15A NCAC 2P Rules for the Administration of the leaking petroleum underground storage tank funds (LPUST's) Piblic Hearing Record

2 p
R U L E S F O It ADM I:'Nl'ST RATION
OF THE LEAX~WG ~E~ROLEUH
UNDERGROUND STORAG E TANK FUNDS
( L P U S T ' s )
P U B L I C H E A R I N G REC O RO
I
l't
1 5 A N C A C 2 p
R u L E s F 0 R T H E
A D M I N I s T R A T I 0 N 0 F T H E
L E A K I NG p E T R 0 L E u M
u N D E R G R 0 UN D s T 0 R A G E T AN K
FUN D s
TA B L E 0 F C 0 N T E N T S
(APPROVAL DATE: February 1, 1993 )
I. FINAL APPROVAL MATERIALS
A) Submission for filing form
B) Rule approved by Rules Review Commission
(RRC)
C) RRC Memoranda and Final Changes to Rules
II. HEARING AND PUBLIC NOTICE MATERIALS
A) Public Notice form and request for
adoption
B) Summary of Hearing Officers
Recommendations to the Environmental
Management Commission
C) Public Comment and Responses
D) Proceedings of Hearings
E) Fiscal Note
F) Rule presented at hearings
III. RULEMAKING SUPPORT DOCUMENTS
IV. PUBLIC COMMENTS.
V. CORRESPONDENCE
SUBJ\,IISSION FOR FILING
-,.
I. Certifying Agency: 2. Rule Citation:
Environmental Management Commission 15A NCAC 2P.0101
3. Rule Catchline C:"ame): 4. Statutory Authority for Rule: 143-215.3; 143-215.94D;
General 143-215.94£; 143·215.94G; 143·215.94l; 143·215.94T ; 1438-282
s. Action: 6. Proposed Effective Date:
~1 ADOPTION □ A:\IEND:\fEi°'T □ REPEAL February 1 ' ·1993
7.
~ :\oticc in Register lg] Public Hearing □ :\otice and Public Hearing ;"\ot Required
Date: June 15, 1992 Date: Jull 7, 1992 L'nder G.S.
Oate: Date: July 9, 1992
Date: Date: July 13, 1992
8. Ruic Summary (not required for a repealed rule):
This Rule states the purpose of the Subchapter, designates the
Agency which wi 11 administer these Rules, and establishes the
criteria for Department cleanup actions.
9. Statement of :\ccessity for Ruic !Sec G.S. 1508-21.2, 1508-21.91 (not required for a repealed rule):
This Rule is necessary for the Administration of the Leaking
Petroleum Underground Storage Tank Cleanup Act of 1988
(G.S. 143-215.94A et seq.).
10. Rulemaking Coordinator or Agency Contact: ~;zA~l~ Portia Rochelle/J. William Reid
Address: Tv~d :\ame: p How·ard, Jr. ' for · ~ reston A.
826-H Archdale Bldg. Environmental Management Commission
Phone: Title: Acting Director,
733-6376/733-1313 Division of Environmental Management
Rules Rc\'icw Commission l,;se Only Office of Administrative I lcarings Use Only
Action Taken:
□ Approval
□ Objection
□ Extension of Review
□ Cu1"atfre Rule Effectfre Date:
J Returned Unchanged Approved h}":
-
FORl\t OAll-1 (REVISED 10/91)
SUBJWISSION FOR FILING
I. Certifying Agency: 2. Rule Citation:
Environmental Management Commission 15A NCAC 2P.0103
3. Rule Catchline C\;ame): 4. Statutory Authority for Rule: 143-215,3; 143-215.94E;
False or Misleading Information '143-215.94l; 143-215.941; 1438-282
s. A<:tion: 6. Proposed Effective Date:
~ ADOPTION □ A::\fENO'.\IEi'"T □ REPEAL February 1 ' 1993
·1/.
~ '.'.otice in Register IBl Public Hearing □ Notice and Public I !earing ;";ot Required
Date: June 15, 1992 Date: July 7' 1992 l,'nder G;S.
Date: Date: July 9, 1992
Date: Date: July 13, 1992
8. Rule Summary (not required for a repealed rule):
This Rule clarifies the eligibility of an owner or operator who
knowingly submits false or misleading information.
9. Statement of"\ccessity for Ruic !Sec G.S . 1508-21.2, 1508-21.91 (not required for a repealed rule):
This Rule is needed to clarify G.S. 143-215.94E(g)(1).
IO. Rulemaking Coordinator or Agency Contact:
11~;:xcn/;~a~ Portia Roche 11 e/ J. William Reid
Address: T,·pe~e· · · Preston A. Howard, Jr., for
826-H Archdale Bldg. Environmental Management Commission
Phone: Title: Acting Director,
733-6376/733-1313 Division of Environmental Management
Rules ReYicw Commission t:sc Only Office or Adm inistrative I learings Use Only
Action Ta ken:
□ Approval
□ Objection
□ Extension of Review
□ Curatii·e Rule Effecti,•e Date:
□ Returned Unchanged Approved by:
FORI\I 0 .-\11-1 (RE\'ISEO 10/91)
SUBI\USSION FOR FILING
I. Certifying Ag1;ncy: 2. Rule Citation:
Environmental Management Commission 15A NCAC 2P.0201
3. Rule Catchline f"ame): 4 . Statutory Authority for Rule: 143-215.3; 143-215.948; 143-215.94C;
Applicability 143-215,940; 143-215.94E; 143-215 .94l; 143-215.94T; 1438-282
S. Action: 6. Proposed Effective Date:
IR1 ADOPTION □ A:\tEN0:\1E~T □ REPEAL February 1 ' 1993
7.
IB] :\otice in Register IB) Public Hearing □ Notice and Public Hearing '.'iot Required
Date: June 15, 1992 Date: July 7' 1992 Under G.S.
Date: Date: July 9, 1992
Date: Date: July 13, 1992
8. Ruic Summary (not required for a repealed rule):
This Rule designates to whom this Subchapter I 1 . app . ,es.
! I
9. Statement of :\eccssity for Ruic !See G.S. 1508-21.2, 1508-21.91 (not required for a repealed rule):
This Rule is needed to clarify the scope of the Subchapter.
10. Rulcmaking Coordinator or Agency Contact: •~;z:enc;;;s~ Portia Rochelle/J. Wi 11 iam Reid
Address: T,·pcd /JJ',c: · Preston A. Howard, Jr. ' for
826-H Archdale Bldg. Environmental Management Commission
Phone: Title:
Acting Director,
7~~-n~7n/7~~-1~1~ Oivi~inn of l=nvirnnmAnf-,al MRnRaAm11:int
Rules Review Commission t;sc Only Office of Administrative I (earings Use Only
Action Taken:
□ Approval
□ Objection
□ Extension of Rci:iew
□ Curatii·e Rule Effecti,•e Date:
□ Returned Unchanged Approvl!d /Jy:
FORl\1 OAll-1 (RE\'IS E D 10/91)
SUBI\USSION FOR FILING
I. Certifying Agency: 2. Rule Citation:
Environmental Management Commission 15A NCAC 2P.0202
3. Rule Catchline (:'-:ame): 4. Statutory Authority for Rule: 143-215,3; 143·215.94A; 143-215,948;
Definitions 143-215.94C; 143-215.940; H3-215.94E; 143-215.94l; 143-215.94!; 1438-282
5. Action: 6. Proposed Effective Date:
jg] ADOPTlON □ A:\1EN'D:\fEi''ff □ REPEAL February 1 ' 1993
7.
~ ;'\" otice in. Register
1992 181 Public Hearing □ l\otice and Public I fearing :'\ot Required
Date: June 1 5 , Date: July 7' 1992 l;nder G.S .
Date: Date: July 9, 1992
Date: Date: July 13, 1992
8. Ruic Summary (not -required -for a repealed rule):
This Rule defines the terms used in this Su bchapte r .
9. Statement of ;'l;cccssity for Ruic !Sec G.S. I S0B-21.2, 1508-21.91 (not required for a repealed rule):
This Rule is necessary in order to understand the content of the
Subchapter.
10. Rulcmaking Coordinator or Agency Contact: 11. Sit,tJa, Agency I I~
Portia Rochelle/J. William Reid ,-.... -~ a..-.. /c◄
Address: T,·p~me· · · · "Preston A. Howard, Jr., for
826-H Archdale Bldg. Environmental Management Commission
Phone: Title: Acting Di rector,
733-6376/733-1313 Division of Environmental Management
Rules Rc,,icw Commission t.:sc Only Office of Administrative I learings ·l;se Only
Action Taken:
□ Approval
□ Objection
□ Extension of Review
□ Curati-re Rule Effectfre Date:
□ Returned Unchanged Approved by:
FORl\1 OAll-1 (REVISED 10/91)
SUB1\iIISSION FOR FILING
I. Certifying Agency: 2. Rule Citation:
Environmental Management Commission 15A .NCAC 2P.0301
3. Rule Catchline ~ame): 4. Statutory Authority for Rule: 143-215.3; 143-215.94C;
Fees and Payment 143-215.940; 143·215,94E; 143·215.94L; 143-215,941; 1438-282
5 . Action : 6. Proposed Effective Date:
@ ADOPTION □ A :VtEND:\1'E1"T □ REPEAL February 1 ' 1993
7.
