49-181

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.