GENERAL ASSEMBLY OF NORTH CAROLINA
SESSION 2001
SESSION LAW 2001-384
HOUSE BILL 1301
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
MAKE CONFORMING CHANGES TO RELATED STATUTES.
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
unrestricted use standards, as defined
in G.S. 130A-310.31, 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-279.10.143B-279.10 or G.S. 143B-279.11,
whichever applies. 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, owner of the land, operator of the
facility, 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) The definitions set out in G.S. 143-215.94A apply to
this subsection. Subsection (a) of this section
shall not apply to a 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.Statutes that will
not require that the site meet unrestricted use standards 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 as specifically
modified by this subsection. 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 the 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 subsection 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. For purposes of this subsection and G.S. 143B-
279.11, the current or future use of real property may be
restricted only as set out in any one or more of the following
subdivisions:
(1) Where soil contamination will remain
in excess of unrestricted use standards, the
property may be used for a primary or secondary
residence, school, daycare center, nursing home,
playground, park, recreation area, or other similar
use only with the approval of the Department.
(2) Where soil contamination will remain
in excess of unrestricted use standards and the
property is used for a primary or secondary
residence that was constructed before the release
of petroleum that resulted in the contamination is
discovered or reported, the Secretary may approve
alternative restrictions that are sufficient to
reduce the risk of exposure to contaminated soils
to an acceptable level while allowing the real
property to continue to be used for a
residence.
(3) Where groundwater contamination will
remain in excess of unrestricted use standards,
installation or operation of any well usable as a
source of water shall be prohibited.
(4) Any restriction on the current or
future use of the real property that is agreed upon
by both the owner of the real property and the
Department.
(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) 'Unrestricted use standards' means
generally applicable standards, guidance, or
established methods governing 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 unrestricted use 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 unrestricted use 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 is
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(a) 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) The Department shall review the proposed Notice to
determine whether the Notice meets the requirements of this
section and rules adopted to implement this section, and shall
provide the owner of the site with a notarized copy of the
approved Notice. After the Department approves and
certifies the Notice, the owner of the site shall file
the certified a notarized copy of the
approved 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
notarized copy of the approved 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. 130A-310.31. unrestricted use
standards. 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 unrestricted use 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.
(h) The definitions set out in G.S. 143B-279.9
apply to this section."
SECTION 3. Part 1 of Article 7 of Chapter 143B
of the General Statutes is amended by adding a new section to
read:
"§ 143B-279.11. Recordation of residual petroleum from an
underground storage tank.
(a) The definitions set out in G.S.
143-215.94A and G.S. 143B-279.9 apply to this section. This
section applies only to a 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 prepare and submit to the
Department a proposed Notice that meets the requirements of this
section. The proposed Notice shall be submitted to the
Department (i) before the property is conveyed, or (ii) when the
owner, operator, or other person responsible for the discharge
or release requests that the Department issue a determination
that no further action is required under the remedial action
plan, whichever first occurs. The Notice shall be entitled
'NOTICE OF RESIDUAL PETROLEUM'. The Notice shall include a
description that would be sufficient as a description in an
instrument of conveyance of the (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 the 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 identify the location of any residual petroleum known to
exist on the real property at the time the Notice is prepared.
The Notice shall also identify the location of any residual
petroleum known, at the time the Notice is prepared, to exist on
other real property that is a result of the discharge or
release. The Notice shall set out any restrictions on the
current or future use of the real property that are imposed by
the Secretary to protect public health, the environment, or
users of the property.
(c) If the contamination is located on more than
one parcel or tract of land, the Department may require that the
owner, operator, or other person responsible for the discharge
or release prepare a composite map or plat that shows all
parcels or tracts. If the contamination is located on one parcel
or tract of land, the owner, operator, or other person
responsible for the discharge or release may prepare a map or
plat that shows the parcel but is not required to do so. A map
or plat shall be prepared and certified by a professional land
surveyor, shall meet the requirements of G.S. 47-30, and shall
be submitted to the Department for approval. When the Department
has approved a map or plat, it shall be recorded in the office
of the register of deeds and shall be incorporated into the
Notice by reference.
