Ala. Admin. Code r. 287-1-1-.03

Current through Register Vol. 42, No. 11, August 30, 2024

Section 287-1-1-.03 - Administrative Guidelines For Payment From The Fund

(1) Scope and Purpose.

(a) Consistent with the express intent of the Act, the fund shall only be used to address contamination caused by drycleaning agents occurring at or on drycleaning facilities, abandoned drycleaning facilities, wholesale distribution facilities, or real property of impacted third parties or adjacent landowners, and which has been reported to the Board and the Department. Monies from the fund shall be used only for payment for the costs of investigation, assessment, or remediation that are incurred after May 24, 2000.

(b) The trust fund shall benefit only those owners or operators, wholesale distributors, or persons owning abandoned drycleaning facilities who shall have elected to be covered pursuant to Code of Ala. 1975, §22-3OD-4. In addition, the fund shall benefit impacted third parties and adjacent landowners impacted or adjacent to drycleaning facilities or wholesale distribution facilities of such owners or operators or wholesale distributors.

(2) Upon receipt of full and complete applications for reimbursement accompanied by a good faith estimate, the Board shall make a determination of the eligibility of the PEP for coverage under the Fund.

(3) Eligibility for Coverage. In order for any owner or operator, wholesale distributor, or person owning abandoned drycleaning facilities, to be considered eligible for coverage under the Fund, the following criteria shall be met:

(a) The person requesting coverage shall have made all required payments of fees into the Fund and shall not be delinquent in any such payments;

(b) The person shall have complied (if applicable) with all performance standards required pursuant to Department regulations;

(c) The person shall have complied with all reporting requirements of the Department and the Board, including reporting of contamination;

(d) The contamination shall have been discovered before or after May 2000; provided that no payment shall be made from the Fund for costs incurred prior to May 24, 2000;

(e) The person shall have submitted to the Board a non-binding estimate of the cost of investigation, assessment, and remediation expected to be incurred at the site, divided into increments of work, based upon a schedule of projected work. Such estimate shall be revised from time to time to reflect updated information available;

(f) The person shall have retained an ADEC.

(4) Board Review and Approval of Claims. The Board shall review and approve, deny, or for good cause, defer action on claims for reimbursement, or any part thereof, submitted to the Board on behalf of any PEP. The Board shall consider and evaluate the following criteria in making a decision to approve or deny claims for reimbursement, or any part thereof, that are properly submitted to the Board:

(a) The order in which the claim for reimbursement is received by the Board;

(b) The ranking of the particular site on the Department's prioritization list;

(c) The balance of funds available in the Fund;

(d) Whether the drycleaning facility owner, operator, or current or prior abandoned facility owner or operator, wholesale distribution facility or operator has paid the registration fees required by Code of Ala. 1975, §22-3OD-6.

(5) Notification of Eligibility. The Board shall notify all PEP's of approval or denial of claims for reimbursement.

(6) Limitation of Expenditures.

(a) The Board shall not expend in excess of two hundred fifty thousand dollars ($250,000) from the fund per fiscal year for the costs of investigation, assessment, and remediation of contamination at any particular site unless such expenditure is required to avoid an imminent and substantial endangerment to human health or the environment. The Department shall determine whether an imminent and substantial endangerment to human health or the environment exists.

(b) The Board shall not obligate a distribution of monies from the fund that at any time would result in the diminution of the fund below a balance of one million dollars ($1,000,000) unless an emergency exists that the Department has determined constitutes an imminent and substantial endangerment to human health or the environment.

(c) In the event of an emergency as described herein, the Board shall approve the payment of reasonable response costs to remove the imminent and substantial endangerment to human health or the environment.

(7) Approval of Expenditures.

(a) The Board shall pre-approve all expenditures to be made from the Fund based upon the non-binding estimates submitted by the ADEC. No adjustments of amounts so pre-approved shall be considered without a written request from the ADEC to the Board setting forth any and all pertinent information that would justify a change in scope of work performed, schedule, or requirements.

