A BILL TO BE ENTITLED
AN ACT to: (1) remove the cap on the total recovery by the state for damage to the public resources and for the cost of any oil or other hazardous substances cleanup arising from a discharge, clarify that the liability for all cleanup and removal costs and all direct and indirect damages incurred within the jurisdiction of the state includes discharges from facilities located in the state's coastal fishing waters, and clarify the exceptions for LIABILITY to an injured party for such damages; (2) provide for a review of information required for a proposed offshore fossil fuel facility in order to determine consistency with state guidelines for the coastal area; (3) direct the coastal resources commission to review existing laws and regulations that pertain to offshore energy exploration and production in light of the explosion, sinking, and subsequent oil releases from the British Petroleum Deepwater Horizon offshore drilling rig; and (4) direct the department of crime control and public safety to immediately review and update the state oil spill and contingency plan in order to prepare the state in the event product  released from the British Petroleum Deepwater Horizon offshore drilling rig is swept to the north carolina coast.
The General Assembly of North Carolina enacts:
SECTION 1.(a)  G.S. 143‑215.89 reads as rewritten:
"§ 143‑215.89.  Multiple liability for necessary expenses.
Any person liable for costs of cleanup of oil or other hazardous substances under this Part shall have a cause of action to recover such costs in part or in whole from any other person causing or contributing to the discharge of oil or other hazardous substances into the waters of the State, including any amount recoverable by the State as necessary expenses."
SECTION 1.(b)  G.S. 143‑215.94BB reads as rewritten:
"§ 143‑215.94BB.  Definitions.
In addition to the definitions set out in G.S. 143‑215.77, as used in this Part, the following definitions shall apply:
…
(4)	"Exploration" means undersea boring, drilling,soil sampling, and any other technique employed to assess and evaluate the presence of subterranean oil and natural gas deposits.
…."
SECTION 1.(c)  G.S. 143‑215.94CC reads as rewritten:
"§ 143‑215.94CC.  Liability under this section; exceptions.
(a)	Any responsible person shall be strictly liable, notwithstanding any language of limitation found in G.S. 143‑215.89, for all cleanup and removal costs and all direct or indirect damages incurred within the territorial jurisdiction of the State by any injured party, which arise out of, or are caused by, the discharge or leaking of natural gas, oil, or drilling waste into or onto "coastal fishing waters" as defined in G.S. 113‑129(4), or offshore waters, or by any exploration in or upon coastal fishing or offshore waters, from any of the following sources:
(1)	Any well or undersea site located in coastal fishing waters at which there is exploration for or extraction or recovery of natural gas or oil.
(2)	Any facility, oil rig, or oil platform located in coastal fishing waters at which there is exploration for, or extraction, recovery, processing, or storage of, natural gas or oil.
(3)	Any vessel located in coastal fishing waters in which natural gas, oil, or drilling waste is transported, processed or stored other than for purposes of fuel for the vessel carrying it.
(4)	Any pipeline located in coastal fishing waters in which natural gas, oil, or drilling waste is transported.
(b)	A responsible person is not liable to an injured party under this section for any of the following:
(1)	Damages, other than costs of removal incurred by the State or a local government, caused solely by any act of war, hostilities, civil war, or insurrection or by an unanticipated grave natural disaster or other act of God of an exceptional, inevitable, and irresistible character, which could not have been prevented or avoided by the exercise of due care or foresight.
(2)	Damages caused solely by the negligence or intentional malfeasance of that injured party.
(3)	Damages caused solely by the criminal act of a third party other than the defendant or an agent or employee of the defendant. In any action arising under the provisions of this Article wherein this exception is raised as a defense to liability, the burden of proving that the alleged third‑party intervention occurred in such a manner as to limit the liability of the person sought to be held liable shall be upon the person charged.
(4)	Natural seepage not caused by a responsible person.
(5)	Discharge or leaking of oil or natural gas from a private pleasure boat or commercial fishing vessel having a fuel capacity of less than 500 gallons.
(6)	Damages which arise out of, or are caused by, a discharge which is authorized by, and in compliance with, a State or federal permit.
(7)	Damages that could have been reasonably mitigated by the injured party in accordance with common law.(c)	A court of suitable jurisdiction in any action under this Part may award reasonable costs of the suit and attorneys' fees, and the costs of any necessary expert witnesses, to any prevailing plaintiff. The court may award reasonable costs of the suit and attorneys' fees to any prevailing defendant only if the court finds that the plaintiff commenced or prosecuted the suit under this Part in bad faith or solely for purposes of harassing the defendant."
SECTION 2.  Part 4 of Article 7 of Chapter 113A of the General Statutes is amended by adding a new section to read:
"§ 113A‑119.2.  Review of offshore fossil fuel facilities.
(a)	In addition to the definitions set out in G.S. 113A‑103, as used in this section, the following definitions shall apply:
(1)	"Coastal fishing waters" has the same meaning as in G.S. 113‑129(4).
(2)	"Discharge" has the same meaning as in G.S. 143‑215.77.
(3)	"Offshore fossil fuel facility" means those facilities which, because of their size, magnitude, or scope of impacts, have the potential to affect any land or water use or natural resource of the coastal area. For purposes of this definition, offshore fossil fuel facilities shall include, but are not limited to:
a.	Any equipment, including, but not limited to, pipelines and vessels that are used to carry, transport, or transfer oil, natural gas, liquid natural gas, liquid propane gas, or synthetic gas.
b.	Structures, including drill ships and floating platforms and structures relocated from other states or countries, located in coastal fishing waters for the purposes of exploration for, or development or production of, oil or natural gas.
c.	Onshore support or staging facilities related to exploration for, or development or production of, oil or natural gas.
