A.R.S. § 49-116 — Arizona Code / Title 49 / Chapter 1 / Article 1 / Section 116
49-116 Informal appeals of agency decisions; technical appeals program fund; definitions
Status: in_force

49-116. Informal appeals of agency decisions; technical appeals program fund; definitions

A. Except as provided in chapter 6 of this title and sections 49-287.05, 49-287.06 and 49-287.07, the informal appeals process established by this section applies to any written interim decision as defined by subsection K of this section.

B. The department shall make a written interim decision within the time frame provided by statute or rule or within ninety business days if no time frame is provided.  The time frame may be extended by agreement of the parties.  The department's failure to issue a written interim decision within the time frame provided by chapter 2, article 5 of this title is a basis for an informal appeal under this section.

C. A person who makes a request for a written interim decision may informally appeal, under this section, a written interim decision related to technical issues.

D. A person who has an informal appeal right pursuant to subsection C of this section and who disagrees with a written interim decision of the department or who objects to the lack of a written interim decision of the department may file a written notice of disagreement with the department within thirty days after receiving the department's interim decision or within thirty days after the expiration of the period prescribed by subsection B of this section.  The notice of disagreement shall include a description of the specific portions of the interim decision with which the person disagrees and may include a request to meet with the department to resolve the disagreement.  Unless the parties agree otherwise, the department shall schedule a meeting within thirty days after receipt of a request for a meeting.

E. The person who is authorized under subsection C of this section to request the meeting or an authorized representative of that person may attend the meeting with the department and may attend with any other person who may assist in resolving the disagreement with the department.

F. The department shall issue a final written decision within forty-five days after receipt of the notice of disagreement or within fifteen days after the conclusion of any meeting held pursuant to subsection D of this section, whichever is later.  If the department does not issue a final written decision within the time prescribed by this subsection, the department's written interim decision becomes the final written decision. The final written decision shall address the notice of disagreement that was received from the person and shall contain the factual, technical and legal grounds for the department's decision.

G. Within ten days after receipt of the final written decision or the expiration of the time for issuing the final written decision, the person who filed the notice of disagreement may submit a written request to the department that the matter be submitted to dispute resolution before a qualified professional as defined in subsection K of this section. The person who requests dispute resolution before a qualified professional under this subsection shall pay the full cost of the services provided by the qualified professional for the dispute resolution.  The payment for the services shall be deposited into the technical appeals program fund established in subsection J of this section. The qualified professional shall be paid from the technical appeals program fund.  Payment of the cost of the services provided by the qualified professional shall not be eligible for credit against the person's liability under chapter 2, article 5 of this title.  The department shall maintain a list of, and contact with, at least eight qualified professionals to conduct dispute resolutions. The parties shall mutually select a qualified professional. For purposes of this section, the inclusion of the qualified professional on the department's list maintained under this subsection shall not be deemed employment by the department. If the parties cannot agree on a qualified professional who is on the department's list, the parties shall mutually select a qualified professional who is not on the list who otherwise meets the requirements of this subsection.

H. Within twenty days after the selection of a qualified professional, the person who requested the dispute resolution shall submit to the qualified professional and to the department a written statement including, at a minimum, a brief summary that describes the technical dispute, the person's proposed resolution of the technical dispute and any relevant supporting documentation. Within forty-five days after the submittal by the person, the department shall provide to the person and to the qualified professional the department's written response to the submittal. The qualified professional shall review the submittals and recommend a resolution of the technical dispute to the director within thirty days after receipt of the department's response. The qualified professional's recommendation shall be limited to the written interim decision as defined in subsection K of this section and the qualified professional shall not make recommendations relating to an interpretation of law or policy except the qualified professional may interpret policy to the extent necessary to review technical issues. The qualified professional, the department or the person who requested the dispute resolution may request a meeting with all of the parties before the qualified professional issues the recommended resolution. Within forty-five days after receiving the qualified professional's recommendation, the director shall select the resolution of the dispute that is proposed by the qualified professional, the person who requested the dispute resolution, the department or some combination of these resolutions, and shall issue a written resolution to the person and the qualified professional that contains the factual, technical and legal grounds for the decision.  By agreement the parties may modify any time limits prescribed by this subsection.

I. For a person who files a written notice of disagreement pursuant to subsection D of this section, the time is tolled for compliance with any investigation, corrective action remediation, closure or other requirement that is associated with the subject of the notice of disagreement until the date of the department's final decision, dispute resolution under this section and any related appeals are concluded.  The time for compliance shall not be tolled under this subsection if the person who files a written notice of disagreement is subject to an administrative order or judicial order, judgment or decree for the site that is the subject of the notice of disagreement.  The time is tolled for filing any other appeal pursuant to chapter 2, article 5 of this title for any written interim decision defined in subsection K of this section.

J. A technical appeals program fund is established for the purpose of implementing and administering this section and shall consist of any legislative appropriations and any fees collected under subsection G of this section.  The department shall administer the fund. Monies in the fund are exempt from the provisions of section 35-190, relating to lapsing of appropriations.

K. For purposes of this section:

1. "Qualified professional" means an individual with a bachelors degree in geology, hydrogeology, hydrology or engineering and at least five years of professional experience in environmental investigation and remediation. Professional registration is highly preferred. The qualified professional shall not be an employee of the party to a dispute resolution or the department within one year prior to the date of the notice of disagreement at issue and shall not have been an employee during the preceding year of a firm assisting the person authorized to informally appeal under subsection C of this section. The qualified professional shall not participate in an informal appeal if the qualified professional has a pecuniary or proprietary interest, either direct or indirect, in the matter being informally appealed.

2. "Written interim decision" means a technical decision involved in a decision under chapter 2, article 5 of this title relating to the department's:

(a) Decision to grant or deny a request for the rescoring of a registry site or for a determination of no further action under section 49-287.01, subsection F, but only the decision made after the close of the public comment period described in that subsection.

(b) Decision to grant or deny a request to adjust a registry site boundary under section 49-289.01.

(c) Review of a work plan submitted to the department under section 49-285, subsection B, 49-287.01, subsection A or 49-287.03.  The informal appeals process is limited to the information before the department when the department conducted its review.
A.R.S. § 49-305 — Arizona Code / Title 49 / Chapter 2 / Article 6 / Section 305
49-305 Groundwater protection list; regulation of pesticides on list
Status: in_force

49-305. Groundwater protection list; regulation of pesticides on list

A. The director shall establish a groundwater protection list of pesticides that have the potential to pollute groundwater. The director shall immediately place all pesticides identified in section 49-303, subsection C, paragraphs 2 and 3 on the groundwater protection list and shall regulate the use of these pesticides if the pesticide is intended for application to or injection into the soil by ground based application equipment or by chemigation, or the label of the pesticide requires or recommends that the application be followed within seventy-two hours by flood or furrow irrigation. The director shall adopt rules to carry out this section.

B. On notice from the director, a person who uses a pesticide on the groundwater protection list is required to report the use of the pesticide on a form prescribed by the director.  The reporting deadline shall conform to the deadline established by the Arizona department of agriculture for reporting custom applications.

C. If a pesticide has not been detected in groundwater anywhere in this state in tests conducted by a governmental agency or other reliable source, the director may remove that pesticide from the groundwater protection list as provided in rule.
A.R.S. § 49-324 — Arizona Code / Title 49 / Chapter 2 / Article 7 / Section 324
49-324 Stay pending appeal; standard of review
Status: in_force

49-324. Stay pending appeal; standard of review

A. If an appeal is taken from the director's decision to issue a permit for a new facility, the facility may not discharge any pollutants inconsistent with the director's decision until the appeal process is completed.

B. Except as provided in subsections D and E of this section:

1. If an appeal is taken from the director's decision to grant or deny a permit for an existing facility under circumstances in which that facility was previously subject to a permit, the facility may continue to operate pending final disposition of the appeal if there is no increase in the amount of pollutants discharged or change in the characteristics of the discharge.

2. If an appeal is taken from the director's decision to grant, deny, modify or revoke a permit for a facility already subject to a permit, the facility may continue to operate as long as the operation complies with the conditions of the existing permit until final disposition of the appeal.

C. Decisions by the director shall be affirmed by the appeals board unless, considering the entire record before the board, it concludes that the director's decision is arbitrary, unreasonable, unlawful or based upon a technical judgment that is clearly invalid.

D. The director or any interested person who has appealed or intervened before the board may apply to the superior court for an order requiring cessation of discharge or conditions for continued discharge pending final disposition of the appeal as necessary to prevent an imminent and substantial endangerment to public health and the environment. The court shall determine the matter under the standards applicable for granting preliminary injunctions.

E. Notwithstanding section 41-1092.11, if a notice of appeal of a permit that is issued under article 3.1 of this chapter is filed with the water quality appeals board, those permit provisions that are specifically identified in the notice of appeal as being contested and those other permit provisions that cannot be severed from the contested provisions are automatically stayed while the appeal is pending before the board. Uncontested permit provisions that are severable from the contested provisions are effective and enforceable thirty days after the director serves notice on the applicant, the water quality appeals board and any party who commented on the proposed action of the conditions that are uncontested and severable.
A.R.S. § 49-152.01 — Arizona Code / Title 49 / Chapter 1 / Article 4 / Section 152.01
49-152.01 Engineering controls; financial assurance
Status: in_force

49-152.01. Engineering controls; financial assurance

A. If an engineering control is used to satisfy the requirements of section 49-152, the owner shall submit to the department an engineering control plan that contains all of the following:

1. A detailed description of the engineering control that is prepared by a professional engineer who is licensed in this state.  The description shall include a maintenance plan for the control and shall describe how the engineering control will prevent or minimize exposure to contaminants, the control’s specifications and its expected operational life.

2. A contingency plan for the engineering control in the event that the engineering control fails and must be restored or does not achieve the intended level of protection or mitigation.

3. A detailed cost analysis of the engineering control in current dollars.  The cost analysis shall include the cost of construction and maintenance and the cost of implementing the contingency plan.

4. A statement from the chief financial officer or a person in a similar position of legal responsibility on behalf of the owner that indicates that the owner is financially capable of meeting the requirements of this section.

B. The owner shall submit a proposed form of financial assurance document that is based on the cost analysis prescribed by subsection A, paragraph 3 of this section and that describes how the owner will ensure that the engineering control will be maintained and that there will be sufficient funds available to restore the engineering control if it fails or if it fails to meet its performance expectations.  The owner shall pay the department a fee established by rule with each request for approval, amendment or substitution of a financial assurance mechanism.  The financial assurance shall include all of the following:

1. Any one or more of the following in a form and amount that is satisfactory to the director:

(a) Payment into the institutional and engineering control fund established by section 49-159, in addition to payment of the fee prescribed by section 49-152, subsection K.

(b) A maintenance and restoration trust fund.

(c) Letter of credit.

(d) Surety bond guaranteeing performance of maintenance and restoration.

(e) Insurance policy.

(f) Financial test and corporate guarantee.

(g) A government financial test for state and federal agencies, cities, towns, counties and other government entities and political subdivisions.

(h) A government guarantee test for state and federal agencies, cities, towns, counties and other government entities and political subdivisions.

(i) Any other financial assurance mechanisms or combination of mechanisms as approved by the director.

2. If a government entity uses a government financial test or a government guarantee test to meet the requirements of this section, a subsequent owner shall demonstrate financial assurance pursuant to this section within thirty days of the sale or transfer of the property for which a financial assurance mechanism is required.

3. The amount of the financial assurance shall be sufficient to cover both of the following:

(a) The cost of maintenance of the engineering control for a period of thirty years or until the owner demonstrates that continued maintenance of the engineering control is no longer necessary, whichever occurs first.

(b) The cost of restoring the engineering control if it fails.

4. The financial assurance mechanism shall be structured so that the department has prompt access to the funds necessary to maintain or restore the engineering control as prescribed by section 49-152.02, if the owner fails to do so.

5. The amount of the financial assurance shall be adjusted to account for inflation.

6. On approval by the department, an owner may amend a financial assurance mechanism or may substitute a financial assurance mechanism with another.

C. At least five days before the sale or transfer of a property that is subject to a declaration of environmental use restriction because of an engineering control:

1. The owner of the property shall provide written notice of the sale or transfer to the department.  The notice shall identify the buyer or transferee.

2. The buyer or transferee shall provide to the department a written commitment to comply with the requirements of the engineering control plan and to maintain or replace the financial assurance mechanism.  The financial assurance obligations of the seller are not relieved until the buyer or transferee demonstrates financial assurance to the satisfaction of the department.
A.R.S. § 49-243 — Arizona Code / Title 49 / Chapter 2 / Article 3 / Section 243
49-243 Information and criteria for issuing individual permit; definition
Status: in_force

49-243. Information and criteria for issuing individual permit; definition

A. The director shall consider, and the applicant for an individual permit may be required to furnish with the application, the following information:

1. The design of the discharge facility. When formal as-built submittals are unavailable, the applicant shall provide sufficient documentation to allow evaluation of those elements of the facility affecting discharge pursuant to the demonstration required in subsection B, paragraph 1 of this section.

2. A description of how the facility will be operated.

3. Existing and proposed pollutant control measures.

4. A hydrogeologic study defining and characterizing the discharge impact area, including the vadose zone.

5. The use of water from aquifers in the discharge impact area.

6. The existing quality of the water in the aquifers in the discharge impact area.

7. The characteristics of the pollutants discharged by the facility.

8. Closure strategy.

9. Any other relevant federal or state permits issued to the applicant.

10. Any other relevant information the director may require.

B. The director shall issue a permit to a person for a facility other than water storage at a storage facility pursuant to title 45, chapter 3.1 if the person demonstrates that either paragraphs 1 and 2 or paragraphs 1 and 3 of this subsection will be met:

1. That the facility will be so designed, constructed and operated as to ensure the greatest degree of discharge reduction achievable through application of the best available demonstrated control technology, processes, operating methods or other alternatives, including, where practicable, a technology permitting no discharge of pollutants. In determining best available demonstrated control technology, processes, operating methods or other alternatives, the director shall take into account any treatment process contributing to the discharge, site specific hydrologic and geologic characteristics and other environmental factors, the opportunity for water conservation or augmentation and economic impacts of the use of alternative technologies, processes or operating methods on an industry-wide basis.  A discharge reduction to an aquifer achievable solely by means of site specific characteristics does not, in itself, constitute compliance with this paragraph. The requirements of this paragraph for wetlands designed and constructed to treat municipal and domestic wastewater for underground storage pursuant to section 49-241, subsection B may be met by including seepage through the bottom of the facility if it is demonstrated that site characteristics can act to achieve performance levels established as the best available demonstrated control technology by the director.  In addition, the director shall consider the following factors for existing facilities:

(a) Toxicity, concentrations and quantities of discharge likely to reach an aquifer from various types of control technologies.

(b) The total costs of the application of the technology in relation to the discharge reduction to be achieved from such application.

(c) The age of equipment and facilities involved.

(d) The industrial and control process employed.

(e) The engineering aspects of the application of various types of control techniques.

(f) Process changes.

(g) Non-water quality environmental impacts.

(h) The extent to which water available for beneficial uses will be conserved by a particular type of control technology.

2. That pollutants discharged will in no event cause or contribute to a violation of aquifer water quality standards at the applicable point of compliance for the facility.

3. That no pollutants discharged will further degrade at the applicable point of compliance the quality of any aquifer that at the time of the issuance of the permit violates the aquifer quality standard for that pollutant.

C. An applicant shall satisfy the requirements of subsection B, paragraph 1 of this section either by making a demonstration that the facility will meet the criteria of that paragraph or by agreeing to utilize the appropriate presumptive controls adopted by the director pursuant to section 49-243.01, subsection A.

D. In assessing technology, processes, operating methods and other alternatives for the purposes of this section, "practicable" means able to be reasonably done from the standpoint of technical practicality and, except for pollutants addressed in subsection I of this section, economically achievable on an industry-wide basis.

E. The determination of economic impact on an industry-wide basis for purposes of subsection B, paragraph 1 of this section shall take into account differences in industry sectors, the type and size of the operation and the reasonableness of applying controls in an arid or semiarid setting.

F. Control measures designed to further reduce discharge may not be required if the director determines that site specific conditions, in conjunction with technology, processes, operating methods or other alternatives are sufficient to meet the requirements of subsection B, paragraph 1 of this section.

G. A discharging facility at an open pit mining operation shall be deemed to satisfy the requirements of subsection B, paragraph 1 of this section if the director determines that both of the following conditions are satisfied:

1. The mine pit creates a passive containment that is sufficient to capture the pollutants discharged and that is hydrologically isolated to the extent that it does not allow pollutant migration from the capture zone.  For the purposes of this paragraph, "passive containment" means natural or engineered topographical, geological or hydrological control measures that can operate without continuous maintenance.  Monitoring and inspections to confirm performance of the passive containment do not constitute maintenance.

