listing of all owners or operators or wholesale distributors who shall have elected to be covered or not to be covered by this chapter and shall advise the board from time to time of the names of those persons.

(2) Any owner or operator or wholesale distributor who shall elect not to be covered by this chapter or shall fail to notify the department that it has determined to reconsider within the times set forth above shall be relieved of any of the obligations imposed on owners or operators or wholesale distributors under this chapter, including any obligation to register or pay registration fees.

(3) Notwithstanding any provisions of this chapter to the contrary, any owner or operator or wholesale distributor who shall so elect not to be covered by this chapter or shall fail to notify the department that it has determined to reconsider within the times set forth above shall thereafter permanently and irrevocably waive and relinquish any benefit, coverage, protection, payment, or waiver of liability otherwise afforded by this chapter. An election not to be covered by the fund or a failure to reconsider by any owner or operator or wholesale distributor who shall be an individual, shall include and bind any relative by blood within the third degree of consanguinity or by marriage, and in the case of a corporation or other legal entity, any current or former subsidiary, division, stockholder, parent company, partner, member, successor or assign, or any predecessor-in-title or successor-in-title.

(4) If on May 31, 2002, the registration fees collected by the Department of Revenue from owners or operators and wholesale distributors who shall have elected to be covered by this chapter shall not have generated total receipts in excess of one million dollars ($1,000,000), then in such event the fund shall terminate, the board shall refund to all owners or operators or wholesale distributors who shall have paid into the fund the pro rata portion of payments to such date, less expense of charges against the fund, and thereafter the provisions of this chapter shall be null and void and of no further force or effect of law.

(b) It is the intent of the Legislature that the monies in the fund will only be utilized to address contamination that is caused by drycleaning agents occurring at or on drycleaning facilities, abandoned drycleaning facilities, wholesale distribution facilities, or real property of impacted third parties or adjacent landowners, whether such contamination occurred or was discovered before or after May 24, 2000; provided that monies in the fund shall be used only for payment for costs of investigation, assessment, or remediation that are incurred after May 24, 2000; and further provided that this chapter and the fund created hereby shall benefit only those owners or operators, wholesale distributors, or persons owning abandoned drycleaning facilities who shall have elected to be covered by this chapter and impacted third parties and adjacent landowners impacted or adjacent to drycleaning facilities or wholesale distribution facilities of such owners or operators or wholesale distributors. The board and the department shall jointly administer this chapter under the following criteria:

(1) The department shall allow owners or operators, persons owning abandoned drycleaning facilities, wholesale distributors, impacted third parties, and adjacent landowners, and their engineers and contractors to deal with contamination under the oversight of the department utilizing monies in the fund under the oversight of the board, including costs incurred for initial investigations in determining that contamination has actually occurred. The fund shall not be used to deal with contamination at any facilities other than drycleaning facilities, abandoned drycleaning facilities, wholesale distribution facilities, or the real property of impacted third parties or adjacent landowners.

(2) If the response actions to releases are conducted pursuant to C.F.R. 300 or pursuant to regulations adopted by the department under subsection (c), the department shall not require any owner or operator, person owning any abandoned drycleaning facility, wholesale distributor, impacted third party, or adjacent landowner to: Obtain any state permit or engage in closure, post-closure, or corrective action pursuant to AHWMMA; establish or maintain any financial assurance or other financial requirement; or otherwise become obligated to pay for any costs, except for the deductible set forth in Section 22-30D-7, in connection with contamination occurring at any drycleaning facility, abandoned drycleaning facility, wholesale distribution facility, or at the real property of impacted third parties or adjacent landowners which may have failed to operate as a permitted treatment, storage or disposal facility as defined under AHWMMA.

(3) To the fullest extent allowed by law, the department shall provide its oversight in such a manner that other units of federal, state, and local government, including the United States Environmental Protection Agency, do not become involved in contamination problems resulting from drycleaning facilities, abandoned drycleaning facilities, or wholesale distribution facilities.

(4) To the fullest extent allowed by law, the department shall make every reasonable effort to allow for such interim action as may be necessary to keep sites where contamination exists off of the national priorities list, as defined in 40 C.F.R. 300.5.

(5) The department shall not seek out contamination because of the existence of the fund or the other provisions of this chapter. Monies shall be made available by the board for the use as contamination is discovered, whether such discovery is made before or after May 24, 2000.

(6) Careful consideration shall be given by the department to remedial activities which may result in an overall reduction of risk to human health and the environment and in reduction of total costs of remediation. Such remedial activities should receive consideration by the department as a high priority.

(7) The department, in its discretion, may allow the use of innovative technology to perform remedial activities.

