GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 1997

H	1 

HOUSE BILL 1485*

Short Title:  Water Quality Fees/End CDE LUST Cleanups.    	(Public)

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Sponsors: Representatives Mitchell; Hill and Owens.

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Referred to:  Environment, if favorable, Finance.

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May 25, 1998

A BILL TO BE ENTITLED
AN ACT TO REVISE AND PLACE INTO THE GENERAL STATUTES THE SCHEDULE OF FEES FOR PERMITS UNDER THE WATER QUALITY PROGRAM, AS RECOMMENDED BY THE WATER QUALITY PROGRAMS FUNDING WORKING GROUP, 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:

PART I.	WATER QUALITY FEES

Section 1.1.  Part 1 of Article 21 of Chapter 143 of the General Statutes is amended by adding a new section to read:
"§ 143-215.3D. Fee schedule for water quality permits.
(a)	Annual fees for discharge and nondischarge permits under G.S. 143-215.1. –
(1)	Major Individual NPDES Permits. – The annual fee for an individual permit for a point source discharge of 1,000,000 or more gallons per day shall be two thousand eight hundred sixty-five dollars ($2,865).
(2)	Minor Individual NPDES Permits. – The annual fee for an individual permit for a point source discharge of less than 1,000,000 gallons per day shall be seven hundred fifteen dollars ($715.00).
(3)	Single-Family Residence. – The annual fee for a certificate of coverage under a general permit for a point source discharge or an individual nondischarge permit from a single-family residence shall be fifty dollars ($50.00).
(4)	Stormwater and Wastewater Discharge General Permits. – The annual fee for a certificate of coverage under a general permit for a point source discharge of stormwater or wastewater shall be eighty dollars ($80.00).
(5)	Recycle Systems. – The annual fee for a individual permit for a recycle system nondischarge permit shall be three hundred dollars ($300.00).
(6)	Major Nondischarge Permits. – The annual fee for an individual permit for a nondischarge of 10,000 or more gallons per day or requiring 300 or more acres of land shall be one thousand ninety dollars ($1,090).
(7)	Minor Nondischarge Permits. – The annual fee for an individual permit for a nondischarge of less than 10,000 gallons per day or requiring less than 300 acres of land shall be six hundred seventy-five dollars ($675.00).
(8)	Animal Waste Management Systems. –  The annual fee for animal waste management systems shall be as set out in G.S. 143-215.10G.
(b)	Application fee for new discharge and nondischarge permits. –  An application for a new permit of the type set out in subsection (a) of this section shall be accompanied by an initial application fee equal to the annual fee for that permit.  If a permit is issued, the application fee will be applied as the annual fee for the first year that the permit is in effect.  If the application is denied, the application fee shall not be refunded.
(c)	Application and annual fees for consent special orders. –
(1)	Major consent special orders. –  If the Commission enters into a consent special order, assurance of voluntary compliance, or similar document pursuant to G.S. 143-215.2 for an activity subject to an annual fee under subdivision (1) or (6) of subsection (a) of this section, the initial project fee shall be four hundred dollars ($400.00) and the annual fee shall be five hundred dollars ($500.00).  These fees shall be in addition to the annual fee due under subsection (a) of this section.
(2)	Minor consent special orders. –  If the Commission enters into a consent special order, assurance of voluntary compliance, or similar document pursuant to G.S. 143-215.2 for an activity subject to an annual fee under subdivision (2) or (7) of subsection (a) of this section, the initial project fee shall be four hundred dollars ($400.00) and the annual fee shall be two hundred fifty dollars ($250.00).  These fees shall be in addition to the annual fee due under subsection (a) of this section.
(d)	Fee for major permit modifications. – An application for a major modification of a permit of the type set out in subsection (a) of this section shall be accompanied by an application fee equal to thirty percent (30%) of the annual fee applicable to that permit.  A major modification of a permit is any modification that would allow an increase in the volume or pollutant load of the discharge or nondischarge or that would result in a significant relocation of the point of discharge, as determined by the Commission.  This fee shall be in addition to the fees due under subsections (a) and (c) of this section.  If the application is denied, the application fee shall not be refunded.
(e)	Other fees under this Article. –
(1)	Sewer system extension permits. – The application fee for a permit for the construction of a new sewer system or for the extension of an existing sewer system shall be four hundred dollars ($400.00).
(2)	State stormwater permits. – The application fee for a permit regulating stormwater runoff under G.S. 143-214.7 and G.S. 143-215.1 shall be four hundred twenty dollars ($420.00).
(3)	Major water quality certifications. – The fee for a water quality certification involving one acre or more of wetland fill or 150 feet or more of stream impact shall be four hundred seventy-five dollars ($475.00).