(b) If any ADEC shall determine to proceed prior to obtaining a pre-approval from the Board, or shall proceed to deal with contamination under other State laws, all under the supervision and oversight of the Department, then in such events the ADEC shall provide to the Board certified copies of all costs incurred in connection with actual work performed at the site as approved by the Department, and the Board shall consider such costs as eligible for reimbursement from the Fund.

(8) Board Action on Claims. Board action on any claim shall be taken by a majority of a quorum present. Incomplete claims or claims not properly submitted to the Board shall not be considered. In order for claims to be complete, the claim form shall be accompanied by copies of invoices reporting the claim for reimbursement.

(9) Certification of Claims. The claim form shall be certified by the claimant as a true and correct representation of the actual cost for which a claim has been made or work actually incurred on the site for which coverage is available under the fund. The claims should be sworn and subscribed to before a notary public at large for the State of Alabama. The invoice must be within the scope of the estimate previously submitted and a revised estimate shall be submitted with each request for reimbursement to reflect the actual cost incurred to date.

(10) Sites Excluded from Fund Coverage. The Board shall not authorize distribution of fund monies to any of the following sites or facilities:

(a) Sites that are contaminated by drycleaning agents where the contamination at such sites did not result from the operation of a drycleaning facility, abandoned drycleaning facility, or wholesale distribution facility.

(b) Sites that are not drycleaning facilities, abandoned drycleaning facilities, wholesale distribution facilities, or the real property of impacted third parties or adjacent landowners, but are contaminated by a release that resulted from drycleaning agents being transported to or from a drycleaning facility, abandoned drycleaning facility, or wholesale distribution facility.

(c) Any drycleaning facility, abandoned drycleaning facility, or wholesale distribution facility, or any property of any impacted third party or adjacent landowner that has been, or is in the future, identified by the United States Environmental Protection Agency as a federal Superfund site pursuant to 40 CFR Part 300etseq.

(d) Any drycleaning facility, abandoned drycleaning facility, wholesale distribution facility, or any property of any impacted third party or adjacent landowner which has obtained a treatment, storage or disposal permit pursuant to the federal Resource Conservation and Recovery Act (RCRA) or AHWMMA regulations.

(e) Any drycleaning facility, abandoned drycleaning facility, wholesale distribution facility, or any real property owned or leased by any owner or operator or wholesale distributor who shall elect not to be covered by the provisions of this chapter within the time(s) required by this chapter or any real property of any impacted third party or adjacent landowner impacted by or adjacent to any such owner or operator or wholesale distributor.

(f) Any owner or operator, wholesale distributor, owner of any abandoned drycleaning facility, or impacted third party who shall fail to pay or be delinquent in payment of the registration fees require by the provisions of this chapter.

(11) Hearings; Judicial Review. Any PEP aggrieved by a decision of the Board may request a hearing before a hearing officer designated by the Board. The hearing officer will conduct the hearing on the record in accordance with the provisions of the Alabama Administrative Procedure Act (AAPA), Code of Ala. 1975, § 41-22-1etseq. In accordance with the AAPA, the hearing officer shall prepare and submit to the Board his or her Findings of Facts, Conclusions of Law, and Recommendation. The Board may accept, modify, or reject the hearing officer's recommendation, but shall render its final order not more than 30 days after receiving the recommendation of the hearing officer.

(12) No person shall file false or inaccurate information with the Board. PEPs and ADECs are required to follow the methods and procedures established by the Department and the Board for actions related to sites, including, but not limited to, release, response, initial investigation, property assessment, and remediation of sites.

Author: Robert D. Tambling

Ala. Admin. Code r. 287-1-1-.03

New Rule: Filed March 27, 2003; effective May 1, 2003. Amended: June 17, 2004; effective July 22, 2004.

Statutory Authority:Code of Ala. 1975, § 22-3OD-4(c).