2. The discharging facility employs additional processes, operating methods or other alternatives to minimize discharge.

H. The director shall issue a permit to a person for water storage at a storage facility proposed under title 45, chapter 3.1 if the person demonstrates that the facility will be so designed, constructed and operated as to ensure that the project will not cause or contribute to the violation of any standard adopted pursuant to section 49-223 at the applicable point of compliance for the facility.

I. With respect to the following pollutants, the permit applicant for a new facility must meet the criteria of subsection B, paragraph 1 of this section to limit discharges to the maximum extent practicable regardless of cost:

1. Any organic substance listed by the secretary of the department of health and human services pursuant to 42 United States Code section 241(b)(4), as known to be carcinogens or reasonably anticipated to be carcinogens.

2. Any organic substance listed in 40 Code of Federal Regulations section 261.33(e), regardless of whether the substance is a waste subject to regulation under the resource conservation recovery act (P.L. 94-580; 90 Stat. 2795).

3. Any organic toxic pollutant that the director lists by rule after determining that minute amounts of that pollutant in drinking water will present a substantial short-term or long-term human health threat.

J. The director, by rule, may prescribe requirements for issuing a single permit applicable to all similar facilities under common ownership and located in a contiguous geographic area in lieu of an individual permit for each facility.

K. The director shall consider and may prescribe in the permit the following terms and conditions as necessary to ensure compliance with this article:

1. Monitoring requirements.

2. Record keeping and reporting requirements.

3. Contingency plan requirements.

4. Discharge limitations.

5. Compliance schedule requirements.

6. Closure requirements and, for a facility that cannot achieve clean closure, postclosure monitoring and maintenance requirements.

7. Alert levels that, when exceeded, may require adjustments of permit conditions or appropriate actions as are required by the contingency plans.

8. Such other terms and conditions as the director deems necessary to ensure compliance with this article.

L. With the consent of the applicant or permittee, the director may include in an aquifer protection permit for an existing facility the requirement that the applicant or permittee undertake a remedial action, as defined in section 49-281, to prevent, minimize or mitigate damage to the public health or welfare or to the waters of the state resulting from a discharge that occurred before August 13, 1986, if the following conditions are met:

1. The selection of remedial action, including the level and extent of cleanup, was determined according to the criteria in section 49-282.06 and the rules adopted pursuant to that section.

2. The pollutant that was discharged constituted a hazardous substance.

M. With the consent of the applicant or permittee, the director may include in an aquifer protection permit as a condition the mitigation measures authorized under section 49-286 instead of issuing a mitigation order under section 49-286.

N. The director may deny a permit for a facility if the director determines that the applicant is incapable of fully carrying out the terms and conditions of the permit, including any conditions that require monitoring or installing and maintaining discharge control measures. The following apply to an application for a permit or to an issued permit:

1. The director may require the applicant to furnish information, such as past performance, including compliance with or violations of similar laws or rules, and technical and financial competence, relevant to its capability to comply with the permit terms and conditions.

2. For the purposes of evaluating an applicant's financial competence for closure, the director may consider a closure strategy and cost estimate rather than a detailed closure plan.  Except for a state or federal agency or a county, city, town or other local governmental entity, the cost estimate shall be based on the cost for the applicant or permittee to hire a third party to conduct the closure strategy or plan unless the financial responsibility mechanism provided pursuant to this subsection is a self-assurance or a guarantee and the director determines that the applicant or permittee is technically and financially capable of closing the facility at its own cost and, if necessary, of conducting postclosure monitoring and maintenance. Except for a state or federal agency or a county, city, town or other local governmental entity, the permittee shall update its cost estimate:

(a) For the duration of the permit on a periodic basis as scheduled in the permit but not more frequently than once every five years.  The cost estimate shall be updated to adjust for inflation or as necessary to reflect increased or decreased costs resulting from changes to the facility or to the facility closure strategy or plan, or to any other relevant conditions related to the facility.

(b) For a significant amendment as defined by rule adopted by the director, if required to address incremental changes in the cost estimate that result from the significant amendment.

3. Except for a state or federal agency or a county, city, town or other local governmental entity, the applicant or permittee shall demonstrate financial responsibility to cover the estimated costs to close the facility and, if necessary, to conduct postclosure monitoring and maintenance by providing to the director for approval a financial assurance mechanism or combination of mechanisms as prescribed in rules adopted by the director or in 40 Code of Federal Regulations section 264.143 (f)(1) and (10) as of January 1, 2014. An applicant or permittee that demonstrates financial responsibility by means of a self-assurance or guarantee shall aggregate the estimated closure and postclosure costs for all aquifer protection permits in this state for which the applicant, permittee or guarantor has provided a self-assurance or a guarantee in order to determine whether the applicant, permittee or guarantor meets the applicable financial test.

4. The permittee shall maintain its demonstration of financial responsibility prescribed in this subsection for the duration of the individual permit.  Except for a state or federal agency or a county, city, town or other local governmental entity, the permittee shall periodically demonstrate financial responsibility and report to the director that the financial assurance mechanism is being maintained as scheduled in the permit and as prescribed in paragraph 3 of this subsection but not more frequently than once every two years.  The permit's applicable reporting schedule shall be based on the type of financial assurance mechanism that is selected pursuant to this subsection.

5. A demonstration of financial responsibility made for a facility as prescribed by section 49-770 shall suffice, in whole or in part, for any demonstration of financial responsibility prescribed by this section.

6. A demonstration of financial assurance or competence required under this section or section 49-770 for a facility shall not be required before completion of construction but shall be required before the department issues approval to operate.  Financial assurance for a facility is not required pursuant to this section if substantially similar financial assurance for that facility is required and has been provided pursuant to other federal, state or local laws, and evidence of that financial assurance is filed with the director.

7. Financial information required to be supplied under this subsection is confidential.

O. The director shall require an applicant for an individual permit to submit evidence that the discharging facility complies with applicable municipal or county zoning ordinances and regulations.  The director shall not issue the permit unless it appears from the evidence submitted by the applicant that the facility complies with the applicable zoning ordinances and regulations.

P. The director may issue a single area-wide permit applicable to facilities under common ownership and located in a contiguous geographic area in lieu of an individual permit for each facility. In issuing an area-wide permit, the demonstration required under subsection B, paragraphs 2 and 3 of this section may be considered collectively for all facilities included in the permit.  The director may evaluate discharge reduction collectively for existing facilities in the pollutant management area by considering any one or all of the factors set forth in subsection B, paragraph 1 of this section. The director may consolidate those permit conditions listed in subsection K of this section that have general applicability to the facilities included in the area-wide permit. An area-wide permit shall specify all of the following:

1. A description of the pollutant management area and point or points of compliance.

2. Those facilities that have been evaluated individually for meeting the criteria in subsection B, paragraph 1 of this section and that are included in the area-wide permit.

3. For multiple facilities within the pollutant management area that are substantially similar in nature and, considered alone, would have a small discharge impact area compared to other facilities in the area, narrative permit conditions may be used to define the best available demonstrated control technology, processes, operating methods or other alternatives consistent with subsection B, paragraph 1 of this section replacing the need for an individual technical review.

4. A compliance schedule for submittal and evaluation of information regarding design and discharge for existing facilities within the pollutant management area that, because of the small size, quantity or quality of discharge, or physical location with regard to the point or points of compliance, the director has determined that review for the purposes of subsection B, paragraph 1 of this section shall be conducted in the future.  In determining the requirements and length of a compliance schedule for an area-wide permit, the director shall consider the character and impact of the discharge, the nature of the activities necessary to prepare appropriate technical submittals, the number of persons potentially affected by the discharge, the current state of treatment technology, and the age of the facility.

Q. The director may expedite processing of an aquifer protection permit application by a permit applicant who proposes a new facility to discharge liquids that do not contain any pollutant in a concentration that exceeds a numeric aquifer water quality standard.  The director shall not require the applicant to complete a hydrogeologic study in order to obtain the permit unless the permit applicant is relying on site specific characteristics to meet the requirements of subsection B, paragraph 1 of this section or unless the study is necessary to demonstrate compliance with narrative aquifer water quality standards.  Applications made pursuant to this subsection shall have precedence and be considered by the department before all other aquifer protection permit applications.
A.R.S. § 49-104 — Arizona Code / Title 49 / Chapter 1 / Article 1 / Section 104
49-104 Powers and duties of the department and director
Status: in_force

49-104. Powers and duties of the department and director

A. The department shall:

1. Formulate policies, plans and programs to implement this title to protect the environment.

2. Stimulate and encourage all local, state, regional and federal governmental agencies and all private persons and enterprises that have similar and related objectives and purposes, cooperate with those agencies, persons and enterprises and correlate department plans, programs and operations with those of the agencies, persons and enterprises.

3. Conduct research on its own initiative or at the request of the governor, the legislature or state or local agencies pertaining to any department objectives.

4. Provide information and advice on request of any local, state or federal agencies and private persons and business enterprises on matters within the scope of the department.

5. Consult with and make recommendations to the governor and the legislature on all matters concerning department objectives.

6. Promote and coordinate the management of air resources to ensure their protection, enhancement and balanced utilization consistent with the environmental policy of this state.

7. Promote and coordinate the protection and enhancement of the quality of water resources consistent with the environmental policy of this state.

8. Encourage industrial, commercial, residential and community development that maximizes environmental benefits and minimizes the effects of less desirable environmental conditions.

9. Ensure the preservation and enhancement of natural beauty and man-made scenic qualities.

10. Provide for the prevention and abatement of all water and air pollution including that related to particulates, gases, dust, vapors, noise, radiation, odor, nutrients and heated liquids in accordance with article 3 of this chapter and chapters 2 and 3 of this title.

11. Promote and recommend methods for the recovery, recycling and reuse or, if recycling is not possible, the disposal of solid wastes consistent with sound health, scenic and environmental quality policies. The department shall report annually on its revenues and expenditures relating to the solid and hazardous waste programs overseen or administered by the department.

12. Prevent pollution through regulating the storage, handling and transportation of solids, liquids and gases that may cause or contribute to pollution.

13. Promote the restoration and reclamation of degraded or despoiled areas and natural resources.

14. Participate in the state civil defense program and develop the necessary organization and facilities to meet wartime or other disasters.

15. Cooperate with the Arizona-Mexico commission in the governor's office and with researchers at universities in this state to collect data and conduct projects in the United States and Mexico on issues that are within the scope of the department's duties and that relate to quality of life, trade and economic development in this state in a manner that will help the Arizona-Mexico commission to assess and enhance the economic competitiveness of this state and of the Arizona-Mexico region.

16. Unless specifically authorized by the legislature, ensure that state laws, rules, standards, permits, variances and orders are adopted and construed to be consistent with and not more stringent than the corresponding federal law that addresses the same subject matter. This paragraph does not adversely affect standards adopted by an Indian tribe under federal law.

17. Provide administrative and staff support for the oil and gas conservation commission.

B. The department, through the director, shall:

1. Contract for the services of outside advisers, consultants and aides reasonably necessary or desirable to enable the department to adequately perform its duties.

2. Contract and incur obligations reasonably necessary or desirable within the general scope of department activities and operations to enable the department to adequately perform its duties.

3. Use any medium of communication, publication and exhibition when disseminating information, advertising and publicity in any field of its purposes, objectives or duties.

4. Adopt procedural rules that are necessary to implement the authority granted under this title but that are not inconsistent with other provisions of this title.

5. Contract with other agencies, including laboratories, in furthering any department program.

6. Use monies, facilities or services to provide matching contributions under federal or other programs that further the objectives and programs of the department.

7. Accept gifts, grants, matching monies or direct payments from public or private agencies or private persons and enterprises for department services and publications and to conduct programs that are consistent with the general purposes and objectives of this chapter. Monies received pursuant to this paragraph shall be deposited in the department fund corresponding to the service, publication or program provided.

8. Provide for the examination of any premises if the director has reasonable cause to believe that a violation of any environmental law or rule exists or is being committed on the premises. The director shall give the owner or operator the opportunity for its representative to accompany the director on an examination of those premises. Within forty-five days after the date of the examination, the department shall provide to the owner or operator a copy of any report produced as a result of any examination of the premises.

9. Supervise sanitary engineering facilities and projects in this state, authority for which is vested in the department, and own or lease land on which sanitary engineering facilities are located, and operate the facilities, if the director determines that owning, leasing or operating is necessary for the public health, safety or welfare.

10. Adopt and enforce rules relating to approving design documents for constructing, improving and operating sanitary engineering and other facilities for disposing of solid, liquid or gaseous deleterious matter.

11. Define and prescribe reasonably necessary rules regarding the water supply, sewage disposal and garbage collection and disposal for subdivisions. The rules shall:

(a) Provide for minimum sanitary facilities to be installed in the subdivision and may require that water systems plan for future needs and be of adequate size and capacity to deliver specified minimum quantities of drinking water and to treat all sewage.

(b) Provide that the design documents showing or describing the water supply, sewage disposal and garbage collection facilities be submitted with a fee to the department for review and that no lots in any subdivision be offered for sale before compliance with the standards and rules has been demonstrated by approval of the design documents by the department.

12. Prescribe reasonably necessary measures to prevent pollution of water used in public or semipublic swimming pools and bathing places and to prevent deleterious conditions at those places. The rules shall prescribe minimum standards for the design of and for sanitary conditions at any public or semipublic swimming pool or bathing place and provide for abatement as public nuisances of premises and facilities that do not comply with the minimum standards. The rules shall be developed in cooperation with the director of the department of health services and shall be consistent with the rules adopted by the director of the department of health services pursuant to section 36-136, subsection I, paragraph 10.

13. Prescribe reasonable rules regarding sewage collection, treatment, disposal and reclamation systems to prevent the transmission of sewage borne or insect borne diseases. The rules shall:

(a) Prescribe minimum standards for the design of sewage collection systems and treatment, disposal and reclamation systems and for operating the systems.

(b) Provide for inspecting the premises, systems and installations and for abating as a public nuisance any collection system, process, treatment plant, disposal system or reclamation system that does not comply with the minimum standards.

(c) Require that design documents for all sewage collection systems, sewage collection system extensions, treatment plants, processes, devices, equipment, disposal systems, on-site wastewater treatment facilities and reclamation systems be submitted with a fee for review to the department and may require that the design documents anticipate and provide for future sewage treatment needs.

(d) Require that construction, reconstruction, installation or initiation of any sewage collection system, sewage collection system extension, treatment plant, process, device, equipment, disposal system, on-site wastewater treatment facility or reclamation system conform with applicable requirements.

14. Prescribe reasonably necessary rules regarding excreta storage, handling, treatment, transportation and disposal. The rules may:

(a) Prescribe minimum standards for human excreta storage, handling, treatment, transportation and disposal and shall provide for inspection of premises, processes and vehicles and for abating as public nuisances any premises, processes or vehicles that do not comply with the minimum standards.

(b) Provide that vehicles transporting human excreta from privies, septic tanks, cesspools and other treatment processes be licensed by the department subject to compliance with the rules. The department may require payment of a fee as a condition of licensure. The department shall establish by rule a fee as a condition of licensure, including a maximum fee. The fees shall be deposited, pursuant to sections 35-146 and 35-147, in the solid waste fee fund established by section 49-881.

15. Perform the responsibilities of implementing and maintaining a data automation management system to support the reporting requirements of title III of the superfund amendments and reauthorization act of 1986 (P.L. 99-499) and article 2 of this chapter.

16. Approve remediation levels pursuant to article 4 of this chapter.

17. Establish or revise fees by rule pursuant to the authority granted under title 44, chapter 9, articles 8 and 9 and chapters 4 and 5 of this title for the department to adequately perform its duties. All fees shall be fairly assessed and impose the least burden and cost to the parties subject to the fees. In establishing or revising fees, the department shall base the fees on the direct and indirect costs of the department's relevant duties, including employee salaries and benefits, professional and outside services, equipment, in-state travel and other necessary operational expenses directly related to issuing licenses as defined in title 41, chapter 6 and enforcing the requirements of the applicable regulatory program.

18. Appoint a person with a background in oil and gas conservation to act on behalf of the oil and gas conservation commission and administer and enforce the applicable provisions of title 27, chapter 4 relating to the oil and gas conservation commission.

C. The department may:

1. Charge fees to cover the costs of all permits and inspections it performs to ensure compliance with rules adopted under section 49-203 except that state agencies are exempt from paying the fees.

2. Monies collected pursuant to this subsection shall be deposited, pursuant to sections 35-146 and 35-147, in the water quality fee fund established by section 49-210.