(4)	Minor water quality certifications. – The fee for a water quality certification involving less than one acre of wetland fill or less than 150 feet of stream impact shall be two hundred dollars ($200.00).
(5)	Permit for land application of petroleum contaminated soils. – The fee for a permit to apply petroleum contaminated soil to land shall be four hundred dollars ($400.00).
(6)	Fee nonrefundable. – If an application for a permit or a certification described in this subsection is denied, the application or certification fee shall not be refunded."
Section 1.2.  G.S. 143-215.3(a) reads as rewritten:
"(a)	Additional Powers. – In addition to the specific powers prescribed elsewhere in this Article, and for the purpose of carrying out its duties, the Commission shall have the power:
(1)	To make rules implementing Articles 21, 21A, 21B, or 38 of this Chapter.
(1a)	To adopt fee schedules and collect fees for the following:
a.	Processing of applications for permits or registrations issued under Article 21, other than Parts 1 and 1A, Articles 21A, 21B, and 38 of this Chapter;
b.	Administering permits or registrations issued under Article 21, other than Parts 1 and 1A, Articles 21A, 21B, and 38 of this Chapter including monitoring compliance with the terms of those permits; and
c.	Reviewing, processing, and publicizing applications for construction grant awards under the Federal Water Pollution Control Act.
	No fee may be charged under this provision, however, to a farmer who submits an application that pertains to his farming operations.
(1b)	The fee to be charged pursuant to G.S. 143-215.3(a)(1a) for processing an application for a permit under G.S. 143-215.108 and G.S. 143-215.109 of Article 21B of this Chapter may not exceed five hundred dollars ($500.00).  The fee to be charged pursuant to G.S. 143-215.3(a)(1a) for processing a registration under Part 2A of this Article or Article 38 of this Chapter may not exceed fifty dollars ($50.00) for any single registration.  An additional fee of twenty percent (20%) of the registration processing fee may be assessed for a late registration under Article 38 of this Chapter.  The fee for administering and compliance monitoring under Article 21, other than Parts 1 and 1A, and G.S. 143-215.108 and G.S. 143-215.109 of Article 21B shall be charged on an annual basis for each year of the permit term and may not exceed one thousand five hundred dollars ($1,500) per year.  Fees for processing all permits under Article 21A and all other sections of Article 21B shall not exceed one hundred dollars ($100.00) for any single permit. The total payment for fees that are set by the Commission under this subsection for all permits for any single facility shall not exceed seven thousand five hundred dollars ($7,500) per year, which amount shall include all application fees and fees for administration and compliance monitoring.  A single facility is defined to be any contiguous area under one ownership and in which permitted activities occur.  For all permits issued under these Articles where a fee schedule is not specified in the statutes, the Commission, or other commission specified by statute shall adopt a fee schedule in a rule following the procedures established by the Administrative Procedure Act. Fee schedules shall be established to reflect the size of the emission or discharge, the potential impact on the environment, the staff costs involved, relative costs of the issuance of new permits and the reissuance of existing permits, and shall include adequate safeguards to prevent unusual fee assessments which would result in serious economic burden on an individual applicant. A system shall be considered to allow consolidated annual payments for persons with multiple permits. In its rulemaking to establish fee schedules, the Commission is also directed to consider a method of rewarding facilities which achieve full compliance with administrative and self-monitoring reporting requirements, and to consider, in those cases where the cost of renewal or amendment of a permit is less than for the original permit, a lower fee for the renewal or amendment.
(1c)	Moneys collected pursuant to G.S. 143-215.3(a)(1a) shall be used to:
a.	Eliminate, insofar as possible, backlogs of permit applications awaiting agency action;
b.	Improve the quality of permits issued;
c.	Improve the rate of compliance of permitted activities with environmental standards; and
d.	Decrease the length of the processing period for permit applications.
(1d)	The Commission may adopt and implement a graduated fee schedule sufficient to cover all direct and indirect costs required for the State to develop and administer a permit program which meets the requirements of Title V. The provisions of subdivision (1b) of this subsection do not apply to the adoption of a fee schedule under this subdivision. In adopting and implementing a fee schedule, the Commission shall require that the owner or operator of all air contaminant sources subject to the requirement to obtain a permit under Title V to pay an annual fee, or the equivalent over some other period, sufficient to cover costs as provided in section 502(b)(3)(A) of Title V. The fee schedule shall be adopted according to the procedures set out in Chapter 150B of the General Statutes.
