75-10-746. Emergency actions -- remedial action requirements -- designation of lead person -- enforcement. (1) If the department determines that immediate response to an imminent threat to public health, safety, or welfare or the environment is necessary to avoid substantial injury or damage to persons, property, or resources, the department may require any potentially liable person to take remedial actions without the prior written notice required by 75-10-711(3). The department has 30 days to comply with the notification requirements provided in 75-10-711(3) and 75-10-745 when requiring emergency remedial actions.

(2) Within 30 days of the issuance of the notice letters, the noticed persons shall designate a lead person who shall conduct remedial actions at the facility. Upon request of the noticed persons and for good cause shown, the department may grant a 30-day extension of time to identify the lead person.

(3) If the department determines that the identified lead person is financially or otherwise incapable of completing remedial actions required by the department, the department shall notify all noticed persons of this determination in writing and request that another lead person be designated within 15 days.

(4) The designated lead person shall undertake all remedial actions required by the department.

(5) If the noticed persons do not designate an approved lead person within the timeframes provided under subsection (2) or (3), the department shall designate a lead person to undertake required remedial actions.

(6) If the department finds that the lead person has not complied with the requirements of a notice letter, order, stipulated agreement, or any department-approved remedial action plan, the department shall notify all potentially liable persons of the noncompliance.

(7) If the noncompliance continues for 30 days after the date of the notice provided in subsection (6), the potentially liable persons have not demonstrated that the noncompliance is due to good cause, and the facility is a maximum or high-priority facility on the department's priority list established pursuant to 75-10-702, the department shall take one or more of the following actions:

(a) issue a unilateral order requiring the potentially liable persons to comply with the requirements of the notice letter, order, stipulated agreement, or department-approved remedial action plan;

(b) file a civil action as provided in 75-10-711;

(c) conduct the required remedial actions and seek cost recovery and penalties as provided in 75-10-711;

(d) file a cost recovery action as provided in 75-10-722; or

(e) void approval of the voluntary cleanup plan as provided in 75-10-736.

(8) If the noncompliance continues for 30 days after the date of the notice provided in subsection (6), the potentially liable persons have not demonstrated that the noncompliance is due to good cause, and the facility is not a maximum or high-priority facility on the department's priority list, the department may take one or more of the actions provided for in subsection (7).

(9) For purposes of subsections (7), (8), and (10), "good cause" means factors beyond a person's control that include severe weather conditions, third-party interference, an act of God, or an act of war. Before a person may claim good cause due to third-party interference, the person shall show that the person used reasonable efforts to obtain cooperation or compliance from the third party.

(10) If the lead person fails to comply with the requirements of a notice letter, order, stipulated agreement, or other department-approved remedial action plan, the facility and all noticed persons remain subject to liability as provided in 75-10-715 unless another person assumes the lead role in implementing the required remedial actions or the lead person can establish that the noncompliance is due to good cause.

History: En. Sec. 16, Ch. 415, L. 1997.