GENERAL ASSEMBLY OF NORTH CAROLINA
SESSION 2001
H	1
HOUSE BILL 1009*
     

 
Short Title:	Consistent Risk-Based Remedial Actions.	()	
Sponsors:	Representatives Gibson, Baker, Allen (Primary Sponsors);  Arnold, Cole, Cox, Creech, Culp, Daughtry, Fox, Harrington, Hill, Holmes, McMahan, Morris, Owens, Smith, Underhill, Warwick, Weatherly, and Wright.	
Referred to:	Environment and Natural Resources.	
April 9, 2001

A BILL TO BE ENTITLED
AN ACT TO EXPAND AND MAKE CONSISTENT THE CIRCUMSTANCES UNDER WHICH THE DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES SHALL ALLOW FOR RISK-BASED REMEDIAL ACTIONS.

Whereas, the General Assembly finds that there are contaminated areas in North Carolina, including land and other property, surface water, and groundwater, that are adversely affected by environmental contamination due to the presence of drilling waste; hazardous and toxic materials, substances, and wastes; solid waste; oil; and other wastes, contaminants, and regulated substances; and
Whereas, the General Assembly finds that the presence of environmental contamination on these areas creates both potential and actual harm to public health, safety, and welfare, and to the environment; and
Whereas, the General Assembly finds that this potential and actual harm results in substantial economic losses, including reduced property values and tax revenues; decreased ability to develop and expand the beneficial use of these areas; and other opportunity costs because of the uncertainties and concerns that result from the environmental contamination of these areas; and
Whereas, the General Assembly finds that it is in the public interest that contaminated areas are cleaned up or managed in a manner that protects public health, safety, and welfare and the environment using procedures that are based in sound science and that can be voluntarily and independently implemented in a timely and practical fashion without overburdening State resources; and
Whereas, the General Assembly finds that North Carolina has numerous and varied State‑managed remediation programs to address environmental contamination, including the Inactive Hazardous Sites Response Act of 1987, the hazardous waste management program administered by the State pursuant to the federal Resource Conservation and Recovery Act of 1976, the Leaking Petroleum Underground Storage Tank Cleanup Act of 1988, the Brownfields Property Reuse Act of 1997, the Dry‑Cleaning Solvent Cleanup Act of 1997, the federal Superfund program administered in part by the State pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 and the Superfund Amendments and Reauthorization Act of 1986, and the groundwater protection rules adopted by the Environmental Management Commission; and 
Whereas, the General Assembly finds that these remediation programs utilize varying standards, levels, protocols, means, methods, techniques, interpretations, and other requirements and apply various federal regulations and State rules applicable to testing, monitoring, assessing, prioritizing, characterizing, and cleanup or remediation of contaminated areas; and
Whereas, the General Assembly finds that these varying standards cause confusion and delay and create the potential for inappropriate levels of remediation, including both the possibility that inadequate remediation at some sites may result in potential or actual harm to public health, safety, or welfare or the environment, and the possibility that unnecessary remediation at other sites may result in excessive and wasteful expenditure of public and private resources; and
Whereas, the General Assembly finds that the expenditure of public and private resources on unnecessary remediation could better be channeled to other purposes, including new development, renovation and repair, research and development, training and education, and other activities that maintain and enhance North Carolina's competitive position in the world and the excellent quality of life enjoyed by the citizens of North Carolina; and
Whereas, the General Assembly finds that public health, safety, and welfare and the environment can best be protected by implementing a uniform remediation process that requires that contaminated areas be cleaned up to a level that is sufficient to ensure protection of public health, safety, and welfare and the environment without excessive expenditure of public or private resources; and
Whereas, the General Assembly finds that this remediation process should be based on an objective, scientific, and uniform approach to the evaluation of the risk posed by each contaminated area and to the determination of the appropriate level of remediation to address contamination in a manner that is protective of public health, safety, and welfare and the environment; and 
Whereas, the General Assembly finds that this approach should be applied to each contaminated area on a site‑specific basis using knowledge of the area, the contaminants present, the effects of those contaminants on public health, safety, and welfare, and the actions of those contaminants in, and their effect on, the environment; and
Whereas, the General Assembly intends that the levels of remediation that are established for each contaminated area are to be applicable or relevant and appropriate standards under federal remediation programs; and
Whereas, the General Assembly intends that the protections afforded to public health, safety, and welfare and to the environment by existing environmental, health, and safety standards that apply to ongoing activities not be diminished in any way, in order that those standards will continue to protect against the discharge or release of contaminants to the environment that would result in additional contaminated areas; Now, therefore,
The General Assembly of North Carolina enacts:
SECTION 1.  Part 1 of Article 7 of Chapter 143B of the General Statutes is amended by adding a new section to read:
"§ 143B-279.11.  Adoption of rules for risk-based remediation.