(c) In addition to the powers and duties specified in this chapter and in Sections 22-22A-1 to 22-22A-16, inclusive, the department shall adopt rules and regulations necessary to administer and enforce this chapter, it being the intent of the Legislature that contamination caused by drycleaning agents shall be managed solely in accordance with this chapter and the rules and regulations to be adopted. Consistent with these purposes, such rules and regulations shall, at a minimum, establish or adopt the following standards, schedule, and criteria:

(1) Establishing performance standards for drycleaning facilities and wholesale distribution facilities first brought into use on or after the effective date of regulations authorized by this subsection. Such performance standards shall be effective when the rules and regulations adopted become final. The performance standards for new drycleaning facilities and wholesale distribution facilities shall allow the use of new technology as it becomes available and shall at a minimum include provisions which are at least as protective of human health and the environment as each of the following standards:

a. A requirement that, notwithstanding any contrary provision of law, any person who generates a regulated waste at a drycleaning facility or wholesale distribution facility and which wastes contain any regulated quantity of drycleaning agent, shall ensure delivery of all such wastes to a facility that is legally authorized to manage or recycle wastes that contain drycleaning agents.

b. A prohibition of the release of wastewater containing any quantity of drycleaning agent from drycleaning facilities to any sanitary sewer or septic tank, any land or ground application thereof, or any discharge to the waters of this state.

c. A requirement of compliance with the national emission standards for hazardous air pollutants for perchloroethylene drycleaning facilities promulgated by the United States Environmental Protection Agency on September 22, 1993, including revisions and applicable regulations thereto.

d. A requirement that all drycleaning agents or wastes containing drycleaning agents be stored in appropriate closed containers and handled so as to minimize the risk of spills or leaks.

e. A requirement that dikes or other containment structures be installed around each drycleaning machine and each drycleaning agent or waste storage area, which structures shall be capable of containing a release of drycleaning agent.

f. A requirement that those portions of all diked floor surfaces upon which any drycleaning agent may leak, spill, or otherwise be released be material impervious to drycleaning agents.

g. A requirement that all drycleaning agents be delivered to each drycleaning machine or other storage container located within a drycleaning facility by means of closed, direct-coupled delivery systems, but only after such systems become generally available.

h. A requirement for reporting of releases of a reportable quantity outside of containment of drycleaning agent occurring after May 24, 2000.

(2) Adopting a schedule requiring the retrofitting of drycleaning facilities and wholesale distribution facilities in existence on or before May 24, 2000, in order to conform the drycleaning facility to the rules and regulations authorized by subdivision (1) and to implement the performance standards established pursuant to subdivision (1). The schedule may phase in the standards authorized by this subdivision at different times but shall make all such standards effective no later than May 24, 2005. This subdivision requiring retrofitting shall not require an owner or operator of a drycleaning facility existing on or before May 24, 2000, to replace an existing drycleaning unit unless required to do so by federal laws or rules and regulations promulgated by the Environmental Protection Agency.

(3) Establishing criteria for prompt reporting of suspected contamination or the discovery of contamination at drycleaning facilities, abandoned drycleaning facilities, wholesale distribution facilities, or on real property of impacted third parties or adjacent landowners, whether discovered before or after May 24, 2000, and procedures for initial investigation of such contamination, if any, and determination of possible effects on or risk to human health or the environment and necessary or appropriate emergency action, to assure that human health or safety is not threatened by such contamination.

(4) Establishing criteria to prioritize those sites at which contamination is reported to the department and which may require investigation, assessment, and, if necessary, remediation. The criteria shall include consideration of each of the following factors:

a. The degree to which human health and the environment are actually affected by exposure to the contamination.

b. The future risk to human health or the environment resulting from the contamination.

c. The benefit to be derived from remediation compared to the cost of conducting such remediation.

d. The present and future use of an affected aquifer or surface water.

e. The possibility of no further action.

f. The effect that interim or immediate remedial measures will have on future costs.

g. The amount of monies available in the fund.

h. Such additional factors as the director considers relevant or as required by other provisions of this chapter.

(5) Establishing requirements for investigation, assessment, and, if necessary, remediation of contamination in the order of priority established by the department.

(6) Establishing criteria under which a determination may be made by the department of the extent of contamination at which (i) no remediation is required at the site, or (ii) if remediation is necessary, the extent to which remediation shall be deemed completed, and (iii) that no further action is required. Criteria for determining completion of remediation shall include the factors set forth in subdivision (4). If contamination has or is suspected to have migrated from the site to real property of an adjacent landowner, investigation, assessment, and, if necessary, remediation of contamination will be determined under these criteria.

(Act 2000-740, p. 1624, §4.)