§ 143-215.94B. Commercial Leaking Petroleum Underground Storage Tank Cleanup Fund.
§ 143‑215.94B. Commercial Leaking Petroleum Underground Storage Tank Cleanup Fund.
(a) There isestablished under the control and direction of the Department the CommercialLeaking Petroleum Underground Storage Tank Cleanup Fund. This Commercial Fundshall be a nonreverting revolving fund consisting of any monies appropriatedfor such purpose by the General Assembly or available to it from grants, othermonies paid to it or recovered on behalf of the Commercial Fund, and fees paidpursuant to this Part.
(b) The Commercial Fundshall be used for the payment of the following costs up to an aggregate maximumof one million dollars ($1,000,000) per occurrence resulting from a dischargeor release of a petroleum product from a commercial underground storage tank:
(1) For discharges orreleases discovered or reported between 30 June 1988 and 31 December 1991inclusive, the cleanup of environmental damage as required by G.S. 143‑215.94E(a)in excess of fifty thousand dollars ($50,000) per occurrence.
(2) For discharges orreleases discovered on or after 1 January 1992 and reported between 1 January1992 and 31 December 1993 inclusive, the cleanup of environmental damage asrequired by G.S. 143‑215.94E(a) in excess of twenty thousand dollars($20,000) per occurrence.
(2a) For discharges orreleases discovered and reported on or after 1 January 1994 and prior to 1January 1995, the cleanup of environmental damage as required by G.S. 143‑215.94E(a)in excess of twenty thousand dollars ($20,000) if the owner or operator (i)notifies the Department prior to 1 January 1994 of its intent to permanentlyclose the tank in accordance with applicable regulations or to upgrade the tankto meet the requirements that existing underground storage tanks must meet by22 December 1998, (ii) commences closure or upgrade of the tank prior to 1 July1994, and (iii) completes closure or upgrade of the tank prior to 1 January1995.
(3) For discharges orreleases reported on or after 1 January 1994, the cleanup of environmentaldamage as required by G.S. 143‑215.94E(a) in excess of twenty thousanddollars ($20,000) if, prior to the discharge or release, the commercialunderground storage tank from which the discharge or release occurred met theperformance standards applicable to tanks installed after 22 December 1988 ormet the requirements that existing underground storage tanks must meet by 22December 1998.
(4) For discharges orreleases reported on or after 1 January 1994 from a commercial undergroundstorage tank that does not qualify under subdivision (2a) of this subsection ordoes not meet the standards in subdivision (3) of this subsection, sixtypercent (60%) of the costs per occurrence of the cleanup of environmentaldamage as required by G.S. 143‑215.94E(a) that exceeds twenty thousanddollars ($20,000) but is not more than one hundred fifty‑seven thousandfive hundred dollars ($157,500) and one hundred percent (100%) of the costsabove this amount, up to the limits established in this section.
(5) Compensation tothird parties for bodily injury and property damage in excess of one hundredthousand dollars ($100,000) per occurrence.
(6) Reimbursing theState for damages or other costs incurred as a result of a loan from the LoanFund. The per occurrence limit does not apply to reimbursements to the Stateunder this subdivision.
(7) Recordation ofresidual petroleum as required by G.S. 143B‑279.11 if the Commercial Fundis responsible for the payment of costs under subdivisions (1) through (4) ofthis subsection.
(b1) In the event that twoor more discharges or releases at any one facility, the first of which wasdiscovered or reported on or after 30 June 1988, result in more than one plumeof soil, surface water, or groundwater contamination, the Commercial Fund shallbe used for the payment of the costs of the cleanup of environmental damage asrequired by G.S. 143‑215.94E(a) in excess of the multiple dischargeamount up to the applicable aggregate maximum specified in subsections (b) and(b2) of this section. The multiple discharge amount shall be calculated asfollows:
(1) Each discharge orrelease shall be considered separately as if it were the only discharge orrelease, and the cost for which the owner or operator is responsible undersubdivisions (1), (2), (2a), or (3) of subsection (b) of this section,whichever are applicable, shall be determined for each discharge or release.For each discharge or release for which subdivision (4) of subsection (b) ofthis section is applicable, the cost for which the owner or operator is responsible,for the purpose of this subsection, shall be seventy‑five thousanddollars ($75,000). For purposes of this subsection, two or more discharges orreleases that result in a single plume of soil, surface water, or groundwatercontamination shall be considered as a single discharge or release.
(2) The multipledischarge amount shall be the lesser of:
a. The sum of all thecosts determined as set out in subdivision (1) of this subsection; or
b. The product of thehighest of the costs determined as set out in subdivision (1) of thissubsection multiplied by one and one‑half (1½).
(b2) In the event thatthe aggregate costs per occurrence described in subsection (b) or (b1) of thissection exceed one million dollars ($1,000,000), the Commercial Fund shall be usedfor the payment of eighty percent (80%) of the costs in excess of one milliondollars ($1,000,000) up to a maximum of one million five hundred thousanddollars ($1,500,000). The Department shall not pay or reimburse costs underthis subsection unless the owner, operator, or landowner eligible forreimbursement under G.S. 143‑215.94E(b1) submits proof that the owner,operator, or landowner eligible for reimbursement under G.S. 143‑215.94E(b1)has paid at least twenty percent (20%) of the costs for which reimbursement issought.