(a)	As used in this section:
(1)	'Contaminant' has the same meaning as in G.S. 130A-310.31.
(2)	'Department' means the Department of Environment and Natural Resources.
(3)	'Environmental contamination' has the same meaning as in G.S. 130A-310.31.
(4)	'Regulated substance' has the same meaning as in G.S. 130A-310.31.
(5)	'Remediation' means all actions that are necessary or appropriate to address the presence and effects of environmental contamination, including, without limitation, all testing, monitoring, studying, assessing, prioritizing, characterizing, preparing, restoration, cleanup, treatment, and other actions necessary or appropriate to remove, reduce, isolate, immobilize, encapsulate, mitigate, or otherwise address environmental contamination, including, without limitation, all actions that would qualify as remediation as defined in G.S. 130A-310.31.
(6)	'Secretary' means the Secretary of Environment and Natural Resources.
(b)	The Secretary shall adopt rules to establish a consistent and uniform risk-based approach to the assessment, prioritization, and remediation of environmental contamination. The rules shall provide for:
(1)	The assessment of the contaminated area, including types and levels of contamination and the risk to public health, safety, and welfare and the environment posed by the contamination.
(2)	The anticipated future uses of the property comprising the contaminated area.
(3)	The acceptable level or range of levels of risk to public health, safety, and welfare and environment
(4)	The process for determining an appropriate method of remediation to achieve an acceptable level or range of levels of risk.
(5)	The process for determining whether a risk‑based approach to remediation under the rules is appropriate for a particular contaminated area.
(6)	The process for establishing, for each contaminant, the maximum allowable quantity, concentration, range, or other measure of contamination that will remain at the contaminated area at the conclusion of active remediation.
(7)	The level of oversight of the remediation that will be exercised by the Department.
(8)	The determination or certification that the quantity, concentration, range, or other measure of each contaminant remaining at the contaminated area at the conclusion of active remediation does not exceed the maximum allowable maximum.
(9)	The determination or certification that an acceptable level or range of levels of risk has been achieved and that no further remediation is required.
(10)	Any other matter that the Secretary determines to be necessary to carry out the intent of this section.
(c)	The Department may require any person who is responsible for the environmental contamination and any person who voluntarily undertakes remediation of the environmental contamination to provide information necessary to determine the degree of risk to public health, safety, and welfare and to the environment that is posed by any environmental contamination, either before or after remediation is completed.
(d)	If the Department concludes that the environmental contamination poses a degree of risk to public health, safety, or welfare or the environment that is no greater than the acceptable level of risk established by the Department, the Department shall notify the person who provides the information required pursuant to subsection (c) of this section that no further remediation or action will be required unless the Department later determines, on the basis of additional information or as a result of a change in conditions in the contaminated area, that the remaining environmental contamination poses an unacceptable level of risk to public health, safety, or welfare or the environment.
(e)	This section and rules adopted pursuant to this section shall not be construed to limit the authority of the Department to require investigation, initial response, or remediation of environmental contamination under any other provision of law pending a determination by the Department, under rules adopted pursuant to this section, that a risk‑based approach to remediation of a contaminated area is appropriate, or if the Department determines that a risk‑based approach to remediation of the contaminated area is not appropriate. This section and rules adopted pursuant to this section shall not be construed or implemented in any manner that reduces the requirements of programs that are intended to avoid or mitigate the release or discharge of contaminants to the environment that would result in additional environmental contamination.
(f)	Rules adopted pursuant to this section shall apply uniformly to the remediation of environmental contamination under:
(1)	The Inactive Hazardous Sites Response Act of 1987, G.S. 130A‑310, et seq.
(2)	The hazardous waste management program administered by the State pursuant to the federal Resource Conservation and Recovery Act of 1976 Pub. L. 94‑580, 90 Stat. 2795, 42 U.S.C. § 6901, et seq., as amended.
(3)	The Leaking Petroleum Underground Storage Tank Cleanup Act of 1988, G.S. 143‑215.94A, et seq.
(4)	The Brownfields Property Reuse Act of 1997, G.S. 130A‑310.30, et seq.
(5)	The Dry-Cleaning Solvent Cleanup Act of 1997, G.S. 143‑215, et seq.
(6)	The federal Superfund program administered in part by the State pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, Pub. L. 96‑510, 94 Stat. 2767, 42 U.S.C. § 9601, et seq., as amended, the Superfund Amendments and Reauthorization Act of 1986, Pub. L. 99‑499, 100 Stat. 1613, as amended, and G.S. 130A‑310.20, et seq.