(4)	"Oil" has the same meaning as in G.S. 143‑215.77.
(b)	In addition to any other information necessary to determine consistency with State guidelines adopted pursuant to G.S. 113A‑107, the following information is required for the review of an offshore fossil fuel facility located in coastal fishing waters:
(1)	An assessment of the potential for any unauthorized discharge from any proposed well, including the estimated flow rate, total volume, and maximum duration of any unauthorized discharge. This assessment shall address the likelihood of surface intervention procedures to end the unauthorized discharge, the availability of equipment to drill a relief well, rig package constraints, and the estimated time it would take to drill a relief well.
(2)	A calculation of the volume of oil for the worst‑case unauthorized discharge scenario as applicable:
a.	For production platforms, calculation of the worst‑case unauthorized discharge scenario shall include all of the following:
1.	The maximum capacity of all oil storage tanks and flow lines on the facility. For purposes of this sub‑subdivision, flow line volume may be estimated.
2.	The volume of any unauthorized discharge of oil from any pipeline that is connected to the facility, taking into consideration shutdown time, the effect of hydrostatic pressure, gravity, frictional wall forces, and any other factors.
3.	The daily volume from an unauthorized discharge from the highest capacity well associated with the facility. In determining the daily volume under this sub‑subdivision, reservoir characteristics, casing and production tubing sizes, and historical production and reservoir pressure data shall be considered.
b.	For exploratory or development operations, the calculation of a worst‑case unauthorized discharge scenario shall be based upon the estimated flow rate, total volume, and maximum duration as calculated in subdivision (1) of this subsection.
(3)	A description of the proposed spill response in the event of an unauthorized discharge, including all of the following:
a.	The response, containment, recovery, and storage equipment to be used to contain and recover the unauthorized discharge to the maximum extent practicable. This description shall include the types, location, owner, quantity, and capabilities of the equipment, including the effective daily recovery capacities, where applicable. For operations at a drilling or production facility, describe measures to address the initial spill volume and the support operations for an unauthorized discharge that continues for 30 days or more.
b.	A description of the personnel, materials, and support vessels that are necessary to ensure that the response, containment, recovery, and storage equipment described under sub‑subdivision a. of this subdivision are deployed and operated promptly and effectively.
c.	A description of oil storage, transfer, and disposal equipment including the type, location, owner, quantity, and capacities of the equipment.
d.	For all of the following, an estimate of the amount of time required to:
1.	Procure the response, containment, recovery, and storage equipment described in this subdivision.
2.	Procure the vessels to transport the response, containment, recovery, and storage equipment.
3.	Procure personnel to load and operate the response, containment, recovery, and storage equipment and vessels described in this subdivision.
4.	Transfer the response, containment, recovery, and storage equipment described in this subdivision to all of the transportation vessels.
5.	Transfer the response, containment, recovery, and storage equipment from the equipment storage area to the deployment site.
6.	Deploy all identified response, containment, recovery, and storage equipment described in this subdivision.
(4)	An assessment of the number of jobs lost in tourism, fishing, and other affected industries as a result of a worst‑case discharge scenario.
(5)	An assessment of alternatives to the proposed offshore fossil fuel facility that would minimize the likelihood of an unauthorized discharge.
(6)	An assessment of the potential impacts resulting from a worst‑case unauthorized discharge scenario to coastal resources, including, at a minimum: offshore reefs; rock outcrops or hard bottoms; sea turtle nesting areas; freshwater and saltwater wetlands; primary or secondary nursery areas; essential fish habitats; submerged aquatic vegetation beds; shellfish beds; anadromous fish spawning and nursing areas; bird nests and bird habitat areas; and artificial reefs, shipwrecks, and submerged archaeological resources.
(7)	An explanation of measures to be employed to prevent or minimize impacts to the coastal resources listed in subdivision (6) of this subsection in the event of an unauthorized discharge.
(8)	A detailed description of any chemical dispersants that may be employed in response to an unauthorized discharge, including information on the impact of employing dispersants on coastal resources listed in subdivision (6) of this subsection. This description shall include a comparison of the toxicity of available dispersants.
(9)	An assessment of the potential for an unauthorized discharge to cause temporary or permanent violations of the federal and State water quality standards, including the antidegradation policy adopted pursuant to section 303(d) of the federal Clean Water Act (33 U.S.C. § 1313(d))."
SECTION 3.  In light of the recent events pertaining to the British Petroleum Deepwater Horizon offshore drilling rig, the Coastal Resources Commission shall review existing statutes and modify existing rules that pertain to offshore energy exploration and production and make recommendations, if any, to the Environmental Review Commission on or before October 1, 2011.
SECTION 4.  The Department of Crime Control and Public Safety shall immediately review the potential impacts of oil leaking from the British Petroleum Deepwater Horizon offshore drilling rig on the North Carolina coast and shall update the Oil Spill Contingency Plan, authorized pursuant to G.S. 143‑215.94HH, as necessary to ensure the State's preparedness in the event the oil leaking from the British Petroleum Deepwater Horizon offshore drilling rig is swept by currents or other mechanisms to the North Carolina coast or the State's waters. In updating the plan, the Department shall assess the actions that are being implemented to manage and mitigate economic and environmental impacts resulting from the spill, determine which solutions have proven successful, identify the best management practices available to address the impacts, and identify the resources necessary to carry out the Oil Spill Contingency Plan.
SECTION 5.  This act is effective when it becomes law. Section 1 of this act applies to any damages, as defined in G.S. 143‑215.94BB, that occur on or after that date.