49-181. Requests for no further action determination

A. Upon achieving the remediation levels and controls determined pursuant to section 49-175, subsection B, an applicant approved pursuant to section 49-174 may request the department to provide a determination that no further action is needed for a site or portion of a site by submitting a report to the department. The report shall include:

1. A description of the specific contaminants for which a no further action determination is being sought.

2. A description of the actions taken to achieve remediation levels or controls determined in accordance with section 49-175, subsection B.

3. A description of any soil, water, or soil and water treatment systems used as part of the remediation.

4. Whenever institutional or engineering controls are placed on the site:

(a) A demonstration that any engineering control or combination of engineering controls has been constructed, is functioning, and will be maintained.

(b) A description of the proposed land use for the site and a demonstration that the use will not compromise the integrity of the engineering controls and will be in accordance with any institutional controls.

5. If postremediation monitoring is proposed, a description of the type of monitoring, monitoring locations, contaminants to be monitored, monitoring frequency and sampling procedures.

6. A description of community involvement activities undertaken to meet the requirements of section 49-176.

7. A list of permits under this title obtained for the remedial action or held by the applicant pertaining to the site.

B. After receipt of a request for a no further action determination, the department shall review, approve, deny or request modifications to the request. The director may request additional information before acting on the request for a determination of no further action, may conduct an investigation of the site or portion of the site, and shall be given access to the site at reasonable times for the purpose of verifying the completion of the remedial action.

C. The director shall grant a request for a no further action determination if, after considering any public comments, the director determines that all of the following conditions exist:

1. The remediation has achieved remediation levels or controls determined in accordance with section 49-175, subsection B.

2. The community involvement requirements of section 49-176 have been satisfied.

3. If institutional or engineering controls are proposed, proof that the declaration of environmental use restriction has been filed that complies with the requirements of section 49-152 or 49-158.

4. The work performed complies with any applicable corrective or remedial action requirements of any applicable permit required under this title. If remediation under this article requires a permit, a solid waste facility plan approval pursuant to section 49-762.03, or a modification, the permit, plan approval, or modification shall be obtained through the applicable program.

5. The remediation is consistent with title 45, chapter 2.

6. The work performed complies with any otherwise applicable laws and rules.

7. The remediation will not interfere with or substantially increase the cost of a remedial action that the department may conduct to address waters of the state pursuant to chapter 2, article 5 of this title.

D. The department may issue a conditional no further action determination at a site where remediation levels have been met through the use of institutional controls or engineering controls but postremediation care obligations such as monitoring or maintenance of engineering controls must be performed.

E. The department may rescind or amend the determination of no further action under this section and require remedial action pursuant to applicable law for any of the following reasons:

1. On discovery of new information that, based on the criteria in subsection C of this section, would result in the potential denial of a no further action request.

2. That information submitted pursuant to subsection A or B of this section was inaccurate, misleading, or incomplete.

3. The reopening of an investigation or the taking of a remedial action is necessary to respond to a release or the threat of a release of a contaminant that may present an imminent and substantial danger to the public health or welfare or the environment.

F. A determination of no further action under this section means that no further action shall be taken by the department under this title to remediate or require remediation of the site or portion of the site covered by the no further action determination, unless the no further action determination is rescinded or amended pursuant to subsection E of this section. A no further action determination under this section does not release or discharge any person from liability under this title or any other law for a release of contaminants not covered by the work plan approved pursuant to section 49-177 or outside the boundary of the site or portion of the site covered by the determination. A determination of no further action shall not preclude the director from obtaining access to the area covered by the determination under this section or any other law.