a.	The total amount of fees collected under the fee schedule adopted pursuant to this subdivision shall conform to the requirements of section 502(b)(3)(B) of Title V. No fee shall be collected for more than 4,000 tons per year of any individual regulated pollutant, as defined in section 502(b)(3)(B)(ii) of Title V, emitted by any source. Fees collected pursuant to this subdivision shall be credited to the Title V Account.
b.	The Commission may reduce any permit fee required under this section to take into account the financial resources of small business stationary sources as defined under Title V and regulations promulgated by the United States Environmental Protection Agency.
c.	When funds in the Title V Account exceed the total amount necessary to cover the cost of the Title V program for the next fiscal year, the Secretary shall reduce the amount billed for the next fiscal year so that the excess funds are used to supplement the cost of administering the Title V permit program in that fiscal year.
(1e)	The Commission shall collect the application, annual, and project fees for processing and administering permits, certificates of coverage under general permits, and certifications issued under Parts 1 and 1A of this Article and for compliance monitoring under Parts 1 and 1A of this Article as provided in G.S. 143-215.3D and G.S. 143-215.10G.
(2)	To direct that such investigation be conducted as it may reasonably deem necessary to carry out its duties as prescribed by this Article or Article 21A or Article 21B of this Chapter, and for this purpose to enter at reasonable times upon any property, public or private, for the purpose of investigating the condition of any waters and the discharge therein of any sewage, industrial waste, or other waste or for the purpose of investigating the condition of the air, air pollution, air contaminant sources, emissions, or the installation and operation of any air-cleaning devices, and to require written statements or the filing of reports under oath, with respect to pertinent questions relating to the operation of any air-cleaning device, sewer system, disposal system, or treatment works. In the case of effluent or emission data, any records, reports, or information obtained under this Article or Article 21A or Article 21B of this Chapter shall be related to any applicable effluent or emission limitations or toxic, pretreatment, or new source performance standards. No person shall refuse entry or access to any authorized representative of the Commission or Department who requests entry for purposes of inspection, and who presents appropriate credentials, nor shall any person obstruct, hamper or interfere with any such representative while in the process of carrying out his official duties.
(3)	To conduct public hearings and to delegate the power to conduct public hearings in accordance with the procedures prescribed by this Article or by Article 21B of this Chapter.
(4)	To delegate such of the powers of the Commission as the Commission deems necessary to one or more of its members, to the Secretary or any other qualified employee of the Department. The Commission shall not delegate to persons other than its own members and the designated employees of the Department the power to conduct hearings with respect to the classification of waters, the assignment of classifications, air quality standards, air contaminant source classifications, emission control standards, or the issuance of any special order except in the case of an emergency under subdivision (12) of this subsection for the abatement of existing water or air pollution. Any employee of the Department to whom a delegation of power is made to conduct a hearing shall report the hearing with its evidence and record to the Commission.
(5)	To institute such actions in the superior court of any county in which a violation of this Article, Article 21B of this Chapter, or the rules of the Commission has occurred, or, in the discretion of the Commission, in the superior court of the county in which any defendant resides, or has his or its principal place of business, as the Commission may deem necessary for the enforcement of any of the provisions of this Article, Article 21B of this Chapter, or of any official action of the Commission, including proceedings to enforce subpoenas or for the punishment of contempt of the Commission.
(6)	To agree upon or enter into any settlements or compromises of any actions and to prosecute any appeals or other proceedings.
