A.R.S. tit. 49 ch. 1 — Arizona Revised Statutes Title 49 Chapter 1 — General Provisions

49-101. Definitions In this title, unless the context otherwise requires: 1. "Approximately equal" means, for purposes of fees adopted pursuant to section 49-480, excluding per ton emissions fees, an amount that is not greater than ten per cent more than the fees or costs charged by the state for similar state permits or approvals. 2. "Department" means the department of environmental quality. 3. "Director" means the director of environmental quality who is also the director of the department. 49-102. Department of environmental quality; director; deputy director; division directors; divisions A. The department of environmental quality is established. B. The governor shall appoint a director of environmental quality pursuant to section 38-211. The director shall administer the department and serve at the pleasure of the governor. The director is entitled to receive compensation as determined under section 38-611. The director shall appoint a deputy director and, subject to legislative appropriation, may appoint division directors if necessary. The positions of director and deputy director are exempt from title 41, chapter 4, articles 5 and 6 relating to state service. C. To be eligible for appointment as director a person must have a background or experience in one or more of the following areas: 1. Public administration. 2. Planning. 3. Personnel management. 4. Law. 5. Environmental science. D. The director may organize the department into divisions as he deems appropriate. 49-103. Department employees; legal counsel A. The director, subject to title 41, chapter 4, article 4 and, as applicable, articles 5 and 6, shall employ, determine the conditions of employment and specify the duties of administrative, secretarial and clerical employees as he deems necessary. B. The attorney general shall be the legal advisor of the department and shall give legal services as the department requires. Compensation for personnel assigned by the attorney general to perform such services shall be a charge against appropriations to the department. The attorney general shall prosecute and defend in the name of this state all actions necessary to carry out the provisions of this title. 49-104. Powers and duties of the department and director A. The department shall: 1. Formulate policies, plans and programs to implement this title to protect the environment. 2. Stimulate and encourage all local, state, regional and federal governmental agencies and all private persons and enterprises that have similar and related objectives and purposes, cooperate with those agencies, persons and enterprises and correlate department plans, programs and operations with those of the agencies, persons and enterprises. 3. Conduct research on its own initiative or at the request of the governor, the legislature or state or local agencies pertaining to any department objectives. 4. Provide information and advice on request of any local, state or federal agencies and private persons and business enterprises on matters within the scope of the department. 5. Consult with and make recommendations to the governor and the legislature on all matters concerning department objectives. 6. Promote and coordinate the management of air resources to ensure their protection, enhancement and balanced use consistent with the environmental policy of this state. 7. Promote and coordinate the protection and enhancement of the quality of water resources consistent with the environmental policy of this state. 8. Encourage industrial, commercial, residential and community development that maximizes environmental benefits and minimizes the effects of less desirable environmental conditions. 9. Ensure the preservation and enhancement of natural beauty and man-made scenic qualities. 10. Provide for the prevention and abatement of all water and air pollution including that related to particulates, gases, dust, vapors, noise, radiation, odor, nutrients and heated liquids in accordance with article 3 of this chapter and chapters 2 and 3 of this title. 11. Promote and recommend methods for the recovery, recycling and reuse or, if recycling is not possible, the disposal of solid wastes consistent with sound health, scenic and environmental quality policies. The department shall report annually on its revenues and expenditures relating to the solid and hazardous waste programs overseen or administered by the department. 12. Prevent pollution through regulating the storage, handling and transportation of solids, liquids and gases that may cause or contribute to pollution. 13. Promote the restoration and reclamation of degraded or despoiled areas and natural resources. 14. Participate in the state civil defense program and develop the necessary organization and facilities to meet wartime or other disasters. 15. Cooperate with the Arizona-Mexico commission in the governor's office and with researchers at universities in this state to collect data and conduct projects in the United States and Mexico on issues that are within the scope of the department's duties and that relate to quality of life, trade and economic development in this state in a manner that will help the Arizona-Mexico commission to assess and enhance the economic competitiveness of this state and of the Arizona-Mexico region. 16. Unless specifically authorized by the legislature, ensure that state laws, rules, standards, permits, variances and orders are adopted and construed to be consistent with and not more stringent than the corresponding federal law that addresses the same subject matter. This paragraph does not adversely affect standards adopted by an Indian tribe under federal law. 17. Provide administrative and staff support for the oil and gas conservation commission. B. The department, through the director, shall: 1. Contract for the services of outside advisers, consultants and aides reasonably necessary or desirable to enable the department to adequately perform its duties. 2. Contract and incur obligations reasonably necessary or desirable within the general scope of department activities and operations to enable the department to adequately perform its duties. 3. Use any medium of communication, publication and exhibition when disseminating information, advertising and publicity in any field of its purposes, objectives or duties. 4. Adopt procedural rules that are necessary to implement the authority granted under this title but that are not inconsistent with other provisions of this title. 5. Contract with other agencies, including laboratories, in furthering any department program. 6. Use monies, facilities or services to provide matching contributions under federal or other programs that further the objectives and programs of the department. 7. Accept gifts, grants, matching monies or direct payments from public or private agencies or private persons and enterprises for department services and publications and to conduct programs that are consistent with the general purposes and objectives of this chapter. Monies received pursuant to this paragraph shall be deposited in the department fund corresponding to the service, publication or program provided. 