8 CAR Part 83 — Arkansas Remedial Action Trust Fund Hazardous Substances Site Priority List

Chapter I

Subchapter F

Subpart 1

8 CAR § 83-101 Authority {#sec-8-car-83-101 omnilex-key=us-ar-regs-official--title-8-part-83--8 CAR § 83-101}

8 CAR § 83-101. Authority.

This part is promulgated pursuant to provisions of the Remedial Action Trust Fund Act of 1985, Ark. Code Ann. § 8-7-509(f)(1).

8 CAR § 83-102 Purpose {#sec-8-car-83-102 omnilex-key=us-ar-regs-official--title-8-part-83--8 CAR § 83-102}

8 CAR § 83-102. Purpose.

(a) The Arkansas Remedial Action Trust Fund Hazardous Substances Site Priority List identifies those hazardous substance sites for which expenditures are authorized from the Hazardous Substances Remedial Action Trust Fund pursuant to the provisions of the Arkansas Code § 8-7-509(d)(2) and (d)(3).

(b)(1) It is not a site inventory or historical list.

(2) Sites are listed alphabetically, and a particular site’s position on the list is not relative to its hazard ranking or degree of risk or potential risk.

8 CAR § 83-103 Definitions {#sec-8-car-83-103 omnilex-key=us-ar-regs-official--title-8-part-83--8 CAR § 83-103}

8 CAR § 83-103. Definitions.

When used in connection with this part, terms shall have the meaning defined at Arkansas Code § 8-7-503, or as defined in Arkansas Pollution Control and Ecology Commission Regulation No. 23 § 260.10.

8 CAR § 83-104 Criteria for listing hazardous substance sites {#sec-8-car-83-104 omnilex-key=us-ar-regs-official--title-8-part-83--8 CAR § 83-104}

8 CAR § 83-104. Criteria for listing hazardous substance sites.

(a)(1) Moneys deposited into the Hazardous Substance Remedial Action Trust Fund shall be segregated into two (2) portions:

(A) Eighty percent (80%) of the annual receipts shall be designated for expenditures related to National Priority List (NPL) sites as listed in Subpart 2 of this part; and

(B) Twenty percent (20%) of the annual receipts shall be designated for expenditures related to State Priority List (SPL) sites as listed in Subpart 3 of this part.

(2) In the event moneys from either NPL or SPL sites are not expended in any given year, the remaining moneys shall be carried over to the next year and shall remain as originally apportioned, unaffected by apportionment of additional funds in subsequent years unless otherwise authorized by law.

(b) Moneys from the fund may not be expended by the Director of the Division of Environmental Quality at any hazardous substance site until the hazardous substance site is listed in the applicable subpart of this part.

(c) A hazardous substance site may be listed in Subpart 2 of this part (National Priority List (NPL) site) provided that:

(1) The hazardous substance site has been investigated and ranked by use of the revised Hazard Ranking System (rHRS); and

(2) The hazardous substance site scored a minimum of twenty-eight and five-tenths (28.50) based on the rHRS, or has been designated as the state’s priority site in accordance with 40 CFR § 300.425(c)(2) and placed on the federal National Priorities List as published in the Federal Register; and

(3) A final remedial investigation/feasibility study and health risk assessment, where applicable, has been conducted; and

(4) The Division of Environmental Quality has concurred with the remedy selection; and

(5) A record of decision (ROD) regarding the remedial action has been issued; and

(6) Federal moneys for the remedial action at the hazardous substance site have been committed; and

(7) The remedial design has progressed to the ninety-percent complete stage; and

(8) The division has provided a thirty-day public comment period and opportunity for hearing on the addition of the site to this list.

(d) Should the Arkansas Pollution Control and Ecology Commission disapprove the inclusion of a hazardous substance site in Subpart 2 of this part, the Chair of the Arkansas Pollution Control and Ecology Commission shall cause the record to reflect the specific rationale for this disapproval.

(e) Priority for funding in any given fiscal year for National Priority List sites identified in 8 CAR § 83-202 under the above criteria shall be as follows:

(1) Those sites where remedial actions, including operations and maintenance, have been initiated previously; and

(2) Additional hazardous substance sites based on the order of greatest impact to public health and/or the environment, as determined by the director after reviewing available information developed in accordance with CERCLA as amended and any other information considered applicable and scientifically reliable.

(f)(1) Hazardous substance sites that pose a potential substantial endangerment to human health and/or the environment but do not meet the criteria listed at subsections (c) or (d) of this section may be listed at 8 CAR § 83-302 (State Priority List (SPL) sites).

(2) Hazardous substance sites listed at 8 CAR § 83-302 will be eligible for investigation and necessary remedial action on a case-by-case basis as determined by the director.

(g) Eligible expenditures at hazardous substance sites listed at 8 CAR § 83-302 are those:

(1) Where investigatory activities are required to determine:

(A) The extent and degree, if any, of the release or threat of release of a hazardous substance at the site; and

(B) Any scientific or engineering studies deemed necessary by the director to determine available and necessary alternatives for remediation;

(2)(A) Where remediation activities are required to adequately secure, contain, abate, treat, dispose, or control hazardous substances to the extent financially and technically feasible, as determined by the director.

