§ 143-215.104K. (Expires January 1, 2022 - see notes) Liability protection.
§ 143‑215.104K. (Expires January 1, 2022 see notes) Liability protection.
(a) A potentiallyresponsible party who enters into an assessment agreement or remediationagreement with the Commission and who is complying with the agreement shall notbe held liable for assessment or remediation of areas of contaminationidentified in the agreement except as specified in the assessment agreement orremediation agreement, so long as any activities conducted at the contaminationsite by or under the control or direction of the petitioner do not increase therisk of harm to public health or the environment and the petitioner is notrequired to undertake additional remediation to unrestricted use standardspursuant to subsection (c) of this section. The liability protection providedunder this Part applies to all of the following persons to the same extent asthe petitioner, so long as these persons are not otherwise potentiallyresponsible parties or parents, subsidiaries, or affiliates of potentiallyresponsible parties and the person is not required to undertake additionalremediation to unrestricted use standards pursuant to subsection (c) of thissection:
(1) Repealed by SessionLaws 2007‑503, s. 8, effective August 31, 2007.
(2) Any future owner ofthe contamination site.
(3) A person whooccupies the contamination site.
(4) A successor orassign of any person to whom the liability protection provided under this Partapplies.
(5) Any lender orfiduciary that provides financing to the petitioner to pay the petitioner'sfinancial obligations under G.S. 143‑215.104F.
(b) A person whoconducts an environmental assessment or transaction screen on contaminationresulting from a release at a certified facility or certified abandoned siteconsistent with a dry‑cleaning solvent assessment agreement, if any wasrequired under this Part, and who is not otherwise a potentially responsibleparty is not a potentially responsible party as a result of conducting theenvironmental assessment or transaction screen unless that person increases therisk of harm to public health or the environment by failing to exercise duediligence and reasonable care in performing the environmental assessment ortransaction screen.
(c) If a land‑userestriction set out in a Notice of Dry‑Cleaning Solvent Remediationrequired under G.S. 143‑215.104M is violated, the owner of thecontamination site at the time the land‑use restriction is violated, theowner's successors and assigns, and the owner's agents who direct or contractfor alteration of the contamination site in violation of a land‑userestriction shall be liable for remediation of all contaminants to unrestricteduse standards. A petitioner who completes the remediation required under a dry‑cleaningsolvent remediation agreement or other person who receives liability protectionunder this Part shall not be required to undertake additional remediationunless:
(1) The petitionerknowingly or recklessly provides false information that forms a basis for theremediation agreement or that is offered to demonstrate compliance with theremediation agreement or fails to disclose relevant information aboutcontamination related to a facility or abandoned site.
(2) New informationindicates the existence of previously unreported dry‑cleaning solventcontaminants or any other contaminants to be remediated under the remediationagreement, or an area of previously unreported contamination by contaminantsaddressed in the remediation agreement is discovered to be associated with thefacility or abandoned site and has not been remediated to unrestricted usestandards, unless the remediation agreement is amended to include anypreviously unreported contaminants and any additional area of contamination. Ifthe remediation agreement sets maximum concentrations for contaminants and newinformation indicates the existence of previously unreported areas of thesecontaminants, further remediation shall be required only if the areas ofpreviously unreported contaminants raise the risk of the contamination topublic health or the environment to a level less protective of public healthand the environment than that required by the remediation agreement.
(3) The level of risk topublic health and the environment from contaminants is unacceptable at or inthe vicinity of the contamination site due to changes in exposure conditions,including (i) a change in land use that increases the probability of exposureto contaminants at or in the vicinity of the contamination site; (ii) thefailure of remediation to mitigate risks to the extent required to make thecontamination site fully protective of public health and the environment asplanned in the remediation agreement; or (iii) removal of a State or local land‑usecontrol.
(4) The Commissionobtains new information about a contaminant to be remediated under theremediation agreement and associated with the facility or abandoned site orexposures at or around the contamination site that raises the risk to publichealth or the environment associated with the contamination site beyond anacceptable range and in a manner or to a degree not anticipated in theremediation agreement. Any person whose use, including any change in use, ofthe contamination site causes an unacceptable risk to public health or theenvironment may be required by the Commission to undertake additionalremediation measures under the provisions of this Part.
(5) A petitioner failsto file a timely and proper Notice of Dry‑Cleaning Solvent Remediationunder this Part.
(6) A facility orabandoned site loses its certification before the assessment and anyremediation required under the provisions of this Part and the dry‑cleaningsolvent remediation agreement are completed to the satisfaction of theDepartment.
(7) The remediationrequired in the remediation agreement has resulted in notification from theUnited States or its departments and agencies, including the EnvironmentalProtection Agency, that the Department will violate the terms and conditionsunder which it operates and administers remedial programs by delegation orsimilar authorization. (1997‑392, s. 1; 2001‑384, s. 11; 2007‑530, s. 8;2009‑483, s. 2.)