8. Provide for the examination of any premises if the director has reasonable cause to believe that a violation of any environmental law or rule exists or is being committed on the premises. The director shall give the owner or operator the opportunity for its representative to accompany the director on an examination of those premises. Within forty-five days after the date of the examination, the department shall provide to the owner or operator a copy of any report produced as a result of any examination of the premises. 9. Supervise sanitary engineering facilities and projects in this state, authority for which is vested in the department, and own or lease land on which sanitary engineering facilities are located, and operate the facilities, if the director determines that owning, leasing or operating is necessary for the public health, safety or welfare. 10. Adopt and enforce rules relating to approving design documents for constructing, improving and operating sanitary engineering and other facilities for disposing of solid, liquid or gaseous deleterious matter. 11. Define and prescribe reasonably necessary rules regarding the water supply, sewage disposal and garbage collection and disposal for subdivisions. The rules shall: (a) Provide for minimum sanitary facilities to be installed in the subdivision and may require that water systems plan for future needs and be of adequate size and capacity to deliver specified minimum quantities of drinking water and to treat all sewage. (b) Provide that the design documents showing or describing the water supply, sewage disposal and garbage collection facilities be submitted with a fee to the department for review and that no lots in any subdivision be offered for sale before compliance with the standards and rules has been demonstrated by approval of the design documents by the department. 12. Prescribe reasonably necessary measures to prevent pollution of water used in public or semipublic swimming pools and bathing places and to prevent deleterious conditions at those places. The rules shall prescribe minimum standards for the design of and for sanitary conditions at any public or semipublic swimming pool or bathing place and provide for abatement as public nuisances of premises and facilities that do not comply with the minimum standards. The rules shall be developed in cooperation with the director of the department of health services and shall be consistent with the rules adopted by the director of the department of health services pursuant to section 36-136, subsection I, paragraph 10. The rules adopted pursuant to this paragraph do not apply to single-user public or semipublic cold plunges. 13. Prescribe reasonable rules regarding sewage collection, treatment, disposal and reclamation systems to prevent the transmission of sewage borne or insect borne diseases. The rules shall: (a) Prescribe minimum standards for the design of sewage collection systems and treatment, disposal and reclamation systems and for operating the systems. (b) Provide for inspecting the premises, systems and installations and for abating as a public nuisance any collection system, process, treatment plant, disposal system or reclamation system that does not comply with the minimum standards. (c) Require that design documents for all sewage collection systems, sewage collection system extensions, treatment plants, processes, devices, equipment, disposal systems, on-site wastewater treatment facilities and reclamation systems be submitted with a fee for review to the department and may require that the design documents anticipate and provide for future sewage treatment needs. (d) Require that construction, reconstruction, installation or initiation of any sewage collection system, sewage collection system extension, treatment plant, process, device, equipment, disposal system, on-site wastewater treatment facility or reclamation system conform with applicable requirements. 14. Prescribe reasonably necessary rules regarding excreta storage, handling, treatment, transportation and disposal. The rules may: (a) Prescribe minimum standards for human excreta storage, handling, treatment, transportation and disposal and shall provide for inspection of premises, processes and vehicles and for abating as public nuisances any premises, processes or vehicles that do not comply with the minimum standards. (b) Provide that vehicles transporting human excreta from privies, septic tanks, cesspools and other treatment processes be licensed by the department subject to compliance with the rules. The department may require payment of a fee as a condition of licensure. The department shall establish by rule a fee as a condition of licensure, including a maximum fee. The fees shall be deposited, pursuant to sections 35-146 and 35-147, in the solid waste fee fund established by section 49-881. 15. Perform the responsibilities of implementing and maintaining a data automation management system to support the reporting requirements of title III of the superfund amendments and reauthorization act of 1986 (P.L. 99-499) and article 2 of this chapter. 16. Approve remediation levels pursuant to article 4 of this chapter. 17. Establish or revise fees by rule pursuant to the authority granted under title 44, chapter 9, articles 8 and 9 and chapters 4 and 5 of this title for the department to adequately perform its duties. All fees shall be fairly assessed and impose the least burden and cost to the parties subject to the fees. In establishing or revising fees, the department shall base the fees on the direct and indirect costs of the department's relevant duties, including employee salaries and benefits, professional and outside services, equipment, in-state travel and other necessary operational expenses directly related to issuing licenses as defined in title 41, chapter 6 and enforcing the requirements of the applicable regulatory program. 18. Appoint a person with a background in oil and gas conservation to act on behalf of the oil and gas conservation commission and administer and enforce the applicable provisions of title 27, chapter 4 relating to the oil and gas conservation commission. C. The department may: 1. Charge fees to cover the costs of all permits and inspections it performs to ensure compliance with rules adopted under section 49-203 except that state agencies are exempt from paying the fees. 2. Monies collected pursuant to this subsection shall be deposited, pursuant to sections 35-146 and 35-147, in the water quality fee fund established by section 49-210. 3. Contract with private consultants for the purposes of assisting the department in reviewing applications for licenses, permits or other authorizations to determine whether an applicant meets the criteria for issuance of the license, permit or other authorization. If the department contracts with a consultant under this paragraph, an applicant may request that the department expedite the application review by requesting that the department use the services of the consultant and by agreeing to pay the department the costs of the consultant's services. Notwithstanding any other law, monies paid by applicants for expedited reviews pursuant to this paragraph are appropriated to the department for use in paying consultants for services. D. The director may: 1. If the director has reasonable cause to believe that a violation of any environmental law or rule exists or is being committed, inspect any person or property in transit through this state and any vehicle in which the person or property is being transported and detain or disinfect the person, property or vehicle as reasonably necessary to protect the environment if a violation exists. 