75-11-705. Eligibility for brownfields funding -- determination and limitations. (1) Before an eligible entity may expend federal brownfields funds at a brownfield site, either the United States environmental protection agency or the department shall make a written determination that:

(a) there is no viable responsible party for the contamination as determined pursuant to 75-11-704;

(b) the brownfield site will not be assessed, investigated, or cleaned up by a responsible party; and

(c) the brownfield site is not subject to an order under section 9003(h) of the federal Solid Waste Disposal Act, 42 U.S.C. 6991b(h), or Title 75, chapter 11.

(2) After the department or the United States environmental protection agency determines that a brownfield site is eligible for federal brownfields funding, the department shall encourage and may not limit the use of an eligible entity's federal brownfields funding at the site even if the site owner or operator, as defined in 75-11-302, is eligible for funding from the petroleum tank release cleanup fund established in 75-11-313.

(3) The department may not limit the use of money from the petroleum tank release cleanup fund established in 75-11-313 when used as a commitment to a federal brownfields loan to an eligible entity for remediation of petroleum at a brownfield site.

(4) (a) Except as provided in subsection (4)(b), a determination made by the department or the United States environmental protection agency that a brownfield site is eligible for federal brownfields funding does not limit or alter the responsible party's, owner's, or operator's responsibility to assess or remediate:

(i) a petroleum or hazardous substance release in accordance with Title 75, chapter 11; or

(ii) a liability at a facility subject to the Comprehensive Environmental Cleanup and Responsibility Act in accordance with Title 75, chapter 10.

(b) The department shall approve a comprehensive remediation plan and allow for the use of federal brownfields funding at the brownfield site if the department determines that an eligible entity has proposed to conduct timely and comprehensive environmental remediation activities using federal brownfields funding at a brownfield site that:

(i) is eligible for brownfield funding as determined by the department or U.S. environmental protection agency;

(ii) proposes a remediation plan of environmental remediation activities that meets or exceeds department remediation standards; and

(iii) meets or exceeds financial commitments required by the petroleum tank release compensation board pursuant to Title 75, chapter 11, part 3.