49-287.04. Proposed remedial action plan; preliminary list of responsible parties; opportunity to comment; record of decision; appeal

A. After evaluating the site or portion of a site under section 49-287.03, the director shall prepare a proposed remedial action plan that describes all of the following:

1. The boundaries of the site or portion of the site that is the subject of the remedial action.

2. The results of the remedial investigation and feasibility study.

3. The proposed remedy and its estimated costs.

4. How the remediation goals and selection factors in section 49-282.06 and rules adopted by the director have been considered.

B. The director shall issue notice of the proposed remedial action plan pursuant to the community involvement plan. The notice shall:

1. Describe the proposed remedy and its estimated cost.

2. Identify where the proposed remedial action plan and remedial investigation and feasibility study report may be inspected.

3. Advise the public of the opportunity to provide comments on the proposed remedial action plan and the closing date for those comments.

C. A copy of the proposed remedial action plan shall also be sent to each person on the preliminary list of potentially responsible parties with a notice that includes the information required in subsection B of this section and that also shall:

1. Notify the recipients of the opportunity to propose alternative methods of allocation of liability among responsible parties.

2. Provide a preliminary list of potentially responsible parties and summarize the basis for each party's liability if the director determines that cost recovery may be appropriate.

3. Advise the recipient that all information known to the recipient regarding a person who may be liable under this article and any facility within the site from which a release of a hazardous substance may have occurred must be provided to the department within a reasonable period of time set by the department, but not less than sixty days. Failure to comply with this subsection precludes a person from introducing the evidence in an allocation hearing pursuant to section 49-287.06, and in an action brought pursuant to section 49-287.07, except as otherwise prescribed by those sections.

D. Within ninety days after the end of the public comment period, if the department has received sufficient information pursuant to section 49-287.02, subsection B identifying additional persons who may be responsible under this article or facilities where a release of a hazardous substance may have occurred, the director shall investigate that person or facility within the site as provided in section 49-287.02, subsection A or shall decline to investigate and shall notify the person providing the information in writing of the director's decision.

E. If, on the basis of new information or its investigation, the department believes there is sufficient evidence that an identified person is a responsible party under this article, the department shall provide the notice and proposed remedial action plan required by subsection C of this section to that party and a revised list of potentially responsible parties to the parties originally identified in the proposed remedial action plan. A newly identified potentially responsible party shall have the same opportunity for comment and the submission of information including information concerning additional responsible parties or releasing facilities as provided to the originally identified responsible parties under this section. If as a result of the submission of information by subsequently identified responsible parties or its own investigation the department believes that there are additional responsible parties, it shall provide the notice required by this subsection to those parties and the previously identified responsible parties and shall comply with the other procedures prescribed by this section.

F. After the conclusion of all public comment periods prescribed by this section, the director shall prepare a comprehensive responsiveness summary. The director shall prepare the record of decision regarding the remedial action plan.

G. The director shall serve written notice that a record of decision has been signed upon each person who submitted written comments on the proposed remedy selection and all persons identified as potentially responsible parties. A notice shall be published pursuant to the community involvement plan informing the public that the record of decision and comprehensive responsiveness summary have been prepared and are available for review.

H. A record of decision signed by the director is deemed to be a final administrative decision as defined in section 41-1092 as of the date it is served pursuant to subsection G of this section. There is no right to an administrative appeal, review or rehearing by the director on the record of decision. Any person who will be adversely affected by the record of decision and who commented on the proposed remedial action plan pursuant to this section may seek judicial review of the record of decision by filing a complaint in superior court pursuant to section 12-904, subsection A. The plaintiff shall serve the notice required by section 12-904, subsection B on the director.

I. If a complaint is filed pursuant to subsection H of this section, the court action is stayed and no answer is required until twenty days after one of the following events occurs:

1. Ninety days after notice of the allocator's report is served pursuant to section 49-287.06, subsection G.

2. Notice that no allocation hearing will be held is served pursuant to section 49-287.06, subsection A.

3. Notice of termination of an allocation hearing is served pursuant to section 49-287.06, subsection I.

4. The director moves that the stay should be lifted and the court grants the motion.

J. If a complaint is filed pursuant to subsection H of this section, the director shall serve any notice required by section 49-287.06, subsection A, E or G on each person who commented on the proposed remedial action plan.

K. The director shall notify all parties to an appeal if the director intends to implement the remedy before the stay under subsection I of this section is lifted. If the director gives this notice, the stay of the action pursuant to subsection I of this section does not preclude any party from seeking a preliminary injunction against the director from implementing the remedy.

L. On termination of the stay of an action pursuant to subsection I of this section, the director shall transmit the record to the superior court. The record shall consist of the proposed remedial action plan, copies of all written comments on the proposed remedial action plan, the comprehensive responsiveness summary and the record of decision. Judicial review shall be pursuant to title 12, chapter 7, article 6. If an evidentiary hearing is held pursuant to section 12-910, subsection A, then notwithstanding section 12-910, subsection B, no evidence may be admitted by the court unless it supports a specific comment made before the conclusion of the public comment period pursuant to this section by the party seeking to introduce the evidence. Section 12-910, subsection C does not apply to the appeal.