§ 143-215.94V. Standards for petroleum underground storage tank cleanup.
§ 143‑215.94V. Standards for petroleumunderground storage tank cleanup.
(a) Legislative findings and intent.
(1) The General Assembly finds that:
a. The goals of the underground storage tank program are toprotect human health and the environment. Maintaining the solvency of theCommercial Fund and the Noncommercial Fund is essential to these goals.
b. The sites at which discharges or releases from undergroundstorage tanks occur vary greatly in terms of complexity, soil types,hydrogeology, other physical and chemical characteristics, current andpotential future uses of groundwater, and the degree of risk that each site maypose to human health and the environment.
c. Risk‑based corrective action is a process thatrecognizes this diversity and utilizes an approach where assessment andremediation activities are specifically tailored to the conditions and risks ofa specific site.
d. Risk‑based corrective action gives the Stateflexibility in requiring different levels of cleanup based on scientific analysisof different site characteristics, and allowing no action or no further actionat sites that pose little risk to human health or the environment.
e. A risk‑based approach to the cleanup of environmentaldamage can adequately protect human health and the environment while preventingexcessive or unproductive cleanup efforts, thereby assuring that limitedresources are directed toward those sites that pose the greatest risk to humanhealth and the environment.
(2) The General Assembly intends:
a. To direct the Commission to adopt rules that will providefor risk‑based assessment and cleanup of discharges and releases frompetroleum underground storage tanks. These rules are intended to combinegroundwater standards that protect current and potential future uses ofgroundwater with risk‑based analysis to determine the appropriate cleanuplevels and actions.
b. That these rules apply to all discharges or releases thatare reported on or after the date the rules become effective in order toascertain whether cleanup is necessary, and if so, the appropriate level ofcleanup.
c. That these rules may be applied to any discharge or releasethat has been reported at the time the rules become effective at the discretionof the Commission.
d. That these rules and decisions of the Commission and theDepartment in implementing these rules facilitate the completion of morecleanups in a shorter period of time.
e. That neither the Commercial Fund nor the Noncommercial Fundbe used to clean up sites where the Commission has determined that a dischargeor release poses a degree of risk to human health or the environment that is nogreater than the acceptable level of risk established by the Commission.
f. Repealed by Session Laws 1998‑161, s. 11(c),effective retroactively to January 1, 1998.
g. That the Commercial Fund and the Noncommercial Fund be usedto perform the most cost‑effective cleanup that addresses imminentthreats to human health and the environment.
(b) The Commission shall adopt rules to establish a risk‑basedapproach for the assessment, prioritization, and cleanup of discharges andreleases from petroleum underground storage tanks. The rules shall address, ata minimum, the circumstances where site‑specific information should beconsidered, criteria for determining acceptable cleanup levels, and theacceptable level or range of levels of risk to human health and theenvironment.
(c) The Commission may require an owner or operator or alandowner eligible for payment or reimbursement under subsections (b), (b1), (c),and (c1) of G.S. 143‑215.94E to provide information necessary todetermine the degree of risk to human health and the environment that is posedby a discharge or release from a petroleum underground storage and to identifythe most cost‑effective cleanup that addresses imminent threats to humanhealth and the environment.
(d) If the Commission concludes that a discharge or releaseposes a degree of risk to human health or the environment that is no greaterthan the acceptable level of risk established by the Commission, the Commissionshall notify an owner, operator, or landowner who provides the informationrequired by subsection (c) of this section that no cleanup, further cleanup, orfurther action will be required unless the Commission later determines that thedischarge or release poses an unacceptable level of risk or a potentiallyunacceptable level of risk to human health or the environment. If theCommission concludes that a discharge or release poses a degree of risk tohuman health or the environment that requires further cleanup, the Commissionshall notify the owner, operator, or landowner who provides the informationrequired by subsection (c) of this section of the cleanup method approved bythe Commission as the most cost‑effective cleanup method for the site.This section shall not be construed to prohibit an owner, operator, orlandowner from selecting a cleanup method other than the cost‑effectivecleanup method approved by the Commission so long as the Commission determinesthat the alternative cleanup method will address imminent threats to humanhealth and the environment.
(e) If the Commission concludes under subsection (d) of thissection that no cleanup, no further cleanup, or no further action will berequired, the Department shall not pay or reimburse any costs otherwise payableor reimbursable under this Article from either the Commercial or NoncommercialFund, other than reasonable and necessary to conduct the risk assessmentrequired by this section, unless:
(1) Cleanup is ordered or damages are awarded in a finallyadjudicated judgment in an action against the owner or landowner.
(2) Cleanup is required or damages are agreed to in a consentjudgment approved by the Department prior to its entry by the court.
(3) Cleanup is required or damages are agreed to in a settlementagreement approved by the Department prior to its execution by the parties.
(4) The payment or reimbursement is for costs that were incurredprior to or as a result of notification of a determination by the Commissionthat no cleanup, no further cleanup, or no action is required.
(5) The payment or reimbursement is for costs that were incurredas a result of a later determination by the Commission that the discharge orrelease poses a threat or potential threat to human health or the environmentas provided in subsection (d) of this section.
(e1) If the Commission concludes under subsection (d) of thissection that further cleanup is required and notifies the owner, operator, orlandowner of the cleanup method approved by the Commission as the most cost‑effectivecleanup method for the site, the Department shall not pay or reimburse anycosts otherwise payable or reimbursable under this Article from either theCommercial Fund or Noncommercial Fund, other than those costs that arereasonable and necessary to conduct the risk assessment and to implement thecost‑effective cleanup method approved by the Commission. If the owner,operator, or landowner selects a cleanup method other than the one identifiedby the Commission as the most cost‑effective cleanup, the Departmentshall not pay or reimburse for costs in excess of the cost of implementing theapproved cost‑effective cleanup.
(f) This section shall not be construed to limit the authorityof the Commission to require investigation, initial response, and abatement ofa discharge or release pending a determination by the Commission undersubsection (d) of this section as to whether cleanup, further cleanup, orfurther action will be required.
(g) Subsections (c) through (e1) of this section apply only toassessments and cleanups in progress or begun on or after 2 January 1998.
(h) If a discharge or release of petroleum from an undergroundstorage tank results in contamination in soil or groundwater that becomescommingled with contamination that is the result of a discharge or release ofpetroleum from a source of contamination other than an underground storagetank, the cleanup of petroleum may proceed under rules adopted pursuant to thissection. The Department shall not pay or reimburse any costs associated withthe assessment or remediation of that portion of contamination that resultsfrom a release or discharge of petroleum from a source other than anunderground storage tank from either the Commercial Fund or the NoncommercialFund. (1995, c. 377, s. 1; 1998‑161, s. 11(c); 2003‑352,s. 9.)