GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 1997

H	1 

HOUSE BILL 1483*

Short Title:  End CDE LUST Cleanups.	(Public)

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Sponsors: Representatives Mitchell; Hill and Owens.

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Referred to:  Environment.

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May 25, 1998

A BILL TO BE ENTITLED
AN ACT TO REQUIRE THE ENVIRONMENTAL MANAGEMENT COMMISSION TO CLASSIFY THE IMPACT OF LEAKING PETROLEUM UNDERGROUND STORAGE TANKS AS EITHER AB OR CDE AND TO PROVIDE THAT THE OWNER OR OPERATOR OF A LEAKING UNDERGROUND STORAGE TANK THAT HAS A CDE IMPACT SHALL NOT BE REQUIRED TO CLEAN UP THE DISCHARGE OR RELEASE, AS RECOMMENDED BY THE ENVIRONMENTAL REVIEW COMMISSION.
The General Assembly of North Carolina enacts:
Section 1.  G.S. 143-215.94V reads as rewritten:
"§ 143-215.94V.  Standards for petroleum underground storage tank cleanup.
(a)	Legislative findings and intent.
(1)	The General Assembly finds that:
a.	The goals of the underground storage tank program are to protect human health and the environment. Maintaining the solvency of the Commercial Fund and the Noncommercial Fund is essential to these goals.
b.	The sites at which discharges or releases from underground storage tanks occur vary greatly in terms of complexity, soil types, hydrogeology, other physical and chemical characteristics, current and potential future uses of groundwater, and the degree of risk that each site may pose to human health and the environment.
c.	Risk-based corrective action is a process that recognizes this diversity and utilizes an approach where assessment and remediation activities are specifically tailored to the conditions and risks of a specific site.
d.	Risk-based corrective action gives the State flexibility in requiring different levels of cleanup based on scientific analysis of different site characteristics, and allowing no action or no further action at sites that pose little risk to human health or the environment.
e.	A risk-based approach to the cleanup of environmental damage can adequately protect human health and the environment while preventing excessive or unproductive cleanup efforts, thereby assuring that limited resources are directed toward those sites that pose the greatest risk to human health and the environment.
(2)	The General Assembly intends:
a.	To direct the Commission to adopt rules that will provide for risk-based assessment and cleanup of discharges and releases from petroleum underground storage tanks. These rules are intended to combine groundwater standards that protect current and potential future uses of groundwater with risk-based analysis to determine the appropriate cleanup levels and actions.
b.	That these rules apply to all discharges or releases that are reported on or after the date the rules become effective in order to ascertain whether cleanup is necessary, and if so, the appropriate level of cleanup.
c.	That these rules may be applied to any discharge or release that has been reported at the time the rules become effective at the discretion of the Commission.
d.	That these rules and decisions of the Commission and the Department in implementing these rules facilitate the completion of more cleanups in a shorter period of time.
e.	That neither the Commercial Fund nor the Noncommercial Fund be used to clean up sites where the Commission has determined that a discharge or release poses a degree of risk to human health or the environment that is no greater than the acceptable level of risk established by the Commission.
	(b)	The Commission shall adopt rules to establish a risk-based approach for the assessment, prioritization, and cleanup of discharges and releases from petroleum underground storage tanks. The rules shall address, at a minimum, the circumstances where site-specific information should be considered, criteria for determining acceptable cleanup levels, and the acceptable level or range of levels of risk to human health and the environment.
(c)	The Commission may require an owner or operator or a landowner eligible for reimbursement under G.S. 143-215.94E(b1) to determine the degree of risk to human health and the environment that is posed by a discharge or release from a petroleum underground storage tank.
(d)	If the Commission concludes that a discharge or release poses a degree of risk to human health or the environment that is no greater than the acceptable level of risk established by the Commission, the Commission shall notify the owner, operator, or landowner who makes the determination required by subsection (c) of this section that no cleanup, further cleanup, or further action will be required unless the Commission later determines that the discharge or release poses an unacceptable level of risk or a potentially unacceptable level of risk to human health or the environment.
(e)	If the Commission concludes under subsection (d) of this section that no cleanup, no further cleanup, or no further action will be required, the Department shall not pay or reimburse any costs otherwise payable or reimbursable under this Article from either the Commercial or Noncommercial Fund, other than reasonable and necessary to conduct the risk assessment required by this section, unless:
(1)	Cleanup is ordered or damages are awarded in a finally adjudicated judgment in an action against the owner or landowner.
(2)	Cleanup is required or damages are agreed to in a consent judgment approved by the Department prior to its entry by the court.
(3)	Cleanup is required or damages are agreed to in a settlement agreement approved by the Department prior to its execution by the parties.
(4)	The payment or reimbursement is for costs that were incurred prior to or as a result of notification of a determination by the Commission that no cleanup, no further cleanup, or no action is required.
(5)	The payment or reimbursement is for costs that were incurred as a result of a later determination by the Commission that the discharge or release poses a threat or potential threat to human health or the environment as provided in subsection (d) of this section.
