GENERAL ASSEMBLY OF NORTH CAROLINA
SESSION 2001
H	1
HOUSE BILL 1303
     

 
Short Title:	LUST/Clarify Cleanup Req./Increase Tank Fees.	()	
Sponsors:	Representative Gibson.	
Referred to:	Environment and Natural Resources, if favorable, Finance.	
April 12, 2001

A BILL TO BE ENTITLED
AN ACT TO CLARIFY THE CIRCUMSTANCES IN WHICH LAND-USE RESTRICTIONS AND RECORDATION OF THOSE RESTRICTIONS IN THE OFFICE OF THE REGISTER OF DEEDS ARE REQUIRED IN CONNECTION WITH THE CLEANUP OF A RELEASE FROM A PETROLEUM UNDERGROUND STORAGE TANK IN ORDER TO PROTECT THE ENVIRONMENT AND PUBLIC HEALTH, TO ENSURE ENFORCEABILITY OF RESTRICTIONS, and TO PROVIDE NOTICE TO SUBSEQUENT OWNERS OF THE PROPERTY and TO INCREASE THE ANNUAL OPERATING FEES APPLICABLE TO COMMERCIAL PETROLEUM UNDERGROUND STORAGE TANKS.

The General Assembly of North Carolina enacts:
SECTION 1.  G.S. 143B‑279.9 reads as rewritten:
"§ 143B‑279.9.  Land‑use restrictions may be imposed to reduce danger to public health at contaminated sites.
(a)	In order to reduce or eliminate the danger to public health or the environment posed by the presence of contamination at a site, an owner, operator, or other responsible party may impose restrictions on the current or future use of the real property comprising any part of the site where the contamination is located if the restrictions meet the requirements of this section. The restrictions must be agreed to by the owner of the real property, included in a remedial action plan for the site that has been approved by the Secretary, and implemented as a part of the remedial action program for the site. The Secretary may approve restrictions included in a remedial action plan in accordance with standards that the Secretary determines to be applicable to the site. Except as provided in subsection (b) of this section, if the remedial action is risk‑based or will not require that the site meet current standards,  the remedial action plan must include an agreement by the owner, operator, or other responsible party to record approved land‑use restrictions that meet the requirements of this section as provided in G.S. 143B‑279.10. Restrictions may apply to activities on, over, or under the land, including, but not limited to, use of groundwater, building, filling, grading, excavating, and mining. Any approved restriction shall be enforced by any owner, operator, or other party responsible for the contaminated site. Any land‑use restriction may also be enforced by the Department through the remedies provided by any provision of law that is implemented or enforced by the Department or by means of a civil action. The Department may enforce any land‑use restriction without first having exhausted any available administrative remedies. A land‑use restriction may also be enforced by any unit of local government having jurisdiction over any part of the site. A land‑use restriction shall not be declared unenforceable due to lack of privity of estate or contract, due to lack of benefit to particular land, or due to lack of any property interest in particular land. Any person who owns or leases a property subject to a land‑use restriction under this Part shall abide by the land‑use restriction.
(b)	 A risk-based remedial action plan for the cleanup of environmental damage resulting from a discharge or release of petroleum from an underground storage tank pursuant to Part 2A of Article 21A of Chapter 143 of the General  Statutes that will not require that the site meet current standards plan must include an agreement by the owner, operator, or other party responsible for the discharge or release of petroleum to record approved land‑use restrictions that meet the requirements of this section as provided in G.S. 143B‑279.11. All of the provisions of this section shall apply except that any restriction on the current or future use of real property shall be enforceable only with respect to: (i) real property on which the source of contamination is located and (ii) any real property on which contamination is located at the time the remedial action plan is approved and that was owned or controlled by any owner or operator of an underground storage tank or other responsible party at the time the discharge or release of petroleum is discovered or reported or at any time thereafter. No restriction on the current or future use of real property shall apply to any portion of any parcel or tract of land on which contamination is not located. This section shall not be construed to require any person to record any restriction on the current or future use of real property other than the real property described in this subsection. The definitions set out in G.S. 143-215.94A apply to this subsection.
(c)	This section does not alter any right, duty, obligation, or liability of any owner, operator, or other responsible party under any other provision of law.
(d)	As used in this section:
(1)	'Current standards' means generally applicable standards, guidance, or established methods governing the contaminants that are established by statute or adopted, published, or implemented by the Environmental Management Commission, the Commission for Health Services, or the Department. Cleanup or remediation of real property to current standards means that the property is restored to a condition such that the property and any use that is made of the property does not pose a danger or risk to public health, the environment, or users of the property that is significantly greater than that posed by use of the property prior to its having been contaminated.
(2)	'Risk‑based', when used in connection with cleanup, remediation, or similar terms, means cleanup or remediation of contamination of real property to a level that, although not in compliance with current standards, does not pose a significant danger or risk to public health, the environment, or users of the real property so long as the property remains in the condition and is used in a manner that is consistent with the assumptions as to the condition and use of the property on which the determination that the level of risk is acceptable are based."