2. Authorize in writing any qualified officer or employee in the department to perform any act that the director is authorized or required to do by law. 49-106. Statewide application of rules The rules adopted by the department apply and shall be observed throughout this state, or as provided by their terms, and the appropriate local officer, council or board shall enforce them. This section does not limit the authority of local governing bodies to adopt ordinances and rules within their respective jurisdictions if those ordinances and rules do not conflict with state law and are equal to or more restrictive than the rules of the department, but this section does not grant local governing bodies any authority not otherwise provided by separate state law. 49-107. Local delegation of state authority A. The director may delegate to a local environmental agency, county health department, public health services district or municipality any functions, powers or duties which the director believes can be competently, efficiently and properly performed by the local agency if the local agency accepts the delegation and agrees to perform the delegated functions, powers and duties according to the standards of performance required by law and prescribed by the director. B. Monies appropriated or otherwise made available to the department for distribution to local agencies may be allocated or reallocated in a manner designed to assure that the recognized local activities and the delegated functions, powers and duties are accomplished according to the applicable standards of performance. C. The director may terminate, for cause, all or part of the delegation and reallocate all or part of any monies that may have been conditioned on the further performance of the delegated functions, powers and duties. 49-108. Hazardous materials emergency response operations The director of environmental quality shall establish a hazardous materials emergency response and recovery organizational unit in the department to function as the scientific support, health, safety and environmental element of the hazardous materials emergency management program pursuant to section 49-123. On request from the department of health services and at the direction of the director of environmental quality, the unit shall perform appropriate soil and water sampling for toxic and other harmful effects on the public health and the environment in areas that have been affected by a chemical or other toxic fire. 49-109. Certificate of disclosure of violations; remedies A. The following persons shall file a certificate of disclosure with the department as prescribed by this section: 1. A person who is engaged in an activity subject to regulation under this title and who has been convicted of a felony involving laws related to solid waste, special waste, hazardous waste, water quality or air quality in any state or federal jurisdiction or for a violation of 42 United States Code section 9603 within the five year period immediately preceding execution of the certificate. 2. Except in proceedings in which the department, or this state on behalf of the department, is or was a party, a person who is engaged in an activity subject to regulation under this title and who is or has been subject in any civil proceeding to an injunction, decree, judgment or permanent order of any state or federal court within the five year period immediately preceding the execution of the certificate that involved a violation of laws of that jurisdiction relating to solid waste, special waste, hazardous waste, used oil or used oil fuel, petroleum, water quality or air quality, except for a misdemeanor violation of section 49-550, or a violation of 42 United States Code section 9603. B. The certificate of disclosure prescribed by subsection A of this section shall contain the following: 1. Identification of that person, including without limitation present full name, all prior names or aliases, including full birth name, present house address and all prior addresses for the immediately preceding five year period, date and location of birth and social security number. 2. The nature and description of each conviction or judicial action, the date and location, the court and public agency involved and the file or cause number of the case. 3. A written declaration that each signer swears to its contents under penalty of perjury. C. The certificate of disclosure submitted on behalf of a corporation shall be executed by any two executive officers or directors of that corporation. D. For purposes of subsection A of this section, "person" means a natural person, any public or private corporation, its officers, directors, trustees, incorporators and persons controlling or holding over ten per cent of the issued and outstanding common shares or ten per cent of any other proprietary, beneficial or membership interest in the corporation, a partnership, including all general partners and limited partners controlling a ten per cent or more beneficial interest in the partnership, association or society of persons, the federal government and any of its departments or agencies, this state and any of its agencies, departments, political subdivisions, counties, towns or municipal corporations. E. Initial certificates shall be delivered to the department within ninety days after the person first becomes subject to the disclosure requirements of this section. Certificates shall be filed annually thereafter within ninety days after the close of that person's fiscal year as reported on the initial certificate. F. By December 1 of each year, the department shall provide the attorney general with a list of all persons who were convicted of the crimes or who are the subject of the judicial actions described in subsection A of this section, as indicated from the certificates of disclosure filed during the preceding year. G. In lieu of the certificate of disclosure prescribed by this section, a corporation may submit to the director copies of annual reports filed with the securities and exchange commission pursuant to section 13 or 15(d) of the securities exchange act of 1934 (15 United States Code section 78), commonly known as a "10-K form", within ninety days of filing the annual report. The initial submission to the director shall include 10-K forms for the preceding five years. H. A person who contributes information for a certificate of disclosure and who makes an untrue statement of material fact concerning the requirements of subsection B of this section or withholds any material fact concerning the requirements of subsection B of this section or a person who is obligated to file a certificate of disclosure and who fails to file the certificate is subject to the remedies prescribed in section 49-110. 