0 ~oticc in Register ~ Public Hearing □ Notice and Public Hearing :'\ot Required
Date: June 1 5 I 1992 Date: Jult 7 ! 1992 lJnder G.S.
Date: Date: July 9, 1992
Date: Date: July 13, 1992
8. Ruic Summary (not required for a repealed rule):
This Rule specifies when annual operating fees are due and how the
amount of those fees are determined.
·!
9. Statement of '.'l,;eces..,ity for Ruic (See G.S. 1508-21.2, 1508-21.9( (not required for a repealed rule):
This Rule is needed to clarify the requirements to pay fees
contained in G.S. 143-215.94C.
10. Rulemaking Coordinator .or Agency Contact: ·tp;:;::.~~ ~~ Portia Rochelle/J. William Reid
Address: T,·ped~me: for • -c Preston A. Howard, Jr.'
826-H Archdale Bldg. Environmental Management Commission
Phone: Title:
Acting Director,
7~~ n~7n/7~~-1~1~ nivii:::inn nf l=nv i --"llcnt".;:il M~n R aAmPnt:
Rules Re,·iew Commission Vse Only Office of Administrath•e I learings Vse Only
Action Taken:
□ Approval
□ Objection
□ Extension of Rci,iew
□ Cu,.atfre Rtde Effectii•e Date:
I □ Returned Fnchanged Appro ved by:
FORl\t OAll-1 (RE\'ISED 10/91)
SUBl\-lISSION FOR FILING
I. Certifying Agency: 2. Rule Citation:
Environmental Management Commission 15A NCAC 2P.0302
3. Rule Catchline (:\'ame): 4. Statutory Authority for Rule: 143-215,3; 143·215.94L
Notification 143-215,94l; 143·215.94T; 143·215.94T; 1438-282
s. Action: 6. Proposed Effective Date:
@ ADOPTION □ A:\IEND:\1E~T □ REPEAL February 1 ' 1993
7.
gJ 7'oticc in Register (g] Public Hearing □ l\'otice and Public Hearing :\ot Required
Date: June 15, 1992 Date: July 7, 1992 Under G.S.
Date: Date: July 9, 1992
Date: Date: July 13, 1992
8. Rule Summary (not required for a repealed rule):
This Rule requires person acquiring ownership of an existing
underground storage tank to notify the Department 1of .the change in
ownership.
9. Statement of:\'ecessity for Ruic !See G.S. IS0U-21.2, 150U-21.9l (not required for a repealed rule):
The Rule is needed to effectively administer the collection of
annual operating fees.
10. Rulcmaking Coordinator or Agency Contact: 1#,ure of Agency I~
Portia Rochelle/J. Wi 11 iam Reid ~da ...... ,c
Address: Tfi,~ame: Pres ton A. Howard, Jr.' for
826-H Archdale Bldg. Environmental Management Commission
Phone: Title: Acting Director,
733-6376/733-1313 Division of Environmental Management
Rules Rc,·icw Commission L'sc Only Office of Administrative I learings Use Only
Action Taken:
□ Approval
□ Objection
□ Extension of Review
□ Curatii·e Rule Effectfre Date:
□ Returned Unchanged Approved by:
FOR/\! OAll-1 (RE\'ISED 10/91)
SUBl.\USSION FOR FILING
I. Certifying Agency: 2. Rule Citation:
Environmental Management Commission 15A NCAC 2P.0402
3. Rule Catchline C"ame): 4. Statutory Authority for Rule: 143-215.3; 143-215.948;
Cleanup Costs 143-215.940; 143-215,94E; 143-215.94L; 143-215.94T; 1438-282
s. Action: 6. Proposed Effective Date:
Kl ADOPTION □ A'.\IEND:\fEi',;T □ REPEAL February 1 ' 1993
7.
[] ;\oticc in Register ~ Public Hearing □ Notice and Public Hearing :'iot Required
Date: June 15, 1992 Date: July 7 ' 1992 L'nder G.S.
Date: Date: July 9, 1992
Date: Date: July 13, 1992
8. Ruic Summary (not required for a repealed rule):
This Rule clarifies which costs wi 11 not be reimbursed and how the
Department wi 11 determine which costs are reasonable and necessary.
9. Statement of :'\cces sity for Ruic !See G.S. 1508-21.2, 1508-21.91 (not required for a repealed rule):
This Rule is needed to remove any misunderstanding about what costs
may be reimbursed.
10. Rulemaking Coordinator or Agency Contact: 11. Sigf ture of Agency llead: ~~
Portia Rochelle/J. William Reid ~ t~-~ l ~ K . u. . ~
Address : T\·ped~f p t · res on A. Howard, Jr. ' for
826-H Archdale Bldg. Environmental Management Commission
Phone: Title: Acting Director,
733-6376/733-1313 Division of Environmental Management
Rules Rc,·icw Commission t:se Only Office of Administratiw Jlearings Lse Only
Action Taken:
□ Appro,•al
□ Objection
□ Extension of Review
□ Cw·ati,·e Kille Effecti,•e Date:
□ Returned Unchanged Appror:ed by:
FORI\I OAll-1 (R E\'ISED 10/91)
SUB.l\USSION FOR FILING
I. Certifying Agency: 2. Rule Citation:
Environmental Management Commission 15A NCAC 2P.0404
3. Rule Catchline (;\'ame): 4. Statutory Authority for Rule: 143-215.3; 143-215.94£
Requests for Reimbursement 143-215.94G; 143-215,!U; 143-215,94!; 1438-282
5. Action: 6. Proposed Effective Date:
~ ADOPTION □ A'.\lEND:\fE~T □ REPEAL February 1 , 1993
7.
IB] ;\;oticc in Register ~ Public Hearing □ Notice and Public Hearing :\"ot Required
Date: June 15 I 1992 Date: JUl z'. 7 I 1992 l,'nder G.S.
Date: Date: July 9, 1992
Date: Date: July 13, 1992
8. Ruic Summary (not required for a repealed rule):
This Rule sets the procedures for the submission and review of
reimbursement requests.
9. Statement of ~cccssity for Ruic (See G.S . 150B-21.2, 1508-21.91 (not required for a repealed rule):
This Rule is necessary for the Department to be able to administer
the Funds.
.J
10. Rulcmaking Coordinator or Agency Contact: I I. Signay e of Agency I lead: c-
Portia Rochelle/J. Wil 1 iam Reid ~,-ru-L 1c ~
Address: Ty~e: Preston A .• Howard, Jr. ' for
826-H Archdale Bldg. Environmental Management Commission
Phone: Title: Acting Director,
733-6376/733-1313 Division of Environmental Management
Rules Re,·icw Commission Lse Only Office of Administrative I learings L'se Only
Action Taken:
□ Approi•al
□ Objection
□ Extension of Review
□ Curatii·e Rule Effectfre Date:
□ Returned Unchanged Approved by:
FORl\1 OAll-1 (R E\'JSEO 10/91)
SUBl\USSION FOR FILING
I. Certifying Ag~ncy: 2. Rule Citation:
Environmental Management Commission 15A NCAC 2P.0406
3. Rule Catchline (:\'ame}: 4. Statutory Authority for Rule: 143-215.3;
Reimbursement Apportionment 143-215,94E; 143-215.94L; 143-215,941; 1438-282
S. Action: 6. Proposed Effective Date:
00 ADOPTION □ A:\IEND:\1Ei'H □ REPEAL February 1 ' 1993
7.
~ ;\otice in Register IBI Public Hearing □ Notice and Public Hearing :\'ot Required
Date: June 15, 1992 Date: July 7, 1992 L'nder G.S.
Date: Date: July 9' 1992
Date: Date: July 13, 1992
8. Ruic Summary (not required for a repealed rule):
This Rule specifies how the Department wi 11 treat cleanups of
releases from multiple tanks that have varying eligibilities under
the terms of the Funds.
9. Statement of :\°cccssity for Ruic (Sec G.S. 1508-21.2, 1508-21.91 (not required for a repealed rule}:
This Rule is needed to clarify how the Department will treat complex
cases.
J
10. Rulcmaking Coordinator or Agency Contact: ~g:;~~ Portia Rochelle/J. William Reid
Address: T,· ewe: -.P Preston A. Howard, Jr., for
826-H Archdale Bldg. Environmental Management Commission
Phone: Title: Acting Director,
733-6376/733-1313 Division of Environmental Management
Rules ReYiew Commission t:se Only Office of Administrative Hearings L'se Only
Action Taken:
□ Approval
□ Objection
□ Extension of Review
□ Cw·atfre Rule Effectfre Date:
□ Returned Unchanged Approved by:
fORi\l OAll-1 (REVISED 10/91)
EllNR -ENVIRONMENTAL MANAGEMENT TlSA: 02P .0100 I
CHAPTER 2 -ENVIRONMENT AL MANAGEMENT
SUBCHAPTER 2P -LEAKING PETROLEUM UNDERGROUND STORAGE TANK CLEANUP
FUNDS
SECTION .0100-GENERAL CONSIDERATIONS
.0101 GENERAL
(a) The purpose of this Subchapter is to establish criteria and procedures for the reimbursement of costs
incurred by owners and operators from the Leaking Petroleum Underground Storage Tank Cleanup Funds.
