Bill Text: AZ HB2624 | 2018 | Fifty-third Legislature 2nd Regular | Introduced
Bill Title: Environmental quality; informal agency appeals
Spectrum: Partisan Bill (Republican 2-0)
Status: (Introduced - Dead) 2018-02-07 - House read second time [HB2624 Detail]
Download: Arizona-2018-HB2624-Introduced.html
|
REFERENCE TITLE: environmental quality; informal agency appeals |
|
State of Arizona House of Representatives Fifty-third Legislature Second Regular Session 2018
|
|
HB 2624 |
|
|
|
Introduced by Representatives Toma: Bowers
|
AN ACT
amending sections 49-116, 49‑1016, 49-1019, 49-1091 and 49‑1091.01, Arizona Revised Statutes; relating to the department of ENVIRONMENTAL quality.
(TEXT OF BILL BEGINS ON NEXT PAGE)
Be it enacted by the Legislature of the State of Arizona:
Section 1. Section 49-116, Arizona Revised Statutes, is amended to read:
49-116. Informal appeals of agency decisions; appeals program fund; definitions
A. Except as provided in chapter 6 of this title and sections 49‑287.05, 49‑287.06 and 49‑287.07, The informal appeals process established by this section applies to any written interim decision issued under this title as defined by subsection K of this section.
B. The department shall make a written interim decision within the time frame provided by statute or rule or within ninety business days if no time frame is provided. The time frame may be extended by agreement of the parties. The department's failure to issue a written interim decision within the time frame provided by chapter 2, article 5 of this title is a basis for an informal appeal under this section.
C. A any person who makes a request for with an interest in a written interim decision may informally appeal, under this section, a written interim decision related to technical issues.
D. A person who has an informal appeal right pursuant to subsection C of this section and who disagrees with a written interim decision of the department or who objects to the lack of a written interim decision of the department may file a written notice of disagreement with the department within thirty days after receiving the department's interim decision or within thirty days after the expiration of the period prescribed by subsection B of this section. The notice of disagreement shall include a description of the specific portions of the interim decision with which the person disagrees and may include a request to meet with the department to resolve the disagreement. Unless the parties agree otherwise, the department shall schedule a meeting within thirty days after receipt of a request for a meeting.
E. The person who is authorized under subsection C of this section to request the meeting or an authorized representative of that person may attend the meeting with the department and may attend with any other person who may assist in resolving the disagreement with the department.
F. The department shall issue a final written decision within forty‑five days after receipt of the notice of disagreement or within fifteen days after the conclusion of any meeting held pursuant to subsection D of this section, whichever is later. If the department does not issue a final written decision within the time prescribed by this subsection, the department's written interim decision becomes the final written decision. The final written decision shall address the notice of disagreement that was received from the person and shall contain the factual, technical and legal grounds for the department's decision.
G. Within ten days after receipt of the final written decision or the expiration of the time for issuing the final written decision, the person who filed the notice of disagreement may submit a written request to the department that the matter be submitted to dispute resolution before a qualified professional as defined in subsection K of this section. The person who requests dispute resolution before a qualified professional under this subsection shall pay the full cost of the services provided by the qualified professional for the dispute resolution. The payment for the services shall be deposited into the technical appeals program fund established in subsection J of this section. The qualified professional shall be paid from the technical appeals program fund. Payment of the cost of The services provided by the qualified professional shall not be eligible do not qualify for credit against the person's liability under chapter 2, article 5 of this title. The department shall maintain a list of, and contact contract with, at least eight qualified professionals to conduct dispute resolutions. The parties shall mutually select a qualified professional. For purposes of this section, the inclusion of the qualified professional on the department's list maintained under this subsection shall not be is not deemed employment by the department. If the parties cannot agree on a qualified professional who is on the department's list, the parties shall mutually select a qualified professional who is not on the list but who otherwise meets the requirements of this subsection.
