Assigned to NR FOR COMMITTEE
ARIZONA STATE SENATE
Fifty-Seventh Legislature, First Regular Session
FACT SHEET FOR H.B. 2128
environmental remediation; liability; release
Purpose
Allows the Arizona Department of Environmental Quality (ADEQ) to provide to a
prospective remediator of a site, a written release and covenant not to sue. Allows the agreement
with ADEQ and a prospective remediator to include an agreement by the prospective remediator
to provide substantial funding or other resources to perform or facilitate remedial measures at a
facility.
Background
Current statute allows ADEQ to provide to a prospective purchaser of a facility a written
release and covenant not to sue and to also agree to seek an order of the court granting approval of
a settlement that includes immunity from contribution claims for any potential liability for existing
contamination if statutorily outlined conditions are met. Subject to satisfactory performance of the
obligations under the agreement, the prospective purchaser is not liable to this state for any release
of a hazardous substance at the facility that exists on the date of the acquisition of ownership or
operation of the facility.
An agreement between ADEQ and a prospective purchaser must include provisions
deemed necessary by ADEQ and may include: 1) a representation by the prospective purchaser
that the purchaser did not cause or contribute to the contamination or otherwise cause or contribute
to a release or threatened release of a hazardous substance at the property before the purchaser
acquired the title; 2) if the prospective purchaser does not undertake remedial action, a
representation that the purchaser will not exacerbate or contribute to the existing contamination;
3) an agreement that any activity that the prospective purchaser may conduct or direct on the
contaminated property will not unreasonably interfere with ongoing remedial actions that are being
performed by a responsible party or ADEQ and that the purchaser will cooperate with those
activities; 4) unless the contamination was caused by this state, a waiver by the person of any claim
or cause of action against this state that arises from contamination at the facility that exists as of
the date of acquisition of ownership or operation of the facility; 5) a grant of an easement to ADEQ
for the purpose of ensuring compliance with the agreement or remedial measures authorized in
connection with contamination at the facility as of the date of acquisition of ownership or operation
of the facility; or 6) in any case in which the state conducts remedial actions and there are
unrecovered response costs at the property for which the prospective purchaser is not liable, the
state as a condition of the agreement may impose a lien on that property for the unrecovered costs
(A.R.S. ยง 49-285.01).
There is no anticipated fiscal impact to the state General Fund associated with this
legislation.
FACT SHEET
H.B. 2128
Page 2
Provisions
1. Allows ADEQ to provide a prospective remediator of a site a written release and covenant not
to sue.
2. Allows the agreement with ADEQ and a prospective remediator to include an agreement by
the prospective remediator:
a) to provide substantial funding or other resources to perform or facilitate remedial measures
at the facility; or
b) to perform substantial remedial measures at the facility.
3. Adds to the statutorily prescribed conditions that allow ADEQ to agree to seek an order of the
court granting approval of a settlement that includes immunity from contribution claims for
any potential liability for existing contamination, that the Director of ADEQ determines that
the prospective remediator has the technical capability, financial capability and requisite access
to the facility necessary to perform substantial remedial action at the facility.
4. Adds a prospective remediator to the statutorily prescribed provisions that ADEQ may include
for an agreement between ADEQ and a prospective remediator.
5. Adds to the statutorily prescribed provisions that an agreement between ADEQ and a
prospective remediator may include, a demonstration by the prospective remediator that the
prospective remediator has the technical capability and financial capability to sufficiently
conduct the remedial measures to be performed pursuant to the prospective remediator
agreement.
6. Stipulates that a prospective remediator, subject to satisfactory performance of the obligations
under the agreement, is not liable to Arizona for any release of a hazardous substance at the
facility that exists on the date of the prospective remediator agreement.
7. Requires the person to bear the burden of proving that any hazardous substance existed on the
facility as a result of the releases of the hazardous substance before the date of the prospective
remediator agreement.
8. Allows the outlined release from liability to be voided by the Director of ADEQ if the person
fails to perform any of the provisions of the prospective remediator agreement.
9. Requires a prospective remediator to provide written notice to ADEQ of any sale, assignment
or other transfer of the property at least 15 business days before the date of the transfer.
10. Deems that a prospective remediator agreement is assignable if the assignee meets statutorily
outlined qualifications for a prospective remediator agreement and notice is given to ADEQ.
11. Allows ADEQ to charge a reasonable fee for the preparation and execution of a prospective
remediator agreement.
12. Requires the public to receive notice and be provided an opportunity to comment to the
Director of ADEQ regarding entering into a prospective remediator agreement with a person. FACT SHEET
H.B. 2128
Page 3
13. Allows the Director of ADEQ to enter into a settlement agreement or consent decree with a
potentially responsible party or with a prospective remediator without making an express
finding in the settlement agreement or consent decree regarding an imminent and substantial
endangerment to the public health or welfare, the waters of Arizona or the environment.
14. Adds prospective remediator agreement fees to the list of monies of which the Water Quality
Assurance Revolving Fund consists.
15. Defines prospective remediator as a person that wishes to remediate a site but that does not
wish to purchase the site.
16. Defines prospective remediator agreement as an agreement entered into between ADEQ and
a prospective remediator that meets statutorily outlined requirements relating to prospective
remediator agreements.
17. Makes technical and conforming changes.
18. Becomes effective on the general effective date.
House Action
NREW 2/11/25 DP 8-2-0-0
3
rd
Read 2/25/25 56-4-0
Prepared by Senate Research
March 14, 2025
SB/slp