The Legislature finds that hazardous substances have been treated, stored or disposed of at sites which are inactive or abandoned and that such sites have the potential for deleterious impacts on groundwater, human health or the environment. The Legislature, therefore, declares that it is in the public interest to assure that such sites are identified and that action is taken to provide for the cleanup and rehabilitation of such sites within the State of Alabama. The Legislature intends that funds provided under this chapter be used primarily to clean up and rehabilitate sites not qualified for or unlikely to receive funding under the Federal Comprehensive Environmental Response, Compensation and Liability Act of 1980 (42 U.S.C. §9601 et seq.) but that the funds provided under this chapter may also be used to provide state matching funds for cleanups and for operation and maintenance of sites which have completed cleanup under the Federal Comprehensive Environmental Response, Compensation and Liability Act of 1980. (Acts 1988, 1st. Ex. Sess., No. 88-859, p. 348, §1.)
When used in this chapter and except where the context prohibits, the following words and terms shall have the following meanings:
(1) CLEANUP. All activities including administrative activities related to the identification, investigation and evaluation of hazardous substance sites and the removal of hazardous substances or other closure or containment of hazardous substances and any subsequent monitoring of such sites.
(2) COMMISSION. The Alabama Environmental Management Commission as created by Section 22- 22A-6.
(3) DEPARTMENT. The Alabama Department of Environmental Management as created by Section 22- 22A-4.
(4) DIRECTOR. The Director of the Alabama Department of Environmental Management.
(5) FUND. The Alabama Hazardous Substance Cleanup Fund.
(6) HAZARDOUS SUBSTANCE. Any substance defined as a hazardous substance pursuant to 42 U.S.C.
(7) HAZARDOUS SUBSTANCE SITE. Any unpermitted site or location where a hazardous substance has been released or where there is the potential for a release due to the treatment, storage or disposal of a hazardous substance.
(8) INACTIVE OR ABANDONED HAZARDOUS SUBSTANCE SITE. Any hazardous substance site, except one which has been permitted by the Department of the Environmental Protection Agency as a commercial hazardous waste or substance disposal facility and closed through appropriate closure procedures, which does not receive any hazardous substance for treatment, storage or disposal after September 27, 1988, or which ceases receiving any hazardous substance for treatment, storage or disposal after September 27, 1988.
(9) LIABLE PARTY. Any person who: a. Is an operator or former operator of an inactive or abandoned hazardous substance site; b. Generated a waste treated, stored or disposed of at a hazardous substance site which has become inactive or abandoned; c. Transported waste for treatment, storage or disposal to a hazardous substance site which has become inactive or abandoned, but only if the site was selected by the transporter; or d. Directed the hazardous substance for treatment, storage or disposal to the inactive or abandoned hazardous substance site.
(10) OPERATOR. A person who has treated, stored or disposed of or permitted a third person to treat, store or dispose of a hazardous substance at a site which has become an inactive or abandoned hazardous substance site, or a person who obtained ownership of a site either knowing or with reason to know it was an abandoned or inactive hazardous substance site. Such term does not include a person, who, without participating in the management of a site which has become an inactive or abandoned hazardous substance site, holds indicia of ownership primarily to protect a security interest in the site.
(11) RELEASE. Any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment of a hazardous substance.
(12) All other terms used in this chapter shall be defined as such terms are defined in the Hazardous Wastes Management Act, Section 22-30-1 et seq. as amended, and the regulations promulgated thereunder. (Acts 1988, 1st Ex. Sess., No. 88-859, p. 348, §2.)
APPROPRIATIONS.
There is hereby established within the State Treasury a special revenue fund to be known as the Alabama Hazardous Substance Cleanup Fund. All federal grants, state appropriations, penalties, reimbursements and any other funds collected pursuant to this chapter are hereby appropriated for the purposes provided for in this chapter and shall be deposited into said fund. Any funds remaining in the Alabama Hazardous Substance Cleanup Fund at the end of any fiscal year shall not revert to the General Fund but shall remain in said fund and is hereby reappropriated until expended in accordance with the provisions of this chapter.
There is hereby appropriated from the State General Fund for the fiscal year ending September 30, 1989, the amount of $100,000.00 for the start-up and administrative costs necessary to implement this chapter and for inactive or abandoned hazardous substance site cleanup costs.