(d) The Department shall review the proposed
Notice to determine whether the Notice meets the requirements of
this section and rules adopted to implement this section and
shall provide the owner, operator, or other person responsible
for the discharge or release of petroleum from an underground
storage tank with a notarized copy of the approved Notice. After
the Department approves the Notice, the owner, operator, or
other person responsible for the discharge or release of
petroleum from an underground storage tank shall file a
notarized copy of the approved Notice in the register of deeds
office in the county or counties in which the real property is
located (i) before the property is conveyed or (ii) within 30
days after the owner, operator, or other person responsible for
the discharge or release receives notice from the Department
that no further action is required under the remedial action
plan, whichever first occurs. If the owner, operator, or other
person responsible for the discharge or release fails to file
the Notice as required by this section, any determination by the
Department that no further action is required is void. The
owner, operator, or other person responsible for the discharge
or release shall submit a certified copy of the Notice as filed
in the register of deeds office to the Department.
(e) The register of deeds shall record the
notarized copy of the approved Notice and index it in the
grantor index under the names of the owners of the real
property.
(f) 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.
(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 unrestricted use standards. If
requested in writing by the owner of the land, 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 unrestricted use 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, 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 groundwater to a
more protective standard than the risk-based
standard required by the Department unless the
cleanup of environmental damage to groundwater to a
more protective standard is necessary to resolve a
claim for compensation by a third party for
property damage."
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 (3) of this subsection and
subsection (b) of this section."
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 groundwater to a
more protective standard than the risk-based
standard required by the Department unless the
cleanup of environmental damage to groundwater to a
more protective standard is necessary to resolve a
claim for compensation by a third party for
property damage."
SECTION 8. G.S. 143-215.94B is amended by adding
a new subsection to read:
"(b4)The Commercial Fund shall pay any claim made
after 1 September 2001 for compensation to third parties
pursuant to subdivision (5) of subsection (b) of this section
only if 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, unless compliance is prohibited
by another provision of law."
SECTION 9. G.S. 143-215.94D is amended by adding
a new subsection to read:
"(b4)The Noncommercial Fund shall pay any claim
made after 1 September 2001 for compensation to third parties
pursuant to subdivision (2) of subsection (b1) of this section
only if 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, unless compliance is prohibited
by another provision of law."
SECTION 10. G.S. 47-29.1 reads as rewritten:
"§ 47-29.1. Recordation of waste disposal on
land.environmental notices.
(a)A permit for the disposal of waste on land shall be
recorded as provided in G.S. 130A-301.
(a1) The disposal of land clearing and inert debris in
a landfill with a disposal area of 1/2 acre or less pursuant to
G.S. 130A-301.1 shall be recorded as provided in G.S.
130A-301.1(c).
(a2) A Notice of Open Dump shall be recorded as
provided in G.S. 130A-301(f).
(a3) The disposal of demolition debris in an on-site
landfill having a disposal area of one acre or less shall be
recorded as provided in G.S. 130A-301.2.
(b) An inactive hazardous substance or waste disposal site
shall be recorded as provided in G.S. 130A-310.8.
(c) A Notice of Brownfields Property shall be
recorded as provided in G.S. 130A-310.35.
(d) A Notice of Oil or Hazardous Substance
Discharge Site shall be recorded as provided in G.S. 143-
215.85A.
(e) A Notice of Dry-Cleaning Solvent Remediation
shall be recorded as provided in G.S. 143-215.104M.
(f) A Notice of Contaminated Site shall be
recorded as provided in G.S.
143B-279.10.
(g) A Notice of Residual Petroleum shall be
recorded as provided in G.S.
143B -279.11."
SECTION 11. G.S. 130A-308, 130A-310.7,
130A-310.31, 130A-310.32, 130A-310.33, 143-215.84, 143-215.104B,
and 143-215.104K are amended by deleting the term "current
standards" and substituting the term "unrestricted use
standards" wherever the term "current standards" appears in
those sections of the General Statutes.
SECTION 12. Section 4 of S.L. 2000-51 reads as
rewritten:
"Section 4. Sections 1 and 2 of this act are effective
retroactively to 1 October 1999. Sections 3 and 4 of this act
are effective when this act becomes law. Section 1 of
this act expires 1 September 2001."
SECTION 13. This act becomes effective 1 September
2001. This act applies 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 except
that land-use restrictions and recordation of residual
contamination are not required with respect to a discharge or
release of petroleum for which the Department of Environment and
Natural Resources issued a determination that no further action
is required prior to 1 September 2001.
In the General Assembly read three times and ratified
this the 16th day of August, 2001.
s/ Beverly E. Perdue
President of the Senate
s/ James B. Black
Speaker of the House of
Representatives
s/ Michael F. Easley
Governor
Approved 5:36 p.m. this 26th day of August, 2001