H. Within twenty days after the selection of a qualified professional, the person who requested the dispute resolution shall submit to the qualified professional and to the department a written statement including, at a minimum, a brief summary that describes the technical dispute, the person's proposed resolution of the technical dispute and any relevant supporting documentation. Within forty-five days after the submittal by the person, the department shall provide to the person and to the qualified professional the department's written response to the submittal. The qualified professional shall review the submittals and recommend a resolution of the technical dispute to the director within thirty days after receipt of the department's response. The qualified professional's recommendation shall be limited to the written interim decision as defined in subsection K of this section and the qualified professional shall not make recommendations relating to an interpretation of law or policy except the qualified professional may interpret policy to the extent necessary to review technical issues. The qualified professional, the department or the person who requested the dispute resolution may request a meeting with all of the parties before the qualified professional issues the recommended resolution. Within forty‑five days after receiving the qualified professional's recommendation, the director shall select the resolution of the dispute that is proposed by the qualified professional, the person who requested the dispute resolution, the department or some combination of these resolutions, and shall issue a written resolution to the person and the qualified professional that contains the factual, technical and legal grounds for the decision. By agreement the parties may modify any time limits prescribed by this subsection. If the director issues a written resolution of general applicability, the department shall issue a substantive policy statement or COMMENCE the rulemaking process under title 41, chapter 6.
I. For a person who files a written notice of disagreement pursuant to subsection D of this section, the time is tolled for compliance with any investigation, corrective action remediation, closure or other requirement that is associated with the subject of the notice of disagreement until the date of the department's final decision, dispute resolution under this section and any related appeals are concluded. The time for compliance shall not be is not tolled under this subsection if the person who files a written notice of disagreement is subject to an administrative order or judicial order, judgment or decree for the site that is the subject of the notice of disagreement. The time is tolled for filing any other appeal pursuant to chapter 2, article 5 of this title for any written interim decision defined in subsection K of this section.
J. A technical The appeals program fund is established for the purpose of implementing and administering this section and shall consist of any legislative appropriations and any fees payments collected under subsection G of this section. The department shall administer the fund. Monies in the fund are exempt from the provisions of section 35‑190, relating to lapsing of appropriations.
K. For the purposes of this section:
1. "Qualified professional" means an individual with a bachelors baccalaureate degree in geology, hydrogeology, hydrology or engineering or a juris doctor degree and with at least five years of professional experience in environmental investigation and remediation. Professional registration is highly preferred, if applicable. The qualified professional shall not be have been an employee of the party to a dispute resolution or the department within one year prior to the date of the notice of disagreement at issue and shall not have been an employee during the preceding year of a firm assisting the person authorized to informally appeal under subsection C of this section. The qualified professional shall not participate in an informal appeal if the qualified professional has a pecuniary or proprietary interest, either direct or indirect, in the matter being informally appealed.
2. "Written interim decision" means a technical decision involved in a decision under chapter 2, article 5 of this title relating to the department's:
(a) Decision to grant or deny a request for the rescoring of a registry site or for a determination of no further action under section 49‑287.01, subsection F, but only the decision made after the close of the public comment period described in that subsection.
(b) Decision to grant or deny a request to adjust a registry site boundary under section 49‑289.01.
(c) Review of a work plan submitted to the department under section 49‑285, subsection B, 49‑287.01, subsection A or 49‑287.03. The informal appeals process is limited to the information before the department when the department conducted its review concerning an issue of geologic, hydrologic, chemical, BIOLOGICAL or other SCIENTIFIC OR legal interpretation under this title.
Sec. 2. Section 49-1016, Arizona Revised Statutes, is amended to read:
49-1016. Responsibilities of owners and operators
A. Unless specifically indicated otherwise, the responsibilities of this chapter are imposed on the owner and the operator of an underground storage tank. If the owner and operator of an underground storage tank are separate persons, only one person is required to discharge any specific responsibility. Both persons are liable in the event of noncompliance.
B. The liabilities and responsibilities for releases of regulated substances imposed pursuant to this chapter shall apply even if the conduct that resulted in the release or the release itself occurred before August 13, 1986.
