GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 1991

H	2 

HOUSE BILL 541
Committee Substitute Favorable 5/6/91

Short Title:  Disclosure of Env. Limitations.	(Public)
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Sponsors:
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Referred to:  
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April 1, 1991

A BILL TO BE ENTITLED
AN ACT TO REQUIRE DISCLOSURE AND RECORDATION OF ENVIRONMENTAL LIMITATIONS AND LIABILITIES.
The General Assembly of North Carolina enacts:
Section 1.  Chapter 113A of the General Statutes is amended by adding a new Article to read:
"ARTICLE 16.
"Environmental Limitations Disclosure Act.
"§ 113A-230. Title.
This Article shall be known and may be cited as the North Carolina Environmental Limitations Disclosure Act of 1991.
"§ 113A-231. Purposes.
The purposes of this Article are to:
(1)	Require disclosure of environmental limitations and liabilities by recordation of the same in the office of the Register of Deeds in each county in the State;
(2)	Ensure that persons involved in real estate transactions are made aware of the existing environmental limitations and liabilities associated with the real property involved including past use and environmental status of the properties; and
(3)	Provide a procedure for the disclosure of environmental limitations and liabilities by recordation.
"§ 113A-232. Definitions.
Unless a different meaning is required by the context, the following definitions shall apply throughout this Article:
(1)	'Agency' means every department, agency, institution, public authority, board, commission, bureau, division, council, member of the Council of State, or officer of the State, but does not include units of local government or their governing bodies, other municipal corporations or political subdivisions of the State, county or city boards of education, other local special-purpose public districts, units, or bodies of any kind, or private corporations created by act of the General Assembly, except in those instances where programs, projects, and actions of local governmental units or bodies are subject to review, approval, or licensing by State environmental agencies or create environmental limitations and liabilities required to be recorded by the State agency authorized to review, approve, or license the local governmental units or bodies.
(2)	'Department' means the Department of Environment, Health, and Natural Resources.
(3)	'Disposal' shall have the same meaning as in G.S. 130A-290(a)(6).
(4)	'Environmental agencies' means agencies of the Department of Environment, Health, and Natural Resources which administer programs intended to protect the environment, the North Carolina Pesticide Board, and local governmental units or bodies whose programs, projects, and actions are subject to review, approval, or licensing by agencies of the Department of Environment, Health, and Natural Resources.
(5)	'Environmental document' means any permit, notice, registration, or lease listed in G.S. 113A-234(d).
(6)	'Environmental limitations and liabilities' means any permit or registration which:
a.	Authorizes the construction, development, operation, or use of facilities or sites that manufacture, process, use, handle, treat, store, or dispose of hazardous or toxic substances or hazardous wastes;
b.	Imposes continuing maintenance, operation, or and use conditions on any permitted activity at a facility or site that must be complied with after ownership of the facility or site is transferred to another owner;
c.	Imposes limitations or gives notice of disposal of toxic or hazardous substances or solid or hazardous waste at a facility or site;
d.	Limits or restricts protection of a facility from erosion or rebuilding of a facility damaged by erosion; or
(7)	'Facility' means all buildings, equipment, structures, and other stationary fixtures that are located on a single site.
(8)	'Person' means a natural person, individual, firm, partnership, association, institution, corporation, county, municipality, other political subdivision, governmental agencies, organization, society or other entity which may sue or be sued under a common name.
(9)	'Secretary' means the Secretary of the Department of Environment, Health, and Natural Resources.
"§ 113A-233. Powers and duties of environmental agencies.
Every environmental agency shall periodically review its regulatory programs, including those administered in whole or in part by local governmental units or bodies, to identify environmental limitations and liabilities which may arise from the operation of such programs that should be disclosed in the public registry.  Environmental agencies shall review each new or modified regulatory program to determine if environmental limitations and liabilities will arise from the operation of new or modified regulatory programs.  If such review reveals environmental limitations or liabilities that should be disclosed in the public registry under this Article, the agency shall recommend to the Environmental Review Commission that those environmental limitations and liabilities be added to G.S. 113A-234(d).
"§ 113A-234. Duty to disclose.
(a)	Appropriate documents shall be filed in the office of the Register of Deeds in the county or counties where property affected by an environmental document is located by the owner of the property, or in the name of the owner of the property by the person to whom a permit is issued or by whom a registration is made within 30 days of the issuance of the permit by, or registration with, the environmental agency.
(b)	The person filing the disclosure document shall notify the appropriate environmental agency in writing of the book and page number assigned to the disclosure document by the Register of Deeds.  Notification shall be made within 10 days of recordation in the office of the Register of Deeds.
