Ala. Admin. Code r. 335-5-1-.03

Current through Register Vol. 43, No. 1, October 31, 2024

Section 335-5-1-.03 - Definitions

For the purpose of this Division, the following words and phrases, unless the context of 335-5 plainly indicates otherwise, shall have the following meanings:

(a)Activity and Use Limitations - Restrictions or obligations created under this Act with respect to real property.

(b)ADEM or Department - The Alabama Department of Environmental Management.

(c)Alabama Uniform Environmental Covenants Act or "Act" - Code of Alabama 1975, §§ 35-19-1 to 35-19-14.

(d)Common Interest Community - A condominium, cooperative, or other real property with respect to which a person, by virtue of the person's ownership of a parcel of real property, is obligated to pay property taxes or insurance premiums, or for maintenance, or improvement of other real property described in a recorded covenant that creates the common interest community.

(e)Director - The Director of the Alabama Department of Environmental Management or his or her designated representative.

(f)Environmental Covenant - A servitude arising under an environmental response project that imposes activity and use limitations.

(g)Environmental Response Project - A plan or work performed for environmental remediation of real property and conducted under any of the following programs or situations:

(i) A federal or state program governing environmental remediation of real property as listed in 335-5-1-.02(2);

(ii) A to closure of a solid or hazardous waste management unit, if the closure is conducted with approval of an agency;

(iii) Under a state voluntary cleanup program pursuant to 335-15.

(h)Holder - The grantee of an environmental covenant that meets the requirements of 335-5-2-.01.

(i)Land Use Controls - Any restriction or control that serves to protect human health and the environment by limiting the use of or exposure to any portion of a property or site, including water resources. These controls include, but are not limited to:

1. Engineering controls for remedial actions directed toward containing or controlling the migration of contaminants through the environment. These include, but are not limited to, stormwater conveyance systems, slurry walls, liner systems, caps, leachate collection systems, pump-and-treat systems, and groundwater recovery systems. Engineering controls are classified as:

(i) Class 1, which includes multi-1ayer caps or liner systems, soil vapor extraction systems, groundwater pump-and-treat systems, leachate and groundwater recovery systems, stormwater conveyance systems, slurry walls and active ventilation of closed spaces.

(ii) Class 2, which includes clay or soil caps or liner systems, sub-structural vapor barriers, and passive ventilation of closed spaces.

(iii) Class 3, which includes asphalt caps and fencing systems.

(iv) For other engineering controls not listed, ADEM shall determine the classification of the engineering control upon the request of an owner or operator or other responsible person.

2. Institutional controls that are legal or contractual restrictions on property use that remain effective after remediation is completed and are used to meet an approved environmental response project plan or proposal. These include, but are not limited to, deed notations, deed restrictions, groundwater use restrictions, restrictive covenants, conservation easements, and limited development rights. Institutional controls are classified as:

(i) Class 1, which includes any water use restriction.

(ii) Class 2, which includes restrictive covenants for industrial or commercial use only or no schools or daycares, and imposition of conservation easements or limited developmental rights.

(iii) Class 3, which includes restrictive covenants for no excavations, for use as greenspace only, and no hunting or fishing.

(iv) For other institutional controls not listed, ADEM shall determine the classification of the institutional control upon the request of an owner or operator or other responsible person.

(j)Owner or Operator - Includes the following:

1. In the case of a property or site, any person owning or operating that property or site.

2. Any person who owned, operated, or otherwise controlled activities at a property or site immediately prior to conveyance of title of that property or site to a unit of state or local government or loss of control of that property or site due to bankruptcy, foreclosure, tax delinquency, or abandonment.

3. The definition does not include the following:

(i) A person acting solely in a fiduciary capacity who can show evidence of ownership and who did not actively participate in the management, disposal, or release of hazardous wastes, hazardous constituents, hazardous substances or petroleum product from the property or site.

(ii) A unit of a state or local government that acquired ownership or control involuntarily through bankruptcy, tax delinquency, abandonment, or any other circumstance where the government involuntarily acquires title by virtue of its function as sovereign. This exclusion shall not apply to any state or local government that has caused or contributed to the release of hazardous wastes, hazardous constituents, or hazardous substances from the property or site.

(k)Person - An individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, public corporation, government, governmental subdivision, agency, or instrumentality, or any other legal or commercial entity.

(l)Property or Site - A parcel of land defined by boundaries of a legal description where a hazardous waste, hazardous constituent, hazardous substance or petroleum product has been or is suspected to have been deposited, discharged, stored, disposed of, placed, or otherwise come to be located.

(m)Record - Information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.

(n)Response Action - Action taken in the event of a release or threatened release of a hazardous waste, hazardous substance, petroleum product, or other pollutant into the environment to remove or to prevent or minimize the threat to public health or the environment.

(o)Responsible Person - Any person who has contributed or is contributing to a release of any hazardous waste, hazardous constituent or hazardous substance at a property. This term includes any person who has contributed or is contributing to a release of petroleum and petroleum-based substances comprised of a complex blend of hydrocarbons derived from crude oil through processes of separation, conversion, upgrading, and finishing, such as motor fuels, jet fuels, distillate fuel oils, residual fuel oils, lubricants, petroleum solvents, and used oils. This term includes persons described in §§107(a)(1) through 107(a)(4) of the Comprehensive Environmental Response, Compensation, and Liability Act, 42 USC Section 9601, et seq. (CERCLA). This term excludes persons described in §107(b) of CERCLA.

(p) R estricted Use - Any use of a property or site other than unrestricted use.

(q)State - The State of Alabama.

(r)Unrestricted Use - The designation of acceptable future use at a property or site where the remediation levels, based on either background or standard exposure factors, shall have been attained in all media to allow the property or site to be used for any purpose.

Ala. Admin. Code r. 335-5-1-.03

New Rule: Filed April 21, 2009; effective May 26, 2009. Amended: Filed February 19, 2013; effective March 26, 2013.

Amended by Alabama Administrative Monthly Volume XLII, Issue No. 03, December 29, 2023, eff. 2/12/2024.

Author: James L. Bryant; Lawrence A. Norris, R. Blake Schmidt, Pamela W. Luckie,

Statutory Authority:Code of Ala. 1975, §§ 35-19-2; 35-19-13.