Oklahoma Brownfields Voluntary Redevelopment Act (HB 2872, effective 6/14/1996), 27A O.S. § 2-15-101 through 110
Definitions include applicant, Brownfield, Certificate of Completion, Certificate of No Action Necessary, Consent Order, demonstrated pattern of uncorrected noncompliance, land use disclosure, remediation and risk based remediation.
"Certificate of Completion" means a document issued by the DEQ pursuant to Section 6 of this act upon a determination that an applicant has successfully completed agency-approved risk-based remediation;
"Certificate of No Action Necessary" means a document issued by the DEQ pursuant to 52-15-106 of this title on a determination that no remediation is deemed necessary for the expansion or redevelopment of the property for a planned use;
"Demonstrated pattern of uncorrected noncompliance" means a history of noncompliance by the applicant with state or federal environmental laws or rules or regulations promulgated thereto, as evidenced by past operations dearly indicating a reckless disregard for the protection of human health and safety, or the environment;
"Land use disclosure" means the Certificate of Completion or the Certificate of No Action Necessary, issued by the DEQ which is required to be filed in the office of the county clerk of the county wherein the site is situated pursuant to § 2-15-107 of this title;
"Risk-based remediation" means site assessment or site remediation, the timing, type and degree of which are determined according to case-by case consideration of actual or potential risk to human health and safety, or the environment from environmental contamination caused by regulated substances of a brownfield site.
DUTIES OF THE DEQ:
The DEQ must:
- approve site-specific remediation plans for each site as necessary, using a risk-based system,
- review and inspect site assessment and remediation activities and reports, and
- use risk-based remediation procedures as determined by the agency to establish cleanup levels.
WHO CANNOT APPLY:
1. Anyone responsible for taking corrective action on the site under an EPA order or agreement.
2. Anyone who is not in substantial compliance with a final agency order or court order secured by any state or federal agency relating to the generation, storage, transportation, treatment, recycling or disposal of regulated substances; or
3. Anyone who has a demonstrated pattern of uncorrected noncompliance.
RULES:
The Board must promulgate rules to implement the law. The DEQ is specifically authorized to promulgate emergency rules. These rules must include but are not limited to provision for applications, consent orders, notice and public participation opportunities, brownfield remediation plans and no-action-necessary determinations.
APPLICATION PROCESS
An applicant may apply either for (*) a consent order for risk-based remediation or (*) a no-action-necessary-determination. The application must include
1. A description of the (*) brownfield (*) concentrations of contaminants in the soils, surface water, or groundwater at the site (*) air releases which may occur during remediation and (4) monitoring, if any, to occur after issuance of the Certificate of Completion or Certificate of No Action Necessary;
2. (*) A remediation plan for remediating any contamination caused by regulated substances on the brownfield or (*) a proposal that no action is necessary to remediate the brownfield considering the present levels of regulated substances at the site and the proposed future uses of the property;
3. The current and proposed use of groundwater on and near the site;
4. The operational history of the site and the current use of areas contiguous to the site;
5. The present and proposed uses of the site;
6. Information concerning (*) the nature and extent of any contamination caused by regulated substances and (*) releases of regulated substances which have occurred at the site and any possible impacts on areas contiguous to the site;
7. Any analytical results or other data which characterizes the soil, groundwater or surface water on the site; and
8. An analysis of the human and environmental pathways to exposure from contamination at the site based upon the property's future use as proposed by the applicant.
APPLICATION REJECTED/RETURNED
The DEQ may reject or return an application if (*) a federal requirement precludes the eligibility of the site, (*)it is not complete and accurate, or (*) it is ineligible under this law or rules. If an application is disapproved, the DEQ must promptly provide the applicant with a formal written statement of the reasons for the denial.