3. Contract with private consultants for the purposes of assisting the department in reviewing applications for licenses, permits or other authorizations to determine whether an applicant meets the criteria for issuance of the license, permit or other authorization. If the department contracts with a consultant under this paragraph, an applicant may request that the department expedite the application review by requesting that the department use the services of the consultant and by agreeing to pay the department the costs of the consultant's services. Notwithstanding any other law, monies paid by applicants for expedited reviews pursuant to this paragraph are appropriated to the department for use in paying consultants for services.

D. The director may:

1. If the director has reasonable cause to believe that a violation of any environmental law or rule exists or is being committed, inspect any person or property in transit through this state and any vehicle in which the person or property is being transported and detain or disinfect the person, property or vehicle as reasonably necessary to protect the environment if a violation exists.

2. Authorize in writing any qualified officer or employee in the department to perform any act that the director is authorized or required to do by law.
A.R.S. § 49-263 — Arizona Code / Title 49 / Chapter 2 / Article 4 / Section 263
49-263 Criminal violations; classification; definition
Status: in_force

49-263. Criminal violations; classification; definition

A. It is unlawful to:

1. Discharge without a permit or appropriate authority under this chapter.

2. Fail to monitor, sample or report discharges as required by a permit issued under this chapter.

3. Violate a discharge limitation specified in a permit issued under this chapter.

4. Violate a water quality standard.

5. Commence underground injection or construction of an underground injection well without a permit or other appropriate authority under this chapter.

6. Violate any underground injection standard or requirement that is required by a permit issued or authorized under this chapter.

B. A person who with criminal negligence performs an act prohibited under subsection A of this section is guilty of a class 6 felony.

C. A person who knowingly performs an act prohibited under subsection A of this section is guilty of a class 5 felony.

D. A person who knowingly or recklessly manifests an extreme indifference for human life in performing an act prohibited under subsection A of this section is guilty of a class 2 felony.

E. For a class II well, a person who knowingly violates any underground injection control permit program requirements prescribed by this chapter may be subject to pipeline (production) severance.

F. A violation of any provision of this chapter for which a penalty is not otherwise prescribed is a class 2 misdemeanor.

G. The attorney general may enforce this section.

H. Monetary criminal penalties obtained under this section shall be deposited, pursuant to sections 35-146 and 35-147, in the state general fund.

I. For purposes of this section "person" has the meaning assigned to that term by section 13-105.
A.R.S. § 49-323 — Arizona Code / Title 49 / Chapter 2 / Article 7 / Section 323
49-323 Appeals to the board; judicial review
Status: in_force

49-323. Appeals to the board; judicial review

A. An appeal to the appeals board may be taken from any grant, denial, modification or revocation of any individual permit issued under this chapter, from any issuance, denial or revocation of a determination pursuant to section 49-241, subsections B and C or from the establishment of numeric values and data gap issues for pesticides pursuant to sections 49-303 and 49-304, by any person who is adversely affected by the action or by any person who may with reasonable probability be adversely affected by the action and who has exercised any right to comment on the action as provided in section 41-1092.03.  Any interested person may intervene in the appeal as a matter of right. The board shall hold a hearing if questions of material fact are at issue in the appeal. Notice and hearing procedures are subject to title 41, chapter 6, article 10.

B. Final decisions of the board are subject to appeal to superior court pursuant to title 12, chapter 7, article 6.  For the benefit of the people of this state, appeals under this section have precedence, in every court, over all other civil proceedings.  The presiding judge for the county in which the appeal has been made shall assign the appeal to the appropriate judge designated by the chief justice of the supreme court pursuant to section 45-406 to hear appeals relating to groundwater.
A.R.S. § 49-298 — Arizona Code / Title 49 / Chapter 2 / Article 5 / Section 298
49-298 Appealable agency actions; licenses
Status: in_force

49-298. Appealable agency actions; licenses

A. Nothing in this article is an appealable agency action as defined in section 41-1092 or a contested case as defined in section 41-1001 except for the following:

1. A determination by the director that a person does not qualify for a settlement pursuant to section 49-292.01 or 49-292.02.

2. A no further action determination pursuant to section 49-287.01, subsection H.

B. An appeal shall be initiated by filing a notice of appeal with the director pursuant to section 41-1092.03, subsection B.

C. Nothing in this article constitutes a license as defined in section 41-1001.
A.R.S. § 49-192 — Arizona Code / Title 49 / Chapter 1 / Article 7 / Section 192
49-192 Definitions
Status: in_force

49-192. Definitions

In this article, unless the context otherwise requires:

1. "Environmental laws" means this title and any rules, permits and orders that are adopted or issued pursuant to this title.

2. "Environmental management system" means a set of documented processes and practices that enable an organization to reduce its environmental impacts and increase its operating efficiency by continuously improving its environmental performance.

3. "Environmental performance" means the effect of a facility or activity on air, water, land, natural resources or human health and the generation of waste by a facility or activity.

4. "Organization" means a company, corporation, political subdivision, firm, enterprise or institution, or any part or combination, whether incorporated or not, public or private, that has its own functions and administration. For organizations with more than one operating unit, a single operating unit may be defined as an organization.
A.R.S. § 49-295 — Arizona Code / Title 49 / Chapter 2 / Article 5 / Section 295
49-295 Environmental liens
Status: in_force

49-295. Environmental liens

A. In addition to other rights or remedies available to this state, and in order to protect the state's interest in recovering monies expended by the state for remedial action, all remedial action costs for which a person is liable to the state for the remedial actions conducted at that facility by the state under this article constitute a lien in favor of the state against only the property that is a facility subject to or affected by that remedial action and in which the person who is liable has an ownership interest.

B. The director may request the attorney general to file an action in the superior court in the county in which the property is located for an order establishing an environmental lien. The application for an environmental lien may be filed and recorded pursuant to subsection H of this section. The application for an environmental lien shall include the following information:

1. The name of the record owner of the real property on which the environmental lien is requested, the name of the person purportedly liable, if different, and the person's ownership interest.

2. The legal description of the real property where the environmental lien attaches.

3. The amount and an itemization of remedial action costs that have been incurred by this state as of the time the application is filed.

4. A statement of the evidence demonstrating that the person is liable for remedial action costs incurred by the state under this article.

C. On the filing of an application for an environmental lien, the court shall set a hearing date at least thirty but not more than forty-five days from the date the application is filed with the court. The hearing may be rescheduled if all parties agree to a different date. Service of the application and notice of the hearing date on the purportedly liable person and the record owner of the subject real property, if different, shall be in the manner prescribed in the Arizona rules of civil procedure.

D. On a showing by the state of probable cause that the person is liable for remedial action costs incurred by the state under this article and the amount of the remedial action costs and that the person has an ownership interest in the real property that is the subject of the application for an environmental lien, the court may issue an order establishing an environmental lien in favor of the state.

E. The order establishing an environmental lien shall be filed and recorded as provided in subsection H of this section. If the state records the application for an environmental lien as provided in subsection H of this section, the environmental lien shall be deemed to attach as of the date of recording of the application for the environmental lien, once the order establishing the environmental lien is filed and recorded. If the state does not record the application for the environmental lien, the environmental lien attaches only on the recording of the order establishing the lien as provided in subsection H of this section.

F. If after establishment of an environmental lien the state incurs additional remedial action costs for which the person is liable under this article, the state may seek to amend the existing lien to include in the amount of the lien the additional remedial action costs incurred. The state shall file a statement itemizing the costs incurred with the court, with service as prescribed in subsection C of this section. On a showing by the state of probable cause with respect to the amount of those additional remedial action costs, the court may increase the amount of the environmental lien by the amount of those additional remedial action costs.

G. Any person that has been determined liable for remedial action costs in a probable cause hearing for purposes of establishing a lien and that owns an interest in real property that is the subject of an environmental lien established under this section shall notify the state in writing at least sixty days before alienating the interest. If the state believes that it will incur future remedial action costs at the facility, the state may within thirty days of receipt of the notification request a probable cause hearing pursuant to subsection C of this section. The court shall schedule the requested hearing before expiration of the sixty day period beginning on the date the state received notice that the person intends to alienate its interest, unless the parties agree to a continuance. Unless the person giving notice to the state withdraws that notice before the scheduled date of the hearing, the court shall conduct a hearing to estimate the state's future remedial action costs and may issue an order amending the lien to include total future remedial action costs that the state appears reasonably likely to incur. Any order increasing the amount of an existing lien pursuant to this subsection may be filed and recorded as provided in subsection H of this section. Any person having an ownership interest in the property that may be adversely affected by the order increasing the environmental lien may challenge the increased lien amount by filing a motion to quash pursuant to subsection I of this section. If the state fails to request a probable cause hearing with respect to estimated future remedial action costs within thirty days of receipt of the notification, any person subsequently purchasing an interest in real property that is subject to an environmental lien takes that interest subject only to existing, unsatisfied liens, and that person is liable to the state for future remedial action costs only to the extent it is liable for those costs because it is a responsible party under section 49-283 or because it is otherwise liable under other federal, state or common law.

H. Any application, order, lien, release or other document required to be recorded under this section shall be recorded in the office of the county recorder of the county where the real property is located. A filing fee or other charge is not required for filing any document pursuant to this section. The filing or mailing of any document pursuant to this section is the responsibility of the director or the director's designee. A copy of an environmental lien shall also be sent by certified mail to any other person including an owner, purchaser, holder of a mortgage or security interest or judgment lien creditor whose interest was perfected and recorded before an application for an environmental lien was recorded.

I. If a court issues an order establishing an environmental lien, any person having an interest in the real property that may be adversely affected by establishment of the lien may file a motion to quash the lien. The court retains jurisdiction to resolve any issue of fact or law raised by the motion to quash. If the motion to quash raises issues of fact, the person challenging the lien and the state are entitled to conduct expedited discovery on application to the court and are entitled to a priority for trial.

J. At any time after the lien is recorded any person having an ownership interest in real property subject to an environmental lien may move the court to substitute other security for the lien. The court shall retain jurisdiction to determine the sufficiency of the substituted security. On approval of the substituted security, the environmental lien shall be released.

K. Notwithstanding any other provision of this section, an environmental lien does not apply to real property that is used primarily for or that is under construction for use in single or multi-family housing at the time the environmental lien is recorded.

L. The director shall release an environmental lien if the lien or a claim or judgement for the remedial action costs is satisfied. If the lien or a claim or judgement for the remedial action costs has been partially but not wholly satisfied, the director on request of any person having an ownership interest in the property shall reduce the amount of the lien by the amount satisfied. The director may release an environmental lien if the director determines that the lien is not in the best interest of the state.

M. If the court refuses to issue an order establishing an environmental lien, any person having an interest in the property against which an environmental lien was sought is not entitled to attorney fees or damages against the state if the court determines that there was reasonable cause for the application.

N. Any determination of any issue by the court in a hearing held pursuant to this section shall not be considered binding in any future judicial or administrative proceeding except that any issue litigated in a motion to quash filed pursuant to this section shall not be litigated again in any subsequent motion to quash filed pursuant to this section that is filed by the same party.

O. An environmental lien is subject to any other lien that is perfected and recorded before the attachment date of the environmental lien as determined pursuant to subsection E of this section.

P. On entry of a final judgment in favor of the state for remedial action costs, an environmental lien may be foreclosed in the manner provided for foreclosure of mortgages pursuant to title 33, chapter 6, article 2. The state may combine an action to recover remedial action costs with an action to foreclose an environmental lien established under this section.

Q. This section does not preclude the state from initiating other actions under this title or under federal law.
A.R.S. § 49-191 — Arizona Code / Title 49 / Chapter 1 / Article 6 / Section 191
49-191 Greenhouse gas programs; definition
Status: in_force

49-191. Greenhouse gas programs; definition

A. Notwithstanding any other law, a state agency established under this title or title 41 shall not adopt or enforce a state or regional program to regulate the emission of greenhouse gas for the purposes of addressing changes in atmospheric temperature without express legislative authorization.

B. For the purposes of this section, "greenhouse gas" means carbon dioxide, methane, nitrous oxide, sulfur hexafluoride, hydrofluorocarbon or perfluorocarbon.
A.R.S. § 49-130 — Arizona Code / Title 49 / Chapter 1 / Article 2 / Section 130
49-130 Emergency and hazardous chemical inventory forms
Status: in_force

49-130. Emergency and hazardous chemical inventory forms

A. A person who owns or operates a facility that is required to prepare or have available a material safety data sheet for a hazardous chemical under the occupational safety and health act of 1970 (P.L. 91-593; 84 Stat. 1590) and federal regulations adopted under that act or that has to provide a material safety data sheet or listing under this article shall either file electronically as prescribed by subsection D of this section or submit to the local emergency planning committee for the district in which the facility is located, the department and the fire department with jurisdiction over the facility an emergency and hazardous chemical inventory form pursuant to section 312 of title III as well as comply with section 312 of title III and regulations adopted under that act, except that the tier II emergency and hazardous chemical inventory form shall be the required form to comply with section 312 of title III effective with inventory forms due on or after March 1, 1991.

B. The tier II inventory form shall contain the following information:

1. The chemical name or the common name of the chemical as provided on the material safety data sheet and the CAS number.

2. An estimate, in ranges, of the maximum amount of the hazardous chemical present at the facility at any time during the preceding year.

3. An estimate, in ranges, of the average daily amount of the hazardous chemical present at the facility during the preceding year.

4. A brief description of the manner of storage of the hazardous chemical.

5. The location of the hazardous chemical at the facility.

6. An indication of whether the owner elects to withhold location information or other information about a specific hazardous chemical from disclosure to the public as a trade secret.

7. The fire department or district with jurisdiction for the facility, including a notation of whether the facility is located on Indian lands.

C. An owner or operator of a facility subject to this section shall submit the information required by this section on the inventory form provided by the department.  The tier II inventory form provided by the department shall be available in electronic and paper formats and shall be based on and contain at least the information required by the federal forms as prescribed by 40 Code of Federal Regulations section 370.41. The department shall identify on its tier II inventory form each item that is required to be reported by 40 Code of Federal Regulations section 370.41.  The department shall provide notice on the form that the provision of the information items not required by 40 Code of Federal Regulations section 370.41 is optional.

D. Facilities that are subject to reporting under this article may file reports electronically at an internet website that is designated by the department.  A facility that files electronically pursuant to this subsection is deemed to have complied with the reporting requirements of the department and with the requirements of title III.  Local emergency planning committees, fire departments and fire districts also may accept electronic reporting if they have agreed to do so in a written agreement with the department that provides for the electronic filing and sharing of reports. The department shall publish on the department's website a listing of local emergency planning committees, fire departments and fire districts that have agreed to accept electronic reporting to assist facilities in determining submission requirements.

E. On certifying an electronic submittal pursuant to subsection D of this section, the facility is deemed to have complied with the original signature requirements of section 312 of title III.  The department and the facility shall each maintain tracking information for the submittal for purposes of confirmation.

F. Information that is collected pursuant to this section shall be made available to the public pursuant to 40 Code of Federal Regulations part 370, subpart C, except for confidential information.

G. For purposes of this section, tier II forms are the forms established under 40 Code of Federal Regulations part 370.
A.R.S. § 49-287.01 — Arizona Code / Title 49 / Chapter 2 / Article 5 / Section 287.01
49-287.01 Investigation scoring and site registry; no further action
Status: in_force

49-287.01. Investigation scoring and site registry; no further action

A.  When information of a possible release or threatened release of a hazardous substance is received, the director may conduct a preliminary investigation to obtain additional information necessary to determine the potential risk to the public health or welfare or the environment in order to score the site or portion of the site and include it on the site registry. By written agreement, the director may allow any person to conduct any portion of the preliminary investigation.

B. After completing the preliminary investigation or at any time during the preliminary investigation, the director may suspend or terminate an investigation or determine that no further investigation or action is necessary. The director may reopen the preliminary investigation on a determination that the release or threatened release continues to present an imminent and substantial threat to the public health or welfare or the environment.  If a preliminary investigation is completed, the director shall prepare a draft of the site registry report required under subsection D of this section.  If the director drafts a site registry report pursuant to this section, the report shall contain a description of the site or portion of the site, including its geographical boundaries, and a score in accordance with the site scoring method established in rules adopted by the director.

C. Before finalizing the report and the score, the director shall furnish a copy to the current owners and operators of the site or portion of the site, if known, and shall provide fifteen days for review and comment. The director shall then place a copy in the public file and shall publish the score in a newspaper of general circulation within the county in which the site is located.  The director shall provide thirty days for comment and shall consider any comments before issuing the final report and score.

D. The director shall maintain a registry of scored sites or portions of sites that includes a brief description of the site or portion of the site, its score and a brief description of the status of investigative and remedial actions.  The scoring of a site or portion of the site, its relative score or its placement on the registry does not necessarily represent a determination that the release of a hazardous substance from the site poses a threat to human health or welfare or the environment.  Prior to approving any remedy that may result in water quality exceeding water quality standards after completion of the remedy, the director shall place a notice in the registry established pursuant to this subsection that the remedy may result in water quality exceeding water quality standards.