(b) The Groundwater Section of the Division of Environmental Management of the Department of
Environment, Health, and Natural Resources shall administer the Commercial and Noncommercial
Underground Storage Tank Cleanup Funds for the State of North Carolina.
(c) As authorized by G.S. 143-215.940, the Department may engage in cleanup work it deems appropriate
and pay the costs from the Noncommercial Fund in accordance with G.S. 143-215.94D.
( d) The, Department may engage in investigations and cleanups in accordance with the severity of threat to
human health and safety and to the environment. and the availability of resources, as determined by the
Division.
History Note: Statutory Authority G. S. l 43-215. 3; l 43-215. 76; l 43-215. 94D,· l 43-215. 94£; l 43-215. 94G;
143-215. 94L,· 143-215. 94T; l 43B-282;
'4/f. February 1, 1993 .
. 0102 COPIES OF RULES INCORPORATED BY REFERENCE
(a) Copies of applicable sections of Subchapter 2N of Title 15A, North Carolina Administrative Code
incorporated by reference in this Subchapter, including any subsequent amendments and editions, are available
for public inspection at Department of Environment, Health, and Natural Resources Regional Offi_ces . They
are:
(l) Asheville Regional Office, Interchange Building, 59 Woodfin Place, Asheville, No11h Carolina
28801;
(2) Winston-Salem Regional Office, Suite 100, 8025 North Point Boulevafd, Winston-Salem, North
Carolina 27106;
(3) Mooresville Regional Office, 919 North Main Street, Mooresville, North Carolina 28 I 15;
(4) Raleigh Regional Office, 3800 Barrett Drive, Post Office Box 27687, Raleigh, North Carolina
27611;
(5) Fayetteville Regional Office, Wachovia Building, Suite 714, Fayetteville, North Carolina 2830 I;
(6) Washington Regional Office, 1424 Carolina Avenue, Farish Building, Washington, No11h Carolina
27889;
(7) Wilmington Regional Office, 127 Cardinal Drive Extension, Wilmington, North Carolina 28405.
(b) Copies of such rules can be made at these regional offices for ten cents ($0. 10) per page.
History Note: Statutory Authority G.S. 12-3.l(c); 143-215.3; 143-2/5.94L; 143-215.94T; 143B-282;
150B-21.6;
'4/f. February 1, 1993 .
. 0103 FALSE OR MISLEADING INFORMATION
Any owner or operator or authorized agent who knowingly submits any false or misleading information with
regard to these Rules may be considered to be contributing to a discharge, interfering with the mitigation of
a discharge, or preventing the early detection of a discharge pursuant to G.S. l43-215.94E(g)(I) if the false
or misleading information results in delay of any efforts to stop the release or discharge, results in delay of
detection of any portion of the discharge or release, or results in delay of investigatory or remedial activities.
NORTH CAROLINA ADMINISTRATIVE CODE 02/24/93 Page 1
EHNR -ENVIRONMENTAL MANAGEMENT TISA: 02P . 0100
History Note: Statutory Authority G.S. 143-2/5.3; 143-215.94£; /43-2/5.94L; /43-2!5.94T; /43B-282;
£;If. February 1, 1993.
NORTH CAROLINA ADMINISTRATIVE CODE 02/24/93 Page 2
EHNR -ENVIRONMENTAL MANAGEMENT TISA: 02P . 0200
SECTION .0200 -PROGRAM SCOPE
.0201 APPLICABILITY
(a) This Subchapter shall apply to the disbursement of funds from the Commercial Leaking Petroleum
Underground Storage Tank Cleanup Fund and Noncommercial Leaking Petroleum Underground Storage Tank
Cleanup Fund, and to the collection of annual operating fees.
(b) Any portions of this Subchapter which concern annual tank operating fees apply to all owners and
operators of Commercial Underground Storage Tanks that have been in use in North Carolina on or after
January 1, 1989.
(c) This Subchapter shall apply to discharges or releases from noncommercial or commercial underground
storage tank systems, regardless of whether such systems are regulated under Subchapter 2N of Title 15A,
of the North Carolina Administrative Code.
History Note: StatutoryAuthorityG.S. 143-215.3; 143-215.94B; 143-215.94C; 143-215.94D; 143-215.94£;
143-215.94L; 143-215.94T; 143B-282;
F;IJ. February 1, 1993 .
. 0202 DEFINITIONS
(a) The definitions for "Criteria and Standards Applicable to Underground Storage Tanks" contained in I 5A
NCAC 2N .0203 are hereby incorporated by reference including subsequent amendments.and editions, except
that for the purposes of this Subchapter, the definition of "Underground Storage Tank" shall be as defined in
Subparagraph (b)(l2) of this Rule.
(b) The following terms are defined for use in this Subchapter:
(1) "Annual operating fee" is an annual fee required to be paid to the Department by the owner or
operator of each commercial underground storage tank in use on or after I January of the year,
beginning with 1989.
(2) "Commission" means the Environmental Management Commission as organized under G.S. 1438.
(3) "Department" means Department of Environment, Health, and Natural Resources.
(4) "Discovered release" means a release which an owner or operator, or its employee or _agent, has
been made aware of, has been notified of, or has a reasonable basis for knowing has occurred.
(5) "Dual usage tank" means an underground storage tank which could be considered both a
commercial underground storage tank and a noncommercial underground storage tank and for
which both the commercial and the noncommercial usages are integral ta'the operation or existence
of the tank.
(6) "Household" means a permanent structure, whether free-standing or connected to other units, used
primarily for living, where primary living space and primary food preparation frtcilities ar~
controlled or maintained by the residents. "Household" includes single-family houses, mobile
homes, apartments, and single living units, whether or not the residents are related to each other
and whether the units are occupied on a year-round basis or seasonal basis. "Household" does not
include dormitories, hospitals, hotels, motels, apartment buildings (as distinct from the individual
apartments therein), or other multiple dwelling structures. The term "four or few.er households"
shall relate to underground storage tanks serving households only.
(7) "Occurrence" means one or·more release(s) that result(s) in a single plume of soil, surface water,
or groundwater contamination (consisting of free product or dissolved contaminants exceeding
standards specified in ISA NCAC 2L or any other applicable laws, rules or regulations) originating
at a single property.
(8) "Reasonable and necessary expenditures" means expenditures for the cleanup of environmental
damage performed in accordance with applicable environmental laws and regulations and which
are essential in determining the extent o( contamination, in conducting release response or
remediation, or which compensates third parties for resulting bodily injury and property damage.
The Commission shall consider such expenditures reasonable and necessary to the extent that they
are sufficiently documented, are performed in an efficient manner considering comparable costs
for labor, equipment, and materials, and utilize cost-efficient methods.
NORTH CAROLINA ADMINISTRATIVE CODE 02/24/93 Page 1
EHNR -ENVIRONMENTAL MANAGEMENT Tl SA: 02P . 0200
(9) "Substantive law, rule, or regulation" shall mean any law, rule, or regulation requiring an owner
or operator to perform any act necessary and essential in preventing discharges or releases, in
facilitating their early detection, and in mitigating the impact of discharges or releases.
(IO) "Tank in operation" means an underground storage tank into which product is added or from which
product is removed for purposes other than closure.
(11) "Tank in use" means an underground storage tank intended for the containment or dispensing of
petroleum product.
( 12) "Underground storage tank", as used in this Subchapter means any Commercial or Noncommercial
Underground Storage Tank as defined in G.S. l43-215.94A. A dual usage tank is considered to
be a Commercial underground storage tank.
History Note: Statutory Authority G.S. 143-215.3; 143-215.94A; 143-215.94B; 143-215.94C; 143-215.94D;
143-215.94E; 143-215.94L; 143-215.94T; 143B-282,·
£;ff February 1, 1993.
NORTH CAROLINA ADMINISTRATIVE CODE 02/24/93 Page 2
EHNR -ENVIRONMENTAL MANAGEMENT TISA: 02P . 0300
SECTION .0300 -ANNUAL OPERATING FEES
.0301 FEES AND PAYMENT
(a) The owner or operator of each commercial underground storage tank shall pay all annual tank operating
fees due for that underground storage tank.
(b) The Division shall send an invoice, for the amount of the annual operating fees due, to the owner or
operator of any commercial petroleum underground storage tank in use on January I of the year and which
has been registered with the Department. The annual operating fee shall be due and payable 30 days following
the date of the invoice and shall be submitted to the Division accordingly.
(c) Any owner or operator not receiving an invoice for annual operating fees shall still pay any fees due
according to the following schedule:
(1) If the owner or operator has paid annual operating fees for the subject tank in previous years, the
payment will be submitted to the Division within 30 days of the anniversary of the last invoicing
date for the fees.
(2) If the owner or operator has not previously paid annual operating fees for the subject tank, any
annual operating fee is due on I January of that year and shall be submitted to the Division
accordingly ..
(d) Any commercial underground storage tank (except commercial underground storage tanks not regulated
under 15A NCAC 2N) which was in operation on or after December 22, 1988 and has not been permanently
closed in accordance with 15A NCAC 2N .0800 is considered to be in use unless th~ provisions of G.S.
