§ 143-215.84. Removal of prohibited discharges. - North Carolina Statutes

§ 143‑215.84.  Removal of prohibited discharges.

(a)        Person Discharging. – Any person having control over oil orother hazardous substances discharged in violation of this Article shallimmediately undertake to collect and remove the discharge and to restore thearea affected by the discharge as nearly as may be to the condition existingprior to the discharge. If it is not feasible to collect and remove thedischarge, the person responsible shall take all practicable actions tocontain, treat and disperse the discharge; but no chemicals or otherdispersants or treatment materials which will be detrimental to the environmentor natural resources shall be used for such purposes unless they shall havebeen previously approved by the Commission. The owner of an underground storagetank who is the owner of the tank only because he is the owner of the land onwhich the underground storage tank is located, who did not know or have reasonto know that the underground storage tank was located on his property, and whodid not become the owner of the land as the result of a transfer or transfersto avoid liability for the underground storage tank shall not be deemed to beresponsible for a release or discharge from the underground storage tank.

(a1)      The Commission shall not require collection or removal of adischarge or restoration of an affected area under subsection (a) of thissection if the person having control over oil or other hazardous substancesdischarged in violation of this Article complies with rules governing thecollection and removal of a discharge and the restoration of an affected areaadopted by the Commission pursuant to G.S. 143‑214.1 or G.S. 143‑215.94V.This subsection shall not be construed to affect the rights of any person underthis Article or any other provision of law.

(b)        Removal by Department. – Notwithstanding the requirements ofsubsection (a) of this section, the Department is authorized and empowered toutilize any staff, equipment and materials under its control or supplied byother cooperating State or local agencies and to contract with any agent orcontractor that it deems appropriate to take such actions as are necessary tocollect, investigate, perform surveillance over, remove, contain, treat ordisperse oil or other hazardous substances discharged onto the land or into thewaters of the State and to perform any necessary restoration. The Secretaryshall keep a record of all expenses incurred in carrying out any project oractivity authorized under this section, including actual expenses incurred forservices performed by the State's personnel and for use of the State'sequipment and material. The authority granted by this subsection shall belimited to projects and activities that are designed to protect the publicinterest or public property, and shall be compatible with the NationalContingency Plan established pursuant to the Federal Water Pollution ControlAct, as amended, 33 U.S.C. section 1251 et seq.

(c),       (d) Repealed by Session Laws 1989, c. 656, s. 2.

(e)        Notification of Completed Removal of Prohibited Discharges.– The definitions set out in G.S. 130A‑310.31(b) apply to thissubsection. Any person may submit a written request to the Department for adetermination that a discharge of oil or a hazardous substance in violation ofthis Article has been remediated to unrestricted use standards. A request for adetermination that a discharge has been remediated to unrestricted usestandards shall be accompanied by the fee required by G.S. 130A‑310.39(a)(2).If the Department determines that the discharge has been remediated tounrestricted use standards, the Department shall issue a written notificationthat no further remediation of the discharge will be required. The notificationshall state that no further remediation of the discharge will be requiredunless the Department later determines, based on new information or informationnot previously provided to the Department, that the discharge has not beenremediated to unrestricted use standards or that the Department was provided withfalse or incomplete information. Under any of those circumstances, theDepartment may withdraw the notification and require responsible parties toremediate the discharge to unrestricted use standards.

(f)         In order to reduce or eliminate the danger to public healthor the environment posed by a discharge or release of oil or a hazardoussubstance, an owner, operator, or other responsible party may imposerestrictions on the current or future use of the real property comprising anypart of the site if the restrictions meet the requirements of this subsection.The restrictions must be agreed to by the owner of the real property, includedin 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. TheSecretary may approve restrictions included in a remedial action plan inaccordance with standards determined: (i) pursuant to rules for remediation ofsoil or groundwater contamination adopted by the Commission; (ii) with respectto the cleanup of a discharge or release from a petroleum underground storagetank, pursuant to rules adopted by the Commission pursuant to G.S. 143‑215.94V;or (iii) as provided in G.S. 130A‑310.3(d). Restrictions may apply toactivities on, over, or under the land, including, but not limited to, use ofgroundwater, building, filling, grading, excavating, and mining. Any approvedrestriction shall be enforced by any owner, operator, or other partyresponsible for the oil or hazardous substance discharge site. Any land‑userestriction may also be enforced by the Department through the remediesprovided in this Article, Part 2 of Article 1 of Chapter 130A of the GeneralStatutes, or by means of a civil action. The Department may enforce any land‑userestriction without first having exhausted any available administrativeremedies. A land‑use restriction may also be enforced by any unit oflocal government having jurisdiction over any part of the site. A land‑userestriction shall not be declared unenforceable due to lack of privity ofestate or contract, due to lack of benefit to particular land, or due to lackof any property interest in particular land. Any person who owns or leases aproperty subject to a land‑use restriction under this Part shall abide bythe land‑use restriction. (1973, c. 534, s.1; c. 1262, s. 23; 1975, c. 885; 1977, c. 771, s. 4; 1979, c. 535, s. 15; 1987,c. 827, ss. 154, 193; 1989, c. 656, s. 2; 1991, c. 538, s. 14; 1995, c. 377, s.13; 1997‑357, s. 7; 1997‑394, s. 4; 1997‑456, s. 50; 2001‑384,s. 11.)