(7)	To direct the investigation of any killing of fish and wildlife which, in the opinion of the Commission, is of sufficient magnitude to justify investigation and is known or believed to have resulted from the pollution of the waters or air as defined in this Article, and whenever any person, whether or not he shall have been issued a certificate of approval, permit or other document of approval authorized by this or any other State law, has negligently, or carelessly or unlawfully, or willfully and unlawfully, caused pollution of the waters or air as defined in this Article, in such quantity, concentration or manner that fish or wildlife are killed as the result thereof, the Commission, may recover, in the name of the State, damages from such person. The measure of damages shall be the amount determined by the Department and the North Carolina Wildlife Resources Commission, whichever has jurisdiction over the fish and wildlife destroyed to be the replacement cost thereof plus the cost of all reasonable and necessary investigations made or caused to be made by the State in connection therewith. Upon receipt of the estimate of damages caused, the Department shall notify the persons responsible for the destruction of the fish or wildlife in question and may effect such settlement as the Commission may deem proper and reasonable, and if no settlement is reached within a reasonable time, the Commission shall bring a civil action to recover such damages in the superior court in the county in which the discharge took place. Upon such action being brought the superior court shall have jurisdiction to hear and determine all issues or questions of law or fact, arising on the pleadings, including issues of liability and the amount of damages. On such hearing, the estimate of the replacement costs of the fish or wildlife destroyed shall be prima facie evidence of the actual replacement costs of such fish or wildlife. In arriving at such estimate, any reasonably accurate method may be used and it shall not be necessary for any agent of the Wildlife Resources Commission or the Department to collect, handle or weigh numerous specimens of dead fish or wildlife.
		The State of North Carolina shall be deemed the owner of the fish or wildlife killed and all actions for recovery shall be brought by the Commission on behalf of the State as the owner of the fish or wildlife. The fact that the person or persons alleged to be responsible for the pollution which killed the fish or wildlife holds or has held a certificate of approval, permit or other document of approval authorized by this Article or any other law of the State shall not bar any such action. The proceeds of any recovery, less the cost of investigation, shall be used to replace, insofar as and as promptly as possible, the fish and wildlife killed, or in cases where replacement is not practicable, the proceeds shall be used in whatever manner the responsible agency deems proper for improving the fish and wildlife habitat in question. Any such funds received are hereby appropriated for these designated purposes. Nothing in this paragraph shall be construed in any way to limit or prevent any other action which is now authorized by this Article.
(8)	After issuance of an appropriate order, to withhold the granting of any permit or permits pursuant to G.S. 143-215.1 or G.S. 143-215.108 for the construction or operation of any new or additional disposal system or systems or air-cleaning device or devices in any area of the State. Such order may be issued only upon determination by the Commission, after public hearing, that the permitting of any new or additional source or sources of water or air pollution will result in a generalized condition of water or air pollution within the area contrary to the public interest, detrimental to the public health, safety, and welfare, and contrary to the policy and intent declared in this Article or Article 21B of this Chapter. The Commission may make reasonable distinctions among the various sources of water and air pollution and may direct that its order shall apply only to those sources which it determines will result in a generalized condition of water or air pollution.
		The determination of the Commission shall be supported by detailed findings of fact and conclusions set forth in the order and based upon competent evidence of record. The order shall describe the geographical area of the State affected thereby with particularity and shall prohibit the issuance of permits pending a determination by the Commission that the generalized condition of water or air pollution has ceased.
		Notice of hearing shall be given in accordance with the provisions of G.S. 150B-21.2.
		A person aggrieved by an order of the Commission under this subdivision may seek judicial review of the order under Article 4 of Chapter 150B of the General Statutes without first commencing a contested case. An order may not be stayed while it is being reviewed.
(9)	If an investigation conducted pursuant to this Article or Article 21B of this Chapter reveals a violation of any rules, standards, or limitations adopted by the Commission pursuant to this Article or Article 21B of this Chapter, or a violation of any terms or conditions of any permit issued pursuant to G.S. 143-215.1 or 143-215.108, or special order or other document issued pursuant to G.S. 143-215.2 or G.S. 143-215.110, the Commission may assess the reasonable costs of any investigation, inspection or monitoring survey which revealed the violation against the person responsible therefor. If the violation resulted in an unauthorized discharge to the waters or atmosphere of the State, the Commission may also assess the person responsible for the violation for any actual and necessary costs incurred by the State in removing, correcting or abating any adverse effects upon the water or air resulting from the unauthorized discharge. If the person responsible for the violation refuses or fails within a reasonable time to pay any sums assessed, the Commission may institute a civil action in the superior court of the county in which the violation occurred or, in the Commission's discretion, in the superior court of the county in which such person resides or has his or its principal place of business, to recover such sums.