49-110. Compliance order; hearing; judicial review; enforcement A. If the director has reasonable cause to believe that a person is in violation of section 49-109, article 2 of this chapter or a rule adopted pursuant to article 2 of this chapter, the director may issue an order requiring compliance immediately or within a specified time period. B. A compliance order shall state with reasonable specificity the nature of the violation, a time for compliance, if applicable, and the right to a hearing. C. A compliance order shall be transmitted to the alleged violator by certified mail, return receipt requested, or by hand delivery. D. A compliance order becomes final and enforceable in the superior court unless within thirty days after the receipt of the order the alleged violator requests a hearing before an administrative law judge. If a hearing is requested, the order does not become final until the administrative law judge has issued a final decision on the appeal. Except as provided in section 41-1092.08, subsection H, any final agency order issued pursuant to this section is subject to judicial review pursuant to title 12, chapter 7, article 6. E. If a violator fails to comply with a compliance order issued pursuant to subsection A of this section, the director may issue an order assessing a civil penalty of not more than one thousand dollars for each day of continued noncompliance with the order, not to exceed twenty-five thousand dollars. 49-111. Permit application; plan approval; notice to counties, cities or towns For any application for a permit or plan approval, substantial change to a plan or significant revision or modification to a permit requested pursuant to this title, the director shall notify the appropriate county, city or town by sending a copy or notice of the application or change describing the purpose and scope of the proposed activity. The director shall not release any confidential information or trade secrets in the copy or notice. 49-112. County regulation; standards A. When authorized by law, a county may adopt a rule, ordinance or regulation that is more stringent than or in addition to a provision of this title or rule adopted by the director or any board or commission authorized to adopt rules pursuant to this title if all of the following requirements are met: 1. The rule, ordinance or regulation is necessary to address a peculiar local condition. 2. There is credible evidence that the rule, ordinance or regulation is either: (a) Necessary to prevent a significant threat to public health or the environment that results from a peculiar local condition and is technically and economically feasible. (b) Required under a federal statute or regulation, or authorized pursuant to an intergovernmental agreement with the federal government to enforce federal statutes or regulations if the county rule, ordinance or regulation is equivalent to federal statutes or regulations. 3. Any fee or tax adopted under the rule, ordinance or regulation does not exceed the reasonable costs of the county to issue and administer the permit or plan approval program. B. When authorized by law, a county may adopt rules, ordinances or regulations in lieu of a state program that are as stringent as a provision of this title or rule adopted by the director or any board or commission authorized to adopt rules pursuant to this title if the county demonstrates that the cost of obtaining permits or other approvals from the county will approximately equal or be less than the fee or cost of obtaining similar permits or approvals under this title or any rule adopted pursuant to this title. If the state has not adopted a fee or tax for similar permits or approvals, the county may adopt a fee when authorized by law in the rule, ordinance or regulation that does not exceed the reasonable costs of the county to issue and administer that permit or plan approval program. C. A county that adopts rules, ordinances or regulations pursuant to subsection B of this section and that at any time cannot comply with subsection B of this section shall prepare and file a notice of noncompliance with the director. The county shall post a copy of the notice of noncompliance on the county's website with a date stamp of the date of posting. If the county does not comply with subsection B of this section within one year after posting of the notice on the county's website, the director shall provide written notice to and assert regulatory jurisdiction over those persons and entities subject to the affected county rules, ordinances or regulations. D. Except as provided in chapter 3, article 3 of this title, before adopting or enforcing any rule, ordinance or regulation pursuant to subsection A or B of this section, the county shall comply with the following requirements: 1. Prepare a notice of proposed rulemaking to include the proposed rule, ordinance or regulation. This notice shall demonstrate evidence of compliance with subsection A or B of this section. The notice shall include the name, address and phone number of a person who can answer questions about the proposed rule, ordinance or regulation and accept any written requests for the county to conduct an oral proceeding. The county shall post the notice on the county's website with a date stamp of the date of posting. The county shall publish the availability of the notice of the proposed rule, ordinance or regulation in a newspaper of general circulation in the county. If there is no newspaper of general circulation in the county, the county shall publish the notice in a newspaper of general circulation in an adjoining county. If requested by the public, the county shall make available a paper copy of the notice at a reasonable cost. 2. For at least thirty days after the posting of the notice of the proposed rule, ordinance or regulation, afford persons the opportunity to submit in writing comments, statements, arguments, data and views on the proposed rule, ordinance or regulation. 3. Respond in writing to the comments submitted pursuant to paragraph 2 of this subsection and post the county's response on the county's website. If requested by the public, the county shall make paper copies of its comments available at a reasonable cost. 4. Schedule a public hearing on the proposed rule, ordinance or regulation if a written request for an oral proceeding is submitted to the county during the thirty-day comment period. The county shall post the notice of oral proceeding on a proposed rule, ordinance or regulation on the county's website. The county shall post the notice of oral proceeding at least twenty days before the date of the oral proceeding. The county shall publish notice of any public hearing required pursuant to this paragraph in any newspaper as prescribed by this title or county ordinance. The county shall select a time and location for the public hearing that affords a reasonable opportunity for the public to participate. E. A county is not required to comply with subsection D, paragraphs 2, 3 and 4 of this section before it adopts or enforces a rule, ordinance or regulation if the rule, ordinance or regulation only incorporates by reference an existing state or federal rule or law that provides greater regulatory flexibility for regulated parties and otherwise satisfies the requirements prescribed in subsection B of this section. F. Until June 30, 1995, a person may file with the clerk of the board of supervisors for that county a petition challenging a county rule, ordinance or regulation adopted before July 15, 1994 for compliance with the criteria set forth in subsection A or B of this section. The petition shall contain the grounds for challenging the specific county rule, ordinance or regulation. Within one year after the petition is filed, the board of supervisors shall review the challenged rule, ordinance or regulation and make a written demonstration of compliance with the criteria set forth in subsection A or B of this section and challenged in the petition. Any