143-2J5.94D(b)(4) are applicable.
(e) Any annual operating fee due on or after January I, 1992, that is not paid within 30 days of the due date
shall be subject to a late penalty of five dollars ($5.00) per day up to an amount equal to the original fee. The
late penalty will be assessed based on the date of receipt of fee payment by the Division.
(f) All annual operating fees due for any year are ·assessed in accordance with the schedule of fees in effect
during that year. Payment of fees due for a prior year will be at the rate in effect during that prior year. It
is the responsibility of the owner or operator to determine that all fees have been paid in accordance with
Paragraph (a) of this Rule.
(g) In the event that an annual operating fee was paid for a tank for which a fee was not required, a refund
of that fee payment may be requested by the owner or operator. A refund will be granted if the owner or
operator provides adequate documentation that the tank was exempt from the requirement to pay the annual
operating fee.
History Note: StatutoryAuthorityG.S. 143-215.3; 143-215.94C; 143-215.94D; 143-215.94£; 143-215.94L;
143-215. 94T; J 43B-282;
£;ff February 1, 1993 .
. 0302 NOTIFICATION
Any person acquiring ownership of an existing commercial underground storage tank shall provide written
notification to the Division of this action within 30 days of the date of transfer. This notification must indicate
the following:
(I) Name and address of the previous owner and the new owner;
(2) Name, identification number, and street address of the facility;
(3) Date of transfer;
(4) Signatures of the transferring owner and the new owner or their authorized representatives.
History Note: Statutory Authority G.S. 143-215.3; 143-215.94L; 143-215.94T; 143B-282;
£;ff February I, 1993.
NORTH CAROLINA Af)MINISTRATIVE CODE 02/24/93 Page 1
EHNR -ENVIRONMENTAL MANAGEMENT
SECTION .0400 -REIMBURSEMENT PROCEDURE
.0401 ELIGIBILITY OF OWNER OR OPERATOR
(a) Date of Release:
TlSA: 02P . 0400
(1) An owner or operator of a commercial underground storage tank is not eligible for reimbursement
for costs related to releases which were discovered prior to June 30, 1988.
(2) An owner or operator of a noncommercial underground storage tank is eligible for reimbursement
for costs without regard to the date a release is discovered.
(3) An owner or operator of a commercial underground storage tank, from which a release is
discovered on or after July 3, I 991, is not eligible for reimbursement if the tank had been removed
from the ground more than 120 days prior to the date of discovery of the release ..
(b) An owner or operator of a commercial underground storage tank is not eligible for reimbursement for
costs related to releases if any annual operating fees due have not been paid in accordance with Rule .030 I
of this Subchapter prior to discovery. A previous owner or operator of a commercial underground storage
tank may be eligible for reimbursement of costs for cleanup of a release discovered after he ceases owning
or operating the underground storage tank if all fees due during his period of ownership and operation have
been paid prior to discovery of the release.
(c) An owner or operator of a commercial or noncommercial underground storage tank is not eligible for
reimbursement of any expended costs which are in excess of the amount determined reasonable in accordance
with Rule .0402 of this Section, and which are not necessary in performing cleanup of environmental damage
and in compensating third parties for bodily injury and property damage, and which are less than any
deductible established for the appropriate fund.
(d) An owner or operator of a commercial or noncommercial underground storage tank may be reimbursed
for eligible costs only after submittal of a written application to the Division, on forms provided by the
Division, and which includes any information and documentation necessary to determine eligibility and to
determine that any expended costs are reasonable and necessary.
(e) An owner or operator of a commercial or noncommercial underground storage tank shall not be eligible
for reimbursement for costs related to releases if the owner or operator has willfully violated any substantive
law, rule, or regulation applicable to underground storage tanks intended to prevent, mitigate, or fa.cilitate the
early detection of discharges or releases.
(f) The release response and corrective action requirements of any rules of the Commission and of any
statute administered by the Department shall not in any way be construed as limited by, or contingent upon,
any reimbursement from either the Noncommercial Fund or the Commercial Fund'.
History Note: Statutory Authority G. S. 143-215. 3; 143-215.94E; 143-215.94L; 143-215. 94N; 143-215. 94T;
143B-282;
F;[f. February 1, 1993 .
. 0402 CLEANUP COSTS
(a) In determining whether costs expended by an. owner or operator are reasonable and necessary, the
Division shall consider the following:
(l) Adequacy and cost-effectiveness of any work performed and technical activity utilized by the owner
or operator in performing release response, site assessment and corrective action.
(2) Typical billing rates of engineering, geological, or other environmental consulting firms providing
similar services in the State as determined by the Division.
(3) Typical rental rates for any necessary equipment as determined by the Division. The amount
reimbursed for equipment rental shall not exceed the typical purchase price of such equipment.
(4) Typical costs or rates of any other necessary service, labor or expense as determined by the
Division.
(b) Expenditures not eligible for reimbursement shall include the following:
(I) Costs of the removal and disposal of noncommercial underground storage tanks and contents
removed on or after July 3, 1991, and of commercial underground storage tanks and contents
removed on or after January I, 1992;
NORTH CAROLINA AD.MINISTRATIVE CODE 02/24/93 -·-.-_~.,,-.. _ .... Page 1
EHNR -ENVIRONMENTAL MANAGEMENT TISA: 02P . 0400
(2) Costs of the replacement of any underground storage tank, piping, fitting, or ancillary equipment;
(3) Costs incurred in preparation of any proposals or bid by a provider of service for the purpose of
soliciting or bidding for the opportunity to perform an environmental investigation or cleanup, even
if that provider is ultimately selected to provide the service solicited;
(4) Interest on any accounts, loans, etc.;
(5) Expenses charged by the owner or operator in the processing and management of a reimbursement
application or subsequent claims;
(6) Attorney's fees;
(7) Penalties, fees, and fines assessed by any court or agency;
(8) Loss of profits, fees, and wages incurred by the owner or operator;
(9) Any other expenses not specifically related to environmental cleanup, or implementation of a cost
effective environmental cleanup, or third party bodily injury or property damage.
History Note: Statutory Authority G.S. 143-215.3; 143-215.94B; 143-215.94D; 143-215.94£; 143-215.94L;
143-215. 94T; 143B-282;
/<;ff February 1, 1993 .
. 0403 THIRD PARTY CLAIMS
(a) An owner or operator seeking reimbursement from the appropriate fund for any third party claim for
bodily injury or property damage must notify the Division of any such claim. The owner or operator must
provide the Division with all pleadings and other related documents if a lawsuit has been filed. The owner
or operator shall provide to the Division copies of any medical reports, statements, investigative reports, or
certifications from licensed professionals necessary to determine that a claim for bodily injury or property
damage is reasonable and necessary.
(b) . The term third party bodily injury means specific physical bodily injury proximately resulting from
exposure, explosion, or fire caused by the presence of a petroleum release and which is incurred by a person
other than the owner or operator, or employees or agents of an owner or operator.
(c) The term third party property damage means actual physical damage or damage due to specific loss of
normal use of property owned by a person other than the owner or operator of an underground storage tank
from which a release has occurred. A property owner shall not be considered a third party if the property
was transferred by the owner or operator of an underground storage tank in anticipation of damage due to a
release. Third party property damage shall be reimbursed from the appropriate fund based on the rental costs
of comparable property during the period of loss of use up to a maximum amount equal to the fair market
value . In the case of property that is actually destroyed as a result of a petroleum release, reimbursement shall
be at an amount necessary to replace or repair the destroyed property. ·'
History Note: Statutory Authority G. S. 143-215. 3; 143-215. 94B: 143-215. 94D : 143-215. 94E: 143-215. 94L:
J43 -215.94T; 143B -282;
£;ff February I, 1993 .
. 0404 REQUESTS FOR REIMBURSEMENT
(a) An application for reimbursement must be made on a form provided by the Division. The application
form must accompany the initial reimbursement request.
(b) A request for reimbursement shall include copies of any documentation required by the Division to
determine that expended costs are reasonable and necessary. Proof of payment must accompany any request
for reimbursement, except when reimbursement will be made jointly to the owner or operator and either a
provider of service or a third party claimant. The Division may require the owner or operator to submit any
information required for the purpose of substantiating any claim for reimbursement on forms provided by the
Division.
(c) A request for reimbursement may be returned or additional information requested by the Division, if
it is found to be incomplete.
(d) The Division shall reimburse an owner or operator for expenses following completion of any significant
phase of cleanup work or in accordance with the schedule allowed by G.S . 143-215.94E(e).
(e) lf any amount approved for reimbursement is less than the amount of reimbursement requested, the
Division shall issue a written explanation of why the amount requested was not approved .
NORTH CAROLINA ADMINISTRATIVE CODE 02/24/93 Page 2
J t I 4
EHNR -ENVIRONMENTAL MANAGEMENT TISA: 02P . 0400
History Note: Statutory Authority G.S. 143-215.3; 143-215.94£; J43-215.94G; 143-215. 94L; 143-215.94T;
143B-282;
E;ff. February 1, 1993 .
. 0405 METHOD OF REIMBURSEMENT
(a) Reimbursement for cleanup costs shall be madi only to an owner or operator of a petroleum
underground storage tank, or jointly to an owner or operator and a provider of service.