SECTION 2.  G.S. 143B‑279.10 reads as rewritten:
"§ 143B‑279.10.  Recordation of contaminated sites.
(a)	The owner of the real property on which a site is located that is subject to current or future use restrictions approved as provided in G.S. 143B‑279.9 shall submit to the Department a survey plat as required by this section within 180 days after the owner is notified to do so. The survey plat shall identify areas designated by the Department, shall be prepared and certified by a professional land surveyor, and shall be entitled "NOTICE OF CONTAMINATED SITE". Where a contaminated site is located on more than one parcel or tract of land, a composite map or plat showing all parcels or tracts may be recorded. The Notice shall include a legal description of the site that would be sufficient as a description in an instrument of conveyance, shall meet the requirements of G.S. 47‑30 for maps and plats, and shall identify:
(1)	The location and dimensions of any disposal areas and areas of potential environmental concern with respect to permanently surveyed benchmarks.
(2)	The type, location, and quantity of contamination known to the owner of the site to exist on the site.
(3)	Any restriction approved by the Department on the current or future use of the site.
(b)	After the Department approves and certifies the Notice, the owner of the site shall file the certified copy of the Notice in the register of deeds office in the county or counties in which the land is located within 15 days of the date on which the owner receives approval of the Notice from the Department.
(c)	The register of deeds shall record the certified copy of the Notice and index it in the grantor index under the names of the owners of the land.
(d)	In the event that the owner of the site fails to submit and file the Notice required by this section within the time specified, the Secretary may prepare and file the Notice. The costs thereof may be recovered by the Secretary from any responsible party. In the event that an owner of a site who is not a responsible party submits and files the Notice required by this section, the owner may recover the reasonable costs thereof from any responsible party.
(e)	When a contaminated site that is subject to current or future land‑use restrictions is sold, leased, conveyed, or transferred, the deed or other instrument of transfer shall contain in the description section, in no smaller type than that used in the body of the deed or instrument, a statement that the property is a contaminated site and a reference by book and page to the recordation of the Notice.
(f)	A Notice of Contaminated Site filed pursuant to this section shall, at the request of the owner of the land, be cancelled by the Secretary after the contamination has been eliminated or remediated to current standards, as defined in  G.S. 143B-279.9. If requested in writing by the owner of the land and if the Secretary concurs with the request, the Secretary shall send to the register of deeds of each county where the Notice is recorded a statement that the contamination has been eliminated, or that the contamination has been remediated to current standards, and request that the Notice be cancelled of record. The Secretary's statement shall contain the names of the owners of the land as shown in the Notice and reference the plat book and page where the Notice is recorded. The register of deeds shall record the Secretary's statement in the deed books and index it on the grantor index in the names of the owners of the land as shown in the Notice and on the grantee index in the name "Secretary of Environment and Natural Resources". The register of deeds shall make a marginal entry on the Notice showing the date of cancellation and the book and page where the Secretary's statement is recorded, and the register of deeds shall sign the entry. If a marginal entry is impracticable because of the method used to record maps and plats, the register of deeds shall not be required to make a marginal entry.
(g)	This section does not apply to the cleanup pursuant to a risk-based remedial action plan that addresses environmental damage resulting from a discharge or release of petroleum from an underground storage tank pursuant to Part 2A of Article 21A of Chapter 143 of the General Statutes."
SECTION 3.  Part 1 of Article 7 of Chapter 143B of the General Statutes is amended by adding a new section to read:
"§ 143B‑279.10.  Recordation of residual petroleum from an underground storage tank.
(a)	The definitions set out in G.S. 143‑215.94A apply to this section. This section applies only to the cleanup pursuant to a risk-based remedial action plan that addresses environmental damage resulting from a discharge or release of petroleum from an underground storage tank pursuant to Part 2A of Article 21A of Chapter 143 of the General Statutes.
(b)	The owner, operator, or other person responsible for a discharge or release of petroleum from an underground storage tank shall submit to the Department a survey plat as required by this section within 180 days after the owner is notified to do so. The survey plat shall identify areas designated by the Department, shall be prepared and certified by a professional land surveyor, and shall be entitled 'NOTICE OF RESIDUAL PETROLEUM'. The Notice shall include a legal description of (i) the real property on which the source of contamination is located and (ii) any real property on which contamination is located at the time the remedial action plan is approved and that was owned or controlled by any owner or operator of an underground storage tank or other responsible party at the time the discharge or release of petroleum is discovered or reported or at any time thereafter. The Notice shall be sufficient as a description in an instrument of conveyance and shall meet the requirements of G.S. 47‑30 for maps and plats. The Notice shall identify the location of any residual petroleum known to exist on the property at the time the Notice is prepared and any restrictions on the current or future use of the property approved by the Department. If the real property to which this section applies is located on more than one parcel or tract of land, a composite map or plat showing all parcels or tracts may be recorded.
