§22-30E-4. Authority of the department to establish rules and regulations.

(a) The department, acting through the commission, may adopt, promulgate, modify, amend, and repeal rules and regulations to implement and enforce this chapter as necessary to provide for the voluntary assessment, cleanup, reuse, and redevelopment of qualifying properties. All rules and regulations established pursuant to this chapter shall comply with applicable provisions of the Alabama Administrative Procedure Act, Section 41-22-11.

(b) The department's rules and regulations shall include, at a minimum, the following:

(1) Rules and regulations establishing cleanup standards.

(2) Rules and regulations governing procedures for placement of properties on and removal of properties from the Voluntary Cleanup Properties Inventory required under the provisions of Section 22-30E-11.

(3) Rules and regulations governing procedures for the filing in the deed records of the probate courts of appropriate notice upon approval of a certificate of compliance.

(4) Rules and regulations governing the maintenance and retention of records pertaining to activities carried out under this chapter.

(5) Rules and regulations providing for public notice and participation and for meaningful community involvement in the voluntary cleanup program.

(6) Rules and regulations for establishing the criteria for conducting a voluntary assessment plan.

(7) Rules and regulations governing the issuance of variances to the criteria for property qualification for the voluntary cleanup program pursuant to subsection (b) of Section 22-30E-6, and to the criteria for applicant participation in the voluntary cleanup program pursuant to subsection (b) of Section 22-30E-7.

a. The department may grant a variance from the eligibility requirements contained in subsection (a) of Section 22-30E-6 and/or subsection (a) of Section 22-30E-7 only if the department finds that such requirements would render a property ineligible for cleanup under this chapter, that no other qualified party has applied to participate in the voluntary cleanup program at the subject property, and that:

1. Such ineligibility would result in the continuation of a condition which does or could pose a threat to human health and/or the environment.

2. Compliance with an eligibility requirement will not provide for a cost-effective response and the proposed voluntary cleanup plan will attain cleanup standards that are equivalent to those required under any otherwise applicable requirement through the use of a department approved method or approach.

3. In the case of an abandoned site, the department would otherwise be required to perform the necessary cleanup using funds from the Alabama Hazardous Substance Cleanup Fund, as described in Section 22-30A-3, and the department would be unable to recover the cost of the cleanup as provided in Chapter 30A of this title.

4. In the case of a facility subject to the permitting, closure, postclosure, and/or corrective action requirements of Sections 22-30-12 and 22-30-16, the cleanup will be conducted in a manner consistent with the requirements of any applicable regulations and permits issued thereunder. Participation in the voluntary cleanup program may be used to speed up required investigation and cleanup at such sites, but shall not serve to limit the applicability or enforcement of any applicable requirements at such facilities.

The department may place such conditions upon the grant of a variance as it deems appropriate including, without limitation, a provision relating to the time all or a portion of the cleanup must be completed, and if the applicant fails to comply with such conditions the department may modify or withdraw such variance, with such withdrawal subject to the department's administrative appeals process.

b. The department shall not grant any variance from the criteria for qualification for limitation of liability, as contained in Section 22-30E-8.

(c) In establishing cleanup standards pursuant to subdivision (1) of subsection (b) of this section:

(1) The department shall consider impacts to human health and the environment. In establishing cleanup standards, cleanup levels may be based on specific requirements of relevant environmental laws or regulations (e.g., Clean Water Act, Clean Air Act, TSCA, RCRA, CERCLA), derived using the procedures outlined in Section 300.430(e)(2) of the National Oil and Hazardous Substances Pollution Contingency Plan (40 C.F.R. Part 300), and/or based upon the results of a site-specific risk assessment.

(2) The department may set cleanup levels for all hazardous constituents, a subset of hazardous wastes, or for those hazardous constituents that the department has reason to believe may have been released at the property.

(3) The department may set cleanup levels which reflect current and future use scenarios for the property as follows:

a. A site shall be deemed to have met the requirements for unrestricted use if the cleanup levels are derived in a manner consistent with department or Environmental Protection Agency guidelines for assessing human and environmental health risks from hazardous constituents.

b. For sites that do not achieve the unrestricted use classification, restrictions on site use may be applied to achieve cleanup standards. Restrictions shall include, but not be limited to, land use controls. The restrictions imposed upon a site shall be media-specific and may vary according to site-specific conditions.

(Act 2001-635, p. 1225, §1.)