FACTORS TO BE CONSIDERED FOR REMEDIATION OR NO-ACTION-NECESSARY
Remediation or a no action determination must be based on the potential risk to human health and safety and to the environment posed by the environmental contamination caused by regulated substances at the site, considering the following factors:
1. The proposed use of the brownfield;
2. The possibility of movement of the regulated substances in a form and manner which would result in exposure to humans and to the surrounding environment at levels which exceed applicable standards or which represent an unreasonable risk to human health and safety, or the environment as determined by the DEQ ; and
3. The potential risks associated with the remediation proposal or no-action-necessary-determination
4. The economic and technical feasibility and reliability of the proposal or determination.
CONDITIONS UNDER WHICH A CONSENT ORDER IS AUTHORIZED
The DEQ may enter into a consent order with the applicant for remediation of a site if the DEQ concludes that the remediation will
1. Attain a degree of control of regulated substances pursuant to applicable state and federal laws and rules; and
2. For constituents not governed by paragraph 1 above, reduce concentrations such that the property does not present an unreasonable risk to human health and safety or to the environment based upon the property's proposed use.
CONDITIONS UNDER WHICH A NO-ACTION-NECESSARY-DETERMINATION IS AUTHORIZED
The DEQ may make a no-action-necessary-determination if the application indicates the existence of contamination caused by regulated substances which, given the proposed use of the property, does not pose an unreasonable risk to human health and safety or to the environment as determined by the DEQ.
SUBSEQUENT CONTAMINATION NOT COVERED
The consent order and the no action determination apply only to conditions caused by contamination on the property, applicable state or federal laws and rules that existed at the time of submission of the application.
REIMBURSEMENT OF COSTS
The DEQ may require the applicant to reimburse the DEQ for reasonable costs for the review and oversight of any remediation reports, field activities or other services or duties of the DEQ which are performed prior to the issuance of the Certificate of Completion or the Certificate of No Action Necessary, unless otherwise authorized by the consent order.
ZONING
The DEQ is not authorized to hold any public meeting or hearing to require information, make any determination, or consider the zoning or rezoning for any proposed redevelopment of a site. The DEQ must assume that any proposed redevelopment of the site meets or will meet any zoning requirements.
CERTIFICATE OF COMPLETION
If the DEQ determines that the applicant has successfully completed the requirements specified by the consent order, the DEQ must issue a Certificate of Completion.
The certificate must list the property use specified in the consent order for the site.
The certificate must state that the DEQ will not pursue administrative penalties and civil actions against the applicant, lenders, lessees, and successors and assigns associated with actions taken to remediate the contamination caused by regulated substances which is the subject of the consent order.
The certificate must also state that the applicant and all lenders, lessees, and successors and assigns are not subject to civil liability with regard to the remedial actions taken by the applicant for environmental contamination caused by regulated substances, as required by the consent order if the remedial action is not performed in a reckless or negligent manner.
The certificate must state that no person responsible for contamination caused by regulated substances who has not participated in the voluntary remediation process is released from any liability.
And the certificate must state that the Certificate of Completion will remain effective as long as the property is in substantial compliance with the consent order.
CERTIFICATE OF NO-ACTION-NECESSARY
If the DEQ determines that no remediation action is deemed necessary for the site, the DEQ must issue a Certificate of No Action Necessary.
The certificate must list the property use specified in the application for the site
The certificate shall also state that the DEQ will not pursue any administrative penalties or civil actions against the applicant, lenders, lessees, and successors and assigns associated with the determination-that-no-action-isnecessary-to-remediate-the contamination-caused-by-regulated-substances which is the subject of the certificate.
The certificate must state that the applicant and all lenders, lessees, and successors and assigns are not be subject to civil liability with regard to the determination-that-no-action-is-necessary-to-remediate-the-site.
The certificate must state that no person responsible for contamination caused by regulated substances who has not participated in-the application process for a no-action-necessary determination is released from any liability.
And the certificate must state that it remains effective as long as the site is in substantial compliance with the certificate as determined by the DEQ.
The certificate must state that the issuance of the Certificate of No Action Necessary shall not be construed or relied upon in any manner as a determination by the DEQ that the brownfield has not been or is not environmentally contaminated by regulated substances.
