§ 130A-310.6. State action upon default of responsible parties or when no responsible party can be located.
§ 130A‑310.6. Stateaction upon default of responsible parties or when no responsible party can belocated.
(a) Whenever a personordered to develop and implement an inactive hazardous substance or wastedisposal site remedial action program is unable or fails to do so within thetime specified in the order, the Secretary may develop and implement or causeto be developed and implemented such a program. The cost of developing andimplementing a remedial action program pursuant to this section may be paid fromthe Inactive Hazardous Sites Cleanup Fund, subject to a later action forreimbursement pursuant to G.S. 130A‑310.7.
(1) The Department isauthorized and empowered to use any staff, equipment or materials under itscontrol or provided by other cooperating federal, State or local agencies andto contract with any agent or contractor it deems appropriate to develop andimplement the remedial action program. State agencies shall provide to themaximum extent feasible such staff, equipment, and materials as may beavailable for developing and implementing a remedial action program.
(2) Upon completion ofany inactive hazardous substance or waste disposal remedial action program, anyState or local agency that has provided personnel, equipment, or material shalldeliver to the Department a record of expenses incurred by the agency. Theamount of the incurred expenses shall be disbursed by the Secretary to eachsuch agency. The Secretary shall keep a record of all expenses incurred for theservices of State personnel and for the use of the State's equipment andmaterial.
(3) As soon as feasibleor after completion of any inactive hazardous substance or waste disposal siteremedial action program, the Secretary shall prepare a statement of allexpenses and costs of the program expended by the State and issue an orderdemanding payment from responsible parties. Written notice of such an ordershall be provided to all persons subject to the order personally or bycertified mail. If given by certified mail, notice shall be deemed to have beengiven on the date appearing on the return of the receipt. If giving of noticecannot be accomplished either personally or by certified mail, notice shallthen be given as provided in G.S. 1A‑1, Rule 4(j).
(b) If the Secretary,after declaring that an inactive hazardous substance or waste disposal site mayendanger the public health or the environment, is unable, after making areasonable attempt, to locate any responsible party, the Department may developand implement a remedial action program for the site as provided in subsection(a)(1) and (2) of this section. If responsible parties are subsequentlylocated, the Secretary may issue an order demanding payment from such personsin the manner set forth in subdivision (a)(3) of this section for the necessaryexpenses incurred by the Department for developing and implementing theremedial action program. If the persons subject to such an order refuse to paythe sum expended, or fail to pay such sum within the time specified in the order,the Secretary shall bring an action in the manner set forth in G.S. 130A‑310.7.
(c) The Secretary shalluse funds allocated to the Department under G.S. 130A‑295.9(1) to assesspre‑1983 landfills, to determine the priority for remediation of pre‑1983landfills, and to develop and implement a remedial action plan for each pre‑1983landfill that requires remediation. Environmental and human health risks posedby a pre‑1983 landfill may be mitigated using a risk‑based approachfor assessment and remediation.
(d) The Secretary shallnot seek cost recovery from a unit of local government for assessment andremedial action performed under subsection (c) of this section at a pre‑1983landfill. The Secretary shall not seek cost recovery for assessment and remedialaction performed under subsection (c) of this section at a pre‑1983landfill from any other potentially responsible party if the Secretary developsand implements a remedial action plan for that pre‑1983 landfill. If anypotentially responsible party fails to cooperate with assessment of a site andimplementation of control and mitigation measures at any site which thepotentially responsible party owns or over which the potentially responsibleparty exercises control through a lease or other property interest, theSecretary may seek cost recovery for assessment and remedial action.Cooperation with assessment of a site and implementation of control andmitigation measures includes, but is not limited to, granting access to thesite, allowing installation of monitoring wells, allowing installation andmaintenance of improvements to the landfill cap, allowing installation ofsecurity measures, agreeing to record and implement land‑userestrictions, and providing access to any records regarding the pre‑1983 landfill.Nothing in this section shall alter any right, duty, obligation, or liabilitybetween a unit of local government and a third party. Nothing in this sectionshall alter any right, duty, obligation, or liability between any otherpotentially responsible party and a unit of local government, a third party,or, except as provided in this subsection, to the State.
(e) The Secretary shalldevelop and implement remedial action plans for pre‑1983 landfills in theorder of their priority determined as provided in subsection (c) of thissection. The Secretary shall not develop or implement a remedial action planfor a pre‑1983 landfill unless the Secretary determines that sufficientfunds will be available from the Inactive Hazardous Sites Cleanup Fund to paythe costs of development and implementation of a remedial action plan for thatpre‑1983 landfill.
(f) A unit of localgovernment that voluntarily undertakes assessment or remediation of a pre‑1983landfill may request that the Department reimburse the costs of assessment ofthe pre‑1983 landfill and implementation of measures necessary toremediate the site to eliminate an imminent hazard. The Department shallprovide reimbursement under this subsection if the Department finds all of thefollowing:
(1) The unit of localgovernment undertakes assessment and remediation under a plan approved by theDepartment.
(2) The unit of localgovernment provides a certified accounting of costs incurred for assessment andremediation.
(3) Each contract forassessment and remediation complies with the requirements of Articles 3D and 8of Chapter 143 of the General Statutes.
(4) Remedial action islimited to measures necessary to abate the imminent hazard.
(g) The Department mayundertake any additional action necessary to remediate a pre‑1983landfill based on the priority ranking of the site under subsection (c) of thissection. (1987,c. 574, s. 2; 1989, c. 286, s. 5; 2007‑550, s. 14(c).)