(b) Reimbursement of cleanup costs to the owner or operator shall be made only after proof of payment for
such costs has been received by the Division.
(c) Joint reimbursement of cleanup costs shall be made to an owner or operator and a provider of service
only upon receipt of a written agreement acknowledged by both parties. Any reimbursement check shall be
sent directly to the owner or operator.
(d) Payment of third party claims shall be made to the owner or operator, or jointly to the owner or
operator and the third party claimant.
History Note: Statutory Authority G.S. 143-215.3; 143-215.94£; 143-215.94L; 143-215.94T; 143B-282;
E;ff. February 1, 1993 .
. 0406 REIMBURSEMENT APPORTIONMENT
(a) Where multiple occurrences are addressed in a single cleanup action, expenses will be reimbursed based
on apportionment among the occurrences. The method of apportionment will be as follows:
(l) Expenses related directly to a particular occurrence shall be applied only to that occurrence;
(2) Expenses that are related to more than one occurrence will be apportioned equally among the
occurrences.
(b) Where not all underground storage tanks contributing to an occurrence are eligible for reimbursement,
reimbursement will be made at a rate equal to the number of tanks contributing to the occurrence which are
eligible for reimbursement divided by the total number of tanks contributing to the occurrence.
(c) If multiple underground storage tanks at a single property are contributing to a single occurrence and
the tanks are owned or operated by different persons, reimbursement may be made to any of the owners or
operators as if the occurrence were caused solely by that person's underground storage tanks.
History Note: Statutory Authority G. S. 143-215. 3; 143-215.94£,· 143-215. 94L,· 143-215. 94T; l 43B-282;
E.ff. February 1, 1993 .
. 0407 FINAL ACTION
(a) The Director, or his delegate, shall make the agency decision on a written application for eligibility for
reimbursement from the appropriate fund. The Director, or his delegate, shall make the agency decision on
any written request for reimbursement made subsequent to an initial application.
(b) An owner or operator who. has been denied eligibility for reimbursement from the appropriate fund after
submittal of a written application in accordance with the procedures of this Subchapter, or who has had any
written reimbursement request denied after ·submittal in accordance with the procedures of this Subchapter,
shall be notified of the right to petition for a contested case in the Office of Administrative Hearings in
accordance with the procedure set out in G.S. 1508-23. The Secretary of the Department of Environment,
Health, and Natural Resources shall make the final agency decision in any contested case pursuant to G.S.
1508-36.
History Note: StatutoryAuthorityG.S. 143-215.3; 143-215.94B; 143-215.94D; 143-215.94£; 143-215.94L;
143-215.94T; 143B-282; 150B-23; 150B-36;
E.fJ: February 1, 1993.
NORTH CAROLINA ADMINISTRA11VE CODE 02/24/93 Page 3
TITLE 15A
SUBCHAPTER 2P
LEAKING PETROLEUM UNDERGROUND STORAGE TANK CLEANUP FUNDS
SECTION .0100 -GENERAL CONSIDERATIONS
15A NCAC 2P.0101 is adopted with changes as published . in 7:6 NCR
525 as follows :
.0101 GENERAL
(a) The purpose of this Subchapter is to establish criteria
and procedures for the reimbursement of costs incurred by owners
and operators from the Leaking Petroleum Underground Storage Tank
Cleanup Funds ..
(b) The Groundwater Section of the Division of Environmental
Management of the Department of Environment, Health and Natural
Resources shall administer the Commercial and Noncommercial
Underground Storage Tank Cleanup Funds for the State of North
Carolina.
fe+--staff -ef -tae -B:i:v:i:s:i:eR -ef -ERvireRmeRta± -MaRa§femeRt -sl,.a±±
eeRe.tiet -iRs!;)eetieRs -aRe. -review -reeere.s -as -Reeessary -te -ass\:l.re
eemp±:i:aRee-wita-tais-S\:l.beaa!;)ter7
fEH(c) As authorized by G.S. 143-215.94G, the Department may,
engage in cleariup work it deems appropriate and pay the costs
from the Noncommercial Fund in accordance with G.S. 143-215.94D.
fe+(d) The Department may engage in investigations and
cleanups in accordance with the severit y of threat to human
heal th and safety and to the environment , a -!n:ierity -FaRkiR~
system and the availability of resetirees resources , as de.termined
by the Division.
History Note: Statutory Authority: G.S. 143-215.76 ; 143-215.3 ;
143-215.94D ; 143-215.94E; 143 -215.94G;
143-215.94L ; 143-215.94T ; 143B-282
Eff. February 1, 1993
REQUEST FOR TECHNICAL CHANGE
AGENCY DEHNR/EMC
RULE crTATION 15A NCAC 2P .0101
DEADLINE FOR RECEIPT January 19, 1993
In reviewing this rule prior to the next Rules Review
Commission meeting, the staff determined that the following
technical change needs to be made:
Please either: 1) certify in writing that "a priority
ranking system" exists elsewhere in your rules, or 2)
reference where in the rules the ranking system is found, or
3) delete "a priority ranking system and."
Please retype the rule accordingly and resubmit it to our
office at Suite 158, 1307 .Glenwood Avenue, Raleigh, North
Carolina.
Of course , this will req uire conforming chang es to anv
attached cop ies of the rule and marku p s to be filed with
OAH. Please check to see that this p a p erwork is in order
and is returned along with the revised rule.
Please Note: The Commission has not yet reviewed this rule
and therefore there has not been a determination as to
whether the rule will be approved. You may call this office
to inquire concerning the staff recommendation.
Joe DeLuca
Staff Director
AGENDA ITEM:
EXPLANATICN:
REX:XM-'IENDATICN:
Hearing Officer's Re port and Reocmnendaticns en the
Adc,p tion of 15A NCAC 2P: Rules for the Administrat-
ion of the Leaking Petroleum Underground Storage
Tank Cleanup Funds.
'!he adoption of 15A NCAC 2P is proposed to:
a) Establish carliticns and procedures for the
Deparbnent to administer cleanup funds to reimburse
owners and operators of underground storage tanks
(USI's). Reimbursable cleanup activities include
envircnnental damage cleanup and third party
canpensaticn claims for property damage or l:xxlily
hann as a result of the release of petroleum fran
usrs.
b) Establish requirements for the collection of
armual operating fees pursuant to G.S. 143-215.94C.
c) Clarify eligibility requirements for owners and
operators of underground storage tanks.
d) Establish criteria for detennining which
cleanup and third party liability costs incurred by
an owner or operator are reascoable and necessary.
e) Establish procedures for appealing agency
decisicns.
'Ihe hearirg refXll L was sent to yoo. earlier.
It is requested that the Environmental Management
camrl.ssion approve the adoption of 15A NCAC 2P per
hearing officers recarmendation.
Attachment for 15A NCAC 2P .0101; .0102; .0103; .0201;
.0202; .0301; .0302; .0401; .0402; .0403; .0404; .0405;
. 0406; . 0407
Items #4 through #6
The following public hearing dates and locations
have been scheduled for July and are shown below:
NEW BERN
July 7, 1992
7:00 PM
Superior Court, 2nd Floor
Craven County Courthouse
Item #8
HICKORY
July 13, 1992
7:00 PM
Auditorium
Catawba Valley
Community College
Comment Procedures
RALEIGH
July 9, 1992
7:00 PM
Ground Floor Hearing Room
Archdale Building
512 N. Salisbury Street
All persons interested in these matters are invited
to attend the public hearing. Written comments may be pre-
sented at the public hearing or submitted through July 15,
1992. Please submit comments to Mr. David Hance, Division of
Environmental Management, Groundwater Section,P.O. Box 29535,
Raleigh, NC 27626-0535, [phone]. Please notify Mr. Hance
prior to the public hearing if you desire to speak. Oral
presentation lengths may be limited depending on the number of
people that wish to speak at the public hearing.
IT IS VERY IMPORTANT THAT ALL INTERESTED AND
POTENTIALLY AFFECTED PERSONS, GROUPS, BUSINESSES, ASSOCIATIONS,
INSTITUTIONS OR AGENCIES MAKE THEIR VIEWS AND OPINIONS KNOWN TO
THE DEPARTMENT THROUGH THE PUBLIC HEARING AND COMMENT PROCESS,
WHETHER THEY SUPPORT OR OPPOSE ANY OR ALL PROVISIONS OF THE
PROPOSED RULES.
NOTICE OF HEARING
DEPARTMENT OF ENVIRONMENT, HEALTH, AND NATURAL RESOURCES
Notice is hereby given of a public hearing to be held by the
Department of Environment, Health, and Natural Resources on behalf of
the Environmental Management Commission. The Hearing concerns the
proposed adoption of Title 1 SA North Carolina Administrative Code
Subchapter 2P (Rules for the Administration of the Leaking Pet-
troleum Underground Storage Tank Cleanup Funds).
The following is proposed for adoption:
The proposed 15A NCAC 2P enables the operation of the Commercial
and Noncommercial Leaking Underground Petroleum Storage Tank
Cleanup Funds; (Authorization: Leaking Petroleum Underground
Storage Tank Cleanup Act of 1988 (G.S. 143-215.94A et seq.)).