LAND USE DISCLOSURE
Within thirty (30) days of receipt of the Certificate of Completion or the Certificate of No Action Necessary, the applicant must file a land use disclosure in the land records in the office of the county clerk where the site is located and submit a file-stamped copy to the DEQ.
Failure to record the land use disclosure with the county clerk and submit the official copy to the DEQ will render the Certificate of Completion or Certificate of No Action Necessary voidable.
PENALTY FOR CONVERTING BROWNFIELD TO UNAUTHORIZED LAND USE
Whoever knowingly converts, develops or uses a brownfield site in violation of an authorized use as specified in the land use disclosure shall be deemed guilty of a misdemeanor and, upon conviction thereof, shall be punishable by a fine of not more than One Thousand Dollars ($1,000.00), imprisonment in the county jail for not more than one (1) year, or both such fine and imprisonment. Each day such violation continues shall be considered a separate offense.
MAINTAINING RECORDS
The DEQ must keep and maintain a copy of the application, work plan, consent order, and other correspondence, record, authorization, and report received by the DEQ, and an official copy of the Certificate of Completion or the Certificate of No Action Necessary in an accessible location. These records cannot be archived.
RELEASE FROM LIABILITY
The DEQ is prohibited from assessing administrative penalties or pursuing civil action associated with the contamination which is the subject of the consent order or no-action-necessary-determination if the applicant is in compliance with the consent order during remediation and any post-certification conditions or requirements specified in the consent order or if the applicant is in compliance with the Certificate of No Action Necessary.
After issuance of the Certificate of Completion or Certificate of No Action Necessary, the DEQ is prohibited from assessing administrative penalties or pursuing civil actions associated with the contamination which is the subject of the consent order or no-action-necessary-determination against any lender, lessee, or successor or assign if that person is in compliance with any post-certification conditions or requirements as specified in the consent order or Certificate of No Action Necessary.
Failure of the applicant and any lenders, lessees, or successors or assigns to materially comply with the consent order shall render the consent order or the Certificate of Completion or the Certificate of No Action Necessary voidable.
If the applicant knowingly submits false or materially misleading information, the consent order, Certificate of Completion, or Certificate of No Action will be voidable.
An applicant to whom a Certificate of Completion or a Certificate of No Action Necessary has been issued and the applicant's lenders, lessees, or successors or assigns are not be subject to civil liability with regard to the remedial actions taken by the applicant for environmental contamination caused by regulated substances as required by the consent order if the remedial action is not performed in a reckless or negligent manner.
Nothing in this law will be construed to limit or negate any other rights of any person from pursuing or receiving legal or equitable relief from the applicant or any other person or legal entity causing or contributing to the environmental contamination.
In those cases where an applicant conducts a voluntary remediation in conjunction with a party responsible for the contamination, the responsible party is also released from liability to the same extent as the applicant.
RELEASE OF LIABILITY DOES NOT APPLY TO
1. Any environmental contamination and consequences thereof that the applicant causes or has caused outside the scope of the consent order or the certificate issued by the DEQ;
2. Any contamination caused or resulting from any subsequent redevelopment of the property;
3. Existing contamination caused by regulated substances not addressed prior to issuance of the Certificate of Completion or the Certificate of No Action Necessary; or
4. Any person responsible for contamination who has not participated in the voluntary remediation.
RATIFICATION OF PREVIOUS VOLUNTARY REMEDIATION PROJECTS
Any application for remediation of a site submitted to the DEQ after January 1, 1988, and prior to June 14, 1996, which results in a consent order, and any consent order issued after January 1, 1988, and prior to the June 14, 1996, is hereby ratified. Any person who has entered into a consent order with the Department may continue to rely upon it if the person complies with the requirements and with the provisions of the consent order. Any benefits and releases of liability from administrative penalties and from civil action as provided by the Brownfields Act shall apply and be made part of the consent order.