Current through Register Vol. XLI, No. 50, December 13, 2024
Section 60-3-6 - Voluntary Remediation Agreement6.1. Any person who desires to participate in the Voluntary Remediation Program shall execute a Voluntary Remediation Agreement with the Secretary. The form agreements contained in Appendix 60-3A and 60-3B meet the requirements of this section. The Secretary and the applicant may agree to additional provisions and modifications consistent with this rule. Except as provided in subsection 6.4 of this rule, the Voluntary Remediation Agreement shall provide for the following: 6.1.a. The services of a licensed remediation specialist for the supervision of all activities described in the agreement, including the supervision of remediation contractors;6.1.b. The recovery of all reasonable costs incurred by the Department attributable to the implementation of the agreement. Recoverable costs shall include the following: 6.1.b.1. Costs incurred in review and oversight of work plans and reports submitted pursuant to the agreement; 6.1.b.2. Costs incurred as the result of field activities attributable to the agreement; and6.1.b.3. Costs incurred by the Department in implementing and overseeing activities under the agreement, which costs shall be determined by the number of hours worked under the agreement by each primary employee multiplied by 3.5 times the hourly rate of the employee and then adding the direct expenses incurred by the employee.6.1.b.4. The Department shall bill all recoverable costs by separate invoice.6.1.c. A schedule for the payment of recoverable costs;6.1.d. A description of any work plan or report that the applicant is to submit under the agreement for the Secretary's review, including the final report, which shall provide all information necessary for the Secretary to verify that the applicant has completed all work contemplated by the agreement: provided, that at the discretion of the applicant, the applicant may submit for the Secretary's approval work plans describing the work to be performed at the site with the execution of the agreement;6.1.e. The identification of appropriate tasks, deliverables, and schedules for the submission of any work plans and other deliverables and for the performance of the remediation;6.1.f. A listing of all environmental statutes and rules for which compliance is mandated;6.1.g. The reopening of the Voluntary Remediation Agreement upon consent of the parties or the occurrence of one or more of the conditions described in section 15 of the Act; and6.1.h. The modification of the Voluntary Remediation Agreement upon the agreement of the parties.6.1.i. The licensed remediation specialist may perform field adjustments which achieve equal performance: provided, that he or she notifies the Department of the field adjustment within 15 days.6.2. The Voluntary Remediation Agreement shall recognize the right of the applicant to terminate the agreement, in its sole discretion, upon 15 days advance written notice of termination to the Department and shall include provisions for the recovery of costs incurred by the Department before the notice of termination is issued. 6.3. Where the applicant intends to demonstrate that the site meets all applicable standards without further remediation, in lieu of the requirements of subsection 6.1 of this rule, the Voluntary Remediation Agreement shall provide for the following: 6.3.a. The payment of an agreed sum to cover all reasonable costs incurred by the Department attributable to the agreement in excess of fees submitted with the permit application;6.3.b. A listing of all environmental statutes and rules for which compliance is mandated;6.3.c. A listing of the applicable standards to be achieved at the site;6.3.d. The reopening of the agreement upon consent of the parties or upon the occurrence of one or more of the conditions described in section 15 of the Act; and6.3.e. Where applicable, a description of any engineering or institutional controls and any land use covenant to be imposed for the property.6.4. The Voluntary Remediation Agreement shall reflect the Secretary's determination of eligibility in accordance with section 3 of this rule.6.5. At the discretion of the applicant, the Voluntary Remediation Agreement may address all or only a portion of a site. At the discretion of the Secretary, the Voluntary Remediation Agreement may cover two or more non-contiguous sites; provided, that the sites display similar contaminant profiles and similar surface and subsurface characteristics. Similar surface and subsurface characteristics shall be limited to upland, riparian/wetland, karst, or other similar landforms as approved by the Secretary.6.6. Where the applicant is a person other than the current owner of the site and the Voluntary Remediation Agreement contemplates the imposition of a land use covenant as provided in section 13 of this rule, the agreement shall have appended to it a provision signed by the current owner(s) of the site authorizing and agreeing to cooperate in the execution and filing of a land use covenant in accordance with the Voluntary Remediation Agreement.6.7. Upon execution of the Voluntary Remediation Agreement by the parties, the Secretary shall not initiate any enforcement action against the applicant or any person described in section 18 of the Act for the contamination that is the subject of the agreement, unless there is an imminent threat to the public. The Secretary shall not initiate an enforcement action against any applicant from the time the application is filed until the Voluntary Remediation Agreement is signed, so long as the applicant acts in good faith to negotiate a reasonable agreement.6.8. At the applicant's discretion, he or she may, in the interest of minimizing environmental contamination and promoting effective cleanups, begin cleanup of soil and groundwater before the Secretary approves the Voluntary Remediation Agreement, provided, that he or she notifies the Secretary in writing.