49-290

49-290. Exemption from permit requirements;
definition

A. Notwithstanding any other statute, a person who performs a remedial action
or a portion of a remedial action that has been approved by the department if that
action or portion is conducted in compliance with this article is not subject to any
requirement to obtain any permit or approval that may otherwise be required by the
department.

B. Except as prescribed in subsection D of this section, a person who conducts
a portion of a remedial action, where that portion is entirely on site and is
conducted in compliance with this article, may be exempted from a requirement to
obtain any other state or local permit or approval, other than any requirement of
title 45, at the written request of the person conducting the remedial action. The
written request shall identify the specific permit to be exempted and the reasons the
exemption is requested. The permit may be exempted if the director finds both of the
following:

1. The requirement does not arise out of any permit or regulatory program that
is required pursuant to the laws of the United States.

2. The requirement presents a substantial impediment to effective performance
of the remedial action selected by the department.

C. The director may waive any regulatory requirement adopted pursuant to this
title with respect to a site or portion of a site as part of a record of decision
adopted pursuant to section 49-287.04 for that site or portion of a site if the
regulatory requirement conflicts with the implementation of the selected remedy,
provided that the waiver does not result in adverse impacts to public health or the
environment. No waiver may be granted under this subsection if it is prohibited by
federal law or if the waiver would jeopardize the continued delegation to the state
of authority to implement a federal environmental program.

D. Discharge of wastewater to off-site publicly owned treatment works and sewer
systems does not constitute an activity conducted entirely on site for purposes of
subsection B of this section.

E. The director shall give written notice of any request for exemption made
pursuant to subsection B of this section to the remedial action coordinator
designated pursuant to subsection G of this section by the governmental entity whose
permit requirements are the subject of the request. Before making any finding
pursuant to subsection B of this section, the director or the director's designee
shall meet and confer with the remedial action coordinator and the person conducting
the remedial action to identify alternatives to exemption.

F. Any finding made by the director pursuant to subsection B of this section
shall be in writing. The governmental entity whose permit requirement is preempted as
a result of such finding is not liable for property damage, personal injury damage or
violations of state or local law resulting from the exemption. The director shall
notify the affected governmental entity of any finding made pursuant to subsection B
of this section. A finding of the director made pursuant to subsection B of this
section is a final administrative decision as defined in section 41-1092 and is
subject to judicial review pursuant to title 12, chapter 7, article 6.

G. Each city, town and county shall designate a remedial action coordinator who
shall have responsibility for monitoring and facilitating any remedial actions
conducted within its jurisdiction. The designated remedial action coordinator shall:

1. Regularly consult, as needed, with the department and the person conducting
a remedial action throughout the duration of the remedial action.

2. Expedite the processing and issuance of permits, approvals or other
authorizations required by the governmental entity represented by the remedial action
coordinator, to facilitate the prompt conduct of a remedial action.

3. Provide information to the department and the person conducting the remedial
action regarding applicable requirements of the governmental entity represented by
the remedial action coordinator and the potential for waiver of such requirements.

H. In order to encourage remediation activities under this article and to
conserve the fund, neither this state nor any county that imposes an excise or
similar tax that is levied at a rate applied as a percentage of the rates on each
business class subject to the tax imposed by title 42, chapter 5, article 1 may
impose a tax on the sale or purchase of tangible personal property incorporated or
fabricated into any real property, structure, project, development or improvement
under a contract specified in section 42-5075, subsection B, paragraph 6.

I. For purposes of this section, "on site" means the areal extent of
contamination and all suitable areas in close proximity to the contamination that are
reasonably necessary for implementation of the remedial action.