(B) Remediation activities shall include but are not limited to any engineering design work necessary to adequately plan, design, and implement remedial measures; or

(3) Where long-term stewardship, i.e., operations and maintenance activities to include five-year reviews, is required to ensure the long-term effectiveness of the remedy implemented at the hazardous substance site.

(h) Hazardous substance sites may be listed at 8 CAR § 83-302 based on:

(1) Proximity to population centers;

(2) Potential impacts to surface waters;

(3) Potential impact to groundwater;

(4) Hydrologic and geologic characteristics;

(5) The toxicity and characterization of hazardous substances present;

(6) The mobility of the hazardous substances present;

(7) The attenuation of the hazardous substances present; and

(8) Releases or threat of releases of the hazardous substances.

(i) Priority for available funding for hazardous substance sites listed at 8 CAR § 83-302 shall be as follows:

(1) Those sites where remedial actions, including operations and maintenance, have been initiated previously; and

(2) Additional hazardous substance sites based on the order of greatest impact to public health and/or the environment, as determined by the director after reviewing available information developed or discovered in the investigatory process.

(j) The above shall not be construed to preclude or limit the authority of the director in:

(1) Mandating actions pursuant to Arkansas Code § 8-7-501 et seq., the Remedial Action Trust Fund Act, deemed necessary to abate an imminent and substantial endangerment to the public health, safety, and welfare, or to the environment; or

(2) Ordering responsible parties to address and abate any release of a hazardous substance, pursuant to Arkansas Code § 8-7-501 et seq.

History

• Codification Notes: “CERCLA” is the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. § 9601 et seq. Authorities: Arkansas Code § 8-1-203; Arkansas Code § 8-7-209; Arkansas Code § 8-7-506

8 CAR § 83-105 Severability {#sec-8-car-83-105 omnilex-key=us-ar-regs-official--title-8-part-83--8 CAR § 83-105}

8 CAR § 83-105. Severability.

If any provision of this part or the application thereof is held invalid, its invalidity shall not affect other provisions of this part that can be given effect without the invalid provision or application, and to this end the provisions of this part are declared to be severable.

Subpart 2

8 CAR § 83-201 Description {#sec-8-car-83-201 omnilex-key=us-ar-regs-official--title-8-part-83--8 CAR § 83-201}

8 CAR § 83-201. Description.

(a) Hazardous substance sites listed in this subpart are those:

(1) That pose a potential substantial endangerment to human health and/or the environment; and

(2) For which state funds have been approved to match or supplement federal funding for remedial actions pursuant to CERCLA.

(b) Criteria for listing a particular site is governed by 8 CAR § 83-104(c).

History

• Codification Notes: “CERCLA” is the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. § 9601 et seq. Authorities: Arkansas Code § 8-1-203; Arkansas Code § 8-7-209; Arkansas Code § 8-7-506

8 CAR § 83-202 National Priority List sites {#sec-8-car-83-202 omnilex-key=us-ar-regs-official--title-8-part-83--8 CAR § 83-202}

8 CAR § 83-202. National Priority List sites.

Subpart 3

8 CAR § 83-301 Description {#sec-8-car-83-301 omnilex-key=us-ar-regs-official--title-8-part-83--8 CAR § 83-301}

8 CAR § 83-301. Description.

(a) Hazardous substance sites listed in this subpart are those that pose a potential substantial endangerment to human health and/or the environment, but do not meet the criteria for listing on the National Priority List.

(b) These sites have been designated as eligible for state-funded investigation and necessary remedial actions on a case-by-case basis as determined by the Director of the Division of Environmental Quality.

(c) Criteria for listing a particular site is governed by 8 CAR § 83-104(f) and (h).

8 CAR § 83-302 State Priority List sites {#sec-8-car-83-302 omnilex-key=us-ar-regs-official--title-8-part-83--8 CAR § 83-302}

8 CAR § 83-302. State Priority List sites.

Subpart 4

8 CAR § 83-401 Brownfield assessment funding {#sec-8-car-83-401 omnilex-key=us-ar-regs-official--title-8-part-83--8 CAR § 83-401}

8 CAR § 83-401. Brownfield assessment funding.

(a) The Director of the Division of Environmental Quality may use moneys, subject to statutory limitations, the appropriation of funding, and the availability of funding, from the Hazardous Substance Remedial Action Trust Fund to fund site assessments at any one (1) or more of the following:

(1) Abandoned industrial, commercial, and agricultural sites or residential properties as stated in Arkansas Code § 8-7-1101 et seq., for written requests from quasi-governmental agencies, county governments, school districts, and planning and development districts if the persons do not hold title at the time of the written requests; or

(2) Potentially contaminated sites where a letter of intent is signed and available federal funds exhausted.

(b) The provisions concerning site assessments under Arkansas Code §§ 8-7-504(a) and (b), 8-7-505, 8-7-508, 8-7-509(e) and (f), and 8-7-516 shall not apply.

(c) Funding under this section is subject to statutory limitations and the appropriation and availability of moneys.

Subpart 5

8 CAR § 83-501 Effective Date {#sec-8-car-83-501 omnilex-key=us-ar-regs-official--title-8-part-83--8 CAR § 83-501}

8 CAR § 83-501. Effective Date.

This part and any amendments or revisions to this part are effective ten (10) days after filing the part or any amendment or revision thereof with the Secretary of State, the Arkansas State Library, and the Bureau of Legislative Research following adoption by the Arkansas Pollution Control and Ecology Commission.