40.18.180 Documentation of Completion

(a) The TM-TRP may issue either of two (2) letters to a responsible party, person or government agency to document that a response action is complete:

(1) A Certificate of Completion; or

(2) A No Further Action (NFA) letter.

(b) Both assurances may affect TM-TRP's ability to require additional remediation at a site or property and give site owners, operators, prospective purchasers, or other responsible party or government agency certainty about the extent of their remediation liability. If a Certificate of Completion or No Further Action letter is issued the TM-TRP shall record a notice of such action in the office of with the deed for the site or property and shall file the notice in the office of the no later than ten (10) business days after the date of issuance.

(c) If a term or condition of any No Further Action letter, covenant not to sue, or Certificate of Completion requires the maintenance of a bond or other evidence of financial assurance, it shall be the duty of any successor in property interest to maintain such bond or financial assurance.

(d) No person or entity shall change any engineering or institutional controls contained in a Remediation Agreement, NFA letter or Certificate of Completion without the prior written consent of the TM-TRP. Before a change may be made, the TM-TRP shall review the contamination at the site and any new requirements shall be incorporated into a subsequent Remediation Agreement, NFA letter or certificate of completion. Upon entry into a subsequent Remediation Agreement or Certificate of Completion or issuance of a NFA letter, the TM-EPA Director shall modify or terminate any prior Remediation Agreement, NFA letter or Certificate of Completion.

(e) Certification of Completion. Certificates of Completion must be requested from TM-TRP in writing. A Certification of Completion may be issued by the TM-EPA Director for sites that have been cleaned up according to the terms and conditions in an approved Voluntary Remediation Agreement. The Certification of Completion may state that, at the time the certificate is issued, all remediation requirements necessary to protect human health and the environment have been successfully completed and that TM-TRP currently has no plans to further evaluate the site or to impose additional remediation requirements. In addition:

(1) A Certificate of Completion does not limit the TM-TRP ability to undertake enforcement actions or to impose penalties for violations of this Act;

(2) A Certificate of Completion does not relieve the responsible party from applicable tribal, state or federal environmental permitting requirements;

(3) A Certificate of Completion may be issued for an entire site or for only a particular area on a site, or a particular set of contaminants, or a particular environmental medium. Partial Certificates of Completion will contain disclaimers explaining that the coverage of the liability assurance is limited to the specific area, contaminants, or media addressed and that the TM-TRP ability to require additional remediation is not limited for other areas, contaminants, or media;

(4) If a Certificate of Completion is requested because the responsible party believes no cleanup is necessary, information must be provided to the TM-TRP documenting that the site (or portion of a site) for which the certificate is requested has been characterized in accordance with the site characterization performance criteria in the Remediation Assessment Agreement and that contaminants of concern either have not been released or are below required cleanup levels;

(5) Consistent with the re-openers and termination clauses in the Remediation Agreement, the TM-TRP may, upon request, provide the property owner or prospective purchaser a covenant not to sue. Any covenant not to sue shall extend to subsequent owners.

(f) The TM-EPA Director may reopen a Certificate of Completion based on the provisions in the certificate and/or:

(1) The site owner fails substantially to comply with the terms and conditions of the certificate;

(2) Contamination is discovered that was present on the site but was not known to the owner/responsible party or the TM-TRP on the date the certificate was issued;

(3) An imminent and substantial endangerment to human health or the environment is discovered;

(g) TM-TRP determines that the site remedy has failed to meet remediation objectives; or

(h) TM-TRP determines that the certificate was based on fraud, material misrepresentation, or failure to disclose material information.

(i) The TM-EPA Director may issue a Conditional Certificate of Completion where:

(1) A monitored natural attenuation remedy is approved and TM-TRP determines that no exposure to contaminated media is reasonably expected to occur during the period of monitored natural attenuation. The Certificate of Completion will be conditioned on the volunteer's continued compliance with the monitoring requirements associated with the Remediation Agreement, site uses not changing during the period of natural attenuation, and confirmation sampling to show that cleanup levels are achieved when the period of natural attenuation is complete;

(2) An alternative (i.e., restricted use) soil cleanup levels are approved in conjunction with a use control area determination. In these

circumstances, the certificate of completion will be conditioned on continued compliance with the requirements of the use control area; or

(3) A technical impracticability determination is made for cleanup of soil or water in accordance with this Act, provided the volunteer achieves alternative cleanup levels established by the TM-TRP. The Certificate of Completion will be conditioned on the volunteer's continued compliance with any controls on land use to prevent human or environmental exposure to contaminated media.

(j) No Further Action Letter (NFA). If the TM-EPA Director determines that no further remediation is required on a property or site; the TM-TRP may, upon request, issue a No Further Action (NFA) Letter to a responsible party, person or government agency and/or a prospective purchaser or leasee to document that a response action is complete pursuant to this Act and any Tribal Order or permit requiring such action, and that no further action may be required. The NFA letter may provide site owners, operators, prospective purchasers, or other responsible party or government agency certainty about the extent of their remediation liability. The letter may state that, at the time the letter is issued, all remediation requirements necessary to protect human health and the environment have been successfully completed and that TM-TRP currently has no plans to further evaluate the site or to impose additional remediation requirements. Special conditions and/or re-openers may be included in the NFA letter when:

(1) The property or site requires engineering or institutional controls or other use restrictions to meet the standards in this section; or

(2) Monitored natural attenuation over a reasonable period of time is appropriate and that no exposure to contaminated media is reasonably expected during the period of natural attenuation. The No Further Action letter may require that the current use of the property continue during the period of natural attenuation and also may require that testing be conducted to confirm that standards are met.

(k) The TM-TRP may reopen a No Further Action determination at any time if:

(1) An imminent and substantial endangerment to human health or the environment is discovered; or

(2) The TM-TRP determines that the monitored natural attenuation remedy is not effective in meeting the standards for a No Further Action letter under this section.