E. New scores shall be added to the registry as soon as practicable. The registry shall be published annually by the secretary of state in the Arizona administrative register.  The department shall also publish notice of the availability of the registry in a newspaper of general statewide circulation.

F. Any person may request that the director make a determination that a site or portion of a site requires no further action or should be rescored. The request shall include information, including the specific hazardous substances released at or from the site or portion of the site, and a geographical description of the site or portion of the site sufficient for a determination by the director regarding the requested action. The director may request additional information from the requesting party within ninety days after receiving the party's request, and the director shall provide the reasons for requesting the additional information.  The person making the request shall submit the additional information within sixty days after receiving the director's request for additional information.  Within thirty days of receipt of the additional information, the director shall notify the requesting party if the additional information is complete.  The submission of incomplete information may result in a denial of the no further action request.  The parties may agree in writing to additional time for responses. In addition to requesting information, the director or the director's authorized representative may conduct an investigation of the site or portion of the site and shall be given access to the portion of the site under the control of the requestor.  The director or the director's authorized representative shall be allowed access to the site as a requirement for making a no further action request.  The director shall deny a request for a no further action determination if access to the site is not provided.  A request pursuant to this subsection may only be made once per calendar year. After determining that the information submitted is sufficient for action on the request, the director shall publish notice of the request for rescoring or determination of no further action on a site or portion of the site and shall provide thirty days for public comment. Based on the information and comments received, and within sixty days after the close of the public comment period, unless extended by the director for good cause, the director shall determine whether the score should be changed or a determination of no further action should be made and shall give notice of that decision to the person who made the request and any persons who provided comment.  The director shall make a final decision on a no further action or rescoring request within three hundred days after receiving the request unless the time is extended in writing by the parties.  The director's decision shall contain the factual, technical and legal grounds for the decision. Any changes to a score or determinations of no further action shall be published in the registry.

G. A determination of no further action shall be made if the director finds that the site or portion of the site does not present a significant risk to the public health or welfare or the environment. The director's determination on a no further action request shall be based on the rules adopted by the department pursuant to section 49-282.06.  A determination of no further action shall state whether it is for soils or the groundwater, or both.  A determination of no further action regarding a site or a portion of the site means that the department shall not proceed with or require further remedial action under this article for the specific hazardous substances within the geographical area covered by the determination, provided that the determination of no further action does not preclude the director from obtaining access to the area covered by the determination under this article or any other law.  The department may reopen an investigation and take or require remedial action for any of the following reasons:

1. On discovery of new information that, based on the rules adopted by the department pursuant to section 49-282.06, would result in the potential denial of a no further action request.

2. That information submitted to the director pursuant to subsection F of this section was inaccurate, misleading or incomplete.

3. The reopening of an investigation or the taking of a remedial action is necessary to respond to a release or the threat of a release of a hazardous substance that may present an imminent and substantial danger to the public health or welfare or the environment.

H. The director's decision under subsection F of this section may be appealed pursuant to section 49-298, subsection B by the person who made the request or any party who will be adversely affected by the action and who submitted comments.  A person who has previously filed an administrative appeal under this subsection or any provision of law in effect on or after April 29, 1997 concerning previous investigations by the director that resulted in the director's decision being upheld bears the burden of proving by clear and convincing evidence that the director's action that is being appealed was unsupported by the evidence in any further administrative appeals involving the same site or portion of the site and shall pay the director's cost of reviewing the request and the director's attorney fees and costs incurred in the appeal if the director's decision is upheld.

I. If the director determines that remediation of a site or a portion of a site will be addressed pursuant to a provision of this title other than this article, the director may suspend any further investigation or action under this article.  If the site or portion of a site is listed on the registry, the suspension shall be reflected on the registry.

J. If a site has been placed on the registry and the director determines that remediation of a site or a portion of a site will be addressed pursuant to a provision of this title other than this article, the director may remove the site from the registry.

K. If the director determines that a site on the registry does not require further remedial action under this article, the director may remove the site from the registry.

L. The director shall maintain a list of sites removed from the registry.  This list shall be available to the public.

M. A site that has been removed from the registry may be reopened and remedial action taken or required for any of the following reasons:

1. On discovery of new information that, based on the rules adopted by the department pursuant to section 49-282.06, would result in the potential denial of a no further action request.

2. Information submitted to the director pursuant to this section is inaccurate, misleading or incomplete.

3. The reopening of an investigation or the taking of a remedial action is necessary to respond to a release or the threatened release of a hazardous substance that may present an imminent and substantial danger to the public health or welfare or the environment.
A.R.S. § 49-232 — Arizona Code / Title 49 / Chapter 2 / Article 2.1 / Section 232
49-232 Lists of impaired waters; data requirements; rules
Status: in_force

49-232. Lists of impaired waters; data requirements; rules

A. At least once every five years, the department shall prepare a list of impaired WOTUS to comply with section 303(d) of the clean water act (33 United States Code section 1313(d)).  The department shall provide public notice and allow for comment on a draft list of impaired WOTUS prior to its submission to the United States environmental protection agency. The department shall prepare written responses to comments received on the draft list. The department shall publish the list of impaired WOTUS that it plans to submit initially to the regional administrator and a summary of the responses to comments on the draft list in the Arizona administrative register at least forty-five days before submission of the list to the regional administrator.  Publication of the list in the Arizona administrative register is an appealable agency action pursuant to title 41, chapter 6, article 10 that may be appealed by any party that submitted written comments on the draft list. If the department receives a notice of appeal of a listing pursuant to section 41.1092.03 within forty-five days after the publication of the list in the Arizona administrative register, the department shall not include the challenged listing in its initial submission to the regional administrator. The department may subsequently submit the challenged listing to the regional administrator if the listing is upheld in the director’s final administrative decision pursuant to section 41-1092.08, or if the challenge to the listing is withdrawn prior to a final administrative decision.

B. On or before December 31, 2022 and at least once every five years thereafter, the department shall prepare a list of impaired non-WOTUS protected surface waters.  The department shall provide public notice and opportunity to comment on a draft list of impaired non-WOTUS protected surface waters prepared under this subsection. The department shall prepare written responses to comments received on the draft list.  The department shall publish the list of impaired non-WOTUS protected surface waters and a summary of the responses to comments on the draft list in the Arizona administrative register.  Publication of the list in the Arizona administrative register is an appealable agency action pursuant to title 41, chapter 6, article 10 and may be appealed by any party that submitted written comments on the draft list.

C. In determining whether a water is impaired, the department shall consider only reasonably current credible and scientifically defensible data that the department has collected or has received from another source. Results of water sampling or other assessments of water quality, including physical or biological health, shall be considered credible and scientifically defensible data only if the department has determined all of the following:

1. Appropriate quality assurance and quality control procedures were followed and documented in collecting and analyzing the data.

2. The samples or analyses are representative of water quality conditions at the time the data was collected.

3. The data consists of an adequate number of samples based on the nature of the water in question and the parameters being analyzed.

4. The method of sampling and analysis, including analytical, statistical and modeling methods, is generally accepted and validated in the scientific community as appropriate for use in assessing the condition of the water.

D. The department shall adopt by rule the methodology to be used in identifying waters as impaired. The rules shall specify all of the following:

1. Minimum data requirements and quality assurance and quality control requirements that are consistent with subsection C of this section and that must be satisfied in order for the data to serve as the basis for listing and delisting decisions.

2. Appropriate sampling, analytical and scientific techniques that may be used in assessing whether a water is impaired.

3. Any statistical or modeling techniques that the department uses to assess or interpret data.

4. Criteria for including and removing waters from the list of impaired waters, including any implementation procedures developed pursuant to subsection G of this section.  The criteria for removing a water from the list of impaired waters shall not be any more stringent than the criteria for adding a water to that list.

E. In assessing whether a water is impaired, the department shall consider the data available in light of the nature of the water in question, including whether the water is an ephemeral water.  A water in which pollutant loadings from naturally occurring conditions alone are sufficient to cause a violation of applicable surface water quality standards shall not be listed as impaired.

F. If the department has adopted a numeric surface water quality standard for a pollutant and that standard is not being exceeded in a water, the department shall not list the water as impaired based on a conclusion that the pollutant causes a violation of a narrative or biological standard unless:

1. The department has determined that the numeric standard is insufficient to protect water quality.

2. The department has identified specific reasons that are appropriate for the water in question, that are based on generally accepted scientific principles and that support the department's determination.

G. Before listing a water as impaired based on a violation of a narrative or biological surface water quality standard and after providing an opportunity for public notice and comment, the department shall adopt implementation procedures that specifically identify the objective basis for determining that a violation of the narrative or biological criterion exists.  A total maximum daily load designed to achieve compliance with a narrative or biological surface water quality standard shall not be adopted until the implementation procedure for the narrative or biological surface water quality standard has been adopted.

H. On request, the department shall make available to the public data used to support the listing of a water as impaired and may charge a reasonable fee to persons requesting the data.

I. By January 1, 2002, the department shall review the list of waters identified as impaired as of January 1, 2000 to determine whether the data that supports the listing of those waters complies with this section.  If the data that supports a listing does not comply with this section, the listed water shall not be included on future lists submitted to the United States environmental protection agency pursuant to 33 United States Code section 1313(d) unless in the interim data that satisfies the requirements of this section has been collected or received by the department.

J. The department shall add a water to or remove a water from the list using the process described in subsection A or B of this section outside of the normal listing cycle if it collects or receives credible and scientifically defensible data that satisfies the requirements of this section and that demonstrates that the  current quality of the water is such that it should be removed from or added to the list.  A listed water may no longer warrant classification as impaired or an unlisted water may be identified as impaired if the applicable surface water quality standards, implementation procedures or designated uses have changed or if there is a change in water quality.

K. The director shall apply the rules adopted pursuant to subsection D of this section for identification of impaired waters to non-WOTUS protected surface waters until specifically changed by rule.  The director shall amend rules to update the impaired waters identification rules within one year after adopting surface water quality standards for non-WOTUS protected surface waters pursuant to section 49-221, subsection A, paragraph 2.
A.R.S. § 49-252 — Arizona Code / Title 49 / Chapter 2 / Article 3 / Section 252
49-252 Closure notification and approval
Status: in_force

49-252. Closure notification and approval

A. A person who owns or operates a dry well subject to this article or a groundwater protection permit facility as defined in section 49-241.01, subsection C or a person who has been issued a permit pursuant to this article shall notify the director of the intent to permanently cease an activity for which the facility or a portion of the facility was designed or operated.

B. Within ninety days of the notification in subsection A of this section, the owner or operator shall submit a closure plan to the director.

C. Within sixty days of submittal of a complete closure plan, the director shall determine whether or not the closure plan is for a clean closure.

D. If the director determines that the closure plan is for a clean closure, the director shall send a letter of approval to the owner or operator and no aquifer protection permit shall be required.

E. If the director determines that the proposed closure plan achieves a closure condition other than clean closure, the owner or operator shall submit either an application for an aquifer protection permit or a request to modify a current aquifer protection permit in order to address closure activities and postclosure monitoring and maintenance at the facility. The director shall require submittal of a permit application or a request to modify a permit within ninety days or a reasonable time not to exceed one year, if the applicant can supply a scope of work justifying a schedule for collecting the technical information necessary to apply.
A.R.S. § 49-310 — Arizona Code / Title 49 / Chapter 2 / Article 6 / Section 310
49-310 New pesticides; conditional registration; reports
Status: in_force

49-310. New pesticides; conditional registration; reports

A. The director may provide for the conditional registration of a new pesticide for one year with an option to renew annually for a period not to exceed three years under the following conditions:

1. The new pesticide is registered pursuant to the federal insecticide, fungicide and rodenticide act as amended (7 United States Code section 136; P.L. 100-532; 102 Stat. 2654) and is registered for use in one or more other states.

2. The director determines that a conditional registration will result in use of the new pesticide in this state that is sufficient to generate acceptable data to complete the permanent registration of the new pesticide pursuant to section 49-302.  An applicant who submits data shall commit to develop and generate new data for the department's review and approval.  The new data shall address the deficiency previously identified by the department in its initial review and approval process.  The commitment shall be in the form of a contract with the department.

3. The new pesticide in question shall be important to agriculture as determined by the director of environmental quality after consultation with the Arizona department of agriculture.

B. Each registrant who holds a conditional registration shall submit a report to the director annually as specified by the director that describes the progress made in developing each item of required data.  The director may require that additional data be included in the reports.

C. On receipt of the prescribed reports, the director may determine that the conditional registration status be continued for an additional year or be canceled if the reports indicate a lack of progress.  If the conditional registration is canceled, all product in the state, including product at the user level, shall be removed from sale or distribution.

D. Conditional registration shall not be granted more than one time per pesticide.

E. Conditional registrants shall not voluntarily cancel the conditional registration.
A.R.S. § 49-257.01 — Arizona Code / Title 49 / Chapter 2 / Article 3.3 / Section 257.01
49-257.01 Underground injection control permit program; permits; prohibitions; rules
Status: in_force

49-257.01. Underground injection control permit program; permits; prohibitions; rules

A. The department shall establish an underground injection control permit program, including a permitting process.

B. An underground injection is prohibited unless the underground injection is into a well authorized by rule or unless it is authorized by a permit issued pursuant to this article or by a permit issued by the United States environmental protection agency, which are not subject to section 49-224, subsection B.  A person may not construct any well that is required to have a permit until the person is issued the permit or is otherwise authorized under the permit program established pursuant to this article or federal law.

C. Any underground injection activity is prohibited if it is conducted in a manner that allows the movement of fluid containing any contaminant into underground sources of drinking water and if the presence of that contaminant may endanger underground sources of drinking water.

D. The director shall adopt rules for the purposes of establishing and operating the underground injection control permit program pursuant to this article. Rules adopted by the director shall meet the minimum requirements prescribed by 42 United States Code section 300h(b).
A.R.S. § 49-141 — Arizona Code / Title 49 / Chapter 1 / Article 3 / Section 141
49-141 Environmental nuisances
Status: in_force

49-141. Environmental nuisances

A. The director may take action under this section to abate environmental nuisances. As used in this section, an environmental nuisance is the creation or maintenance of a condition in the soil, air or water that causes or threatens to cause harm to the public health or the environment and that is not otherwise subject to regulation under this title. Subject to this limitation, the following conditions may constitute environmental nuisances:

1. A condition or place in populous areas which constitutes a breeding place for flies, rodents, mosquitoes and other insects which are capable of carrying and transmitting disease-causing organisms to any person or persons.

2. A place, condition or building which is controlled or operated by any governmental agency, state or local, and which is not maintained in a sanitary condition.

3. Sewage, human excreta, wastewater, garbage or other organic wastes deposited, stored, discharged or exposed so as to be a potential instrument or medium in the transmission of disease to or between any person or persons.

4. A vehicle or container which is used in the transportation of garbage or human excreta and which is defective and allows leakage or spillage of contents.

5. The maintenance of an overflowing septic tank or cesspool, the contents of which may be accessible to flies.

6. The pollution or contamination of any domestic waters.

7. The use of the contents of privies, cesspools, or septic tanks or the use of sewage or sewage plant effluents for fertilizing or irrigation purposes for crops or gardens except by specific approval of the department of health services or the department of environmental quality.

8. The storage, collection, transportation, disposal and reclamation of garbage, trash, rubbish, manure and other objectionable wastes other than as provided and authorized by law and rule.

9. Water, other than that used by irrigation, industrial or similar systems for nonpotable purposes, which is sold to the public, distributed to the public or used in production, processing, storing, handling, servicing or transportation of food and drink and which is unwholesome, poisonous or contains deleterious or foreign substances or filth or disease-causing substances or organisms.

B. The director may adopt rules that prescribe minimum standards for the prevention and abatement of environmental nuisances. In adopting rules pursuant to this subsection, the director shall incorporate the criteria set forth in section 49-282.06, subsection A and shall ensure that the nuisance is abated so that it will not recur.
A.R.S. § 49-245.01 — Arizona Code / Title 49 / Chapter 2 / Article 3 / Section 245.01
49-245.01 Storm water general permit
Status: in_force

49-245.01. Storm water general permit

A. A general permit is issued for facilities used solely for the management of storm water and that are regulated by the clean water act or article 3.1 of this chapter, including catchments, impoundments and sumps, provided the following conditions are met:

1. The owner or operator of the facility has obtained a national pollutant discharge elimination system permit issued pursuant to the clean water act or an Arizona pollutant discharge elimination system permit under article 3.1 of this chapter for any storm water discharges at the facility, or that the facility has applied, and not been denied coverage, for these types of permits for any storm water discharges at the facility.

2. The owner or operator notifies the director that the facility has met the requirements of paragraph 1 of this subsection.