In addition to the appropriations heretofore made, there is hereby conditionally appropriated from the State General Fund for the fiscal year ending September 30, 1989, the sum of $500,000.00 to be used solely for the purpose of cleanup operations of abandoned or inactive hazardous substance sites, reimbursement to the fund for moneys expended by the department for cleanup of such sites, and as matching funds to allow cleanups and operation and maintenance of sites which have completed cleanup under the federal Comprehensive Environmental Response, Compensation and Liability Act of 1980 (42 U.S.C. §9601 et seq.), such funds to be released to the fund on a project-by- project basis, conditioned upon the availability of funds in the State General Fund, the recommendations of the finance director, and the approval by the Governor. (Acts 1988, 1st Ex. Sess., No. 88-859, p. 348, §3.)
In relation or addition to the powers set forth in this section and any other provisions of laws of this state, the department is empowered, with regard to the regulation, control, or removal of hazardous substances as follows:
(1) To respond to, direct, or initiate cleanup of inactive or abandoned hazardous substance sites;
(2) To conduct or contract for professional technical data gathering and analysis and damage assessment;
(3) To conduct or contract for the removal or containment of hazardous substances where there has been or is a potential for release, regardless of quantity or concentration; and
(4) Acting through the provisions of Sections 22-22A-5 and 22-22A-8 issue such rules and regulations as are necessary to carry out the provisions of this chapter.
The fund shall be available to the department for expenditures for the purpose of providing for the identification, investigation, and for the containment and cleanup, including monitoring and maintenance of inactive or abandoned hazardous substance sites within the state as provided in this chapter, and as follows:
(1) Moneys from the fund may be used only for cleanup of inactive or abandoned hazardous substance sites which at the time cleanup activities commence do not appear on the most current national priorities list (NPL) of the United States Environmental Protection Agency as developed under the Comprehensive Environmental Response, Compensation and Liability Act of 1980 ("CERCLA") 42 U.S.C. §9601 et seq. unless,
(2) The moneys are intended to provide the state's share of matching funds for cleanup of a CERCLA site on the NPL.
The department may enter into such contracts and use the fund for those purposes directly associated with identification, investigation, containment and cleanup, including monitoring and maintenance, prescribed above including:
(1) Hiring of consultants and personnel;
(2) Purchasing, leasing or renting of necessary equipment; and/or
(3) Paying other necessary expenses.
The fund shall not be used for hiring personnel for continuing programs of the department not directly related to the purpose of this chapter or for ongoing research activities not directly related to the purpose of this chapter. (Acts 1988, 1st Ex. Sess., No. 88-859, p. 348, §4.)
ORDERS; NOTICE AND HEARING; PAYMENT AND REIMBURSEMENT OF EXPENSES; APPEAL; RECOVERY OF EXPENSES BY ORDER OR CIVIL ACTION; PENALTIES.
The director shall identify inactive or abandoned hazardous substance sites, as defined herein, within the State of Alabama. Once identified the director shall refer to the most current national priorities list ("NPL") of the United States Environmental Protection Agency under the Comprehensive Environmental Response, Compensation and Liability Act of 1980, ("CERCLA") 42 U.S.C. §9601 et seq. Any Alabama site identified by the director that also appears on the NPL shall not be subject to this chapter, except for the matching funds provision of Section 22-30A-3(c).
For all sites so identified by the director, not appearing on the NPL, the director shall attempt to identify all potentially liable parties. If the potentially liable parties can be identified within a reasonable time, the director may:
(1) Order the potentially liable party or parties to develop a hazardous substance cleanup plan detailing how the liable party or parties will investigate, identify, contain and cleanup the site, including post-cleanup monitoring and maintenance of the site; and
(2) Order the potentially liable parties to implement the plan, subject to approval by the department, within a reasonable time as specified in the order; and
(3) Provide a 30-day public comment period on the plan in the county where the site is located, provided that such public comment period may be waived if the director finds that such delay would significantly increase the threat to human health or the environment. Notice of the public comment period shall be given by a one-time publication in a newspaper of general circulation in the county where the site is located and to the governing body of the county or municipality where the inactive or abandoned hazardous substance site is located.