C. If a person comes into the possession or control of property where an underground storage tank is located and the person is not the owner as defined in section 49‑1001.01, the person shall:
1. Notify the department in writing specifying the tank's location, size and use, if known, if the owner has failed to do so.
2. Notify the department of each release or suspected release from the tank as soon as practicable if the owner or operator has failed to do so.
3. If the person voluntarily undertakes to remove or otherwise close the tank, do so in a safe and secure manner which that prevents releases of regulated substances and in accordance with standards prescribed by the director pursuant to section 49‑1008, except for the requirement to perform corrective action.
4. If the person voluntarily undertakes corrective action, take corrective action in a manner consistent with federal regulations and rules adopted by the director pursuant to section 49‑1005.
D. A person acting under subsection C of this section shall not incur the liability of an owner.
E. No agreement or conveyance shall be is effective to transfer the obligations imposed by this chapter from the owner or operator of any underground storage tank, or from any person who may be liable for a release or threat of release under this chapter, to any other person. Nothing in This section shall does not bar any agreement to insure, hold harmless, or indemnify a party to such the agreement for any liability under this chapter nor shall it or bar a cause of action that an owner or operator or any other person has or would have against any person.
F. In any action brought by the department under section 49‑1013, the state bears the burden of establishing that an owner or operator has violated the requirements of this chapter. An owner or operator is responsible for only the owner's or operator's contribution to any contamination that creates liability under this chapter. No party bears the burden of proving any person's contribution to the contamination in any informal or formal appeal pursuant to section 49-116, section 49‑1017, subsection D, section 49‑1019, subsection D or section 49‑1091.
G. If there is prima facie evidence that other identified or unidentified persons not at the owner's or operator's facility have contributed to the contamination, the owner or operator shall be is responsible to take corrective action only to the extent, by area, of the owner's or operator's release. The owner or operator shall not be is not required to identify or to prove the contribution of any contributing persons in order to limit the owner's or operator's own liability, but the owner or operator shall provide to the department any information the owner or operator knows regarding the identity or contribution of any other contributing persons. If the owner or operator does not disclose the information prior to before the owner's or operator's formal appeal of a decision by the department, upon on the department's request, the administrative hearing shall be continued for no more than thirty days from the scheduled hearing date. If the person who contributed to the contamination cannot be determined by a preponderance of the evidence, or if an allocation for some or all of the contamination cannot be established by a preponderance of the evidence, the liability that is not established to be the owner's or operator's by a preponderance of the evidence shall not be allocated to the owner or operator.
H. The department may issue a written interim decision or determination compelling owners and operators to allocate liability in accordance with section 49‑1019, subsection D if either of the following conditions are is met:
1. The owners and operators agree that no other owners or operators are liable for the contamination.
2. The contamination is from a single underground storage tank facility.
Sec. 3. Section 49-1019, Arizona Revised Statutes, is amended to read:
49-1019. Release of regulated substance; causes of action; limitation; liability
A. Any one of the following persons may bring an action in superior court against a person who caused or contributed to the release of a regulated substance from an underground storage tank to require that person to reimburse one of the following persons for the reasonable costs of corrective actions taken in response to the release:
1. An owner or operator of an underground storage tank or any other person who takes a corrective action pursuant to section 49‑1005.
2. An owner or operator of an underground storage tank or any other person from whom costs are recovered by this state pursuant to this chapter.
B. The person seeking reimbursement has the burden of demonstrating that the corrective action costs incurred were reasonable.
C. This article does not affect or modify the obligations or liability of a person, by reason of subrogation or otherwise, under any other provision of common law, federal law or the laws of this state, for damages, injury or loss resulting from a release of a regulated substance or for the costs of a corrective action, except that a person who receives compensation for the costs of a corrective action pursuant to this article is precluded from recovering compensation for the same corrective action costs pursuant to any other federal law or the laws of this state. A person who receives compensation for corrective action costs pursuant to federal law or the laws of this state is precluded from receiving compensation for the same corrective action costs as provided in this article.
