49-701.02. Exemptions from definition of solid waste; soils; seller's duty to disclose

A. The following are exempt from the definition of solid waste:

1. On-site excavated soils that meet, at the on-site location where the soils are to be deposited, applicable predetermined remediation levels adopted by the department pursuant to chapter 1, article 4 of this title and applicable groundwater protection levels allowed pursuant to the leachability guidance policy filed with the secretary of state on March 5, 1998, pursuant to section 41-1091. If the soils exceed the predetermined residential remediation levels, the following conditions shall be met:

(a) The owner of the property upon which the soils are to be deposited shall file a written notice with the director, for placement in the repository established pursuant to section 49-152 which includes the name of the property owner, the street address and legal description of the property and the legal description of the area on which the excavated soils which exceed predetermined residential remediation levels are placed.

(b) If the excavated soils are removed to noncontiguous property owned or operated by the same person, the owner shall notify the department at least seventy-two hours prior to the intended removal.

2. On-site excavated soils that meet, at the on-site location where the soils are to be deposited, applicable site specific remediation levels allowed pursuant to chapter 1, article 4 of this title and applicable groundwater protection levels allowed pursuant to the leachability guidance policy filed with the secretary of state on March 5, 1998, pursuant to section 41-1091, provided the following conditions are met:

(a) The department first approves the use of such levels for the location where the soils are to be deposited. Any person who requests approval of an action pursuant to this paragraph shall reimburse the department for reasonable costs to review the proposed action.

(b) The owner of the property upon which the soils are to be deposited shall file a written notice with the director, for placement in the repository established pursuant to section 49-152 which includes the name of the property owner, the street address and legal description of the property and the legal description of the area on which the excavated soils which exceed remediation standards for residential exposure assumptions are placed.

3. Excavated soils that are reused at the site of excavation and that meet applicable background remediation levels allowed pursuant to chapter 1, article 4 of this title.

4. Nonexcavated soils.

5. Soils that are removed off site and that meet all predetermined residential remediation standards adopted by the department pursuant to chapter 1, article 4 of this title if the placement of soils at the off-site location meets all the requirements of the soil remediation standards adopted by the department pursuant to chapter 1, article 4 of this title.

B. An owner of property who has actual knowledge that the property has been used for the disposal of excavated soils which do not meet predetermined residential soil remediation levels or remediation standards for residential exposure assumptions adopted by the department pursuant to chapter 1, article 4 of this title shall, prior to transferring ownership of the property, give written notice of the disposal of the excavated soils that do not meet predetermined residential soil remediation levels or remediation standards for residential exposure assumptions to the purchaser. Actions brought pursuant to this subsection for failure of the seller to provide such written notice to the purchaser shall proceed as other civil actions.