§ 8-7-1104 - Voluntary cleanup process.
8-7-1104. Voluntary cleanup process.
(a) This section applies:
(1) To a person who:
(A) Is a prospective purchaser of an abandoned industrial, commercial, or agricultural property with known or suspected contamination;
(B) Is a prospective purchaser of abandoned residential property;
(C) Did not by act or omission cause or contribute to any release or threatened release of a hazardous substance on or from the identified abandoned site or is otherwise considered to be a responsible party pursuant to 8-7-512(a)(2)-(4); and
(D) Will reuse or redevelop the property for industrial, commercial, agricultural, or residential uses which will sustain or create employment opportunities or otherwise augment the local or state economy and tax base, or both; or
(2) To a person who:
(A) Is not a responsible party pursuant to 8-7-512(a)(2)-(4);
(B) Submits a Letter of Intent to Participate; and
(C) Subsequently acquires title to an abandoned site prior to completion of an implementing agreement as set forth in subsection (d) of this section.
(b) A comprehensive site assessment shall be completed to establish the baseline of existing contamination on the site.
(c) Following completion of a comprehensive site assessment, the Arkansas Department of Environmental Quality shall determine whether the assessment adequately identifies the environmental risks posed by the abandoned site.
(d) (1) The department and the prospective purchaser shall enter into an implementing agreement based on the results of the comprehensive site assessment.
(2) The implementing agreement shall establish cleanup liabilities and obligations for the abandoned site.
(3) The prospective purchaser shall provide notice of the implementing agreement in a newspaper of general circulation that serves the area in which the abandoned site is located.
(4) The notice shall be subject to the approval of the department.
(5) The implementing agreement shall establish the intended use of the property.
(6) The description of the intended use shall identify the site and the nature of the activity that the prospective purchaser proposes for the site.
(e) Once the prospective purchaser has acquired legal title to the abandoned site, the purchaser will be responsible to:
(1) (A) Remediate, remove and properly dispose of, or manage, consistent with applicable requirements, any containerized hazardous substances existing on site at the time of purchase, including drummed waste, lagoons, and impoundments and wastes in aboveground and underground tanks, which may pose a threat of release.
(B) Wastes that are disposed or managed on site will remain subject to applicable requirements;
(2) Take all necessary steps as appropriate to prevent migration of hazardous substances beyond the property boundary, considering the factors specified at subsection (h) of this section.
(3) Remedy any releases of hazardous substances as identified in the comprehensive site assessment required by subsection (b) of this section.
(f) For purposes of subdivision (e)(3) of this section, releases of hazardous substances are those conditions which pose either:
(1) (A) An unacceptable risk, either acute or chronic, to the health of employees or any other person likely to be exposed to the release from the site, based upon the intended site use described by the prospective purchaser in the comprehensive site assessment and described by the implementing agreement.
(B) A purchaser may not actually use the property in a manner which differs from the intended use identified in the implementing agreement contemplated by subsection (d) of this section, unless the department and purchaser agree to a modification of the implementing agreement; or
(2) An unacceptable risk to degrade either groundwaters or surface waters, or any risk to degrade the extraordinary resource waters of the State of Arkansas.
(g) A remedial action pursuant to subdivision (e)(3) of this section shall eliminate unacceptable risks and prevent degradation of groundwaters and surface waters which would cause the unacceptable risk or degradation, or both, described in subdivision (f)(2) of this section.
(h) (1) The selection of remedial action shall be approved by the department after reasonable notice and after opportunity for hearing and shall become an amendment to the implementing agreement entered into pursuant to subsection (d) of this section.
(2) Selection of a remedial action shall include consideration of the following factors:
(A) The intended and allowable use of the abandoned site;
(B) The ability of the contaminants to move in a form and manner which would result in exposure to humans and the surrounding environment at levels considered to be an unacceptable health risk as described in subdivisions (f)(1) and (2) of this section;
(C) Consideration of the potential environmental risks of proposed alternative remedial action and its technical feasibility, reliability, and cost effectiveness;
(D) When an imminent and substantial endangerment is posed; and
(E) Whether institutional or engineering controls eliminate or partially eliminate the imminent and substantial endangerment or otherwise contain or prevent migration.
(3) Remedial actions pursuant to subdivision (e)(3) of this section are not required to provide for the removal or remediation of the conditions or contaminants causing a release or threatened release on the abandoned site if:
(A) Contaminants pose no unacceptable risk as described in subdivisions (f)(1) and (2) of this section, or if the remedial actions proposed in the assessment and intended uses of the abandoned site will eliminate unacceptable risks as described in subdivisions (f)(1) and (2) of this section; or
(B) Activities required to allow the intended reuse or redevelopment of the abandoned site are in a manner which will protect public health and the environment as described in subdivisions (f)(1) and (2) of this section.
(i) Nothing in this section shall relieve the prospective purchaser, after acquisition of legal title to the abandoned site, of any liability for contamination later caused by the purchaser.
(j) A prospective purchaser of an abandoned site under this subchapter shall not be responsible for paying any fines or penalties levied against any person responsible for contamination on the abandoned site prior to the implementing agreement with the department.
(k) (1) Once the prospective purchaser has acquired legal title to the abandoned site, the purchaser shall take all the steps necessary to prevent aggravating or contributing to the contamination of the air, land, or water, including downward migration of contamination from any existing contamination on the site.
(2) The purchaser shall not use or redevelop the site in any way which is likely to interfere with subsequent remedial actions or in a manner that differs from the intended use established in the implementing agreement described in subsection (d) of this section.
(l) A restriction shall be placed on the deed for the property covered by this subchapter, which restricts the use of the property to activities and compatible uses that will protect the integrity of any remedial action measures implemented on the property.
(m) Upon written notice to the department, the implementing agreement, including all rights and cleanup liabilities entered into by the department and the prospective purchaser under subsection (d) of this section, is transferable in its entirety to all subsequent owners of the property who did not, by act or omission, cause or contribute to any release or threatened release of hazardous substances on the abandoned site.
(n) Subsequent owners shall receive a copy of the implementing agreement from the prospective purchaser and shall not use the site in a manner which is inconsistent with the intended use described in the implementing agreement authorized by subsection (d) of this section.
(o) (1) Within thirty (30) days of the date that the prospective purchaser acquires legal title to the abandoned site, the purchaser shall file a notice of the implementing agreement with the clerk of the circuit court in the county in which the site is located.
(2) Notice of any subsequent amendments to the implementing agreement shall also be filed with the clerk of the circuit court within thirty (30) days after their effective dates.
(3) The clerk of the circuit court shall docket and record the notice so that it appears in the purchaser's chain of title.