3. The owner or operator of the facility has in place any required storm water pollution prevention plan.

B. If the director determines that discharges of storm water from a facility or facilities covered by this general permit are causing a violation of aquifer water quality standards at the applicable point of compliance, the director may revoke the general permit of the facility or facilities or may require that an individual permit be obtained pursuant to section 49-243. If the director determines that discharges of storm water from a facility or facilities covered by this general permit, with reasonable probability, may cause a violation of aquifer water quality standards at the applicable point of compliance, the director may require a facility or facilities covered by the general permit to obtain an individual permit pursuant to section 49-243.
A.R.S. § 49-123 — Arizona Code / Title 49 / Chapter 1 / Article 2 / Section 123
49-123 Hazardous materials emergency management program; Arizona emergency response commission; emergency planning and community right-to-know
Status: in_force

49-123. Hazardous materials emergency management program; Arizona emergency response commission; emergency planning and community right-to-know

A. The department is designated the lead agency for developing and implementing a state hazardous materials emergency management program.

B. The director shall appoint a coordinator to work in consultation with the Arizona emergency response commission in the development and implementation of the hazardous materials emergency management program.

C. The Arizona emergency response commission is established consisting of representatives from the following agencies and departments:

1. The division of emergency management.

2. The department of health services.

3. The department of public safety.

4. The department of transportation.

5. The Arizona department of agriculture.

6. The corporation commission.

7. The industrial commission of Arizona.

8. The office of the state fire marshal in the Arizona department of forestry and fire management.

9. The office of state mine inspector.

10. Two representatives nominated by the Arizona fire chiefs association or its successor organization, one of whom represents a fire department or a fire district serving a population of less than two hundred fifty thousand persons.

11. Other agencies or offices deemed necessary by the director.

D. This article does not change or alter the existing regulatory authority or provisions of law relating to the agencies and departments listed in subsection C of this section.

E. The department is designated as the lead agency for implementing title III of the superfund amendments and reauthorization act of 1986 (P.L. 99-499). The director shall administer any monies received under subsection G of this section.

F. The department shall administer this article and the rules adopted under this article. The department shall administer title III in this state and may conduct whatever activities are necessary to implement this article and title III in this state. The department is granted all the authority and responsibilities of a state emergency response commission for purposes of title III.

G. The department may procure by contract the temporary or intermittent services of experts or consultants if such services are to be performed on a part-time or fee-for-services basis and do not involve the performance of administrative duties. The department may also enter into agreements with the federal government, Indian tribes, other states and political subdivisions of this state for the purposes of this article.  The department may also accept on behalf of this state any reimbursement, grant or gift that may become available for purposes of this article. The department shall deposit, pursuant to sections 35-146 and 35-147, any such monies in the emergency response fund.

H. The department shall establish a program of financial grants to local governments funded through the department by appropriations to the emergency response fund. The grants shall be dedicated to and used for local compliance with this article. The department shall include procedures for applying for the grants and qualifying criteria for awarding the grants.

I. The department shall adopt and may modify, suspend or repeal rules pursuant to title 41, chapter 6. The rules may not be more stringent than title III and the federal regulations adopted under title III, except as specifically authorized in this article. These rules shall implement this article and title III in this state. The authority to adopt rules includes establishing:

1. Procedures for handling public information requests.

2. Procedures and implementing programs for chemical emergency planning and preparedness.

3. Community right-to-know program reporting requirements.

4. Fees to implement the community right-to-know program. The fees shall be deposited, pursuant to sections 35-146 and 35-147, in the emergency response fund established by section 49-132. The governor's regulatory review council must approve rules adopted pursuant to this paragraph.

5. Release reporting requirements.

J. The department shall ensure that mandatory hazardous materials training programs for on-scene command personnel that are developed, delivered or managed by their respective agencies, departments or divisions address notification procedures, coordination of services and comprehensive management for protection of the public health during and after a chemical or other toxic fire event. The training shall include notification and coordination with the department of public safety, the department of transportation, the commission, local emergency planning committees, the department of health services, the division of emergency management, the national response center and the Arizona poison control system. Training shall also include orientation on the state emergency response and recovery plan concerning hazardous materials. The department shall encourage private companies that deliver similar training in this state to include the same curriculum in their programs.
A.R.S. § 49-127 — Arizona Code / Title 49 / Chapter 1 / Article 2 / Section 127
49-127 Facilities subject to emergency planning; facility emergency response plans
Status: in_force

49-127. Facilities subject to emergency planning; facility emergency response plans

A. A facility is subject to emergency planning requirements if a substance identified under section 49-126 is present at the facility in an amount at or in excess of the threshold planning quantity for that substance.

B. For purposes of emergency planning, the department may designate additional facilities that are subject to this section. The designation shall be accomplished after providing at least thirty days' prior public notice in a newspaper of general circulation in the county where the facility is located, after allowing public comment to the department for thirty days and after notification to the facility of the proposed designation.

C. The owner or operator of a facility subject to this section shall provide to the department the identity of a facility representative who will provide a facility emergency response plan and who will participate in the emergency planning process as the facility emergency coordinator.

D. Each facility that is subject to this section shall prepare a facility emergency response plan and submit copies of that plan to the department, the local emergency planning committee for the district in which the facility is located and the fire department with jurisdiction over the facility. A facility that is required to prepare a contingency plan under chapter 5, article 2 of this title or the resource conservation and recovery act of 1976 (P.L. 94-580; 90 Stat. 2795) may submit that contingency plan in lieu of the emergency response plan required by this section if the information in paragraphs 1 through 7 of this subsection is included in the plan. In preparing the plan required by this section, the facility emergency coordinator shall consult with the local emergency planning committee and other emergency and health professionals to assure maximum coordination with those whose cooperation or services may be required in the event of a reportable release. The facility emergency response plan shall include specific actions to be taken in the event of an imminent or accidental reportable release to safeguard the public health, safety and welfare and the environment to the maximum extent practicable.  The facility emergency response plan shall include:

1. Names, addresses and emergency telephone numbers of a facility emergency coordinator and alternate.

2. A description of emergency warning systems and a list of emergency units, emergency personnel and health professionals in close proximity to the facility.

3. A description of employee emergency response training and emergency preparedness programs.

4. A description of appropriate emergency equipment necessary to respond to a release.

5. A description of emergency response procedures, including notification procedures and evacuation plans in the event of a release.

6. Identification of transport routes and transportation methods used to transport extremely hazardous substances to and from the facility, if known.

7. Provisions for at least an annual review of the plan and provisions to demonstrate the capability to execute the plan on the request of the department.
A.R.S. § 49-292.01 — Arizona Code / Title 49 / Chapter 2 / Article 5 / Section 292.01
49-292.01 Qualified business settlements; definition
Status: in_force

49-292.01. Qualified business settlements; definition

A. The director shall enter into a settlement under this article and section 107 of CERCLA with a person that qualifies pursuant to this section without regard to the extent of its liability except for a person whose liability under this article arose from criminal acts.

B. An applicant seeking settlement under this section shall have identifiable gross income as defined in section 61 of the internal revenue code greater than one dollar in each of the two years prior to the application and in each of the two years preceding the year that an investigation of the applicant's share was initiated by either the department or the United States environmental protection agency. The applicant shall submit a letter to the director requesting a qualified business settlement on a form provided by the director. The request letter shall include the applicant's tax returns for the time periods provided in subsection J of this section. The director may require additional information to verify the applicant's eligibility for a settlement under this section. Financial information submitted by the applicant pursuant to this section and marked "confidential" shall be kept confidential by the director.

C. If the director verifies that the applicant meets the definition of a qualified business, the director shall enter into a settlement within ninety days after receipt of the request letter and other information required under this section. The settlement shall meet the requirements of section 49-292, but without regard to the extent of its liability, and shall require that:

1. The qualified business pay ten per cent of its average annual gross income for the two years preceding the year that a request was submitted by the applicant including the income from money or assets transferred by the applicant within the two years preceding the application. The director shall allow the settlement amount to be paid over time, up to a maximum of ten years, subject to payment of interest at the rate of six per cent per year. If the settlement amount is paid in full within the first five years, the payments shall not be subject to the payment of interest. An applicant may file a petition with the director to modify the payment schedule.

2. The qualified business cooperate with the director in providing reasonable access and information necessary for the director to carry out the requirements of this article.

D. Notice of the settlement shall be published as provided in section 49-292. The notice shall provide a general description of the contents of the agreement. Any interested person may comment on whether the applicant is a qualified business in writing to the director. The director may withdraw from a settlement after considering the comments.

E. If the director determines that the business does not qualify for the qualified business settlement pursuant to this section, the director shall notify the applicant in writing within ninety days of the receipt of all information required under subsection B of this section stating the reasons for denial. If the director does not notify the applicant within ninety days, the application is deemed denied. A denial of a settlement under this section may be appealed to the office of administrative hearings pursuant to section 49-298. In any appeal made pursuant to section 49-298, the documents submitted by the applicant under subsection B of this section are not confidential.

F. In reviewing a proposed settlement, the United States district court or superior court shall give deference to the department's determination that the settlement is in the public interest and meets applicable legal standards for court approval. Any person who challenges a proposed settlement bears the burden of proving that the proposed settlement does not meet applicable legal standards for court approval. If a settlement is reached with an applicant, the confidential information supplied to the director under this section may be submitted under seal to the court for in camera review.

G. In determining the applicant's gross income for purposes of determining eligibility pursuant to subsection J of this section, the income of all concerns in which the applicant maintains ownership, control or management may be considered by the director. Any transfer of money or assets by the applicant within the two years preceding the application shall be presumed void for purposes of determining eligibility under this section. This presumption may be rebutted by the applicant if the applicant submits a written presumption rebuttal statement that includes the reasons why the transfer of money or assets within this time period should not be presumed void for purposes of determining eligibility. The department shall consider this statement and provide a written record of decision to the applicant that either affirms or denies the applicant's reasons provided in the presumption rebuttal statement.

H. The director may adopt rules to implement this section. A settlement under this section applies only to the applicant and does not release or affect in any way the liability of any other person.

I. If a settlement is made pursuant to this section, the director shall not file a lien pursuant to section 49-295 for an amount greater than the settlement.

J. For the purposes of this section, "qualified business" means an applicant who meets both of the following conditions:

1. The applicant's gross income as defined by section 61 of the internal revenue service code is less than two million dollars per year and greater than one dollar per year.

2.  The applicant complies with the definition for the average of the two years preceding the year that an investigation of the applicant's share was initiated by either the department or the United States environmental protection agency, and for each of the two years preceding the year that a request was submitted by the applicant pursuant to subsection B of this section.

If a person does not qualify as a qualified business under this section, the person is eligible to settle its liability under this article and section 107 of CERCLA for less than its proportionate share under section 49-285 on a demonstration of financial hardship under section 49-292.02.
A.R.S. § 49-112 — Arizona Code / Title 49 / Chapter 1 / Article 1 / Section 112
49-112 County regulation; standards
Status: in_force

49-112. County regulation; standards

A. When authorized by law, a county may adopt a rule, ordinance or regulation that is more stringent than or in addition to a provision of this title or rule adopted by the director or any board or commission authorized to adopt rules pursuant to this title if all of the following requirements are met:

1. The rule, ordinance or regulation is necessary to address a peculiar local condition.

2. There is credible evidence that the rule, ordinance or regulation is either:

(a) Necessary to prevent a significant threat to public health or the environment that results from a peculiar local condition and is technically and economically feasible.

(b) Required under a federal statute or regulation, or authorized pursuant to an intergovernmental agreement with the federal government to enforce federal statutes or regulations if the county rule, ordinance or regulation is equivalent to federal statutes or regulations.

3. Any fee or tax adopted under the rule, ordinance or regulation does not exceed the reasonable costs of the county to issue and administer the permit or plan approval program.

B. When authorized by law, a county may adopt rules, ordinances or regulations in lieu of a state program that are as stringent as a provision of this title or rule adopted by the director or any board or commission authorized to adopt rules pursuant to this title if the county demonstrates that the cost of obtaining permits or other approvals from the county will approximately equal or be less than the fee or cost of obtaining similar permits or approvals under this title or any rule adopted pursuant to this title. If the state has not adopted a fee or tax for similar permits or approvals, the county may adopt a fee when authorized by law in the rule, ordinance or regulation that does not exceed the reasonable costs of the county to issue and administer that permit or plan approval program.

C.  A county that adopts rules, ordinances or regulations pursuant to subsection B of this section and that at any time cannot comply with subsection B of this section shall prepare and file a notice of noncompliance with the director. The county shall post a copy of the notice of noncompliance on the county's website with a date stamp of the date of posting. If the county does not comply with subsection B of this section within one year after posting of the notice on the county's website, the director shall provide written notice to and assert regulatory jurisdiction over those persons and entities subject to the affected county rules, ordinances or regulations.

D. Except as provided in chapter 3, article 3 of this title, before adopting or enforcing any rule, ordinance or regulation pursuant to subsection A or B of this section, the county shall comply with the following requirements:

1. Prepare a notice of proposed rulemaking to include the proposed rule, ordinance or regulation.  This notice shall demonstrate evidence of compliance with subsection A or B of this section. The notice shall include the name, address and phone number of a person who can answer questions about the proposed rule, ordinance or regulation and accept any written requests for the county to conduct an oral proceeding. The county shall post the notice on the county's website with a date stamp of the date of posting.  The county shall publish the availability of the notice of the proposed rule, ordinance or regulation in a newspaper of general circulation in the county. If there is no newspaper of general circulation in the county, the county shall publish the notice in a newspaper of general circulation in an adjoining county. If requested by the public, the county shall make available a paper copy of the notice at a reasonable cost.

2. For at least thirty days after the posting of the notice of the proposed rule, ordinance or regulation, afford persons the opportunity to submit in writing comments, statements, arguments, data and views on the proposed rule, ordinance or regulation.

3. Respond in writing to the comments submitted pursuant to paragraph 2 of this subsection and post the county's response on the county's website. If requested by the public, the county shall make paper copies of its comments available at a reasonable cost.

4. Schedule a public hearing on the proposed rule, ordinance or regulation if a written request for an oral proceeding is submitted to the county during the thirty-day comment period.  The county shall post the notice of oral proceeding on a proposed rule, ordinance or regulation on the county's website. The county shall post the notice of oral proceeding at least twenty days before the date of the oral proceeding. The county shall publish notice of any public hearing required pursuant to this paragraph in any newspaper as prescribed by this title or county ordinance. The county shall select a time and location for the public hearing that affords a reasonable opportunity for the public to participate.

E. A county is not required to comply with subsection D, paragraphs 2, 3 and 4 of this section before it adopts or enforces a rule, ordinance or regulation if the rule, ordinance or regulation only incorporates by reference an existing state or federal rule or law that provides greater regulatory flexibility for regulated parties and otherwise satisfies the requirements prescribed in subsection B of this section.

F. Until June 30, 1995, a person may file with the clerk of the board of supervisors for that county a petition challenging a county rule, ordinance or regulation adopted before July 15, 1994 for compliance with the criteria set forth in subsection A or B of this section. The petition shall contain the grounds for challenging the specific county rule, ordinance or regulation. Within one year after the petition is filed, the board of supervisors shall review the challenged rule, ordinance or regulation and make a written demonstration of compliance with the criteria set forth in subsection A or B of this section and challenged in the petition. Any rules, ordinances or regulations that have been challenged and for which the board of supervisors has not made the written demonstration within one year after the filing of the petition required by this section become unenforceable as of that date. If a county has already made a written demonstration under section 49-479, subsection C, for a rule, ordinance or regulation, the person filing the petition shall state the specific grounds in the petition why that demonstration does not meet the requirements of this section.

G. A rule, ordinance or regulation adopted pursuant to subsection A of this section may not be invalidated subsequent to its adoption on the grounds that the economic feasibility analysis is insufficient or inaccurate if a county makes a good faith effort to comply with the economic feasibility requirement of subsection A, paragraph 2, subdivision (a), of this section and has explained in the written statement, made public pursuant to subsection D of this section, the methodology used to satisfy the economic feasibility requirement.

H. This section shall not apply to any rule, ordinance or regulation adopted by a county pursuant to:

1. Title 36 for which the state has similar statutory or rule making authority in this title.

2. Section 49-391.

3. Chapter 3, article 8 of this title.

4. Chapter 4, article 3 of this title and section 49-765.

5. Nonsubstantive rules relating to the application process that have a de minimis economic effect on regulated parties.
A.R.S. § 49-352 — Arizona Code / Title 49 / Chapter 2 / Article 9 / Section 352
49-352 Classifying systems and certifying personnel; limitation
Status: in_force

49-352. Classifying systems and certifying personnel; limitation

A. The department shall establish and enforce rules for the classification of systems for potable water and certifying operating personnel according to the skill, knowledge and experience necessary within the classification. The rules shall also provide that operating personnel may be certified on the basis of training and supervision at the place of employment. The department may assess and collect reasonable certification fees to reimburse the cost of certification services, which shall be deposited in the water quality fee fund established by section 49-210. Such rules apply to all public water systems involved in the collection, storage, treatment or distribution of potable water. The rules do not apply to systems that are not public water systems, including irrigation, industrial or similar systems where the water is used for nonpotable purposes.