No order may be issued under this section until a potentially liable party is provided notice and an opportunity for an informal hearing before the department. Provided, however, that whenever the director, after investigation, finds that the threat to human health or the environment is imminent, the director may issue the order without a hearing. In the event the director makes such a determination, the facts supporting this conclusion shall be set forth in the order in detail.
Whenever any liable party fails to comply with an order to develop a hazardous substance cleanup plan for a site, the department may develop such a plan. The reasonable expenses of developing the plan by the department shall be paid from the fund if available and reimbursed by the liable party. This reimbursement of expenses is in addition to any penalties assessed under subsection (i) of this section.
Whenever the liable party fails to comply with an order to implement a hazardous substance cleanup plan for a site, the department may implement such a plan. The provisions of subdivision (b)
(3) of this section regarding public comment shall apply to the department's plan. The reasonable expenses of implementing the plan by the department shall be paid from the fund if available and reimbursed by the liable party. This reimbursement of expenses is in addition to any penalties assessed for failure to comply with the order.
In the event that no liable party can be identified, or if the liable party cannot be identified within a reasonable time, or if the director determines there is an imminent threat to human health or the environment, and sufficient moneys are available in the fund, the department may develop and implement a hazardous substance cleanup plan. The provisions of subdivision (b)(3) of this section regarding public comment shall apply to the department's plan. The reasonable expenses of developing and implementing such plan shall be paid from the fund if available and reimbursed by the liable party when and if identified. This reimbursement of expenses is in addition to any penalties assessed under this chapter.
Orders issued under this section may be appealed as provided in Section 22-22A-7(c).
The department is authorized to recover expenses as set out in this section by administrative order or by civil action in the circuit court of the county where the site is located or where the liable party resides or does business. (i) No administrative or civil penalties shall be assessed against a liable party until and unless the liable party fails to comply with provisions of an order issued by the department pursuant to this chapter. In the event, the department may seek, in addition to the recovery of expenses, administrative or civil penalties as provided for in Section 22-22A-5 however, nothing herein shall prevent the imposition of administrative or civil penalties for the violation of any other relevant statute or regulation. (Acts 1988, 1st Ex. Sess., No. 88-859, p. 348, §5.)
In determining the scope, nature and content of a hazardous substance cleanup plan the director shall evaluate reasonable alternatives and select or approve those actions which he determines are necessary to protect human health and the environment. The goal of any pertinent action shall be cleanup and containment of the site through the elimination of the threat to the human health and the environment posed by the hazardous substance. In choosing the necessary action at each site, the director shall consider the following factors:
(1) The technological feasibility of each alternative;
(2) The cost estimate of each alternative;
(3) The quantity of hazardous substances present, their toxicity and mobility and the risk of harm to the environment. This factor shall not require the director to make a detailed analytical and scientific study of the site prior to choosing or approving the selected alternative, however, the director shall make a good faith effort to generally determine this information to aid his choice of alternative actions.
(4) The capability of the selected alternative to protect human health and the environment. (Acts 1988, 1st Ex. Sess., No. 88-859, p. 348, §6.)
The director shall, on or before January 1, 1989, and annually thereafter on January first of each succeeding year, transmit an updated annual report to the commission, the Legislature, and the Governor. Each annual report shall include, but need not be limited to, the following information for each site:
(1) A general description of the site, including the name and address of the site, the type and quantity of the hazardous substance disposed of at the site if known, and the name of the current owners of the site and any known potentially liable parties;
(2) A summary of any significant environmental problems at and near the site; the site's proximity to public or private drinking water supplies, or other water supplies;
(3) The clear identification of the site on a map;
(4) The status of any testing, monitoring or remedial actions in progress or recommended by the director;
(5) The status of any pending legal and administrative actions and any federal, state or local government permits concerning the site;
(6) The proximity of the site to private residences, public buildings or property, school facilities, places of work or other areas where individuals may be regularly present;
(7) All costs incurred pursuant to the implementation of this chapter by the department or any other party; and
(8) Estimated future costs to be incurred pursuant to the implementation of this chapter by the department or any other party.