(10)	To require a laboratory facility that performs any tests, analyses, measurements, or monitoring required under this Article or Article 21B of this Chapter to be certified annually by the Department, to establish standards that a laboratory facility and its employees must meet and maintain in order for the laboratory facility to be certified, and to charge a laboratory facility a fee for certification. Fees collected under this subdivision shall be credited to the Water and Air Account and used to administer this subdivision. These fees shall be applied to the cost of certifying commercial, industrial, and municipal laboratory facilities.
(11)	Repealed by Session Laws 1983, c. 296, s. 6.
(12)	To declare an emergency when it finds that a generalized condition of water or air pollution which is causing imminent danger to the health or safety of the public. Regardless of any other provisions of law, if the Department finds that such a condition of water or air pollution exists and that it creates an emergency requiring immediate action to protect the public health and safety or to protect fish and wildlife, the Secretary of the Department with the concurrence of the Governor, shall order persons causing or contributing to the water or air pollution in question to reduce or discontinue immediately the emission of air contaminants or the discharge of wastes. Immediately after the issuance of such order, the chairman of the Commission shall fix a place and time for a hearing before the Commission to be held within 24 hours after issuance of such order, and within 24 hours after the commencement of such hearing, and without adjournment thereof, the Commission shall either affirm, modify or set aside the order.
		In the absence of a generalized condition of air or water pollution of the type referred to above, if the Secretary finds that the emissions from one or more air contaminant sources or the discharge of wastes from one or more sources of water pollution is causing imminent danger to human health and safety or to fish and wildlife, he may with the concurrence of the Governor order the person or persons responsible for the operation or operations in question to immediately reduce or discontinue the emissions of air contaminants or the discharge of wastes or to take such other measures as are, in his judgment, necessary, without regard to any other provisions of this Article or Article 21B of this Chapter. In such event, the requirements for hearing and affirmance, modification or setting aside of such orders set forth in the preceding paragraph of this subdivision shall apply.
(13)	Repealed by Session Laws 1983, c. 296, s. 6.
(14)	To certify and approve, by appropriate delegations and conditions in permits required by G.S. 143-215.1, requests by publicly owned treatment works to implement, administer and enforce a pretreatment program for the control of pollutants which pass through or interfere with treatment processes in such treatment works; and to require such programs to be developed where necessary to comply with the Federal Water Pollution Control Act and the Resource Conservation and Recovery Act, including the addition of conditions and compliance schedules in permits required by G.S. 143-215.1. Pretreatment programs submitted by publicly owned treatment works shall include, at a minimum, the adoption of pretreatment standards, a permit or equally effective system for the control of pollutants contributed to the treatment works, and the ability to effectively enforce compliance with the program.
(15)	To adopt rules for the prevention of pollution from underground tanks containing petroleum, petroleum products, or hazardous substances. Rules adopted under this section may incorporate standards and restrictions which exceed and are more comprehensive than comparable federal regulations.
(16)	To adopt rules limiting the manufacture, storage, sale, distribution or use of cleaning agents containing phosphorus pursuant to G.S. 143-214.4(e), and to adopt rules limiting the manufacture, storage, sale, distribution or use of cleaning agents containing nitrilotriacetic acid.
(17)	To adopt rules to implement Part 2A of Article 21A of Chapter 143."
Section 1.3.  G.S. 143-215.3A reads as rewritten.
"§ 143-215.3A.  Water and Air Quality Account; use of application and permit fees; Title V Account; I & M Air Pollution Control Account; reports.
(a)	The Water and Air Quality Account is established as a nonreverting account within the Department.  Revenue in the Account shall be applied to the costs of administering the programs for which the fees were collected.  Revenue credited to the Account pursuant to G.S. 105-449.125, 105-449.134, and 105-449.43 shall be used to administer the air quality program.  Except for the following fees, all application fees and permit administration fees collected by the State for permits issued under Articles 21, 21A, 21B, and 38 of this Chapter shall be credited to the Account:
