1. (a)

   1. (1) Moneys deposited into the Hazardous Substance Remedial Action Trust Fund shall be segregated into two (2) portions:

      1. (A) Eighty percent (80%) of the annual receipts shall be designated for expenditures related to National Priority List (NPL) sites as listed in Subpart 2 of this part; and
      2. (B) Twenty percent (20%) of the annual receipts shall be designated for expenditures related to State Priority List (SPL) sites as listed in Subpart 3 of this part.
   2. (2) In the event moneys from either NPL or SPL sites are not expended in any given year, the remaining moneys shall be carried over to the next year and shall remain as originally apportioned, unaffected by apportionment of additional funds in subsequent years unless otherwise authorized by law.
2. (b) Moneys from the fund may not be expended by the Director of the Division of Environmental Quality at any hazardous substance site until the hazardous substance site is listed in the applicable subpart of this part.

3. (c) A hazardous substance site may be listed in Subpart 2 of this part (National Priority List (NPL) site) provided that:

   1. (1) The hazardous substance site has been investigated and ranked by use of the revised Hazard Ranking System (rHRS); and
   2. (2) The hazardous substance site scored a minimum of twenty-eight and five-tenths (28.50) based on the rHRS, or has been designated as the state’s priority site in accordance with 40 CFR § 300.425(c)(2) and placed on the federal National Priorities List as published in the Federal Register; and
   3. (3) A final remedial investigation/feasibility study and health risk assessment, where applicable, has been conducted; and
   4. (4) The Division of Environmental Quality has concurred with the remedy selection; and
   5. (5) A record of decision (ROD) regarding the remedial action has been issued; and
   6. (6) Federal moneys for the remedial action at the hazardous substance site have been committed; and
   7. (7) The remedial design has progressed to the ninety-percent complete stage; and
   8. (8) The division has provided a thirty-day public comment period and opportunity for hearing on the addition of the site to this list.
4. (d) Should the Arkansas Pollution Control and Ecology Commission disapprove the inclusion of a hazardous substance site in Subpart 2 of this part, the Chair of the Arkansas Pollution Control and Ecology Commission shall cause the record to reflect the specific rationale for this disapproval.

5. (e) Priority for funding in any given fiscal year for National Priority List sites identified in 8 CAR § 83-202 under the above criteria shall be as follows:

   1. (1) Those sites where remedial actions, including operations and maintenance, have been initiated previously; and
   2. (2) Additional hazardous substance sites based on the order of greatest impact to public health and/or the environment, as determined by the director after reviewing available information developed in accordance with CERCLA as amended and any other information considered applicable and scientifically reliable.

6. (f)

   1. (1) Hazardous substance sites that pose a potential substantial endangerment to human health and/or the environment but do not meet the criteria listed at subsections (c) or (d) of this section may be listed at 8 CAR § 83-302 (State Priority List (SPL) sites).
   2. (2) Hazardous substance sites listed at 8 CAR § 83-302 will be eligible for investigation and necessary remedial action on a case-by-case basis as determined by the director.

7. (g) Eligible expenditures at hazardous substance sites listed at 8 CAR § 83-302 are those:

   1. (1) Where investigatory activities are required to determine:

      1. (A) The extent and degree, if any, of the release or threat of release of a hazardous substance at the site; and
      2. (B) Any scientific or engineering studies deemed necessary by the director to determine available and necessary alternatives for remediation;

   2. (2)

      1. (A) Where remediation activities are required to adequately secure, contain, abate, treat, dispose, or control hazardous substances to the extent financially and technically feasible, as determined by the director.
      2. (B) Remediation activities shall include but are not limited to any engineering design work necessary to adequately plan, design, and implement remedial measures; or
   3. (3) Where long-term stewardship, i.e., operations and maintenance activities to include five-year reviews, is required to ensure the long-term effectiveness of the remedy implemented at the hazardous substance site.

8. (h) Hazardous substance sites may be listed at 8 CAR § 83-302 based on:

   1. (1) Proximity to population centers;
   2. (2) Potential impacts to surface waters;
   3. (3) Potential impact to groundwater;
   4. (4) Hydrologic and geologic characteristics;
   5. (5) The toxicity and characterization of hazardous substances present;
   6. (6) The mobility of the hazardous substances present;
   7. (7) The attenuation of the hazardous substances present; and
   8. (8) Releases or threat of releases of the hazardous substances.

9. (i) Priority for available funding for hazardous substance sites listed at 8 CAR § 83-302 shall be as follows:

   1. (1) Those sites where remedial actions, including operations and maintenance, have been initiated previously; and
   2. (2) Additional hazardous substance sites based on the order of greatest impact to public health and/or the environment, as determined by the director after reviewing available information developed or discovered in the investigatory process.

10. (j) The above shall not be construed to preclude or limit the authority of the director in:

    1. (1) Mandating actions pursuant to Arkansas Code § 8-7-501 et seq., the Remedial Action Trust Fund Act, deemed necessary to abate an imminent and substantial endangerment to the public health, safety, and welfare, or to the environment; or
    2. (2) Ordering responsible parties to address and abate any release of a hazardous substance, pursuant to Arkansas Code § 8-7-501 et seq.

Codification Notes: “CERCLA” is the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. § 9601 et seq.