(c)	After the Department approves and certifies the Notice, the owner, operator, or other person responsible for a discharge or release of petroleum from an underground storage tank shall file the certified copy of the Notice in the register of deeds office in the county or counties in which the real property is located before the property is conveyed, within 15 days after the Department notifies the owner, operator, or other responsible party that no further action is required under the remedial action plan, or within one year after the Department approves the notice, whichever first occurs.
(d)	The register of deeds shall record the certified copy of the Notice and index it in the grantor index under the names of the owners of the real property.
(e)	In the event that the owner, operator, or other person responsible for the discharge or release fails to submit and file the Notice required by this section within the time specified, the Secretary may prepare and file the Notice. The costs thereof may be recovered by the Secretary from any responsible party. In the event that an owner of the real property who is not a responsible party submits and files the Notice required by this section, the owner may recover the reasonable costs thereof from any responsible party.
(f)	When real property to which this section is applicable is sold, leased, conveyed, or transferred, the deed or other instrument of transfer shall contain in the description section, in no smaller type than that used in the body of the deed or instrument, a statement that residual petroleum exists on the property and a reference by book and page to the recordation of the Notice.
(g)	A Notice filed pursuant to this section shall, at the request of the owner of the real property, be cancelled by the Secretary after the residual petroleum has been eliminated or remediated to current standards, as defined in G.S. 143B‑279.9. If requested in writing by the owner of the land and if the Secretary concurs with the request, the Secretary shall send to the register of deeds of each county where the Notice is recorded a statement that the residual petroleum has been eliminated, or that the residual petroleum has been remediated to current standards, and request that the Notice be cancelled of record. The Secretary's statement shall contain the names of the owners of the land as shown in the Notice and reference the plat book and page where the Notice is recorded. The register of deeds shall record the Secretary's statement in the deed books and index it on the grantor index in the names of the owners of the real property as shown in the Notice and on the grantee index in the name 'Secretary of Environment and Natural Resources'. The register of deeds shall make a marginal entry on the Notice showing the date of cancellation and the book and page where the Secretary's statement is recorded, and the register of deeds shall sign the entry. If a marginal entry is impracticable because of the method used to record maps and plats, the register of deeds shall not be required to make a marginal entry."
SECTION 4.  G.S. 143‑215.94B(b) is amended by adding a new subdivision to read:
"(7)	Recordation of residual petroleum as required by G.S. 143B‑279.11 if the Commercial Fund is responsible for the payment of costs under subdivisions (1) through (4) of this subsection."
SECTION 5.  G.S. 143‑215.94B(d) is amended by adding a new subdivision to read:
"(7)	Costs incurred as a result of the cleanup of environmental damage to more stringent standards than those required by the Department."
SECTION 6.  G.S. 143‑215.94D(b1) is amended by adding a new subdivision to read:
"(4)	Recordation of residual petroleum as required by G.S. 143B‑279.11 if the Noncommercial Fund is responsible for the payment of costs under subdivisions (1) through (4) of this subsection."
SECTION 7.  G.S. 143‑215.94D(d) is amended by adding a new subdivision to read:
"(7)	Costs incurred as a result of the cleanup of environmental damage to more stringent standards than those required by the Department."
SECTION 8.  G.S. 143‑215.94B is amended by adding a new subsection to read:
"(b4)	The Commercial Fund shall not pay any claim made after 1 October 2001 for compensation to third parties pursuant to subdivision (5) of subsection (b) of this section unless the owner, operator, or other party responsible for the discharge or release has complied with the requirements of G.S. 143B-279.9 and G.S. 143B-279.11."
SECTION 9.  G.S. 143‑215.94D is amended by adding a new subsection to read:
"(b4)	The Commercial Fund shall not pay any claim made after 1 October 2001 for compensation to third parties pursuant to subdivision (5) of subsection (b) of this section unless the owner, operator, or other party responsible for the discharge or release has complied with the requirements of G.S. 143B-279.9 and G.S. 143B-279.11."
SECTION 10.  G.S. 143‑215.94C(a) reads as rewritten:
"(a)	For purposes of this subsection, each compartment of a commercial underground storage tank that is designed to independently contain a petroleum product is a separate petroleum commercial underground storage tank. The owner or operator of a commercial petroleum underground storage tank shall pay to the Secretary for deposit into the Commercial Fund an annual operating fee according to the following schedule:
(1)	For each petroleum commercial underground storage tank of 3,500 gallons or less capacity – two hundred fifteen dollars ($215.00).
(2)	For each petroleum commercial underground storage tank of more than 3,500 gallon capacity –  three hundred fifteen dollars ($315.00)."
SECTION 11.  Sections 1 through 9 of this act become effective 1 October 2001 and apply to any cleanup of a discharge or release of petroleum from an underground storage tank pursuant to Part 2A of Article 21A of Chapter 143 of the General Statutes unless the Department of Environment and Natural Resources has issued a notice that no further action is required prior to 1 October 2001.  Section 10 of this act becomes effective 1 January 2002.  Section 11 of this act becomes effective when it becomes law.