(f)	This section shall not be construed to limit the authority of the Commission to require investigation, initial response, and abatement of a discharge or release pending a determination by the Commission under subsection (d) of this section as to whether cleanup, further cleanup, or further action will be required.
	(h)	The Department shall classify the impact of each known discharge or release of a petroleum product from an underground storage tank as either a Class AB impact or a Class CDE impact.  The Department shall make the classification on the basis of information currently known by the Department or provided to the Department as required by law.  The Department shall revise the classification as additional information is received.  The impact of a discharge or release is a Class CDE impact unless and until it is classified as a Class AB impact.  A discharge or release has a Class AB impact if and only if any of the following apply:
(1)	A water supply well is contaminated.
(2)	Petroleum vapor is present in a confined space.
(3)	A water supply well is located within 1,500 feet of the discharge, release, or known extent of contamination and there is a user of water from any water supply well located within 1,500 feet of the discharge, release, or known extent of contamination who is not served by an existing public water supply.
(4)	The discharge or release results in a violation of drinking water standards set out in rules adopted by the Commission for Health Services under G.S. 130A-315 in a treated surface water supply.
(5)	The discharge or release poses an imminent danger to public health, public safety, or the environment.
(i)	The Department shall give notice of the classification of the impact of a cleanup of a discharge or release from a petroleum underground storage tank by publishing the classification in the North Carolina Register.  To the maximum extent practical, the Department shall give notice of the classification of the impact of a cleanup of a discharge or release from a petroleum underground storage tank by first-class mail to either the owner, operator, or other person responsible for the cleanup as shown on records maintained by the Department at the address on file with the Department.
(j)	Notwithstanding the provisions of G.S. 143-215.84, G.S. 143-215.94E and the rules adopted pursuant to subsection (b) of this section, the Commission shall not require the cleanup of a discharge or release from a petroleum underground storage tank having a Class CDE impact except that an owner, operator, or other person responsible for the cleanup of a discharge or release from a petroleum underground storage tank shall:
(1)	Take immediate action to prevent any further release or discharge of petroleum from the underground storage tank; identify and mitigate any fire, explosion, or vapor hazard; and remove any free petroleum product.
(2)	Meet applicable requirements of 40 Code of Federal  Regulations § 280.50 through § 280.53 and § 280.60 through § 280.64 (1 July 1995 Edition).
(3)	Submit any information that the Department may require to classify the impact of the discharge or release pursuant to this section.
(k)	If the impact of a discharge or release is classified as having a Class CDE impact, the Department shall not pay or reimburse any costs otherwise payable or reimbursable under this Part from either the Commercial Fund or Noncommercial Fund unless:
(1)	The costs are incurred to comply with subsection (j) of this section.
(2)	The payment or reimbursement is for costs that were incurred prior to notification that the impact of the discharge or release has been classified as Class CDE by the Department.
(3)	The payment or reimbursement is for costs that were incurred for a discharge or release the impact of which is subsequently classified as a Class AB impact by the Department.
(4)	Cleanup is ordered or damages are awarded in a finally adjudicated judgment in an action against the owner, operator,  or landowner.
(5)	Cleanup is required or damages are agreed to in a consent judgment approved by the Department prior to its entry by the court.
(6)	Cleanup is required or damages are agreed to in a settlement agreement approved by the Department prior to its execution by the parties.
(7)	The Department approves continuation of the cleanup as provided in subsection (l) of this section.
(l)	An owner, operator, or landowner who is responsible for the cleanup from a discharge or release who is not eligible to have the costs of the cleanup paid or reimbursed because the impact of the discharge or release has been classified as a Class CDE impact may petition the Department for continued eligibility for payment or reimbursement.  The Department shall authorize continuation of the cleanup only if the owner, operator, or landowner responsible for the cleanup establishes that:
(1)	The owner, operator, or landowner responsible for cleanup has incurred costs that are reimbursable under G.S. 143-215.94E(e), or that would be reimbursable if those costs were in excess of the costs for which the owner, operator, or landowner is responsible under G.S. 143-215.94B, 143-215.94D, or 143-215.94E.
(2)	The owner, operator, or landowner either has paid or will pay all costs for which the owner, operator, or landowner is responsible.
(3)	Discontinuation of the cleanup will result in a hardship.  For purposes of this subdivision, a hardship exists if and only if the discontinuation of the cleanup will prevent the conveyance through a bona fide sale for value of the property where the discharge or release occurred.  The owner, operator, or landowner responsible for the cleanup shall present a contract of sale executed on or before 31 December 1996 that is contingent on continuation of the cleanup.  If the conveyance of the property does not occur within 120 days after the contract of sale is executed or under the terms of the contract for any reason, the Department shall discontinue eligibility under this subsection."
Section 2.  This act is effective when it becomes law.