rules, ordinances or regulations that have been challenged and for which the board of supervisors has not made the written demonstration within one year after the filing of the petition required by this section become unenforceable as of that date. If a county has already made a written demonstration under section 49-479, subsection C, for a rule, ordinance or regulation, the person filing the petition shall state the specific grounds in the petition why that demonstration does not meet the requirements of this section. G. A rule, ordinance or regulation adopted pursuant to subsection A of this section may not be invalidated subsequent to its adoption on the grounds that the economic feasibility analysis is insufficient or inaccurate if a county makes a good faith effort to comply with the economic feasibility requirement of subsection A, paragraph 2, subdivision (a), of this section and has explained in the written statement, made public pursuant to subsection D of this section, the methodology used to satisfy the economic feasibility requirement. H. This section shall not apply to any rule, ordinance or regulation adopted by a county pursuant to: 1. Title 36 for which the state has similar statutory or rule making authority in this title. 2. Section 49-391. 3. Chapter 3, article 8 of this title. 4. Chapter 4, article 3 of this title and section 49-765. 5. Nonsubstantive rules relating to the application process that have a de minimis economic effect on regulated parties. 49-113. Fees; unpaid amounts; penalties; audits A. For self-reported fees in this title, the director shall require the payer to sign a certification that the amount reported is accurate. B. The director shall collect interest on the unpaid amount of every payment, fee, self-reported fee, tax, assessment, cost and penalty authorized by this title at the rate determined pursuant to section 42-1123 from the date required for payment until the full amount is paid. If nonpayment is due to wilful neglect, the director shall also collect an additional five per cent penalty of up to twenty-five per cent of the amount due for each month or fraction of a month the amount is past due. All monies collected pursuant to this section shall be deposited, pursuant to sections 35-146 and 35-147, in the state general fund. C. The director may require a person who is required to make a payment pursuant to this title to appear at reasonable times and on reasonable notice at the director's office and produce records and information that are specified in the notice to determine compliance with this title. D. The director shall audit the records of a sufficient number of persons under this section to ensure general compliance with its requirements. 49-114. Appeals of agency decisions Notwithstanding any other administrative proceeding established in this title or by rule, all appealable agency actions as defined in section 41-1092 and contested cases as defined in section 41-1001 shall be governed by title 41, chapter 6, article 10. 49-115. Indirect cost fund; use; exemption A. A department of environmental quality indirect cost fund is established. Federal monies and other monies obtained for the purposes of reimbursing the department for costs shall be deposited, pursuant to sections 35-146 and 35-147, in the fund. B. Subject to legislative appropriation, monies in the fund shall be used for administrative personnel and overhead costs associated with administering federal programs and other programs paying assessments into the fund. C. Monies in the fund are exempt from the provisions of section 35-190 relating to lapsing of appropriations. 49-116. Informal appeals of agency decisions; technical appeals program fund; definitions A. Except as provided in chapter 6 of this title and sections 49-287.05, 49-287.06 and 49-287.07, the informal appeals process established by this section applies to any written interim decision as defined by subsection K of this section. B. The department shall make a written interim decision within the time frame provided by statute or rule or within ninety business days if no time frame is provided. The time frame may be extended by agreement of the parties. The department's failure to issue a written interim decision within the time frame provided by chapter 2, article 5 of this title is a basis for an informal appeal under this section. C. A person who makes a request for a written interim decision may informally appeal, under this section, a written interim decision related to technical issues. D. A person who has an informal appeal right pursuant to subsection C of this section and who disagrees with a written interim decision of the department or who objects to the lack of a written interim decision of the department may file a written notice of disagreement with the department within thirty days after receiving the department's interim decision or within thirty days after the expiration of the period prescribed by subsection B of this section. The notice of disagreement shall include a description of the specific portions of the interim decision with which the person disagrees and may include a request to meet with the department to resolve the disagreement. Unless the parties agree otherwise, the department shall schedule a meeting within thirty days after receipt of a request for a meeting. E. The person who is authorized under subsection C of this section to request the meeting or an authorized representative of that person may attend the meeting with the department and may attend with any other person who may assist in resolving the disagreement with the department. F. The department shall issue a final written decision within forty-five days after receipt of the notice of disagreement or within fifteen days after the conclusion of any meeting held pursuant to subsection D of this section, whichever is later. If the department does not issue a final written decision within the time prescribed by this subsection, the department's written interim decision becomes the final written decision. The final written decision shall address the notice of disagreement that was received from the person and shall contain the factual, technical and legal grounds for the department's decision. G. Within ten days after receipt of the final written decision or the expiration of the time for issuing the final written decision, the person who filed the notice of disagreement may submit a written request to the department that the matter be submitted to dispute resolution before a qualified professional as defined in subsection K of this section. The person who requests dispute resolution before a qualified professional under this subsection shall pay the full cost of the services provided by the qualified professional for the dispute resolution. The payment for the services shall be deposited into the technical appeals program fund established in subsection J of this section. The qualified professional shall be paid from the technical appeals program fund. Payment of the cost of the services provided by the qualified professional shall not be eligible for credit against the person's liability under chapter 2, article 5 of this title. The department shall maintain a list of, and contact with, at least eight qualified professionals to conduct dispute resolutions. The parties shall mutually select a qualified professional. For purposes of this section, the inclusion of the qualified