49-152

49-152. Soil remediation standards;
restrictions on property use

A. Notwithstanding any other remediation levels established under this title, the
director shall approve remediation levels calculated in accordance with this subsection
and shall accomplish the following for remediation of contaminated soil to protect public
health and the environment in accordance with the applicable provisions of this title and
section 33-434.01:

1. Establish predetermined risk based standards by rule. At a minimum, separate
standards shall be established for residential and nonresidential exposure
assumptions. Until risk based remediation standards are formally established by rule,
the director shall establish interim standards adopting:

(a) The Arizona health based guidance levels developed by the department of health
services to include a health based standard for total petroleum hydrocarbons as the
standards for residential uses.

(b) The guidance levels in subdivision (a) of this paragraph modified to reflect
the United States environmental protection agency published assumptions for exposures
that are not residential as the standards for nonresidential uses. The initial adoption
of these interim standards shall be effective by December 15, 1995 and shall be deemed
emergency rules pursuant to section 41-1026.

2. Issue guidance on methods for calculating case-by-case, site specific risk based
remediation levels in accordance with risk assessment methodologies that are accepted in
the scientific community and shall not preclude the use of newly developed risk
assessment methodologies that are accepted in the scientific community.

B. The owner of a property may elect to remediate the property to meet a site
specific residential or nonresidential risk based remediation standard or a predetermined
residential or nonresidential risk based remediation standard. The property is suitable
for unrestricted use if it has been remediated without the use of engineering or
institutional controls to meet either of the following:

1. The predetermined residential risk based remediation standard.

2. A site specific risk based hazard index equal to or less than one or a risk of
carcinogenic health effects that is less than or equal to the range of risk levels set
forth in 40 Code of Federal Regulations section 300.430(e)(2)(i)(A)(2), based on
residential exposure.

C. If the owner has elected to use an engineering or institutional control to meet
the standards prescribed in subsection B of this section, or if the owner has elected to
leave contamination on the property that exceeds the applicable residential standard for
the property, the owner shall record in each county where the property is located an
institutional control that consists of a restrictive covenant that is labeled
"declaration of environmental use restriction" pertaining to the area of the property
necessary to protect the public health and the environment. A person who is conducting a
remedial action, remediation, corrective action or response action that requires an
institutional or engineering control and who is not the owner of the property shall
obtain written consent from the owner before implementing the institutional control or
constructing the engineering control. On implementation of the institutional or
engineering control, the owner shall record a declaration of environmental use
restriction in each county where the property is located. If the institutional control or
engineering control will affect right-of-way that is owned, maintained or controlled by a
public entity for public benefit, the person shall also obtain the public entity's
written consent before implementing the institutional control or constructing the
engineering control. The declaration of environmental use restriction shall limit by
legal description:

1. The area of the property where the institutional control or engineering control
shall be maintained.

2. The area of the property to be restricted to nonresidential use, because
contamination remains on the property above the standards prescribed in subsection B,
paragraph 1 or 2 of this section.

D. At the written request of the owner of property that is subject to a declaration
of environmental use restriction, the director shall determine whether release or
modification of the declaration of environmental use restriction is appropriate. If a
release has been requested, the director shall make this determination within sixty days
after the date of the property owner's request. If the director determines that release
of the declaration of environmental use restriction is appropriate, the director shall
record in each county where the property is located a notice releasing the declaration of
environmental use restriction. The declaration of environmental use restriction is
perpetual unless released pursuant to this section. The director shall determine that
release of a declaration of environmental use restriction is appropriate if the property
has been remediated, without the use of institutional controls or engineering controls,
to either:

1. Meet predetermined risk based remedial standards for residential exposure
assumptions.

2. Present a risk based hazard index equal to or less than one from noncancer
health effects and a risk estimate of carcinogenic health effects equal to or less than
the range of risk levels set forth in 40 Code of Federal Regulations section
300.430(e)(2)(i)(A)(2).

E. The department shall establish a repository in the department listing sites
remediated under programs administered by the department under this title. The
repository shall include the name and address of the owner of the property, when the
remediation was conducted, the legal description and street address of the property, the
applicability of section 33-434.01, the type of financial assurance mechanism that is
being used, if applicable, and a description of the purpose of the declaration of
environmental use restriction.