(7)	The groundwater protection program adopted by the Environmental Management Commission pursuant to Article 21 of Chapter 143 of the General Statutes.
(g)	A person who undertakes remediation of environmental contamination may elect to proceed under either the applicable provisions of law set out in subsection (f) of this section and rules adopted pursuant to those provisions or under the rules adopted pursuant to this section. If a person elects to proceed under rules adopted pursuant to this section, the rules adopted pursuant to this section shall supersede rules adopted pursuant to the provisions of law set out in subsection (f) of this section. If a person elects to proceed under rules adopted pursuant to this section, any maximum allowable quantity, concentration, limit, or other measure of contamination that is allowed to remain at the contaminated area at the conclusion of active remediation that is established under the rules will supersede rules adopted under other provisions of law
(h)	Rules adopted pursuant to this section shall be based on an evaluation of all reasonably foreseeable risks presented to public health, safety, and welfare and the environment by environmental contamination, and shall be based on all relevant and reasonably available scientific information pertaining to those risks. The rules shall be written so that they can be interpreted and implemented with a reasonable degree of effort and expense. The rules may provide for reasonable distinctions among contaminated areas based on any relevant factor, including the nature and extent of the environmental contamination, the risk of harm posed by the contamination to public health, safety, and welfare and the environment, the size and complexity of the contaminated area, and the current and anticipated future uses of the contaminated area and adjacent lands.
(i)	Rules adopted pursuant to this section shall require that any assumption about the future use of the contaminated area on which a level or range of levels of risk is based be reflected in appropriate restrictions on the future use of the property as provided in G.S. 143B‑279.9 and that the restrictions be recorded in accordance with G.S. 143B‑279.10.
(j)	Rules adopted pursuant to this section shall provide for the use of licensed professionals, including Professional Engineers, Professional Geologists, and Registered Environmental Consultants, in the assessment, prioritization, and remediation of environmental contamination. The rules shall specify the circumstances under which work performed by a licensed professional is presumed to comply with the rules."
SECTION 2.  The Secretary of Environment and Natural Resources shall adopt rules to implement G.S. 143B‑279.11, as enacted by Section 1 of this act, on or before 1 October 2002.  This act constitutes a recent act of the General Assembly within the meaning of G.S. 150B‑21.1.  Notwithstanding G.S. 150B‑21.1(a)(2) and 26 NCAC 2C.0102(11), the Secretary may adopt temporary rules to implement G.S. 143B‑279.11, as enacted by Section 1 of this act until 1 October 2002.  Prior to the adoption of a temporary rule under this section, the Secretary shall publish a notice of intent to adopt a temporary rule in the North Carolina Register.  The notice shall set out the text of the proposed temporary rule and include the name of the person to whom questions and written comment on the proposed temporary rule may be submitted.  The Secretary shall accept written comment on the proposed temporary rule for at least 30 days after the notice of intent to adopt a temporary rule is published in the North Carolina Register.
SECTION 3.  The Secretary of Environment and Natural Resources shall use all reasonable efforts to obtain a written agreement from the United States Environmental Protection Agency that G.S. 143B‑279.11, as enacted by Section 1 of this act, and the rules adopted by the Secretary pursuant to G.S. 143B‑279.11 are consistent with the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, Pub. L. 96‑510, 94 Stat. 2767, 42 U.S.C. § 9601, et seq., as amended, and the Superfund Amendments and Reauthorization Act of 1986, Pub. L. 99‑499, 100 Stat. 1613, as amended.
SECTION 4.  This act shall not be construed to obligate the General Assembly to appropriate any funds to implement the provisions of this act.  Every State agency to which this act applies shall implement the provisions of this act from funds otherwise appropriated or available to that agency.
SECTION 5.  On or before 1 October 2004, the Department of Environment and Natural Resources shall report to the Environmental Review Commission as to the steps the Secretary of Environment and Natural Resources and the Department have taken to implement this act.  The report shall include information on the adoption of rules to implement G.S. 143B‑279.11, as enacted by Section 1 of this act, the number of contaminated areas that have been proposed for remediation under the rules, the number of contaminated areas that are undergoing active remediation under the rules, the number of contaminated areas at which remediation under the rules has been completed, the number of contaminated areas that are known or believed to be appropriate for remediation under the rules, the number of contaminated areas for which the Department has determined that a risk‑based approach to remediation under the rules is not appropriate and the reasons for each determination, and information regarding licensed professionals who are involved in the implementation of remediation under the rules.
SECTION 6.  This act is effective when it becomes law.