professional on the department's list maintained under this subsection shall not be deemed employment by the department. If the parties cannot agree on a qualified professional who is on the department's list, the parties shall mutually select a qualified professional who is not on the list who otherwise meets the requirements of this subsection. H. Within twenty days after the selection of a qualified professional, the person who requested the dispute resolution shall submit to the qualified professional and to the department a written statement including, at a minimum, a brief summary that describes the technical dispute, the person's proposed resolution of the technical dispute and any relevant supporting documentation. Within forty-five days after the submittal by the person, the department shall provide to the person and to the qualified professional the department's written response to the submittal. The qualified professional shall review the submittals and recommend a resolution of the technical dispute to the director within thirty days after receipt of the department's response. The qualified professional's recommendation shall be limited to the written interim decision as defined in subsection K of this section and the qualified professional shall not make recommendations relating to an interpretation of law or policy except the qualified professional may interpret policy to the extent necessary to review technical issues. The qualified professional, the department or the person who requested the dispute resolution may request a meeting with all of the parties before the qualified professional issues the recommended resolution. Within forty-five days after receiving the qualified professional's recommendation, the director shall select the resolution of the dispute that is proposed by the qualified professional, the person who requested the dispute resolution, the department or some combination of these resolutions, and shall issue a written resolution to the person and the qualified professional that contains the factual, technical and legal grounds for the decision. By agreement the parties may modify any time limits prescribed by this subsection. I. For a person who files a written notice of disagreement pursuant to subsection D of this section, the time is tolled for compliance with any investigation, corrective action remediation, closure or other requirement that is associated with the subject of the notice of disagreement until the date of the department's final decision, dispute resolution under this section and any related appeals are concluded. The time for compliance shall not be tolled under this subsection if the person who files a written notice of disagreement is subject to an administrative order or judicial order, judgment or decree for the site that is the subject of the notice of disagreement. The time is tolled for filing any other appeal pursuant to chapter 2, article 5 of this title for any written interim decision defined in subsection K of this section. J. A technical appeals program fund is established for the purpose of implementing and administering this section and shall consist of any legislative appropriations and any fees collected under subsection G of this section. The department shall administer the fund. Monies in the fund are exempt from the provisions of section 35-190, relating to lapsing of appropriations. K. For purposes of this section: 1. "Qualified professional" means an individual with a bachelors degree in geology, hydrogeology, hydrology or engineering and at least five years of professional experience in environmental investigation and remediation. Professional registration is highly preferred. The qualified professional shall not be an employee of the party to a dispute resolution or the department within one year prior to the date of the notice of disagreement at issue and shall not have been an employee during the preceding year of a firm assisting the person authorized to informally appeal under subsection C of this section. The qualified professional shall not participate in an informal appeal if the qualified professional has a pecuniary or proprietary interest, either direct or indirect, in the matter being informally appealed. 2. "Written interim decision" means a technical decision involved in a decision under chapter 2, article 5 of this title relating to the department's: (a) Decision to grant or deny a request for the rescoring of a registry site or for a determination of no further action under section 49-287.01, subsection F, but only the decision made after the close of the public comment period described in that subsection. (b) Decision to grant or deny a request to adjust a registry site boundary under section 49-289.01. (c) Review of a work plan submitted to the department under section 49-285, subsection B, 49-287.01, subsection A or 49-287.03. The informal appeals process is limited to the information before the department when the department conducted its review. 49-117. Supplemental environmental project; requirements; nexus A supplemental environmental project that is initiated or accepted by the department shall comply with this section, shall advance at least one of the objectives of the environmental statutes that are the basis of the enforcement action and shall have an adequate nexus. A nexus exists only if any of the following apply. The proposed project: 1. Is designed to reduce the likelihood that similar violations will occur in the future. 2. Reduces the adverse impact to public health or the environment to which the violation contributes. 3. Reduces the overall risk to public health or the environment potentially affected by the violation. 49-118. Notice of violation; hazardous condition; federal agency A. The department may issue a notice of violation to a federal agency as a potentially responsible party for the discharge of pollutants if both of the following occur: 1. The federal agency designates an area of this state as under threat of catastrophic wildfire and a wildfire occurs that releases pollutants to the air and water. 2. The department reasonably determines that the discharge of the pollutants was the result of the wildfire in the designated area. B. This section does not apply on Indian lands owned or held by a federally recognized Indian tribe, nation, band or community as reservation lands, allotment lands or sovereign or proprietary lands or in any other capacity. 49-121. Definitions In this article, unless the context otherwise requires: 1. "Commission" means the Arizona emergency response commission. 2. "Committee" means a local emergency planning committee. 3. "Extremely hazardous substances", "facility", "hazardous chemical", "person", "release" and "toxic chemical" have the meaning set forth in section 329 of title III. 4. "Hazardous substance" has the meaning set forth in the comprehensive environmental response, compensation, and liability act of 1980 (P.L. 96-510; 94 Stat. 2767), as amended by SARA. 5. "SARA" means the superfund amendments and reauthorization act of 1986 (P.L. 99-499). 