The director shall also transmit a copy of the annual report to each potentially liable party identified in the annual report. (Acts 1988, 1st Ex. Sess., No. 88-859, p. 348, §7.)
ACTION TO DETERMINE APPORTIONMENT.
Liable parties shall be liable to the state for amounts expended for the investigation, identification, containment and cleanup of hazardous substance sites, including the cost of post-cleanup monitoring and maintenance of such sites.
The department or the Attorney General shall act to recover for the fund the reasonable and necessary amounts expended for the investigation, identification, containment, cleanup, monitoring and maintenance of inactive or abandoned hazardous substance sites to the extent the department or the Attorney General can attribute these expenditures to liable parties as set out herein. Recovery of these expenditures by the department or the Attorney General can be either by administrative order or by commencing a civil action in the county where the site is located or where the liable party resides or does business.
The liability of liable parties is not joint and several. Liable parties shall be liable to reimburse the fund only for the costs of investigation, identification, containment and cleanup of hazardous substance sites, including the cost of monitoring and maintenance generally attributable to that party's proportional contribution to the hazardous substance present at the site. In determining proportional contributions among liable parties the following factors shall be taken into consideration:
(1) Total volume of hazardous substance at the site;
(2) The percentage of the total volume of hazardous substance attributable to the liable party;
(3) Good faith efforts of the liable party to ensure proper treatment, storage or disposal;
(4) Any expenditures required by this chapter made by a liable party shall be credited toward its liability.
In no event shall the total liability from any liable party be an amount less than the total cost for the investigation, identification, containment and cleanup of hazardous substances attributable to that liable party except that the total recovery from the liable party shall not exceed the amount expended from the fund plus reasonable costs to the department to obtain recovery from the liable party.
In no event shall the calculation of a liable party's proportional contribution be increased or in any way influenced by the failure of the director to identify other liable parties or by the failure of other liable parties to pay their proportional contribution.
There shall be no liability under this chapter for a liable party who can establish by a preponderance of the evidence that the release or imminent threat of release and the environmental damages resulting therefrom were caused by an act or omission of a third party other than an employee or agent of the liable party.
If the department is unable to calculate proportional contributions among liable parties because of insufficient evidence the department shall commence a declaratory judgment civil action in circuit court in the county where the site is located or where the liable party resides or does business seeking a declaration of apportionment. The court shall take into consideration the factors previously listed.
Any expenses not attributable to a liable party shall be paid from the fund. (i) All expenditures recovered from liable parties shall be deposited in the fund. ( j) A liable party may elect to satisfy its liability by applying any proceeds from liability insurance or other financial assurance mechanisms which have been provided by the liable party or parties. (Acts 1988, 1st. Ex. Sess., No. 88-859, p. 348, §8.)
No action may be commenced against the director, any employee of the department, or any person under contract with the department for damages as a result of actions taken or omitted in the course of performing duties or functions under this chapter or in the course of rendering care, assistance, or advice at the direction of an on-scene coordinator appointed by the director, with respect to the cleanup of an abandoned or inactive hazardous substance site including any release of a hazardous substance or the threat thereof. (Acts 1988, 1st Ex. Sess., No. 88-859, p. 348, §9.)
The director or his designee shall have the right at reasonable times to enter upon any property upon which a known or suspected inactive or abandoned hazardous substance site is located and any other property which must be entered to have access to the site or to perform or cause to be performed all actions necessary to carry out the provisions of this chapter. Entry shall be construed as an exercise of the police power and shall not be construed as an act or condemnation of property or of trespass. (Acts 1988, 1st Ex. Sess., No. 88-859, p. 348, §10.)
It shall be a violation of the provisions of this chapter for any liable party to:
(1) Violate any provision of or time period set forth in any administrative order issued by the director;
(2) Destroy or conceal any records relating to hazardous substances or abandoned or inactive sites, except where a liable party can demonstrate that any destruction of record was done in the ordinary course of its business;
(3) Violate any settlement or consent agreement entered into pursuant to or in anticipation of an administrative order issued by the director, or pursuant to or in anticipation of any civil action initiated under the provisions of this chapter.
Civil penalties as provided for in this chapter may be assessed either by administrative order or civil action. (Acts 1988, 1st Ex. Sess., No. 88-859, p. 348, §11.)