(1)	Fees collected under Part 2 of Article 21A and credited to the Oil or Other Hazardous Substances Pollution Protection Fund.
(2)	Fees credited to the Title V Account.
(3)	Fees credited to the Wastewater Treatment Works Emergency Maintenance, Operation and Repair Fund under G.S. 143-215.3B.
(4)	Fees collected under G.S. 143-215.28A.
(5)	Fees collected under G.S. 143-215.94C shall be credited to the Commercial Leaking Petroleum Underground Storage Tank Cleanup Fund.
(a1)	It is the intent of the General Assembly that the total monies collected per year from fees for permits under G.S. 143-215.3(a)(1a), after deducting those monies collected under G.S. 143-215.3(A)(1d), shall not exceed thirty percent (30%) of the total budgets from all sources of environmental permitting and compliance programs within the Department.  This subsection shall not be construed to relieve any person of the obligation to pay a fee established under this Article or Articles 21A, 21B, or 38 of this Chapter.
(b)	The Title V Account is established as a nonreverting account within the Department.  Revenue in the Account shall be used for developing and implementing a permit program that meets the requirements of Title V.  The Title V Account shall consist of fees collected pursuant to G.S. 143-215.3(a)(1d) and G.S. 143-215.106A.  Fees collected under G.S. 143-215.3(a)(1d) shall be used only to cover the direct and indirect costs required to develop and administer the Title V permit program, and fees collected under G.S. 143-215.106A shall be used only for the eligible expenses of the Title V program.  Expenses of the Air Quality Compliance Advisory Panel, the ombudsman for the Small Business Stationary Source Technical and Environmental Compliance Assistance Program, support staff, equipment, legal services provided by the Attorney General, and contracts with consultants and program expenses listed in section 502(b)(3)(A) of Title V shall be included among Title V program expenses.
(b1)	The I & M Air Pollution Control Account is established as a nonreverting account within the Department.  Fees transferred to the Division of Air Quality of the Department pursuant to G.S. 20-183.7(c)(2) shall be credited to the I & M Air Pollution Control Account and shall be applied to the costs of developing and implementing an air pollution control program for mobile sources.
(c)	The Department shall make an annual report to the General Assembly and its Fiscal Research Division on the cost of the State's environmental permitting programs contained within such Department.  In addition, the Department shall make an annual report to the General Assembly and its Fiscal Research Division on the cost of the Title V program.  The reports shall include, but are not limited to, fees set and established under this Article, fees collected under this Article, revenues received from other sources for environmental permitting and compliance programs, changes made in the fee schedule since the last report, anticipated revenues from all other sources, interest earned and any other information requested by the General Assembly."
Section 1.4.  G.S. 143-215.10G reads as rewritten:
"§ 143-215.10G.  Fees for animal waste management systems.
(a)	Department shall charge an annual permit fee of all animal operations that are subject to a permit under G.S. 143-215.10C for animal waste management systems according to the following schedule:
(1)	For a system with a design capacity of 38,500 or more and less than 100,000 pounds steady state live weight, fifty dollars ($50.00).
(2)	For a system with a design capacity of 100,000 or more and less than 800,000 pounds steady state live weight, one hundred fifty dollars ($150.00).
(3)	For a system with a design capacity of 800,000 pounds or more steady state live weight, three hundred dollars ($300.00).
(b)	An application for a new permit under this section shall be accompanied by an initial application fee equal to the annual fee for that permit.  If a permit is issued, the application fee will be applied as the annual fee for the first year that the permit is in effect.  If the application is denied, the application fee shall not be refunded.
(c)	Fees collected under this section shall be credited to the Water and Air Quality Account.  The Department shall use fees collected pursuant to this section to cover the costs of administering this Part."
Section 1.5.  Subsection (d) of Section 27.13 of Chapter 18 of the 1995 Session Laws (1996 Second Extra Session) is repealed.
Section 1.6.  This act shall not be construed to relieve any person of the obligation to pay any fees due for any activity described in this act under the schedule of fees in effect prior to the date this act becomes effective.
Section 1.7.  Part I of this act becomes effective 1 January 1999.

PART II.	CLASSIFICATION OF THE IMPACTS OF LEAKING PETROLEUM UNDERGROUND STORAGE TANKS; CLEANUP OF CDE IMPACTS NOT REQUIRED

Section 2.1.  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 2.2.  Part II of this act is effective when it becomes law.