Burr & Forman

01.4.2013   |   Alabama, Environmental Law Matters, Regulations, Water Regulations

ADEM Reconsiders Its Effort to Require Remediation Agreements

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 a 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 conduct this oversight, but recent budget constraints apparently 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, it appears that the Department will not continue to pursue the idea, at least for the immediate future.   ADEM has acknowledged, at least implicitly, that it may not be able to 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.

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