B. For the purposes of this article:

1. A public water system is a water system that:

(a) Provides water for human consumption through pipes or other constructed conveyances.

(b) Has at least fifteen service connections or regularly serves an average of at least twenty-five persons daily for at least sixty days a year.

2. A public water system as described in paragraph 1, subdivisions (a) and (b) of this subsection includes any collection, treatment, storage and distribution facilities that are under the control of the operator of a public water system and that are used primarily in connection with the system and any collection or pretreatment storage facilities that are not under the control of the operator of a public water system and that are used primarily in connection with a public water system.

3. A service connection does not include a connection to a system that delivers water by a constructed conveyance other than a pipe, if any of the following applies:

(a) The water is used exclusively for purposes other than residential uses consisting of drinking, cooking or bathing or other similar uses.

(b) The department determines that alternative water is provided for residential or similar uses for drinking and cooking and that the water achieves a level of public health protection that is equivalent to the applicable national primary drinking water regulations.

(c) The department determines that the water that is provided for residential or similar uses for drinking, cooking and bathing is centrally treated or is treated at the point of entry by the water provider, a pass-through entity or the user to achieve the level of public health protection that is equivalent to the applicable national primary drinking water regulations.

4. An irrigation district in existence before May 18, 1994 and that provides primarily agricultural service through a piped water system with only incidental residential or similar use is not a public water system if the system or the residential or other similar users of the system comply with paragraph 3, subdivision (b) or (c) of this subsection.

5. Persons who receive water through connections that are not service connections pursuant to paragraph 3 of this subsection are not included in the computation of the number of persons prescribed by paragraph 1, subdivision (b) of this subsection.
A.R.S. § 49-246 — Arizona Code / Title 49 / Chapter 2 / Article 3 / Section 246
49-246 Criteria for developing best management practices
Status: in_force

49-246. Criteria for developing best management practices

A. Pursuant to section 49-245, the director may issue a general permit for facilities requiring implementation of best management practices appropriate to the class of discharges to be regulated. The director shall:

1. Identify the aquifer water quality problem which must be addressed and determine that protection of aquifer water quality standards can be accomplished through development and implementation of a best management practice for the class of discharge.

2. Assign a specific advisory committee to create the specific class best management practice to regulate the problem and report its recommendations to the director on a specified schedule.

3. On issuing a general permit containing best management practices, make a reasonable effort to notify persons conducting or managing the activity subject to the best management practices of the requirements of the best management practices contained in the general permit.

B. The director may establish best management practices for the following facilities or activities:

1. On-site facilities for urban runoff.

2. Storm sewers.

3. Urban runoff.

4. Silvicultural activities.

5. Septic tank systems.

C. The director may by rule establish best management practices for additional facilities or activities pursuant to this section, if all of the following apply:

1. The facilities or activities meet the criteria in section 49-245, subsection A, paragraphs 1 and 2.

2. The individual facilities or activities within the class are conducted over a large geographic area.
A.R.S. § 49-247 — Arizona Code / Title 49 / Chapter 2 / Article 3 / Section 247
49-247 Agricultural general permits; best management practices for regulated agricultural activities
Status: in_force

49-247. Agricultural general permits; best management practices for regulated agricultural activities

A. The director shall adopt by rule, pursuant to the requirements of this section, agricultural general permits consisting of best management practices for regulated agricultural activities. Agricultural general permits are not subject to section 49-245 or 49-246. Except as provided in subsection G of this section, a person is not required to obtain an individual permit for a regulated agricultural activity.

B. The terms and conditions of agricultural general permits adopted pursuant to this section shall be agricultural best management practices which have been determined by the director to be the most practical and effective means of reducing or preventing the discharge of pollutants by regulated agricultural activities. Agricultural best management practices may vary within the state, according to regional and hydrogeologic conditions.  The director may waive the use of best management practices in a designated region if the director determines that existing regulated agricultural activities will not cause or contribute to a violation of the adopted water quality standards.

C. The director shall adopt, by rule, agricultural best management practices.

D. In adopting agricultural best management practices, the director shall consider:

1. The availability, the effectiveness and the economic and institutional considerations of alternative technologies.

2. The potential nature and severity of discharges from regulated agricultural activities and their effect on public health and the environment.

E. In adopting best management practices for regulated agricultural activities, the director shall require the application of all economically feasible best management practices which have been determined by the director to be the most practical and effective means of reducing or preventing the discharge of pollutants by regulated agricultural activities but shall not require application of more stringent practices if such a requirement would result in cessation of the regulated activity.

F. Compliance with best management practices adopted pursuant to this section constitutes compliance with this article.

G. If the director, after providing a person with notice and an opportunity for a hearing, determines that the person has violated the applicable best management practices, the director may revoke the agricultural general permit for that person and require that the person obtain a permit pursuant to section 49-241.

H. The director may periodically reexamine, evaluate and propose any modification to or waiver of agricultural best management practices necessary to meet the requirements of this article.
A.R.S. § 49-201 — Arizona Code / Title 49 / Chapter 2 / Article 1 / Section 201
49-201 Definitions
Status: in_force

49-201. Definitions

In this chapter, unless the context otherwise requires:

1. "Administrator" means the administrator of the United States environmental protection agency.

2. "Aquifer" means a geologic unit that contains sufficient saturated permeable material to yield usable quantities of water to a well or spring.

3. "Best management practices" means those methods, measures or practices to prevent or reduce discharges and includes structural and nonstructural controls and operation and maintenance procedures. Best management practices may be applied before, during and after discharges to reduce or eliminate the introduction of pollutants into receiving waters. Economic, institutional and technical factors shall be considered in developing best management practices.

4. "CERCLA" means the comprehensive environmental response, compensation, and liability act of 1980, as amended (P.L. 96-510; 94 Stat. 2767; 42 United States Code sections 9601 through 9657), commonly known as "superfund".

5. "Clean closure" means implementation of all actions specified in an aquifer protection permit, if any, as closure requirements, as well as elimination, to the greatest degree practicable, of any reasonable probability of further discharge from the facility and of either exceeding aquifer water quality standards at the applicable point of compliance or, if an aquifer water quality standard is exceeded at the time the permit is issued, causing further degradation of the aquifer at the applicable point of compliance as provided in section 49-243, subsection B, paragraph 3.  Clean closure also means postclosure monitoring and maintenance are unnecessary to meet the requirements in an aquifer protection permit.

6. "Clean water act" means the federal water pollution control act amendments of 1972 (P.L. 92-500; 86 Stat. 816; 33 United States Code sections 1251 through 1376), as amended.

7. "Closed facility" means:

(a) A facility that ceased operation before January 1, 1986, that is not, on August 13, 1986, engaged in the activity for which the facility was designed and that was previously operated and for which there is no intent to resume operation.

(b) A facility that has been approved as a clean closure by the director.

(c) A facility at which any postclosure monitoring and maintenance plan, notifications and approvals required in a permit have been completed.

8. "Concentrated animal feeding operation" means an animal feeding operation that meets the criteria prescribed in 40 Code of Federal Regulations part 122, appendix B for determining a concentrated animal feeding operation for purposes of 40 Code of Federal Regulations sections 122.23 and 122.24, appendix C.

9. "Department" means the department of environmental quality.

10. "Direct reuse" means the beneficial use of reclaimed water for specific purposes authorized pursuant to section 49-203, subsection A, paragraph 7.

11. "Director" means the director of environmental quality or the director's designee.

12. "Discharge" means the direct or indirect addition of any pollutant to the waters of the state from a facility. For purposes of the aquifer protection permit program prescribed by article 3 of this chapter, discharge means the addition of a pollutant from a facility either directly to an aquifer or to the land surface or the vadose zone in such a manner that there is a reasonable probability that the pollutant will reach an aquifer.

13. "Discharge impact area" means the potential areal extent of pollutant migration, as projected on the land surface, as the result of a discharge from a facility.

14. "Discharge limitation" means any restriction, prohibition, limitation or criteria established by the director, through a rule, permit or order, on quantities, rates, concentrations, combinations, toxicity and characteristics of pollutants.

15. "Effluent-dependent water" means a surface water or portion of a surface water that consists of a point source discharge without which the surface water would be ephemeral. An effluent-dependent water may be perennial or intermittent depending on the volume and frequency of the point source discharge of treated wastewater.

16. "Environment" means WOTUS, any other surface waters, groundwater, drinking water supply, land surface or subsurface strata or ambient air, within or bordering on this state.

17. "Ephemeral water" means a surface water or portion of surface water that flows or pools only in direct response to precipitation.

18. "Existing facility" means a facility on which construction began before August 13, 1986 and that is neither a new facility nor a closed facility.  For the purposes of this definition, construction on a facility has begun if the facility owner or operator has either:

(a) Begun, or caused to begin, as part of a continuous on-site construction program any placement, assembly or installation of a building, structure or equipment.

(b) Entered a binding contractual obligation to purchase a building, structure or equipment that is intended to be used in its operation within a reasonable time.  Options to purchase or contracts that can be terminated or modified without substantial loss, and contracts for feasibility engineering and design studies, do not constitute a contractual obligation for purposes of this definition.

19. "Facility" means any land, building, installation, structure, equipment, device, conveyance, area, source, activity or practice from which there is, or with reasonable probability may be, a discharge.

20. "Gray water" means wastewater that has been collected separately from a sewage flow and that originates from a clothes washer or a bathroom tub, shower or sink but that does not include wastewater from a kitchen sink, dishwasher or toilet.

21. "Hazardous substance" means:

(a) Any substance designated pursuant to sections 311(b)(2)(A) and 307(a) of the clean water act.

(b) Any element, compound, mixture, solution or substance designated pursuant to section 102 of CERCLA.

(c) Any hazardous waste having the characteristics identified under or listed pursuant to section 49-922.

(d) Any hazardous air pollutant listed under section 112 of the federal clean air act (42 United States Code section 7412).

(e) Any imminently hazardous chemical substance or mixture with respect to which the administrator has taken action pursuant to section 7 of the federal toxic substances control act (15 United States Code section 2606).

(f) Any substance that the director, by rule, either designates as a hazardous substance following the designation of the substance by the administrator under the authority described in subdivisions (a) through (e) of this paragraph or designates as a hazardous substance on the basis of a determination that such substance represents an imminent and substantial endangerment to public health.

22. "Inert material" means broken concrete, asphaltic pavement, manufactured asbestos-containing products, brick, rock, gravel, sand and soil. Inert material also includes material that when subjected to a water leach test that is designed to approximate natural infiltrating waters will not leach substances in concentrations that exceed numeric aquifer water quality standards established pursuant to section 49-223, including overburden and wall rock that is not acid generating, taking into consideration acid neutralization potential, and that has not and will not be subject to mine leaching operations.

23. "Intermittent water" means a surface water or portion of surface water that flows continuously during certain times of the year and more than in direct response to precipitation, such as when it receives water from a spring, elevated groundwater table or another surface source, such as melting snowpack.

24. "Major modification" means a physical change in an existing facility or a change in its method of operation that results in a significant increase or adverse alteration in the characteristics or volume of the pollutants discharged, or the addition of a process or major piece of production equipment, building or structure that is physically separated from the existing operation and that causes a discharge, provided that:

(a) A modification to a groundwater protection permit facility as defined in section 49-241.01, subsection C that would qualify for an area-wide permit pursuant to section 49-243 consisting of an activity or structure listed in section 49-241, subsection B shall not constitute a major modification solely because of that listing.

(b) For a groundwater protection permit facility as defined in section 49-241.01, subsection C, a physical expansion that is accomplished by lateral accretion or upward expansion within the pollutant management area of the existing facility or group of facilities shall not constitute a major modification if the accretion or expansion is accomplished through sound engineering practice in a manner compatible with existing facility design, taking into account safety, stability and risk of environmental release. For a facility described in section 49-241.01, subsection C, paragraph 1, expansion of a facility shall conform with the terms and conditions of the applicable permit. For a facility described in section 49-241.01, subsection C, paragraph 2, if the area of the contemplated expansion is not identified in the notice of disposal, the owner or operator of the facility shall submit to the director the information required by section 49-243, subsection A, paragraphs 1, 2, 3 and 7.

25. "New facility" means a previously closed facility that resumes operation or a facility on which construction was begun after August 13, 1986 on a site at which no other facility is located or to totally replace the process or production equipment that causes the discharge from an existing facility.  A major modification to an existing facility is deemed a new facility to the extent that the criteria in section 49-243, subsection B, paragraph 1 can be practicably applied to such modification.  For the purposes of this definition, construction on a facility has begun if the facility owner or operator has either:

(a) Begun, or caused to begin as part of a continuous on-site construction program, any placement, assembly or installation of a building, structure or equipment.

(b) Entered a binding contractual obligation to purchase a building, structure or equipment that is intended to be used in its operation within a reasonable time.  Options to purchase or contracts that can be terminated or modified without substantial loss, and contracts for feasibility engineering and design studies, do not constitute a contractual obligation for purposes of this definition.

26. "Nonpoint source" means any conveyance that is not a point source from which pollutants are or may be discharged to WOTUS.

27. "Non-WOTUS protected surface water" means a protected surface water that is not a WOTUS.

28. "Non-WOTUS waters of the state" means waters of the state that are not WOTUS.

29. "On-site wastewater treatment facility" means a conventional septic tank system or alternative system that is installed at a site to treat and dispose of wastewater of predominantly human origin that is generated at that site.

30. "Ordinary high watermark" means the line on the shore of an intermittent or perennial protected surface water established by the fluctuations of water and indicated by physical characteristics such as a clear, natural line impressed on the bank, shelving, changes in the character of soil, destruction of terrestrial vegetation, the presence of litter and debris or other appropriate means that consider the characteristics of the channel, floodplain and riparian area.

31. "Perennial water" means a surface water or portion of surface water that flows continuously throughout the year.

32. "Permit" means a written authorization issued by the director or prescribed by this chapter or in a rule adopted under this chapter stating the conditions and restrictions governing a discharge or governing the construction, operation or modification of a facility. For the purposes of regulating non-WOTUS protected surface waters, a permit shall not include provisions governing the construction, operation or modification of a facility except as necessary for the purpose of ensuring that a discharge meets water quality-related effluent limitations or to require best management practices for the purpose of ensuring that a discharge does not cause an exceedance of an applicable surface water quality standard.

33. "Person" means an individual, employee, officer, managing body, trust, firm, joint stock company, consortium, public or private corporation, including a government corporation, partnership, association or state, a political subdivision of this state, a commission, the United States government or any federal facility, interstate body or other entity.

34. "Point source" means any discernible, confined and discrete conveyance, including any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation or vessel or other floating craft from which pollutants are or may be discharged to WOTUS or protected surface water. Point source does not include return flows from irrigated agriculture.

35. "Pollutant" means fluids, contaminants, toxic wastes, toxic pollutants, dredged spoil, solid waste, substances and chemicals, pesticides, herbicides, fertilizers and other agricultural chemicals, incinerator residue, sewage, garbage, sewage sludge, munitions, petroleum products, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and mining, industrial, municipal and agricultural wastes or any other liquid, solid, gaseous or hazardous substances.

36. "Postclosure monitoring and maintenance" means those activities that are conducted after closure notification and that are necessary to:

(a) Keep the facility in compliance with either the aquifer water quality standards at the applicable point of compliance or, for any aquifer water quality standard that is exceeded at the time the aquifer protection permit is issued, the requirement to prevent the facility from further degrading the aquifer at the applicable point of compliance as provided under section 49-243, subsection B, paragraph 3.

(b) Verify that the actions or controls specified as closure requirements in an approved closure plan or strategy are routinely inspected and maintained.

(c) Perform any remedial, mitigative or corrective actions or controls as specified in the aquifer protection permit or perform corrective action as necessary to comply with this paragraph and article 3 of this chapter.

(d) Meet property use restrictions.

37. "Practicably" means able to be reasonably done from the standpoint of technical practicability and, except for pollutants addressed in section 49-243, subsection I, economically achievable on an industry-wide basis.

38. "Protected surface waters" means waters of the state listed on the protected surface waters list under section 49-221, subsection G and all WOTUS.

39. "Public waters" means waters of the state open to or managed for use by members of the general public.

40. "Recharge project" means a facility necessary or convenient to obtain, divert, withdraw, transport, exchange, deliver, treat or store water to infiltrate or reintroduce that water into the ground.