(b3) For purposes ofsubsections (b) and (b1) of this section, the cleanup of environmental damageincludes connection of a third party to a public water system if the Departmentdetermines that connection of the third party to a public water system is acost‑effective measure, when compared to other available measures, toreduce risk to human health or the environment. A payment or reimbursementunder this subsection is subject to the requirements and limitations of thissection. This subsection shall not be construed to limit any right or remedyavailable to a third party under any other provision of law. This subsectionshall not be construed to require a third party to connect to a public watersystem. Except as provided by this subsection, connection to a public watersystem does not constitute cleanup under Part 2 of this Article, G.S. 143‑215.94E,G.S. 143‑215.94V, any other applicable statute, or at common law.
(b4) The Commercial Fundshall pay any claim made after 1 September 2001 for compensation to thirdparties pursuant to subdivision (5) of subsection (b) of this section only ifthe owner, operator, or other party responsible for the discharge or releasehas complied with the requirements of G.S. 143B‑279.9 and G.S. 143B‑279.11,unless compliance is prohibited by another provision of law.
(c) The Commercial Fundis to be available on an occurrence basis, without regard to number ofoccurrences associated with tanks owned or operated by the same owner oroperator.
(d) The Commercial Fundshall not be used for:
(1) Costs incurred as aresult of a discharge or release from an aboveground tank, aboveground pipe orfitting not connected to an underground storage tank, or vehicle.
(2) The removal orreplacement of any tank, pipe, fitting or related equipment.
(3) Costs incurred as aresult of a discharge or release of petroleum from a transmission pipeline.
(4) Costs intended to bepaid by the Noncommercial Fund.
(5) Costs associatedwith the administration of any underground storage tank program other than theprogram administered pursuant to this Part.
(6) Costs paid orreimbursed by or from any source other than the Commercial Fund, including butnot limited to, any payment or reimbursement made under a contract ofinsurance.
(7) Costs incurred as aresult of the cleanup of environmental damage to groundwater to a moreprotective standard than the risk‑based standard required by theDepartment unless the cleanup of environmental damage to groundwater to a moreprotective standard is necessary to resolve a claim for compensation by a thirdparty for property damage.
(8) Costs in excess ofthose required to achieve the most cost‑effective cleanup.
(e) The Commercial Fundshall be treated as a special trust fund and shall be credited with interest bythe State Treasurer pursuant to G.S. 147‑69.2 and G.S. 147‑69.3.
(f) (ExpiresOctober 1, 2011) During each fiscal year, the Department may use up to twomillion five hundred thousand dollars ($2,500,000) of the funds in theCommercial Fund for performance‑based cleanups as provided in thissubsection. The Department may also use any funds that are available from anyother source and that are specifically intended to be used for performance‑basedcleanups as provided in this section. Each performance‑based cleanupshall comply with the requirements of this Part and any other provisions of lawthat govern the cleanup of environmental damage resulting from the discharge orrelease of a petroleum product from a commercial underground storage tank. TheDepartment or any owner, operator, or landowner may contract for performance‑basedcleanups with environmental services firms that the Department has determinedto be qualified to satisfactorily complete the work associated with a cleanup.Before the award of the contract, the environmental services firms shall securea surety or performance bond equal to the price of the firm's services underthe contract and shall demonstrate having secured the surety or performancebond to the satisfaction of the Department. The surety shall be liable on thebond obligation when the environmental services firms fail to perform asspecified in the contract. A performance‑based contract shall providethat cleanup will be completed within the time and for the cost stated in thecontract. The Department or any owner, operator, or landowner shall selectenvironmental services firms for performance‑based cleanup through acompetitive bidding process. The Commission shall adopt rules governing thecompetitive bidding process and any other rules necessary to implement thissubsection. The rules shall establish qualifications for environmental servicesfirms and for individuals and firms that provide engineering services as partof a contract to satisfactorily complete work associated with cleanup.
(g) The Commercial Fundmay be used to support the administrative functions of the program forunderground storage tanks under this Part and Part 2B of this Article up to theamounts allowed by law, which amounts may be changed from time to time. In thecase of a legislated increase or decrease in salaries and benefits, theadministrative allowance existing at the time of the increase or decrease shallbe correspondingly increased or decreased an amount equal to the legislated increaseor decrease in salaries and benefits.
(h) The Commercial Fundmay be used to reimburse the owner or operator of a commercial petroleumunderground storage tank for annual operating fees that were paid under protestpursuant to G.S. 143‑215.94C(f) to the extent the Department hasrecovered the fees from the previous owner or operator from whom the annualoperating fees were due. The Commercial Fund may be used only to reimbursethose fees that the owner or operator paid to eliminate an unpaid annual operatingfees balance that had been accrued by and was the obligation of a previousowner or operator. (1987(Reg. Sess., 1988), c. 1035, s. 1; 1989, c. 652, ss. 4, 16; 1991, c. 538, ss.2, 3; 1991 (Reg. Sess., 1992), c. 817, s. 1; 1993, c. 400, s. 15; c. 402, s. 1;1995, c. 377, s. 5; 1998‑161, s. 2; 2001‑384, ss. 4, 5, 8; 2001‑442,s. 1; 2003‑352, ss. 2, 3; 2007‑323, s. 12.1(a); 2008‑195, s.11; 2008‑198, s. 7(a).)