D. Liability under this section shall be equitably allocated on a case-by-case basis in accordance with section 49‑1017, subsection D. Any party authorized to bring an action pursuant to subsection A of this section and any party against whom an action is brought may have liability allocated through mediation in accordance with section 49‑1017, subsection D or through the informal appeal process in accordance with section 49‑1091 49-116.
E. The department may take corrective action for a release and recover direct costs pursuant to section 49‑1017 in proportion to the allocation made pursuant to subsection D of this section if an owner or an operator does not perform all necessary corrective actions and there is no other person to perform corrective actions pursuant to section 49-1016, subsection C.
Sec. 4. Section 49-1091, Arizona Revised Statutes, is amended to read:
49-1091. Underground storage tank informal appeals
A. A person that undertakes corrective action pursuant to section 49‑1016, subsection C or an owner or operator may informally appeal the following decisions or determinations pursuant to this section 49-116:
1. A written interim decision from the underground storage tank program of the department.
2. A written interim determination from the department on matters relating to owner or operator status.
3. A written interim determination from the department on matters relating to preapproval or reimbursement from the underground storage tank revolving fund.
4. A written interim determination or decision relating to the allocation of liability pursuant to this chapter.
B. The department's failure to respond with make a written interim decision to the owner's or operator's submission to the department of any documents identified in subsection G of this section within one hundred twenty days after receipt is a basis for an informal appeal pursuant to section 49-116.
C. A person that undertakes corrective action pursuant to section 49‑1016, subsection C or an owner or operator who is subject to an interim decision or determination described in subsections A and B of this section, and who disagrees with the interim decision or determination, may file a written notice of disagreement with the department within thirty days after receiving the department's interim decision or determination. The notice shall include a description of the specific portions of the interim decision or determination with which the person, owner or operator disagrees and may include a request to meet with the department to resolve the disagreement. The department shall schedule a meeting within thirty days after receiving the request.
D. A person that requests a meeting pursuant to subsection C of this section or an authorized representative of the person designated in writing may attend the meeting with any individuals who may be helpful in discussing the matter with the department.
E. The department shall issue a final written decision or determination within forty‑five days after receiving the notice of disagreement or within fifteen days after a meeting pursuant to subsection C of this section, whichever is later.
C. If no notice of disagreement is filed, the department shall issue a final written decision or determination within forty‑five days after the issuance of the interim decision or determination.
D. Notwithstanding section 49‑116, subsection F, before the expiration of time for the department to issue a final written decision or determination, the department may request additional information from the person who has submitted a notice of disagreement that is necessary to make a final decision or determination. A person that receives this request shall have fifteen days to submit the requested information to the department. The time frames for the department to issue a final decision or determination shall be extended for up to fifteen days during the time the requested information is outstanding, and for up to fifteen additional days, if applicable, after any information is submitted to the department. The time to submit the requested information may be extended for up to sixty days on the request of a person that submits a notice of disagreement. The time frames for the department to issue a final decision or determination shall be extended accordingly. The time frames for the department to issue a final decision or determination shall also be extended if information relating to the subject of the notice of disagreement is not requested by the department but is provided to the department for the first time less than fifteen days after the date the department is required to issue a final decision or determination. In this situation, the time frames shall be extended to allow the department fifteen days after the date the information is submitted to issue a final decision or determination. If the department fails to issue a final written decision or determination within the time specified in this subsection, the department's written interim decision or determination becomes the final written decision or determination. The final written decision or determination shall address the notice of disagreement received pursuant to subsection C of this section 49‑116, subsection D. The final written decision or determination is the only decision or determination that is appealable as an appealable agency action as defined in section 41‑1092 or a contested case as defined in section 41‑1001.