41. "Reclaimed water" means water that has been treated or processed by a wastewater treatment plant or an on-site wastewater treatment facility.

42. "Regulated agricultural activity" means the application of nitrogen fertilizer or a concentrated animal feeding operation.

43. "Safe drinking water act" means the federal safe drinking water act, as amended (P.L. 93-523; 88 Stat. 1660; 95-190; 91 Stat. 1393).

44. "Standards" means water quality standards, pretreatment standards and toxicity standards established pursuant to this chapter.

45. "Standards of performance" means performance standards, design standards, best management practices, technologically based standards and other standards, limitations or restrictions established by the director by rule or by permit condition.

46. "Tank" means a stationary device, including a sump, that is constructed of concrete, steel, plastic, fiberglass, or other non-earthen material that provides substantial structural support, and that is designed to contain an accumulation of solid, liquid or gaseous materials.

47. "Toxic pollutant" means a substance that will cause significant adverse reactions if ingested in drinking water. Significant adverse reactions are reactions that may indicate a tendency of a substance or mixture to cause long lasting or irreversible damage to human health.

48. "Trade secret" means information to which all of the following apply:

(a) A person has taken reasonable measures to protect from disclosure and the person intends to continue to take such measures.

(b) The information is not, and has not been, reasonably obtainable without the person's consent by other persons, other than governmental bodies, by use of legitimate means, other than discovery based on a showing of special need in a judicial or quasi-judicial proceeding.

(c) No statute specifically requires disclosure of the information to the public.

(d) The person has satisfactorily shown that disclosure of the information is likely to cause substantial harm to the business's competitive position.

49. "Vadose zone" means the zone between the ground surface and any aquifer.

50. "Waters of the state" means all waters within the jurisdiction of this state including all perennial or intermittent streams, lakes, ponds, impounding reservoirs, marshes, watercourses, waterways, wells, aquifers, springs, irrigation systems, drainage systems and other bodies or accumulations of surface, underground, natural, artificial, public or private water situated wholly or partly in or bordering on the state.

51. "Well" means a bored, drilled or driven shaft, pit or hole whose depth is greater than its largest surface dimension.

52. "Wetland" means, for the purposes of non-WOTUS protected surface waters, an area that is inundated or saturated by surface or groundwater at a frequency and duration sufficient to support, and under normal conditions does support, a prevalence of vegetation typically adapted for life in saturated soil conditions.

53. "WOTUS" means waters of the state that are also navigable waters as defined by section 502(7) of the clean water act.

54. "WOTUS protected surface water" means a protected surface water that is a WOTUS.
A.R.S. § 49-113 — Arizona Code / Title 49 / Chapter 1 / Article 1 / Section 113
49-113 Fees; unpaid amounts; penalties; audits
Status: in_force

49-113. Fees; unpaid amounts; penalties; audits

A. For self-reported fees in this title, the director shall require the payer to sign a certification that the amount reported is accurate.

B. The director shall collect interest on the unpaid amount of every payment, fee, self-reported fee, tax, assessment, cost and penalty authorized by this title at the rate determined pursuant to section 42-1123 from the date required for payment until the full amount is paid. If nonpayment is due to wilful neglect, the director shall also collect an additional five per cent penalty of up to twenty-five per cent of the amount due for each month or fraction of a month the amount is past due. All monies collected pursuant to this section shall be deposited, pursuant to sections 35-146 and 35-147, in the state general fund.

C. The director may require a person who is required to make a payment pursuant to this title to appear at reasonable times and on reasonable notice at the director's office and produce records and information that are specified in the notice to determine compliance with this title.

D. The director shall audit the records of a sufficient number of persons under this section to ensure general compliance with its requirements.
A.R.S. § 49-110 — Arizona Code / Title 49 / Chapter 1 / Article 1 / Section 110
49-110 Compliance order; hearing; judicial review; enforcement
Status: in_force

49-110. Compliance order; hearing; judicial review; enforcement

A. If the director has reasonable cause to believe that a person is in violation of section 49-109, article 2 of this chapter or a rule adopted pursuant to article 2 of this chapter, the director may issue an order requiring compliance immediately or within a specified time period.

B. A compliance order shall state with reasonable specificity the nature of the violation, a time for compliance, if applicable, and the right to a hearing.

C. A compliance order shall be transmitted to the alleged violator by certified mail, return receipt requested, or by hand delivery.

D. A compliance order becomes final and enforceable in the superior court unless within thirty days after the receipt of the order the alleged violator requests a hearing before an administrative law judge.  If a hearing is requested, the order does not become final until the administrative law judge has issued a final decision on the appeal.  Except as provided in section 41-1092.08, subsection H, any final agency order issued pursuant to this section is subject to judicial review pursuant to title 12, chapter 7, article 6.

E. If a violator fails to comply with a compliance order issued pursuant to subsection A of this section, the director may issue an order assessing a civil penalty of not more than one thousand dollars for each day of continued noncompliance with the order, not to exceed twenty-five thousand dollars.
A.R.S. § 49-132 — Arizona Code / Title 49 / Chapter 1 / Article 2 / Section 132
49-132 Emergency response fund
Status: in_force

49-132. Emergency response fund

The emergency response fund is established consisting of monies appropriated by the legislature for purposes of this article and federal, private and other monies available for that purpose.  The department shall manage the fund and expend monies in the fund in performing the functions required or authorized by this article. All interest earned from investing monies in the fund shall be credited to the fund. Monies in the fund are subject to legislative appropriation and are exempt from section 35-190 relating to lapsing of appropriations.
A.R.S. § 49-223 — Arizona Code / Title 49 / Chapter 2 / Article 2 / Section 223
49-223 Aquifer water quality standards
Status: in_force

49-223. Aquifer water quality standards

A. Primary drinking water maximum contaminant levels established by the administrator before August 13, 1986 are adopted as drinking water aquifer water quality standards. The director may only adopt additional aquifer water quality standards by rule. Within one year after the administrator establishes additional primary drinking water maximum contaminant levels, the director shall open a rule making docket pursuant to section 41-1021 for adoption of those maximum contaminant levels as drinking water aquifer water quality standards. If substantial opposition is demonstrated in the rule making docket regarding a particular constituent, the director may adopt for that constituent the maximum contaminant level as a drinking water aquifer water quality standard upon making a finding that this level is appropriate for adoption in Arizona as an aquifer water quality standard. In making this finding, the director shall consider whether the assumptions about technologies, costs, sampling and analytical methodologies and public health risk reduction used by the administrator in developing and implementing the maximum contaminant level are appropriate for establishing a drinking water aquifer water quality standard. For purposes of this subsection "substantial opposition" means information submitted to the director that explains with reasonable specificity why the maximum contaminant level is not appropriate as an aquifer water quality standard.

B. The director may adopt by rule numeric drinking water aquifer water quality standards for pollutants for which the administrator has not established primary drinking water maximum contaminant levels or for which a maximum contaminant level has been established but the director has determined it to be inappropriate as an aquifer water quality standard pursuant to subsection A of this section. These standards shall be based on the protection of human health. In establishing numeric drinking water aquifer water quality standards, the director shall rely on technical protocols appropriate for the development of aquifer water quality standards and shall base the standards on credible medical and toxicological evidence that has been subjected to peer review.

C. Any person may petition the director to adopt a numeric drinking water aquifer quality standard for any pollutant for which no drinking water aquifer quality standard exists. The director shall grant the petition and institute rule making proceedings adopting a numeric standard as provided under subsection B of this section within one hundred eighty days if the petition shows that the pollutant is a toxic pollutant, that the pollutant has been, or may in the future be, detected in any of the state's drinking water aquifers, and that there exists technical information on which a numeric standard might reasonably be based. Within one year of the commencement of the rule making proceeding, the director shall either adopt a numeric standard or make and publish a finding that, pursuant to subsection B of this section, the development of a numeric standard is not possible. The decision to not adopt a numeric standard shall, for purposes of judicial review, be treated in the same manner as a rule adopted pursuant to title 41, chapter 6.

D. For purposes of assessing compliance with each aquifer water quality standard adopted pursuant to this section, the director shall for purposes of articles 3 and 4 of this chapter, and may for purposes of other provisions of this title, identify sampling and analytical protocols appropriate for detecting and measuring the pollutant in the aquifers in the state.

E. Within one year from the reclassification of an aquifer to a non-drinking water status, pursuant to section 49-224, the director shall adopt water quality standards for that aquifer. For any pollutants which were not the basis for the reclassification, the applicable standard shall be identical with the standard for those pollutants adopted pursuant to subsections A and B of this section. For any pollutants which were the basis for reclassification, the standard shall be sufficient to achieve the purpose for which the aquifer was reclassified but shall minimize unnecessary degradation of the aquifer by taking into consideration the potential long-term uses of the aquifer and the short-term and long-term benefits of the activities resulting in discharges into the aquifer.

F. The director shall adopt water quality standards for an aquifer for which a petition has been submitted pursuant to section 49-224, subsection D sufficient to achieve the non-drinking water use for which that aquifer was classified, taking into consideration the potential long-term uses of that aquifer and the short-term and long-term benefits of the discharging activities creating that aquifer.

G. In any action pursuant to this title, aquifer water quality protection provisions, including monitoring requirements, may be imposed only for pollutants for which aquifer water quality standards have been established that are likely to be present in a discharge. Indicator parameters and quality assurance parameters appropriate for such pollutants also may be specified.
A.R.S. § 49-181 — Arizona Code / Title 49 / Chapter 1 / Article 5 / Section 181
49-181 Requests for no further action determination
Status: in_force

49-181. Requests for no further action determination

A. Upon achieving the remediation levels and controls determined pursuant to section 49-175, subsection B, an applicant approved pursuant to section 49-174 may request the department to provide a determination that no further action is needed for a site or portion of a site by submitting a report to the department.  The report shall include:

1. A description of the specific contaminants for which a no further action determination is being sought.

2. A description of the actions taken to achieve remediation levels or controls determined in accordance with section 49-175, subsection B.

3. A description of any soil, water, or soil and water treatment systems used as part of the remediation.

4. Whenever institutional or engineering controls are placed on the site:

(a) A demonstration that any engineering control or combination of engineering controls has been constructed, is functioning, and will be maintained.

(b) A description of the proposed land use for the site and a demonstration that the use will not compromise the integrity of the engineering controls and will be in accordance with any institutional controls.

5. If postremediation monitoring is proposed, a description of the type of monitoring, monitoring locations, contaminants to be monitored, monitoring frequency and sampling procedures.

6. A description of community involvement activities undertaken to meet the requirements of section 49-176.

7. A list of permits under this title obtained for the remedial action or held by the applicant pertaining to the site.

B. After receipt of a request for a no further action determination, the department shall review, approve, deny or request modifications to the request.  The director may request additional information before acting on the request for a determination of no further action, may conduct an investigation of the site or portion of the site, and shall be given access to the site at reasonable times for the purpose of verifying the completion of the remedial action.

C. The director shall grant a request for a no further action determination if, after considering any public comments, the director determines that all of the following conditions exist:

1. The remediation has achieved remediation levels or controls determined in accordance with section 49-175, subsection B.

2. The community involvement requirements of section 49-176 have been satisfied.

3. If institutional or engineering controls are proposed, proof that the declaration of environmental use restriction has been filed that complies with the requirements of section 49-152 or 49-158.

4. The work performed complies with any applicable corrective or remedial action requirements of any applicable permit required under this title.  If remediation under this article requires a permit, a solid waste facility plan approval pursuant to section 49-762.03, or a modification, the permit, plan approval, or modification shall be obtained through the applicable program.

5. The remediation is consistent with title 45, chapter 2.

6. The work performed complies with any otherwise applicable laws and rules.

7. The remediation will not interfere with or substantially increase the cost of a remedial action that the department may conduct to address waters of the state pursuant to chapter 2, article 5 of this title.

D. The department may issue a conditional no further action determination at a site where remediation levels have been met through the use of institutional controls or engineering controls but postremediation care obligations such as monitoring or maintenance of engineering controls must be performed.

E. The department may rescind or amend the determination of no further action under this section and require remedial action pursuant to applicable law for any of the following reasons:

1. On discovery of new information that, based on the criteria in subsection C of this section, would result in the potential denial of a no further action request.

2. That information submitted pursuant to subsection A or B of this section was inaccurate, misleading, or incomplete.

3. The reopening of an investigation or the taking of a remedial action is necessary to respond to a release or the threat of a release of a contaminant that may present an imminent and substantial danger to the public health or welfare or the environment.

F. A determination of no further action under this section means that no further action shall be taken by the department under this title to remediate or require remediation of the site or portion of the site covered by the no further action determination, unless the no further action determination is rescinded or amended pursuant to subsection E of this section.  A no further action determination under this section does not release or discharge any person from liability under this title or any other law for a release of contaminants not covered by the work plan approved pursuant to section 49-177 or outside the boundary of the site or portion of the site covered by the determination.  A determination of no further action shall not preclude the director from obtaining access to the area covered by the determination under this section or any other law.
A.R.S. § 49-281 — Arizona Code / Title 49 / Chapter 2 / Article 5 / Section 281
49-281 Definitions
Status: in_force

49-281. Definitions

In this article, unless the context otherwise requires:

1. "Applicant" means any individual, employee, officer, managing body, trust, firm, joint stock company, consortium, public or private corporation, including a government corporation, partnership or association, this state, a political subdivision of this state, or a commission of the United States government or a federal facility, an interstate body or any other entity that applies for a settlement under section 49-292.01 or 49-292.02.

2. "Community" means the broad spectrum of persons determined by the director to be within an existing or proposed site placed on the registry pursuant to section 49-287.01.

3. "Community involvement area" means the geographical area that is within a site placed on the registry pursuant to section 49-287.01 and additional geographic areas as found appropriate in the director's discretion.

4. "Dispose" means the deposit, injection, dumping, spilling, leaking or placing of any pollutant into or on any land or water so that the pollutant or any constituent of the pollutant may enter the environment or be discharged into any waters, including aquifers.

5. "Eligible party" means a person who enters into a written agreement with the director to implement and complete a remedial investigation and feasibility study with respect to a site or portion of a site that was on the annual priority list on May 1, 1997 or any other person who incurs costs for a remedial action that is in substantial compliance with section 49-282.06 as determined by the director.

6. "Facility" means any land, building, installation, structure, equipment, device, conveyance, area, source, activity or practice.

7. "Fund" means the water quality assurance revolving fund established by section 49-282.

8. "Hazardous substance":

(a) Has the same meaning prescribed in section 49-201.

(b) Does not include petroleum as defined in section 49-1001, except to the extent that a constituent of petroleum is subject to section 49-283.02.

9. "Nonrecoverable costs" means any costs incurred by the director after June 30, 1997:

(a) That consist of salaries and benefits paid to state employees, including direct and indirect costs, except as specifically provided in section 49-282.05, section 49-285, subsection B, section 49-285.01, section 49-287.01, section 49-287.06, subsection H and section 49-287.07 and for epidemiological studies conducted by the department of health services.

(b) For activities conducted pursuant to section 49-287.02.

(c) For water monitoring activities conducted pursuant to section 49-225.

(d) For well inspections, but not other remedial actions, to determine whether vertical cross-contamination is resulting from a well pursuant to section 45-605 or 49-282.04.

(e) For rulemaking.

10. "Orphan shares" means the shares of the cost of a remedial action that are allocated to an identified person who is determined to be a responsible party and that are not paid or otherwise satisfied by that responsible party due to any of the following:

(a) The party cannot be located or no longer exists.

(b) The party has entered into a qualified business settlement pursuant to this article.

(c) The party has entered into a settlement pursuant to this article for an amount that is less than its allocated share.

(d) The director has determined that the share allocated to the party is uncollectible.

11. "Prospective remediator" means a person that wishes to remediate a site but that does not wish to purchase the site.

12. "Prospective remediator agreement" means an agreement entered into between the department and a prospective remediator that meets the requirements of section 49-285.01.

13. "Release" means any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping or disposing into the environment but excludes:

(a) Any release that results in exposure to persons solely within a workplace, with respect to a claim that such persons may assert against the employer of such persons.

(b) Emissions from the engine exhaust of any motor vehicle, rolling stock, aircraft, vessel or pipeline pumping station engine.

(c) Release of source material, by-product material or special nuclear material, as those terms are defined in section 30-651, resulting from the operation of a production or utilization facility as defined in the atomic energy act of 1954 (68 Stat. 919; 42 United States Code sections 2011 through 2297), which is subject to the regulatory authority of the United States nuclear regulatory commission as specified in that act, and the agreement, dated March 30, 1967, entered into between the governor of this state and the United States atomic energy commission pursuant to section 30-656 and section 274 of the atomic energy act of 1954, as amended.

(d) The normal application of fertilizer.