6. "Title III" means title III of SARA. 49-122. Relationship to other law; declaration of application This article does not: 1. Preempt any local charter, ordinance or code. 2. Require any state agency or local government to adopt or enforce any statute or rule. 3. Affect or modify the obligations or liabilities of any person under federal law. 49-123. Hazardous materials emergency management program; Arizona emergency response commission; emergency planning and community right-to-know A. The department is designated the lead agency for developing and implementing a state hazardous materials emergency management program. B. The director shall appoint a coordinator to work in consultation with the Arizona emergency response commission in the development and implementation of the hazardous materials emergency management program. C. The Arizona emergency response commission is established consisting of representatives from the following agencies and departments: 1. The division of emergency management. 2. The department of health services. 3. The department of public safety. 4. The department of transportation. 5. The Arizona department of agriculture. 6. The corporation commission. 7. The industrial commission of Arizona. 8. The office of the state fire marshal in the Arizona department of forestry and fire management. 9. The office of state mine inspector. 10. Two representatives nominated by the Arizona fire chiefs association or its successor organization, one of whom represents a fire department or a fire district serving a population of less than two hundred fifty thousand persons. 11. Other agencies or offices deemed necessary by the director. D. This article does not change or alter the existing regulatory authority or provisions of law relating to the agencies and departments listed in subsection C of this section. E. The department is designated as the lead agency for implementing title III of the superfund amendments and reauthorization act of 1986 (P.L. 99-499). The director shall administer any monies received under subsection G of this section. F. The department shall administer this article and the rules adopted under this article. The department shall administer title III in this state and may conduct whatever activities are necessary to implement this article and title III in this state. The department is granted all the authority and responsibilities of a state emergency response commission for purposes of title III. G. The department may procure by contract the temporary or intermittent services of experts or consultants if such services are to be performed on a part-time or fee-for-services basis and do not involve the performance of administrative duties. The department may also enter into agreements with the federal government, Indian tribes, other states and political subdivisions of this state for the purposes of this article. The department may also accept on behalf of this state any reimbursement, grant or gift that may become available for purposes of this article. The department shall deposit, pursuant to sections 35-146 and 35-147, any such monies in the emergency response fund. H. The department shall establish a program of financial grants to local governments funded through the department by appropriations to the emergency response fund. The grants shall be dedicated to and used for local compliance with this article. The department shall include procedures for applying for the grants and qualifying criteria for awarding the grants. I. The department shall adopt and may modify, suspend or repeal rules pursuant to title 41, chapter 6. The rules may not be more stringent than title III and the federal regulations adopted under title III, except as specifically authorized in this article. These rules shall implement this article and title III in this state. The authority to adopt rules includes establishing: 1. Procedures for handling public information requests. 2. Procedures and implementing programs for chemical emergency planning and preparedness. 3. Community right-to-know program reporting requirements. 4. Fees to implement the community right-to-know program. The fees shall be deposited, pursuant to sections 35-146 and 35-147, in the emergency response fund established by section 49-132. The governor's regulatory review council must approve rules adopted pursuant to this paragraph. 5. Release reporting requirements. J. The department shall ensure that mandatory hazardous materials training programs for on-scene command personnel that are developed, delivered or managed by their respective agencies, departments or divisions address notification procedures, coordination of services and comprehensive management for protection of the public health during and after a chemical or other toxic fire event. The training shall include notification and coordination with the department of public safety, the department of transportation, the commission, local emergency planning committees, the department of health services, the division of emergency management, the national response center and the Arizona poison control system. Training shall also include orientation on the state emergency response and recovery plan concerning hazardous materials. The department shall encourage private companies that deliver similar training in this state to include the same curriculum in their programs. 49-124. Emergency planning districts; local emergency planning committees A. The commission shall designate emergency planning districts to facilitate preparing and implementing district emergency plans. If appropriate, the commission may designate cities, towns, counties or multi-jurisdictional planning organizations as such districts. The commission may also enter into intergovernmental agreements with other states or political subdivisions of other states to establish multi-jurisdictional planning districts. The commission may revise its designation of emergency planning districts as necessary. B. The commission, after designating emergency planning districts, shall appoint members of a local emergency planning committee for each emergency planning district. The governmental entity for the city, town, county or multi-jurisdictional planning organization encompassing the district shall provide administrative support for the local emergency planning committee and shall nominate persons for initial appointment to the committee. On establishment of the committee, the committee chairman on a majority vote of the committee may nominate subsequent committee members. Each committee shall include, at a minimum, representatives from each of the following groups or organizations: 1. Elected state and local officials. 2. Law enforcement, civil defense, fire fighting, first aid, health, local environmental, hospital and transportation personnel. 3. Broadcast and print media. 4. Community groups. 5. Owners and operators of facilities subject to the requirements of this article. C. The committee shall appoint a chairman and shall adopt procedural rules by which the committee shall function including the requirements set forth in section 301 of title III. D. The commission, as it deems appropriate, may modify its designations of emergency planning districts or its appointments to the emergency planning committees. Members of the public may petition the commission to modify the membership of a local emergency planning committee. 