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of Policies and
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Policies and Guidance Documents
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PM95-4:
Policy Toward Owners of Property Containing
Contamination |
Statement
of Purpose |
| To
formalize a DEQ policy which protects from DEQ enforcement action
the owner of property contaminated by a pollutant solely as a result
of migration from a source or sources outside the property. U.S.
EPA has developed a similar policy which it applies under CERCLA.
See EPA Policy Memorandum dated May 24, 1995, "Final Policy Toward
Owners of Property Containing Contaminated Aquifers." |
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Statement
of Policy |
| It is the
policy of DEQ not to pursue enforcement under laws administered by
DEQ, including the Environmental Protection and Health Act, the Water
Quality Standards and Wastewater Treatment Requirements, the Hazardous
Waste Management Act, common law theories, and CERCLA, against those
landowners who, through no fault of their own, come to have a pollutant
on their property which has migrated from outside their property,
if the following additional conditions are met: |
| 1. |
The landowner or the landowner's agent,
employee or tenant; did not cause, contribute to, or exacerbate the
release or threat of release of any pollutant through an act or omission.
The failure to take affirmative steps to mitigate or address ground
water contamination, such as conducting ground water investigations
or installing ground water remediation systems, will not, in the absence
of exceptional circumstances, constitute an "omission" by the landowner
within the meaning of this condition. This policy may not apply where
the property contains a ground water well, the existence or operation
of which may affect the migration of contamination. Under this policy,
the well owner may be required to cooperate reasonably with DEQ, which
may include, for example, ceasing operation of the well and allowing
DEQ access to the well for monitoring purposes. These cases will require
fact-specific analysis. |
| 2. |
The property owner agrees to cooperate
reasonably with the state and any responsible party in their efforts
to investigate and remediate the contamination. |
| 3. |
There is no alternative basis for
the landowner's liability for the contamination under laws administered
by other state or federal agencies. |
| 4. |
There is no independent source for
the pollutants on the landowner's property. |
| This
policy, however, does not limit DEQ's authority to obtain access
to a property for any lawful purpose including, but not limited
to, inspection, monitoring, or necessary action to mitigate an off-site
release of contamination. |
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Implementation |
| This
policy shall be effective immediately and shall become void at such
time as the statement of policy is adopted as part of IDAPA 58.01.08.
DATED:
1995
WALLACE
N. CORY, P.E.
ADMINISTRATOR |
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