These rules set forth conditions and procedures for the Department
to administer cleanup funds to reimburse owners/operators of
underground storage tanks (UST) for cleanup of environmental
damage and third-party compensation for property damage/bodily
harm resulting from the release of petroleum from USTs. These
rules also establish requirements for the collection of annual
operating fees pursuant to G.S. 143-215.94C. Additional authori-
zation to establish rules covering "reasonable and necessary
costs" for r.eimbursement is found in the most recent revision of
Session Laws 1991, c. 538, s. 24 (enactment date: June 3, 1991).
The hearing will be held as follows:
New Bern
July 7, 1992
7:00 PM
Raleig h
July 9, 1992
7:00 PM
Superior Court, 2nd floor
Craven County Courthouse
Ground Floor Hearing Room
Archdale Building
512 N. Salisbury Street
Hickory
July 13, 1992
7:00 PM
Auditorium
Catawba Valley
Community College
Oral comments may be made during the hearing, or written
statements may be submitted to the agency through July 15, 1992.
Written copies of oral statements exceeding three minutes are
requested. Oral statements may be limited at the discretion of the
hearing officers.
Send comments to:
David Hance
EHNR-DEM: Groundwater Section
P.O. Box 29535
Raleigh, NC 27626-0535
These proposed rules are available for public inspection at the
locations listed below. Copies may be obtained at each location for a
charge of ten cents per page.
Dept. of Environment,
Health, and Natural
Resources
Div. of Env. Management
1424 Carolina Avenue
Washington, NC 27889
[phone]
Dept. of Environment,
Health, and Natural
Resources
Div. of Env. Management
919 North Main Street
Mooresville, NC 28115
[phone]
Dept. of Environment,
Health, and Natural
Resources
Div. of Env. Management
Wachovia Building, Suite 714
225 Green Street
Fayetteville, NC 28301-5043
[phone]
t, Director
'ronmental Management
Dept. of Environment,
Health, and Natural
Resources
Div. of Env. Management
127 Cardinal Drive Extension
Wilmington, NC 28405-3845
[phone]
Dept. of Environment,
Health, and Natural
Resources
Div. of Env. Management
8025 North Point Blvd., Suite 100
Winston-Salem, NC 27106
[phone]
Dept. of Environment,
Health, and Natural
Resources
Div. of Env. Management
59 Woodfin Place
Asheville, NC 28801-2482
[phone]
Dept. of Environment,Health, and Natural Resources
Div. of Env. Management
512 N. Salisbury Street, Archdale Building
P.O. Box 29535
Raleigh, NC 27626-0535
[phone]
SUMMARY OF PUBLIC COMMENT AND STAFF RESPONSE ON
PROPOSED RULES FOR THE LEAKING PETROLEUM
UNDERGROUND STORAGE TANK FUNDS (15A NCAC 2P)
*******AH'.) PUBLIC CDMNr WAS~ Nr 'DIE m~
HEARDG
HEARING DATE(S): New Benl ---------July 7, 1992
Raleigh----------July 9, 1992
Hickocy ----------July 13, 1992
Individual making ccmnent at the July 7, 1992-New Bern Hearing:
1 ) Mr. Olar lie Harrisai; Owner/ Vice Pres. , lJl'I'S Environmental
Co., P.O. Box 190, Ayden, N.C. 28513
Individuals making ccmnent at the July 9, 1992-Raleigh Hearing:
1) Ms. Anne Coan, Natural Resources Division Director, North
Cm:olina Fann Bureau Federation, P.O. Box 27766, Raleigh, N.C.
27611
2) Mr. D:>uglas Howey, P. G. , N. C. Petroleum Marketers
Association,, P.O. Box 30519, Raleigh, N.C. 27622
Written ccmnents were received fran the following:
1 ) Ms. J. wade; Manager, G:>vernmental Affairs, Waste Management
of North America, Inc., Southeast Region satellite Office,
Delk Place, Suite 200, 2600 Delk Road, Marietta, G.A. 30067
2) Ms. Angela Waldorf, Associate Director, North Cm:olina
Petroleum Council, P .o. Box 167, Raleigh, N .c. 27602
3) Smith, Helms, Mulliss & M:x>re; Attorneys At Law, P.O. Box
27525, Raleigh, N.C. 27611 (Representing Haroee's Food
Systems, Inc. , ) .
REXXJllf,IJENDED ~ SINCE PUBLIC HEARIN3 BY RULE CITATICN
RULE 1 SA ICAC 2P • 0101 : Gelleral.
Rule .0101 (c); DELEI'E this rule since it is unnecessary. 'lhe intent of
this rule is covered by Rule .0404.
RESPCNSE: 'lhe staff concurs that this paragraph is unnecessary; it
is a restatanent of existing statutory authority to
prefo:rm inspections. 'lhus, it is reccmnended that this
Paragraph be deleted.
Ccrmlentors:
Mr. Lacy H. Thomburg, Attorney General, State of North Carolina,
Department of Justice, P.O. Box 629, Raleigh, N.C. 27602-0629
Mr. J. Peter Rascoe, Assistant Attorney General, State of North
carolina, Department of Justice, P.O. Box 629, Raleigh, N.C.
27602-0629
RULE 15A ICAC 2P .0202: Definitioos
Rul.e .0202 (b)(6); The following changes need to be placed in this rule:
i) AMEND the definition of "Household" to include m:>bile banes.
ii) CHANGE the phrase "controlled and maintained by residents".
Renters can't be expected to have control over the property
they reside at.
iii) AMEND definition of "Household" to include property that is
intennittently vacant. CHANGE the phrase "used for living" in
the rules to ''intended for living''.
iv) AMEND the definition of "Household" to include seasonal,
tenant, and migrant housing. 'lhese are not outlined as such
and should not be considered "multiple dwelling structures".
v) AMEND rules to specify "apartments" that do not p:rovide
primary food preparation facilities as bona fide households in
the rules.
4) Mr. Robert H. MadJtiff, Jr. , P. E. ; Boddie-Noell Enterprises,
Inc., Hardee' s Franchise Operators, P.O. Box 1908, Rocky
tvbunt, N.C. 27802-1908.
5) Smith, Helms, Mulliss & M:ore; Attorneys At raw, P.O. Box
27525, Raleigh, N.C. 27611 ( . y
present/famer owners and ooeratocs aind Storage
Tanks1rlnt) •
6) Mr. Jason A. Caplan, Ph.D; President & CED, ESE Biosciences,
3208 Spring Forest Rd., Raleigh, N.C. 27604
7) Mr. Daniel H. M:>enter; Manager Governmental Affairs, Marathon
Oil Conpany, 539 South Main Street, Findlay, O.H. 45840
8) Smith, Helms, Mulliss & M:ore; Attorneys At raw, P.O. Box
27525, Raleigh, N.C. 27611 ('lrlrlcRepresenting Federated J.lobtual.
Insurance Calpany1rlnt).
9) Mr. lacy H. 'lhomburg, Attorney General, State of North
carolina, Department of Justice, P.O. Box 629, Raleigh, N.C.
27602-0629
10) Mr. J. Peter Rascoe, Assistant Attorney General, State of
North Carolina, Department of Justice, P.O. Box 629, Raleigh,
N.C. 27602-0629
SUMMARY OF PUBLIC COMMENT AND STAFF RESPONSE ON
PROPOSED RULES FOR THE LEAKING PETROLEUM
UNDERGROUND STORAGE TANK FUNDS (15A NCAC 2P)
AAAAAAAARJ PUBLIC CD-M!.Nl' WAS ~ AT '1HE Ill~
HFARil'G
HFARING DA'IE(S): New Bem ---July 7, 1992
Raleigh----------July 9, 1992
Hiekory ------July 13, 1992
Individual making ccmnent at the July 7, 1992-New Bern Hearing:
1) Mr. Charlie Harrisco; ~er/ Vice Pres., urrs Environmental
Co., P.O. Box 190, Ayden, N.C. 28513
Individuals making ccmnent at the July 9, 1992-Raleigh Hearing:
1) Ms. Anne Coan, Natural Resources Division Director, North
Carolina Fann Bureau Federation, P.O. Bax 27766, Raleigh, N.C.
27611
2) Mr. Douglas Howey, P. G. , N. C. Petroleum Marketers
Asscx::iation,, P.O. Box 30519, Raleigh, N.C. 27622
Written ccmnents were received fran the following:
1) Ms. J. wade; Manager, GJvemnental Affairs, Waste Management
of North America, Inc., Southeast Region Satellite Office,
Delk Place, Suite 200, 2600 Delk Road, Marietta, G.A. 30067
2) Ms. Angela waldorf, Asscx::iate Director, North Carolina
Petroleum Council, P .0. Box 167, Raleigh, N .C. 27602
3) Smith, Helms, M.tl.liss & M::x:>re; Attorneys At Law, P.O. Box
27525, Raleigh, N.C. 27611 (Representing Hardee's Food
Systems, Inc. , ) .
Resp(X}Se: A change in the ICICding of the definiticn of ''miselnld" is
pcqa;ed. bela,,,. 'lhe other changes (letters ii-v) are not
reccmnended for Rule .0202(b) (6) because present language
implies these definitions already.
