ADEM Backtracks On Its Effort To Require Remediation Agreements

by Burr & Forman
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The Alabama Department of Environmental Management (ADEM) has apparently ended its effort to require payment of fees to review groundwater assessments and remediation plans, at least for the time being.  Approximately one year ago, ADEM’s Groundwater Program initiated a process attempting to require the execution of formal Remediation Agreements as a part of assessment requirements for releases which threatened or impacted the groundwater.  This was prompted by recent reductions in appropriations by the State’s Legislature to the Department.  While much of ADEM’s funding comes from the federal government through U.S. EPA, most of the funds for the Groundwater Program come from State revenues.

Historically, whenever a spill or release of a pollutant enters soils, and consequently may threaten groundwater, the Groundwater Branch has required the responsible operator to assess the extent of the release and, where necessary, to conduct remediation activities.  This process generally commences with the Department requiring the submission of an assessment plan.  The resulting assessment report helps determine whether any additional activities, including remediation and groundwater monitoring might be required.  Any and all of those actions would result in additional reports which must be reviewed by the Groundwater Branch as a part of its oversight activities for the site.  Until recently, the Groundwater Branch had sufficient resources to review conduct this oversight, but recent budget cuts prompted the Branch to seek reimbursement of these oversight costs from responsible entities using Remediation Agreements.  These Agreements generally proposed that the responding party pay the costs associated with the review of all reports as well as the other costs the Branch incurred in its oversight of the particular remediation activity.

There were several fundamental problems with this effort.  First, the format of the agreements and accompanying cover letters gave the impression that execution of the agreements and payment of the fees were mandatory, although there were serious questions about ADEM’s authority to require them.  Second, the terms of the agreement were open ended.  And third, the amount of the fees was not specified.  Some recipients raised these and related concerns with the Department, including its Office of General Counsel.  After a series of exchanges primarily with the OGC, the Department ultimately decided to forego the idea, at least for the immediate future.  ADEM has acknowledged, at least implicitly, that it cannot require the payment of fees for this work without some regulatory changes, including the establishment of a fee schedule similar to those it has enacted for many of its other regulatory programs.  Given its ongoing budget problems, I expect ADEM will renew this effort once it develops the necessary regulations.  Indeed, the Department’s staff indicates that it expects to propose new fees for most programs through a rule-making that is expected to be published during the first quarter of 2013.  I anticipate that this rule-making will include new fees for the Groundwater Program, including its costs to review remediation plans and reports.

For more information on environmental law topics, please contact one of the Burr & Forman team members for assistance. We are happy to answer any questions or concerns you may have.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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