Pursuant to Neb. Rev. Stat. §66-1525 (5) reimbursements made for remedial action costs may be reduced as much as one hundred percent for failure by the responsible person to comply with applicable statutory or regulatory requirements. These guidelines were established for consistent and equitable determinations and/or calculations of reductions in reimbursements. The Department of Environmental Quality (DEQ) will, however, maintain flexibility with the use of these guidelines where situations warrant change. Reductions are determined as a percentage of reimbursement with a corresponding limit unless otherwise noted.
In determining the amount of the reimbursement reduction, the DEQ takes into consideration:
Three numerical values are given for most categories of non-compliance that correspond to the instance of non-compliance being negligent, knowing, or willful. If in the DEQ’s judgment the non-compliance was negligent, the lowest percentage reduction and corresponding limit would be applied to the reimbursement. Accordingly, if in the DEQ’s judgment the non-compliance was willful, the highest percentage reduction and corresponding limit would be applied to the reimbursement.
- The extent and reasons for non-compliance;
- The likely environmental impact of the non-compliance; and
- Whether non-compliance was negligent, knowing, or willful.
When the Department makes a determination of non-compliance, the responsible person will be notified of the decision via certified letter. Reimbursements to the responsible person under Title 200 will then be reduced by the specified percentage up to a maximum dollar amount based on the circumstances and extent of non-compliance. Non-compliance reduction amounts will decrease the $975,000 ($985,000 if low volume) maximum amount reimbursable for remedial actions under Neb. Rev. Stat. §66-1523.
A responsible person may elect to formally petition the Department for review of the determination of non-compliance within thirty days of the date of the DEQ’s official notification as a contested case pursuant to Title 115, Chapter 7 of the Nebraska Administrative Code. Title 115 is available on the agency web page www.deq.ne.gov.