Ccmnentor:
'' ( 6) Household means a pennanent structure, whether
free-standing or camected to other unit, used primarily for
living where primary living space and primary food preparation
facilities are controlled or maintained by the residents.
"Household" includes single family houses, nobile hanes,
apartments, and single living uni ts, whether or not the
residents are related to each other and whether the units are
occupied on a year-round or seasonal basis. "Household" does
not include donnitories, hospitals, hotels, notels, aparbnent
buildings ( as distinct f:ran the individual units therein) , or
other multiple dwelling structures. 'Ihe tenn "four or fewer
households" shall relate to underground storage tanks serving
households only. II
Ms. Anne Coan, Natural Resources Di vision Director, North carolina
Fann Bureau Federation, P.O. Box 27766, Raleigh, N.C. 27611
Ru1e .0202 (b ) (7 );
i) DELEI'E the words "and/or" in the definition of "Oc:::currence".
REPIACE this with the word "or".
ii) 'lhe use of the phrase "single plume" in the Definition of
"Occurrence" implies a narrow definition. DELEI'E the word
"site" at the end of the rule and REPLACE it with "Underground
Storage Tank".
iii) '!his rule is the cause of sane confusion in the legal
ccmnunity. 'Ihe words "emanating f:ran a given site are being
construed to mean that if a single plume is travelling beyond
the property's boundaries, then the entire site is regarded as
covered by one deductible, regardless of separate plumes.
Res?'.)IlSe:
i) 'lhe Staff concurs and so reccmnends this change.
ii) 'Ihe change suggested in the ccmnent 'WOUld be deleterious,
but a different change is proposed by Staff to address
this issue; ( see below) •
iii) 'Ihe Staff proposes the following changes:
11
( 7) Occurrence means one or nore release ( s) that
result(s) in a single plume of soil, surface water,
t/tiA/or groundwater contamination (consisting of
free-product t/4/or dissolved constituents exceeding
standards specified in 1 SA OCAC 2L or other applicable
laws, rules or regulaticns) ~t#.</Jltt</sl.t/tii.,/;/i;/..t,/;
originating at a single property."
cannentors:
Mr. Ia.Cy H. Thornburg, Attorney General, State of North carolina,
De:parbnent of Justice, P.O. Bax 629, Raleigh, N.C. 27602-0629
Mr. J. Peter Rascoe, Assistant Attorney General, state of North
carolina, Deparbnent of Justice, P.O. Bax 629, Raleigh, N.C.
27602-0629
Ms. J. Wade; Manager, Q:)vernmen.tal Affairs, Waste Management of
North America, Inc., Southeast Region Satellite Office, Delk Place,
Suite 200, 2600 Delk Road, Marietta, G.A. 30067
Rule .0202 (b ) (8 ):
i) REVISE the underlined language in this rule: 11
••• and which is
essential in detennining the extent of contamination, in
conducting release resp::>nSe or remediation., or which
cgnpensates third parties .... damage." REPLACE "is" and
"ca:rpensates" with "are" and 11CCill)erlSate".
Resp::>nSe:
Crnmentor:
(i) The staff concur, and recx:mnend this change as follows:
11
( 8) Reasonable and necessary expendatures means ......• and
which'/..$ are essential in detennining the extent of
contamination., in conducting release respcnse or remediation,
or which ~;_,u cgnpensate third parties .... damage. '1
Mr. Ia.cy H. Thornburg, Attorney General, State of North carolina,
Deparbnent of Justice, P.O. Bax 629, Raleigh, N.C. 27602-0629
Mr. J. Peter Rascoe, Assistant Attorney General, State of North
carolina, Department of Justice, P.O. Bax 629, Raleigh, N.C.
27602-0629
ROLE 15A IC.AC 2P • 0301 : Fees and Payne1t
Rule .0301 (d );
i) AMEND this rule to protect property owners who have purchased
or inherited property but are unaware of the presence of a UST
on their land. Because Rule .0401(b) requires all tank fees be
paid prior to the disoovery of a release, people could be
denied access to the fund due to cirCl.DllStances outside their
control.
ii) For landowners who possess ti tie to land withoo.t krxJwledge
that a UST is present en the premises, the following exception
needs to be incorporated in this rule:
*the UST was/is in use on or after December 22, 1988 AND;
**has not been properly closed in accordance with 15A NCAC 2N
.0800.
If this changed is not made the current rule may violate the
innocent landowner provisions of G.S. 143-215.84(a).
Res{X:lnse: 'Ihe staff agrees with the ccmnent that this may be in
conflict with the statutory language, though the citation
should be G.S. 143-215.94D(b)(4), and so recarrnended the
following amendment:
"d) Any ccmnercial underground storage tank (except
ccmnercial underground storage tanks not regulated under 15A
NCAC 2N) which was in operation on or after December 22, 1988,
and has not been pennanently closed in accordance with 15 A
NCAC 2N. 0800 is considered to be in use unless the provisions
of G.S. 143-215.94D (b )(4 ) are applicable."
C.annentors:
Ms. Angela Waldorf, Associate Director, North carolina Petroleum
Council, P.O. Box 167, Raleigh, N.C. 27602
Mr. Douglas HcMey, P.G., N.C. Petroleum Marketers Association, P.O.
Box 30519, Raleigh, N.C. 27622
Rule .0301 (g); .AMEND rule to require refunds be granted if adequate
documentation is provided.
Response: 'Ihe Staff ccncurs with the ccmnent, and proposed the
following change:
Ccmnentor:
119) In the event that an annual operating fee was paid for a
tank for which a fee was not required, a refund of that
fee payment may be requested by the owner or operator. b
refund will be granted if the tli.~ owner or operator iri#t
provide.§ adequate documentation that the tank was exarpt
fran the requirement to pay the annual operating fee."
Mr. Douglas ~Y, P.G., N.C. Petroleum Marketers Association, P.O.
Box 30519, Raleigh, N.C. 27622
RmE 15A lC.1C 2P .0302: R:>tification
Rule .0302 (4 ); In fulfilling the 30 day notification requirement,
signatures of ooth the transferring owner and new owner need to be
obtained. Our cx:mnents to this issue are as follows:
i) The Di vision needs to seek legal review fran the North
carolina Bar Association's, Real Estate Section to
provide an assessment on this rule's impact on real
estate transactions prior to final approval.
ii) A nore fonnalized procedure to handle the info:cmation
requirements needs to be provided in the rules. Other
states use real estate liability notification fonns (i.e.
Illinois and Indiana). 'Ihese fonns are filed in the
local courthouse within 30 days of closing as a part of
the closing documents.
A rrore standardized fo:an needs to be adopted by the
Division to protect seller and buyer during tank
transfers. '!his provision should be stated in the rule.
'Ihe Division should develop a "Transfer of Ownership
Fo:an"
Response: 'Ihe Staff concurs that there may be sane confusion with
the requirements, so a change is reccmnended, as follows,
to make the requirement ccopa.tible with 1 SA NCAC 2N. 'lb
add a specific fonn would be urmecessary.
Ccmnentors:
''Any perscn tl:t/1$f.lltl:MJ acquiring ownership of an
existing cc:mnercial underground storage tank shall
provide written notification to the Division of this
action within 30 days of the transfer •••• ''
Smith, Helms, Mulliss & M:x:>re; Attorneys At Law, P.O. Box 27525,
Raleigh, N.C. 27611 (Representing Hardee's Food Systems,
Inc.,).
Ms. Anne Coan, Natural Resources Division Director, North Carolina
Fann Bureau Federation, P.O. Box 27766, Raleigh, N.C. 27611
Mr. Douglas Howey, P. G. , N. C. Petroletn"R Marketers
Association,, P.O. Box 30519, Raleigh, N.C. 27622
Mr. Robert H. Madkiff, Jr. , P. E. ; Boddie-Noell Enterprises, Inc. ,
Hardee's Franchise Operators, P.O. Box 1908, Rocky MJunt, N.C.
27802-1908.
RDLE 15A :tC.l!C 2P .0401: Eligibility of Owner or Operator
Rule .0401 (b ); The way this rnle is written will result in unfair
denials to the Trust Fund. A new owner of a UST may not know ''if any
annual operating fees due have not been paid in accordance with Rule
.0301". Previous owners in the title chain may not have paid. The
legislation does not provide a constructive lien on any owner or
operator( past or present) who failed to pay. '!he rnle needs revising
so that it won't penalize an owner/operator by excluding access to the
Fund solely due to his ignorance of the past owner(s) UST fee payment
history.
Trust fund access should not be denied just because fees were not
paid. Other states allow owners and operators of USTs to go back and pay
fees after discovery of non-payment. '!he "prior to discovery" language
needs to revised. '!he N. C. General Statutes do not give the Di vision
the expressed authority to deny access to the fund because tank fees
were not paid by an owner or operator. (Refer to G.S 143-215.94C and
G.S. 143-215.94E(g)(3)).
Late payment and penalty fees are a better way for the state to
gain canpliance with Rule .0301 provisions without denying access to the
fund.
