§22-30E-9. Requirements for voluntary property assessment plans, voluntary cleanup plans; financial assurance.

(a) Subject to Sections 22-30E-8 and 22-30E-10, upon the department's approval of a voluntary property assessment plan, approval of a voluntary cleanup plan, or concurrence with the certification of compliance described in this section, whichever first occurs, an applicant who is not a responsible person, as defined in Section 22-30E-3, at the qualifying property, shall not be liable to the state or any third party for costs incurred in the investigation or cleanup of, or equitable relief relating to, or damages resultant from, in whole or in part, a preexisting release at the qualifying property, including, but not limited to, any liability to the state for the cleanup of the property under Chapters 22, 27, 30, 30A, and 35 of this title, or a new release of a substance, constituent, or material which had been part of a preexisting release at the property, unless such new release results from noncompliance with an approved voluntary property assessment plan or voluntary cleanup plan or from the negligent, wanton, willful, or intentional conduct of the applicant.

(b)(1) A voluntary property assessment plan submitted by an applicant shall describe in sufficient detail those actions planned to develop information necessary to perform a risk assessment or identify applicable cleanup standards for the qualifying property utilizing risk-based corrective action principles through the appropriate implementation of applicable response actions and/or land use controls.

(2) Upon the department's approval of the voluntary property assessment plan, the applicant shall implement the plan.

(3) The department's approval of the voluntary property assessment plan shall specify a time within which the applicant shall initiate activities under the voluntary property assessment plan. The department shall approve or disapprove each complete plan within 60 days of receiving the submittal. Failure to act within this time shall be deemed approval.

(4) If at any time the department determines activities at the property are not being implemented in accordance with the voluntary property assessment plan, the department may, after a reasonable opportunity is given to cure the deficiency, revoke the limitation of liability by providing the applicant with written notification specifying the basis for making such determination and requesting modification and resubmission of a modified plan or an opportunity to address any deficiencies in implementing the plan within a reasonable specified time. If at any time the applicant or the department determines that any element of an approved voluntary property assessment plan must be modified in order to develop the information necessary to perform a risk assessment or identify applicable cleanup standards for the qualifying property, the applicant shall modify the approved plan and obtain approval of the proposed modification. If at any time the applicant determines that any element of an approved voluntary property assessment plan must be modified in order to terminate activities at the property for any reason, the applicant shall notify the department and obtain approval of the proposed modification which may be withheld only if the requested modification to terminate assessment activities would increase the risk to human health and the environment posed by the conditions at the property.

(5) An applicant shall, upon completion of those activities specified in the voluntary property assessment plan, submit to the department a report of the assessment and findings from the assessment, which may include a recommendation for applying cleanup standards to the property.

(c)(1) A voluntary cleanup plan submitted by an applicant shall describe in sufficient detail those actions planned to satisfy the cleanup standards for the qualifying property.

(2) The applicant shall submit proof of financial assurance, in such form as specified by the department, of his or her ability to implement the voluntary cleanup plan, provided one form of acceptable assurance shall be to rely solely on the assets of the applicant.

(3) Upon the department's approval of the voluntary cleanup plan, the applicant shall then implement the plan. The department's approval of a voluntary cleanup plan shall not in any way be construed as a guarantee, promise, or assurance that the department will concur with the applicant's certification of compliance with the cleanup standards.

(4) The department's approval of the voluntary cleanup plan shall specify a time within which the applicant must initiate activities under the voluntary cleanup plan. The department shall approve or disapprove each properly submitted plan within 60 days after completion of applicable requirements established pursuant to subdivision (5) of subsection (b) of Section 22-30E-4. Failure to act within this time shall be deemed approval.

(5) If at any time the department determines the cleanup is not being implemented in accordance with the voluntary cleanup plan, the department may, after a reasonable opportunity is given to cure the deficiency, revoke the limitation of liability by providing the applicant with written notification specifying the basis for making such determination and requesting modification and resubmission of a modified plan or an opportunity to address any deficiencies in implementing the voluntary cleanup plan within a reasonable specified time. If at any time the applicant determines that any element of an approved voluntary cleanup plan must be modified in order to achieve the applicable cleanup standards for the qualifying property, the applicant shall notify the department and obtain approval of the proposed modification. If at any time the applicant determines that any element of an approved voluntary cleanup plan must be modified in order to terminate activities at the property for any reason, the applicant shall notify the department and obtain approval of the proposed modification which may be withheld only if the requested modification would increase the risk to human health and the environment posed by the conditions at the property.

(6) An applicant shall, upon completion of those activities specified in the voluntary cleanup plan, submit to the department a compliance status report certifying the compliance of the qualifying property with the cleanup standards and cleanup requirements. The qualifying property shall be deemed in compliance with the cleanup standards upon the applicant's receipt of the department's written concurrence with the compliance status report.

(d) Upon the department's approval of the voluntary property assessment plan or voluntary cleanup plan, the property shall be listed on the Voluntary Cleanup Properties Inventory as provided in Section 22-30E-11.

(e) For those properties that are cleaned up to standards less stringent than those required for unrestricted residential use, the property owner shall comply with the requirements of subsection (b) of Section 22-30E-11 within 60 days of the submission of the certification of compliance.

(f) Subject to Sections 22-30E-8 and 22-30E-10, upon the department's concurrence with the certification of compliance described in this section, an applicant shall be relieved of further liability to the state for the cleanup of the property under Chapters 22, 27, 30, 30A, and 35 of this title, for any contamination identified and addressed in reports, assessments, or plans submitted to and approved by the department to demonstrate compliance with the risk-reduction standards.

(Act 2001-635, p. 1225, §1.)