§ 143-215.94D. Noncommercial Leaking Petroleum Underground Storage Tank Cleanup Fund.
§ 143‑215.94D. Noncommercial Leaking Petroleum Underground Storage Tank Cleanup Fund.
(a) There isestablished under the control and direction of the Department the NoncommercialLeaking Petroleum Underground Storage Tank Cleanup Fund. This Noncommercial Fundshall be a nonreverting revolving fund consisting of any monies appropriatedfor such purpose by the General Assembly or available to it from grants, orother monies paid to it or recovered on behalf of the Noncommercial Fund.
(b) The NoncommercialFund shall be used for the payment of the costs set out in subsection (b1) ofthis section, up to an aggregate maximum of one million dollars ($1,000,000)per occurrence resulting from a discharge or release of a petroleum productfrom:
(1) Noncommercial undergroundstorage tanks if the discharge or release meets the minimum priority criteriafor corrective action established by the Department.
(2) Commercialunderground storage tanks if the owner or operator cannot be identified orfails to proceed with the cleanup.
(3) Commercialunderground storage tanks that were taken out of operation prior to 1 January1974 if, at the time the discharge or release is discovered, neither the owneror operator owns or leases the lands on which the tank is located.
(4) Commercialunderground storage tanks if the owner of the commercial underground storagetank is the owner only as a result of owning the land on which the commercialunderground storage tank is located, the owner did not know or have reason toknow that the underground storage tank was located on the property, and theland was not transferred to the owner to avoid liability for the commercialunderground storage tank.
(b1) The NoncommercialFund shall be used for the payment of the costs of:
(1) The cleanup of environmentaldamage as required by G.S. 143‑215.94E(a).
(2) Compensation tothird parties for bodily injury and property damage in excess of one hundredthousand dollars ($100,000) per occurrence.
(3) 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.
(4) Recordation ofresidual petroleum as required by G.S. 143B‑279.11 if the NoncommercialFund is responsible for the payment of costs under subdivisions (1) through (3)of this subsection and subsection (b) of this section.
(b2) The NoncommercialFund may be used by the Department for the payment of costs necessary to renderharmless any commercial or noncommercial underground storage tank from which adischarge or release has not occurred but which poses an imminent hazard to theenvironment if the owner or operator cannot be identified or located, or if theowner or operator fails to take action to render harmless the undergroundstorage tank within 90 days after having been notified of the imminent hazardposed by the underground storage tank. The Secretary may seek to recover thecosts of the action from the owner or operator as provided in G.S. 143‑215.94G.
(b3) For purposes ofsubsection (b1) of this section, the cleanup of environmental damage includesconnection 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 NoncommercialFund shall pay any claim made after 1 September 2001 for compensation to thirdparties pursuant to subdivision (2) of subsection (b1) 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 NoncommercialFund is 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 NoncommercialFund shall 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 for by the Commercial 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 Noncommercial Fund, including,but not 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 NoncommercialFund shall be treated as a special trust fund and shall be credited withinterest by the 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 twohundred fifty thousand dollars ($250,000) of the funds in the NoncommercialFund for performance‑based cleanups as provided in this subsection. TheDepartment may also use any funds that are available from any other source andthat are specifically intended to be used for performance‑based cleanupsas provided in this section. Each performance‑based cleanup shall complywith the requirements of this Part and any other provisions of law that governthe cleanup of environmental damage resulting from the discharge or release ofa petroleum product from a noncommercial 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 and any other rules necessary to implement thissubsection.
(g) The NoncommercialFund may 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 legislatedincrease or decrease in salaries and benefits. (1987 (Reg. Sess., 1988), c. 1035, s. 1; 1989, c.652, ss. 6, 16; 1991, c. 538, s. 6; 1991 (Reg. Sess., 1992), c. 890, s. 17;1993, c. 400, s. 15; 1995, c. 377, s. 7; 1998‑161, ss. 3, 11(a); 2001‑384,ss. 6, 7, 9; 2001‑442, s. 2; 2003‑352, ss. 4, 5; 2007‑323, s.12.1(b); 2008‑195, s. 11.)