F. The period of time for compliance with corrective actions associated with the subject matter of a notice of disagreement is tolled from the date that a person who undertakes corrective action pursuant to section 49‑1016, subsection C or an owner or operator files a written notice of disagreement with the department until the date the final decision or determination is rendered by the department and any appeals are completed.
G. A written interim decision shall address one of the following technical issues:
1. The department's approval, disapproval or notice of deficiency of site characterization reports.
2. The department's approval, disapproval or notice of deficiency of corrective action plans for soil or groundwater, or both.
3. The department's approval, disapproval or notice of deficiency of a work plan.
4. The department's determination or confirmation of a release.
5. The department's approval, disapproval or notice of deficiency of requests for closing a case file corresponding to a release from a leaking underground storage tank.
H. E. The department shall not alter the time limits prescribed by this chapter by adoption of a time limit by rule.
I. F. The department's failure to respond with a written interim determination to the owner's or operator's submission, or to the submission from a person that undertakes corrective action pursuant to section 49‑1016, subsection C, of an application for preapproval or reimbursement from the underground storage tank revolving fund within ninety days after receipt is a basis for an informal appeal.
Sec. 5. Section 49-1091.01, Arizona Revised Statutes, is amended to read:
49-1091.01. Fee and cost reimbursement; application; limitations
A. This section applies to an owner, an operator or a person that undertakes corrective action pursuant to section 49‑1016, subsection C for any of the following:
1. A written interim determination or interim decision from the department on matters relating to:
(a) Owner or operator status.
(b) Preapproval or reimbursement from the underground storage tank revolving fund established by section 49‑1015.
2. The department's approval, disapproval or notice of deficiency of:
(a) Site characterization reports.
(b) Corrective action plans for soil or groundwater, or both.
B. An owner, operator or person that undertakes corrective action pursuant to section 49‑1016, subsection C shall receive reimbursement for reasonable attorney fees, consultant fees and costs that are actually incurred and not excessive in all proceedings that follow the interim decision or interim determination pursuant to section 49‑1091, if that party satisfies both of the following requirements:
1. Submitted submits a written notice of the disagreement to the department within thirty days pursuant to section 49‑1091 49-116.
2. Requested requests and participated participates in a meeting with the department regarding decisions or determinations pursuant to section 49-116 or section 49‑1091, subsection A, paragraph 2 or subsection G, paragraph 1 or 2.
C. The attorney fees, consultant fees and costs shall be paid only for those amounts that are reasonable, actually incurred and not excessive in the portion of the proceedings that are the subject of the notice of disagreement in which the owner, operator or person that undertakes corrective action pursuant to section 49‑1016, subsection C prevailed, including proceedings resulting in a favorable decision or determination from the department or in a judicial proceeding.
D. The reimbursement provided by subsection B of this section is subject to the following limitations:
1. Fees and costs shall not be paid if the department makes a favorable determination or decision on the issue appealed before or in the final decision or determination.
2. Fees and costs shall not be paid if all of the following conditions are met:
(a) Information requested pursuant to section 49‑1053, subsection B or section 49‑1091, subsection E d is not provided to the department before the time the department issues a final decision or determination that is adverse to the owner, operator or person that undertakes corrective action pursuant to section 49‑1016, subsection C.
(b) The final decision or determination is subsequently reversed or otherwise decided in favor of the person based on information previously requested by the department.
3. In an appeal of a determination regarding an application for preapproval or reimbursement from the underground storage tank revolving fund, attorney fees, consultant fees and costs paid pursuant to this subsection may not exceed the amount that is in dispute.
4. If information requested by the department pursuant to section 49‑1053, subsection B or section 49‑1091, subsection E d is provided to the department before the department issues a final decision or determination that is adverse to the owner, operator or person that undertakes corrective action pursuant to section 49‑1016, subsection C, and the final decision or determination is subsequently reversed or otherwise decided in favor of the owner, operator or person that undertakes corrective action pursuant to section 49‑1016, subsection C based on that information, attorney fees, consultant fees and costs shall only be paid for those amounts actually incurred after the information was provided.
