49-282.06. Remedial action criteria; rules

A. Remedial actions shall:

1. Assure the protection of public health and welfare and the environment.

2. To the extent practicable, provide for the control, management or cleanup of the hazardous substances in order to allow the maximum beneficial use of the waters of the state.

3. Be reasonable, necessary, cost-effective and technically feasible.

B. The director shall adopt rules necessary to implement this article. The director may adopt CERCLA rules, guidelines or procedures by reference to the extent consistent with this article. Rules adopted pursuant to this subsection shall include rules for:

1. The use of monies from the fund, including establishing priorities for the use of the monies from the fund.

2. The scoring and rescoring of sites or portions of sites.

3. The criteria for a finding of no further action for sites pursuant to section 49-287.01.

4. The selection of remedial actions including the establishment of the level and extent of cleanup at a site or a portion of a site. The rules shall provide for the selection of a remedial action by comparison of alternative remedial actions, which may include no action, monitoring, source control, controlled migration, physical containment, plume remediation and the consideration of the criteria in subsection C of this section. The rules also shall provide that the selected remedial action meet the requirements of subsection A of this section and the following:

(a) For remediation of soil, the selected remedial action shall be consistent with the soil remediation standards adopted pursuant to section 49-152.

(b) For remediation of waters of the state, the selected remedial action shall address, at a minimum, any well that at the time of selection of the remedial action either supplies water for municipal, domestic, industrial, irrigation or agricultural uses or is part of a public water system if the well would now or in the reasonably foreseeable future produce water that would not be fit for its current or reasonably foreseeable end uses without treatment due to the release of hazardous substances. The specific measures to address any such well shall not reduce the supply of water available to the owner of the well.

5. Incentives for initiating early remedial actions and implementing innovative remedial technologies.

C. In adopting the rules required by this section and in selecting remedial actions, the director shall consider the following factors:

1. Population, environmental and welfare concerns at risk.

2. Routes of exposure.

3. Amount, concentration, hazardous properties, environmental fate, such as the ability to bioaccumulate, persistence and probability of reaching the waters of the state, and the form of the substance present.

4. Physical factors affecting human and environmental exposure such as hydrogeology, climate and the extent of previous and expected migration.

5. The extent to which the amount of water available for beneficial use will be preserved by a particular type of remedial action.

6. The technical practicality and cost-effectiveness of alternative remedial actions applicable to a site.

7. The availability of other appropriate federal or state remedial action and enforcement mechanisms, including, to the extent consistent with this article, funding sources established under CERCLA, to respond to the release.

D. Notwithstanding this article, the director may approve a remedial action that may result in water quality exceeding water quality standards after the completion of the remedy if the director finds that the remedial action meets the requirements of this section.

E. The director's approval pursuant to this section does not affect the classification of an aquifer pursuant to section 49-224.

F. Remedial actions required by this article shall be consistent with the requirements of title 45, chapter 2, except as provided in section 49-290.01.