(c)	If the person responsible for filing a disclosure document sells, leases, conveys, or transfers the property before the disclosure document is recorded, a copy of the disclosure document required to be filed by this Article shall be provided to the transferee, or his attorney, at least three days before the deed or other instrument conveying any interest described above is executed.
(d)	Disclosure documents shall be filed in accordance with permit conditions or rules adopted by environmental agencies and for the following permits, registrations, or leases:
(1)	Permits issued pursuant to G.S. 74-50;
(2)	Leases entered into under G.S. 113-202.1;
(3)	Permits for development of property bordering on the Atlantic Ocean and its inlets or which include use and maintenance conditions issued pursuant to G.S. 113A-118;
(4)	Permits issued pursuant to G.S. 130A-294;
(5)	Notices required to be recorded in accordance with rules adopted pursuant to G.S. 130A-294;
(6)	Permits issued pursuant to G.S. 130A-309.57;
(7)	Notices of closed unpermitted solid waste disposal sites recorded in accordance with rules adopted under G.S. 130A-249;
(8)	Notice recorded pursuant to G.S. 130A-310.8;
(9)	Permits issued pursuant to G.S. 143-215.1;
(10)	Registrations under G.S. 143-215.94T;
(11)	Registrations filed with the State pursuant to Title VI, § 601 of the Hazardous and Solid Waste Amendments of 1984, Pub. L. No. 98-616.42 U.S.C. §  6991, et seq., as amended;
(12)	Permits issued pursuant to G.S. 143-215.108;
(13)	Permits issued by environmental agencies which include use and maintenance conditions to control stormwater runoff; and
(14)	Pesticide dealers licensed pursuant to G.S. 143-448.
"§ 113A-235. Disclosure documents.
(a)	Each disclosure document shall include, at a minimum:
(1)	A legal description of the site that would be sufficient as a description in an instrument of conveyance and shall identify the location and dimensions of the facility or site features constituting an environmental limitation and liability with respect to permanently surveyed benchmarks;
(2)	Any requirement of the environmental agency which creates or limits a liability or potential liability for a subsequent owner;
(3)	Information identifying the permit or registration including the issuing agency, permit, or registration number, and the name of the permit holder;
(4)	Names of the property owners as they appear on the deed and the book and page number of the source of title of such owner; and
(5)	If the disclosure document is filed by someone other than the owner of the property, verified consent of the property owner to the recordation of the disclosure document.
(b)	The disclosure document shall include a map or plat which meets the requirements of G.S. 47-30 when a map or plat is required as a part of a permit application, when a site map or plat is required in connection with registration with the environmental agency, or when a map or plat is required to be included in the disclosure document by another provision of law.
(c)	The Register of Deeds shall record the disclosure document and index it in the grantor index for deeds and deeds of trust under the names of the owners of the property.
(d)	The Secretary shall cancel a disclosure document upon request whenever the environmental document no longer affects use of the facility or site.  The request must be accompanied by a certified check in the amount of the filing fee required by law made payable to the appropriate Register of Deeds.  Within 30 days of receipt of the request and filing fee, the Secretary shall transmit a statement that the requirement of a disclosure document no longer exists to the Register of Deeds of every county where the document is recorded together with a request that the disclosure document be cancelled of record.  The Secretary's statement shall include the names of the owners of the property as shown in the disclosure document and shall reference the book and page where the disclosure document is recorded.  The Register of Deeds shall record the Secretary's statement in the deed books and index it in the grantor index for deeds and deeds of trust in the name of the owner of the property as shown in the disclosure document and on the grantee index in the name of the 'Secretary of Environment, Health, and Natural Resources.'  If the Secretary refuses to make a requested cancellation, the Secretary shall transmit to the person making the request a written denial of the request which shall be based on a determination that the environmental documents continue to affect use of the facility or site.
(e)	When the disclosure document is required for a program regulated by the North Carolina Pesticide Board, its chairman is substituted for the Secretary in this section.
(f)	The requirements of this section supplement any other disclosure requirements under federal or State law.
"§ 113A-236.  Enforcement.
(a)	Any person who knowingly or willfully fails to file a disclosure document or who knowingly makes a false statement, representation, or certification in any disclosure document required to be filed under this Article shall be guilty of a misdemeanor.
(b)	An environmental agency may revoke or modify a permit for failure to file a disclosure document in accordance with this Article.  An environmental agency which proposes to modify or revoke a permit under this subsection shall follow the notice requirements and other procedures generally applicable to modification or revocation of permits of that type."
Sec. 2.  The review by environmental agencies of regulatory programs to identify environmental limitations and liabilities required by G.S. 113A-233(a), as enacted by Section 1 of this act, shall begin upon ratification of this act.  Every environmental agency to which this act applies shall complete the initial review of environmental regulatory programs within one year after the ratification of this act.  Environmental agencies shall adopt all rules necessary to the implementation of this act prior to 1 July 1992.
Sec. 3.  Section 1 of this act becomes effective 1 July 1992.  Section 2 is effective upon ratification.