14. "Remedial actions":

(a) Means those actions that are reasonable, necessary, cost-effective and technically feasible in the event of the release or threat of release of hazardous substances into the environment, such actions as may be necessary to investigate, monitor, assess and evaluate such release or threat of release, actions of remediation, removal or disposal of hazardous substances or taking such other actions as may be necessary to prevent, minimize or mitigate damage to the public health or welfare or to the environment that may otherwise result from a release or threat of release of a hazardous substance.

(b) Includes the use of biostimulation with indigenous microbes and bioaugmentation using microbes that are nonpathogenic, that are nonopportunistic and that are naturally occurring. Remedial actions may include community information and participation costs and providing an alternative drinking water supply.

15. "Remedy" means a remedial action selected in a record of decision issued pursuant to section 49-287.04.

16. "Site" means the geographical areal extent of contamination.

17. "Vertical cross-contamination" means the vertical migration of released hazardous substances in groundwater through a well from an aquifer or aquifer layer to another aquifer or aquifer layer.
A.R.S. § 49-262 — Arizona Code / Title 49 / Chapter 2 / Article 4 / Section 262
49-262 Injunctive relief; civil penalties; recovery of litigation costs; affirmative defense
Status: in_force

49-262. Injunctive relief; civil penalties; recovery of litigation costs; affirmative defense

A. Whether or not a person has requested a hearing, the director, through the attorney general, may request a temporary restraining order, a preliminary injunction, a permanent injunction or any other relief necessary to protect the public health if the director has reason to believe either of the following:

1. That a person is in violation of:

(a) Any provision of article 2, 3, 3.1 or 3.3 of this chapter.

(b) A rule adopted pursuant to section 49-203, subsection A, paragraph 7.

(c) A rule adopted pursuant to article 2, 3, 3.1 or 3.3 of this chapter.

(d) A discharge limitation or any other condition of a permit issued under article 2, 3, 3.1 or 3.3 of this chapter.

2. That a person is creating an actual or potential endangerment to the public health or environment because of acts performed that violate this chapter.

B. Notwithstanding any other provision of this chapter, if the director, the county attorney or the attorney general has reason to believe that a person is creating an imminent and substantial endangerment to the public health or environment because of acts performed that violate article 2, 3, 3.1 or 3.3 of this chapter or a rule adopted or a condition of a permit issued pursuant to section 49-203, subsection A, paragraph 2, 7 or 8, the county attorney or attorney general may request a temporary restraining order, a preliminary injunction, a permanent injunction or any other relief necessary to protect the public health.

C. A person who violates any provision of article 2, 3 or 3.1 of this chapter or a rule, permit, discharge limitation or order issued or adopted pursuant to article 2, 3 or 3.1 of this chapter is subject to a civil penalty of not more than $25,000 per day per violation. A person who violates any rule adopted or a condition of a permit issued pursuant to section 49-203, subsection A, paragraph 7 is subject to a civil penalty of not more than $5,000 per day per violation.  A person who violates any rule adopted, permit condition or other provision of article 3.3 of this chapter is subject to a civil penalty of not more than $5,000 per day per violation. The attorney general may, and at the request of the director shall, commence an action in superior court to recover civil penalties provided by this section.

D. The court, in issuing any final order in any civil action brought under this section, may award costs of litigation, including reasonable attorney and expert witness fees, to any substantially prevailing party if the court determines such an award is appropriate. If a temporary restraining order is sought, the court may require the filing of a bond or equivalent security.

E. All civil penalties except litigation costs obtained under this section shall be deposited, pursuant to sections 35-146 and 35-147, in the state general fund.

F. Except as applied to permits issued or authorized pursuant to article 3.1 or 3.3 of this chapter, it is an affirmative defense to civil liability under this section and section 49-261 for causing or contributing to a violation of a water quality standard established pursuant to this chapter, or a violation of a permit condition prohibiting a violation of an aquifer water quality standard or limitation at the point of compliance or a surface water quality standard if the release that caused or contributed to the violation came from a facility owned or operated by a party that has either:

1. Undertaken a remedial or response action approved by the director or the administrator under this title or CERCLA in response to the release of a hazardous substance, pollutant or contaminant that caused or contributed to the violation of article 2 of this chapter and is in compliance with that remedial or response action.

2. Otherwise resolved its liability for the release of a hazardous substance that caused or contributed to the violation of article 2 of this chapter in whole or in part by the execution of a settlement agreement or consent decree with the director or administrator under this article, CERCLA or any other environmental law and is in compliance with that settlement agreement or consent decree.

G. Subsection F of this section does not prevent the director from taking an appropriate enforcement action to address the release of a hazardous substance, pollutant or contaminant or the violation of a permit condition before or as an element of an approved remedial or response action, settlement agreement or consent decree.

H. In determining the amount of a civil penalty for a violation under article 3, 3.1 or 3.3 of this chapter, the court shall consider the following factors:

1. The seriousness of the violation or violations.

2. The economic benefit, if any, that results from the violation.

3. Any history of similar violations.

4. Any good faith efforts to comply with the applicable requirements.

5. The economic impact of the penalty on the violator.

6. The extent to which the violation was caused by a third party.

7. Other matters as justice may require.

I. A single operational upset that leads to simultaneous violations of more than one pollutant limitation in a permit issued or authorized pursuant to section 49-255.01 constitutes a single violation for purposes of any penalty calculation.

J. If a permittee holds both a permit issued or authorized pursuant to article 3 of this chapter and a permit issued or authorized pursuant to article 3.1 or 3.3 of this chapter and the permittee violates a similar provision in both permits simultaneously, the department shall not recover penalties for violations of both permits based on the same act or omission.

K. For a wastewater treatment facility or system that is regulated as a public service corporation by the corporation commission, the department shall make a written request to the chairperson and executive director of the corporation commission to take necessary corrective actions, and the corporation commission shall commence necessary corrective actions within thirty calendar days after both of the following occur:

1. The department does any one or more of the following:

(a) Determines that the wastewater treatment facility or system is out of compliance with an administrative order issued by the department for a violation of this chapter.

(b) Files a civil action against the owner or operator of the wastewater treatment facility or system for a violation of this chapter.

(c) Determines that an emergency exists with respect to the wastewater treatment facility or system.

2. The department determines that the corporation commission taking necessary corrective actions would expedite the wastewater treatment facility's or system's return to compliance with this chapter.

L. If the department makes a written request to the corporation commission as prescribed by subsection K of this section, the department shall provide a copy of the request to the governing body of any local jurisdiction with residents served by the facility or system that is the subject of the request.
A.R.S. § 49-287.07 — Arizona Code / Title 49 / Chapter 2 / Article 5 / Section 287.07
49-287.07 Actions for allocation and recovery of remedial action costs; limitation of actions
Status: in_force

49-287.07. Actions for allocation and recovery of remedial action costs; limitation of actions

A. The following actions shall be brought pursuant to this section:

1. An action by the director or any person with a claim for recovery of remedial action costs to challenge a determination of liability or proportionate share in an allocator's report pursuant to section 49-287.06.

2. An action by a person to challenge a determination of its liability or its proportionate share in an allocator's report issued pursuant to section 49-287.06.

3. An action by the director or any person for allocation and recovery of remedial action costs at any site or a portion of a site listed on the registry maintained pursuant to section 49-287.01, subsection D, except as follows:

(a) An action by a person or group of persons who have obtained a no further action determination for a site pursuant to section 49-287.01, subsections F and G, for both soil and groundwater. Such an action may be brought pursuant to section 49-285.

(b) An action by one or more responsible parties who have conducted or will conduct a voluntary remedial action pursuant to section 49-282.05 or who have entered into a settlement or agreement with the director under which the person or group of persons agree to undertake a remedy or any other remedial action and to reimburse the fund for the department's costs, if any. Such an action may be brought pursuant to section 49-285.

(c) An action by the director to enforce a settlement agreement.

(d) An action by the director to recover costs incurred in undertaking an emergency remedial action pursuant to section 49-282.02. Such an action may be brought pursuant to section 49-285.

B. If the action includes a challenge regarding a determination of liability or proportionate share of a party in an allocator's report pursuant to section 49-287.06, the action shall be commenced by filing a complaint not fewer than ninety days nor more than one hundred twenty days after notice of the allocator's report is served pursuant to section 49-287.06, subsection G. If the director issues a notice of termination of allocation proceedings pursuant to section 49-287.06, subsection I, the action may be brought any time after that notice is served. In all other cases, actions brought pursuant to this section shall be filed no fewer than ninety days after notice of the allocator's report is served pursuant to section 49-287.06, subsection G. All actions commenced under this section shall be brought in the superior court in the county where the site is located or in which the department maintains an office. Title 12, chapter 7, article 2 and title 41, chapter 6, articles 6 and 10 do not apply to the action. Within five calendar days after filing the complaint, the plaintiff shall serve written notice of the filing of the complaint by certified mail on the director and each person whose liability or proportionate share were determined in the allocator's report. In any action brought pursuant to this section, unless otherwise provided in this section, the parties shall bear their own costs, expert witness fees and attorney fees.

C. A plaintiff who is challenging its own proportionate share or a finding of its liability shall name the director as the defendant. The director or a plaintiff who is seeking recovery of remedial action costs shall name as a defendant each party whose liability or proportionate share as determined by the allocator is being challenged and any other person who the plaintiff alleges is a responsible party and who was not allocated a share of liability by the allocator. The plaintiff shall not name as a defendant any person who has entered into a settlement agreement with the director that includes contribution protection or whose proportionate share or liability as set forth in the allocator's report is not being challenged. On the entry of any judicially approved consent decree providing contribution protection to any defendant regarding the site or portion of the site that is the subject of a challenge under this section, the court shall dismiss that defendant from the action pursuant to this section. The complaint and answer shall be filed and served as provided in the applicable rules of civil procedure. The action shall be tried by the court without a jury.

D. The plaintiff has the burden of proving that each defendant is a responsible party under this article, except that in an action in which a person challenges a determination of its own liability in an allocator's report, the director has the burden of proving that the person is a responsible party under this article. There is no burden of proof as to the proportionate share of any person. The court shall receive evidence offered by any party regarding the allocation of liability among the parties and any other persons, except as provided in subsection I of this section. The liability allocation notice issued pursuant to section 49-287.05, subsection A and the allocator's report issued pursuant to section 49-287.06, subsection E shall be admitted as evidence. The court shall issue an order establishing the proportionate share of liability of each party it determines to be a responsible party in accordance with section 49-285, subsections E and F. Notwithstanding a finding regarding the proportionate share of liability that differs from the allocator's report or any settlement, the court's order does not affect the liability of any person who has settled with the department pursuant to this article or whose proportionate share of liability has become final pursuant to section 49-287.06, subsection H.

E. In an action challenging a party's proportionate share of liability as determined in the allocator's report, if the party filing the challenge is not the prevailing party as determined by the court, the liability of the parties shall be adjusted pursuant to this subsection. If the parties have filed complaints against each other challenging the allocator's report, no adjustments may be made pursuant to this subsection. The court shall determine whether the plaintiff is the prevailing party based on whether the proportionate share determined by the court is closer to an offer of judgment pursuant to rule 68 of the Arizona rules of civil procedure made by one or both of the parties or to the proportionate share as determined in the allocator's report. If the plaintiff is not the prevailing party, the share of liability of the responsible party whose proportionate share is being challenged shall be adjusted as follows:

1. If the plaintiff is challenging its own proportionate share as stated in the allocator's report, the plaintiff is liable for the proportionate share contained in the court's order plus a premium of two per cent of the total remedial action costs at the site or, if applicable, a portion of the site, unless the court's order is for less than four per cent, then the premium is fifty per cent of the plaintiff's proportionate share as determined by the court.

2. If the plaintiff is the director who is challenging the proportionate share of a defendant, the defendant is liable for the proportionate share contained in the court's order minus a discount of two per cent of the total remedial action costs at the site or, if applicable, a portion of the site, unless the court's order is for less than four per cent, then the discount is fifty per cent of the defendant's proportionate share as determined by the court.

3. If the plaintiff, other than the director, is seeking recovery of remedial action costs and is challenging the proportionate share of a defendant, the defendant is liable for the proportionate share contained in the court's order, and the plaintiff is liable to the defendant for an amount equal to two per cent of the total remedial action costs at the site or, if applicable, a portion of the site.

F. In any action pursuant to this section, including an action to obtain a judgment based on a final allocator's determination pursuant to section 49-287.06, subsection H, or in any settlement after the conclusion of the allocation proceeding under section 49-287.06, a party who received notice pursuant to section 49-287.06, subsection A, who did not participate in the allocation proceeding under section 49-287.06 and who is found to be a responsible party under this article is liable for all of the following:

1. Its proportionate share of liability.

2. A premium of fifty per cent of that party's proportionate share.

3. The plaintiff's costs, attorney fees and expert fees incurred in both the allocation proceeding and the court action.

G. In any action brought pursuant to this section, if the superior court finds that a defendant is not a responsible party under this article, the plaintiff is liable for all of that defendant's reasonable costs, attorney fees and expert fees incurred in the court action.

H. If more than one action is filed under this section, the court shall join all actions into a single proceeding.

I. No party may allege that any other person is responsible for any portion of liability unless that person was identified to the director pursuant to section 49-287.04 except on a showing of good cause and due diligence.

J. No determination by the director or an allocator pursuant to this article as to the fact or extent of a person's liability under this article may be admitted into evidence or used in any judicial proceeding initiated against that person other than a proceeding pursuant to this section.

K. In any action brought pursuant to this section, on the request of any party with a claim for recovery of remedial action costs, the court shall award a judgment against the responsible party for its proportionate share of remedial action costs as prescribed by section 49-285. The judgment shall reflect any adjustments of amounts due pursuant to subsections E and F of this section.
A.R.S. § 49-289.03 — Arizona Code / Title 49 / Chapter 2 / Article 5 / Section 289.03
49-289.03 Community involvement plan; community advisory boards; rules
Status: in_force

49-289.03. Community involvement plan; community advisory boards; rules

A. The public shall receive notice and be provided an opportunity to comment to the director regarding the following actions taken by the director:

1. The placement of a site on the registry as provided in section 49-287.01.

2. The selection of a remedy as provided in section 49-287.04.

3. Entering into a prospective purchaser or prospective remediator agreement with a person pursuant to section 49-285.01.

4. Entering into a settlement with a responsible party pursuant to section 49-292, 49-292.01 or 49-292.02.

B. The director shall adopt rules to implement this section and to govern providing information to communities and community involvement areas that include how to disseminate information, the location of public information repositories and notice requirements.

C. Before it implements a remedial investigation as provided in section 49-287.03, subsection D the department shall develop a community involvement plan for each site that does all of the following:

1. Establishes a community advisory board.

2. Designates a spokesperson to inform the public and to act as a liaison between the department, the local government and the responsible party.

3. Provides for newsletters with current information about the status of remedial action at the site and other pertinent information to be distributed to residents within the site.

4. Schedules community advisory board meetings.

D. A selection committee shall be established for each site that is required to have a community involvement plan pursuant to section 49-287.03, subsection D. The selection committee shall consist of the following members:

1. One representative of the department.

2. One representative of a potentially responsible party, an owner or operator of a facility within the site or an affected business or industry.

3. One local elected official.

4. Two community members who are not employees of any responsible party, the department or the local government.

E. Each community advisory board shall advise the department, the public and the responsible parties of issues, concerns and opportunities related to the expeditious cleanup of the site. Each community advisory board shall be composed of at least five but not more than twenty members.  The members of the community advisory board shall be chosen to represent a diversified cross section of the community with an appropriate balance of interested parties and affected groups. Applications for membership on the community advisory board and the names of the applicants shall be publicly available. Community advisory board members may serve on more than one community advisory board and multiple sites may share a community advisory board to avoid unnecessary multiple boards.

F. Each community advisory board shall:

1. Within ninety days after appointment of members by the selection committee, elect cochairpersons and other officers if needed and shall develop a charter defining at a minimum operating procedures, membership terms and obligations, goals for developing issues, concerns and opportunities related to expeditious cleanup of the site, and any other anticipated activities of the board for identifying and improving the public's access and understanding of information regarding the remediation processes at the site.

2. In response to site activities or a request from a community advisory board member or a city, town or county in which the site is located, meet with the department and any identified responsible parties to receive site briefings, progress reports and other pertinent information.

3. Coordinate with the department to establish local repositories for the dissemination of information about the site.

G. Each community advisory board may:

1. Make site visits and participate in public meetings related to cleanup opportunities and remedy selection decisions.

2. Participate in an annual meeting held by the department in each county that has a site undergoing a remedial investigation and feasibility study under section 49-287.03 or in the process of selecting or implementing a remedy for the purpose of facilitating public involvement and identifying funding priorities for site cleanups.