F. When recorded, an owner's declaration of environmental use restriction under
subsection B of this section is a covenant that runs with and burdens the property, binds
the owner and the owner's heirs, successors and assigns and inures to the benefit of the
department and the state. If notice of the declaration of environmental use restriction
that includes a specific description of the area of the property that is subject to the
declaration of environmental use restriction is contained in the repository maintained by
the department pursuant to subsection E of this section, a declaration of environmental
use restriction may not be extinguished, limited or impaired through any of the
following:

1. Issuance of a tax deed.

2. Foreclosure of a tax lien.

3. Foreclosure of any mortgage, deed of trust or other encumbrance or lien on the
property.

4. Adverse possession.

5. Exercise of eminent domain.

6. Application of the doctrine of abandonment, the doctrine of waiver or any other
common law doctrine.

G. Each party to a declaration of environmental use restriction shall incorporate
the terms of the declaration of environmental use restriction into any lease, license or
other agreement that is signed by the party and that grants a right with respect to the
property that is subject to the declaration of environmental use restriction. The
incorporation may be in full or by reference.

H. A declaration of environmental use restriction is sufficient if it contains all
of the following information:

1. A legal description and the address of the area of the property that is subject
to the declaration.

2. The date that remediation was completed and a map of the area of the property
that is subject to the declaration.

3. A description of the environmental contaminants that were the subject of the
remediation, remedial action, corrective action or response action.

4. A statement that more detailed information is available at the department,
including the address at which that information will be maintained.

5. A notarized signature of a department official indicating approval of the
declaration of environmental use restriction.

6. The notarized signature of the owner.

I. If institutional controls are used in addition to a declaration of environmental
use restriction to satisfy the requirements of this section, the declaration of
environmental use restriction, in addition to the information required by subsection H of
this section, shall include all of the following:

1. A statement documenting any requirements for maintenance of the institutional
control, including a description of the institutional control and the reason it must
remain in place to protect public health and the environment.

2. A statement indicating that if any person desires to cancel or modify the
institutional control in the future, the person must obtain prior written approval from
the department pursuant to this section.

3. A statement acknowledging the department's right of access to the property at
all reasonable times to verify that institutional controls are being maintained.

J. If engineering controls are used to satisfy the requirements of this section,
the declaration of environmental use restriction, in addition to the information required
by subsection H of this section, shall include all of the following:

1. A statement of all requirements for maintenance of the engineering control
including a description of the control, the date it was constructed and the reason it
must remain in place to protect public health and the environment.

2. A statement that if any person desires to change the engineering controls in the
future that person shall obtain prior written approval from the department.

3. A statement acknowledging the department's right of access to the property at
all reasonable times to verify that engineering controls are being maintained.

4. A brief description of the engineering control plan and financial assurance
mechanism prescribed by section 49-152.01, if applicable.

K. When the declaration of environmental use restriction is recorded or modified,
an owner electing to use institutional or engineering controls to satisfy the
requirements of this section shall pay the department a fee established by rule. If the
control is an institutional control, the owner shall submit to the department a written
report once each calendar year regarding the status of the institutional control. If the
control is an engineering control, the owner shall maintain the engineering control on
the property to ensure that it continues to protect public health and the environment and
shall inspect each engineering control at least once each calendar year. Within thirty
days after each inspection, the owner shall submit to the department a written report
that:

1. Describes the condition of the engineering control.

2. States the nature and cost of all restoration made to the engineering control
during the calendar year.

3. Includes current photographs of the engineering control.

4. Describes the status of the financial assurance mechanism prescribed by section
49-152.01, if applicable, and a certification that the financial assurance mechanism is
being maintained.

L. The department shall provide a copy of the declaration of environmental use
restriction to the local jurisdiction with zoning and development plan approval for the
property. The receipt of this copy does not create any new obligation or confer
additional powers on the local jurisdiction. A declaration of environmental use
restriction does not authorize a use of property that is otherwise prohibited by zoning
ordinances or other ordinances or laws. A declaration of environmental use restriction
may include activity limitations and use restrictions that would otherwise be permitted
by zoning ordinances or other ordinances or laws.

M. The department shall adopt rules as necessary to implement this section. These
rules may be combined with any rules necessary to implement section 49-158.

N. The department may enter on the property at all reasonable times to assess the
condition of each engineering control. When the department enters on property to assess
the condition of an engineering control, the department shall:

1. Provide twenty-four hours' advance notice of the entry to the property owner, if
practicable.

2. Allow the owner or an authorized representative of the owner to accompany the
department representative.

3. Present photographic identification on entry of the property.

4. Provide the owner or an authorized representative of the owner with notice of
the right to have a duplicate sample or split of any sample taken during the inspection
if the duplicate or split of any sample would not prohibit an analysis from being
conducted or render an analysis inconclusive.

O. Nothing in this section shall preclude the department from initiating an action
under other provisions of state or federal law.