49-125. Comprehensive emergency response plans A. The local emergency planning committees shall comply with section 303 of title III. B. Based on information from the commission and state and local emergency and disaster agencies and departments, as well as information obtained from facilities subject to this article and title III, each local committee shall prepare and annually review an emergency response plan for its emergency planning district in order to address emergencies due to releases from facilities and transportation vehicles in its emergency planning district. After completing an emergency plan for an emergency planning district, the local emergency planning committee shall provide a copy of the plan to the district's governmental entity for incorporation into the entity's emergency operations plan and submit a copy of the plan to the commission. The commission shall review the plan and make recommendations to the committee on revisions that may be necessary to ensure that it meets the requirements of this article or any rules adopted under this article. The commission shall further ensure that the plan is coordinated with the emergency response plans of adjoining emergency planning districts as applicable. To prevent a delay in implementing any emergency plan, the commission shall endeavor to review each plan within a sixty day period and provide comments or recommendations for modifications within that period. The commission shall establish a period of time, not normally to exceed sixty days, for the committee to resubmit the emergency plan. The commission, at its own initiative, may assign the highest priority to those plans which include the geographic areas which have the greatest number of facilities that pose the greatest risk of harm to the public health, safety or welfare or the environment. C. Each local emergency planning committee shall conduct at least a biennial exercise of its emergency plan and shall provide at least thirty days' notice of these exercises to the commission. The region IX United States environmental protection agency office of primary responsibility for title III, or its successor, or the commission may participate in exercise development and observe the exercise and may provide comments to the committee regarding the exercise. D. Each local emergency planning committee shall evaluate the need for resources necessary to develop, implement and exercise the emergency plan in its district and shall make recommendations with respect to the need for additional resources that may be required and the means for providing such additional resources. E. Each emergency plan shall include provisions listed in section 303C of title III and, in addition, shall include: 1. Identifying the heads of the emergency response organizations for designated areas or local governments in the district who shall make determinations necessary to implement the plan. 2. A description of specialized equipment, facilities, personnel and emergency response organizations available in the district to respond to releases subject to this section. 3. Mutual aid agreements with other districts, and the allocation of emergency response resources for responding to releases subject to this section, if applicable. 49-126. Extremely hazardous substances Unless otherwise provided in this article, a substance is subject to the requirements of this article if it is an extremely hazardous substance as listed and published by the administrator of the United States environmental protection agency, or its successor, and it is held in quantities at or above the threshold planning quantity as established pursuant to section 302 of title III. 49-127. Facilities subject to emergency planning; facility emergency response plans A. A facility is subject to emergency planning requirements if a substance identified under section 49-126 is present at the facility in an amount at or in excess of the threshold planning quantity for that substance. B. For purposes of emergency planning, the department may designate additional facilities that are subject to this section. The designation shall be accomplished after providing at least thirty days' prior public notice in a newspaper of general circulation in the county where the facility is located, after allowing public comment to the department for thirty days and after notification to the facility of the proposed designation. C. The owner or operator of a facility subject to this section shall provide to the department the identity of a facility representative who will provide a facility emergency response plan and who will participate in the emergency planning process as the facility emergency coordinator. D. Each facility that is subject to this section shall prepare a facility emergency response plan and submit copies of that plan to the department, the local emergency planning committee for the district in which the facility is located and the fire department with jurisdiction over the facility. A facility that is required to prepare a contingency plan under chapter 5, article 2 of this title or the resource conservation and recovery act of 1976 (P.L. 94-580; 90 Stat. 2795) may submit that contingency plan in lieu of the emergency response plan required by this section if the information in paragraphs 1 through 7 of this subsection is included in the plan. In preparing the plan required by this section, the facility emergency coordinator shall consult with the local emergency planning committee and other emergency and health professionals to assure maximum coordination with those whose cooperation or services may be required in the event of a reportable release. The facility emergency response plan shall include specific actions to be taken in the event of an imminent or accidental reportable release to safeguard the public health, safety and welfare and the environment to the maximum extent practicable. The facility emergency response plan shall include: 1. Names, addresses and emergency telephone numbers of a facility emergency coordinator and alternate. 2. A description of emergency warning systems and a list of emergency units, emergency personnel and health professionals in close proximity to the facility. 3. A description of employee emergency response training and emergency preparedness programs. 4. A description of appropriate emergency equipment necessary to respond to a release. 5. A description of emergency response procedures, including notification procedures and evacuation plans in the event of a release. 6. Identification of transport routes and transportation methods used to transport extremely hazardous substances to and from the facility, if known. 7. Provisions for at least an annual review of the plan and provisions to demonstrate the capability to execute the plan on the request of the department. 49-128. Emergency notification of reportable releases A. If a reportable release of an extremely hazardous substance listed under section 49-126 occurs from a facility at which a hazardous chemical is produced, used or stored, the owner or operator of the facility, except as excluded under 40 Code of Federal Regulations sections 355.31 and 355.32, in addition to any other notification required by law or rule, shall immediately orally notify the community emergency coordinator for the local emergency planning committee for any area likely to be affected by the reportable release, the department and appropriate emergency responders designated by rule of the department, in the manner prescribed by rule of the department. Unless impracticable under the circumstances, this oral notification shall occur immediately after the facility emergency coordinator or the coordinator's designee has knowledge of the reportable release. The notice of the reportable rel