Response: '!he statutory language sets the requirements for past
owners and proprietors. 'lb clarify the requirements for
past owners/operators, the Staff proposed the following
change:
"(b) An CMner or operator of a ccmnercial underground
storage tank is not eligible for reimbursement of
costs related to releases if any annual operating
fees sue have not been paid in accordance with Rule
. 0301 of the Subchapter prior to discovery. h
previous CMner or operator of a ccnmercial
underground storage tank may be elig ible for
reimbursement of costs for cleanup of a release
discovered after he ceases owning or operating the
underground storage tank if all fees due during his
period of CMnership and operaticn have been paid
prior to discovery of the release.''
'lHE PREVIOOS CON!NI' EXPRESSED 'lHE VIEHS OF 'lHE RlLIOmC
PEBSCNS ~ RmE . 0401 (b)
Ms. Angela Waldorf, Associate Direct:ar, Hxth Carolina Peb:ol.eml
Cbmcil, P.O. Bax 167, Raleigh, N.C. 27602
Smith, Helms, ~iss & lblre; Attorneys At I.aw, P.O. Bax 27525,
Raleigh, N.C. 27611 ('llnWcRepresentinq Haroee's Food. Systems.
Inc •• -Jdnlr) •
Mr. Rd>ert H. Madki.ff, Jr., P .E. ; Boo:lie-Noell. Enterprises, Inc.,
Haroee' s Franchise Operators, P .o. Bax 1908, Rocky r-tJunt, N .c.
27802-1908.
Smith, Helms, ~iss & lblre; Attorneys At I.aw, P.O. Bax 27525,
Raleigh, N.C. 27611 ('llnlrlcRepresetinq many present/famer owners
and operators of Unletg.c.ourxl Storage Tanks-Jdnlr) •
Ms. J. wade; Manager, Govermlental Affairs, waste Manageneit of
Hxth Anerlca, Inc., Southeast Regicn Satellite Office, Delle Place,
Suite 200, 2600 Delle Road, Marietta, G.A. 30067
Ms. Anne Coan, Natural Resources Divisicn Direct:ar, H:lrth Camlina
Fann Bureau Federatioo., P.O. Bax 27766, Raleigh, N.C. 27611
RULE 1 SA RX 2P . 0402: Cleanup Cbsts
Rule .0402 (b)(3);
(i) AMEND this ntl.e to allow reimbursement for cleanup proposal
preparaticns. Unique site canditicns may require extensive
activities and proposal preparaticn.
(ii) REVISE language in this rule to read as follows:
11
( 3 ) Cost incurred in preparation of any proposal or bid by a
provider of service for the purpose of soliciting or bidding
for the opporbmity to perfonn an environmental investigation
or clean-up, even if that p rovider is ultimately selected to
provide the service solicited. 11
'!he rule as presented in the public notice could be
interpreted to exclude any proposal including corrective
action plans.
Response: 'Ibis Paragraph was intended to apply only to prop:>sals
and bids far the opportunity to do work. '!he staff
therefore prop:>ses accepting the changes prop:>sed in
ccmnent (ii) as follows:
11
( 3) Costs incurred in preparation of any proposals or bid by
a provider of service for the puroose of soliciting or bidding
for the opportunity to perform wr/,-/:'t/f.r/,-/: an environmental
investigation or cleanup , even if that provider is ultimately
selected to provide the service solicited;"
Mr. Daniel H. IVbenter; Manager Governmental Affairs, Marathon Oil
Canpany, 539 South Main Street, Findlay, O.H. 45840
Ms. Angela Waldorf, Associate Director, North carolina Petroleum
Council, P.O. Box 167, Raleigh, N.C. 27602
Smith, Helms, Mulliss & M:>ore; Attorneys At I.aw, P.O. Box 27525,
Raleigh, N.C. 27611 (~ting Federated ftltual. Insurance
Q:npm.y'ktt) .
RULE 15A NC'AC 2P .0406: Reimbursement Apoortionment
Ru1e .0406 (b ) and (c }; For oultiple tank release scenarios, REVISE the
rule so that an individual's share of the ftmd would not be reduced even
if other potentially responsible parties exist. Many in the legal
ccmnun.ity feel that a tank owner can be jointly and severely held liable
for all damages.
Resp:,nse: 'lhe Funds are available jointly to all owners and
operators ccntributing to an occurrence. Because multiple
CMners/operators w:>rking independently en the cleanup of
a single occurrence will generally result in duplicaticn
of acticns and extra costs, which would be ccnsidered
unnecessary and unreasalable, this is disCX>Uraged.. No
single owner's or operator's potential reimbursement is
reduced, however, simply because other CMners and
operators exist. 'Ibis is clearly addressed in Paragraph
Ccmnentor:
( c) • Because potential for ccnfusicn concerning the
possible causes for ineligibility within Paragraph (b),
the Staff reccmnends the following change:
"(b) Where t/$,/Jal./</,/;,Hli'/.1..-MJ/t,Ut./Uf~/-llf/lt/~/t,/J.£¢/</,-li.
not all underground storage tanks contributing to an
occurrence are elig ible for reimbursement,
reimbursement will be made at a rate equal to the
number of tanks ccntributing to the occurrence tr/,-/:
which are elig ible for reimbursement M-1./t/m,/Jal.
rb/,t#IJ.'1./..ii</J t~t./¢,/J.~/Uf~/ut/,./t,/J.£¢ divided by the
total number of tanks ccntributing to the
occurrence.''
Mr. Douglas Hc:Mey, P.G., N.C. Petroleum Marketers Associaticn, P.O.
Box 30519, Raleigh, N.C. 27622
Rul.e .0406 (c ); REVISE the ntle to give a clearer definition of the w:>rd
"site". Owners need clear guidance to identify their "site" in areas of
multiple usr release incidents.
Response: 'lhe Staff reccmnends making the follc:Ming change to make
this Paragraph canfo:rm to changes already recannended to
Rule .0202(b)(7):
"(c) If multiple underground storage tanks at a single
t.£'/.~ prooerty are contributing to a single
occurrence and the tanks are CMned or operated by
different persons, reimbursement may be made to any
of the CMners or operators as if the occurrence were
caused solely by that person's underground storage
tanks. II
Cannentor:
Mr. Jason A. ca.plan, Ph.D; President & CED, ESE Biosciences, 3208
Spring Forest Rd., Raleigh, N.C. 27604
RULE 15A NC.AC 2P . 0407: Final Action
Rule .0407 Ca ); REVISE the rule as follows: DELEIE references to "a
final decision" and REP.LM:E with "the agency decisicn. 11
•
Response: 'lhe Staff reccmnends that the prq::osed change be
incorporated in the Rule.
Cannentor:
Mr. Lacy H. Thornburg, Attorney General, State of North Carolina,
Department of Justice, P.O. Box 629, Raleigh, N.C. 27602-0629
Mr. J. Peter Rascoe, Assistant Atto:mey General, State of North
Carolina, Department of Justice, P.O. Box 629, Raleigh, N.C.
27602-0629
Ru1e .0407 (b ); ADD to the end of the rule this sentence:
"'!he Secretary of the De partrrent of Environment , Health and Natural
Resources shall make the final a gency decision in any contested
case pursuant to G.S. 150B-.36."
Response: 'Ihe Staff reccmnends that the proposed amendment be made
to the Rule.
Cannentor:
Mr. Lacy H. Thornburg, Attorney General, State of North Carolina,
Department of Justice, P.O. Box 629, Raleigh, N.C. 27602-0629
Mr. J. Peter Rascoe, Assistant Atto:mey General, State of North
Carolina, Department of Justice, P.O. Box 629, Raleigh, N.C.
27602-0629
A total of twenty-one (21) people attended the
three ( 3) presenting oral comments. A total of
people provided verbal and/or written comments
proposed rules.
hearings, with
thirteen (13)
regarding the
As a result of comments received some changes were made to
clarify the intent of specific rules. A summary of the public
comments received, the Agency's response, the draft final rules
and the Hearing Officers' recommendations are attached.
The Hearing Officers recommend that the draft rules, as
amended, be adopted by the Environmental Management Commission.
CEB.BR
Attachments
cc: Preston Howard
Burrie Boshoff
SECTION II
PROCEEDINGS OF HEARINGS
September 16, 1992 I-1
PROCEEDINGS OF HEARINGS
Introduction
Three public hearings were held by the Environmental Mnangement
Commission and the Department of Environment, Health, and Natural
Resources to receive public comment on the proposed 15A NCAC 2P,
Rules for the Administration of the Leaking Petroleum Underground
Storage Tank Cleanup Funds. The first was held July 7, 1992, at
7:00 p.m., in the Second Floor Courtroom of the Craven County
Courthouse in New Bern, North Carolina. The second was held July 9,
1992, at 7:00 p.m., in the Hearing Room of the Archdale Building,
512 North Salisbury Street, Raleigh, North Carolina. The third was
held July 13, 1992, at 7:00 p.m., in the Auditorium at Catawba
Valley Community College in Hickory, North Carolina. A total of 21
people attended the hearings, with 3 presenting oral comments. A
total of 13 verbal and/or written comments were received regarding
the proposed rules.
Pursuant to G.S. 150B-21.2(a), the text of the Proposed Rules
and the Public Notice of the hearings was published in the North
Carolina Reg ister on June 15, 1992. As required pursuant to G.S.
150B-21.2(b), copies of the proposed Rules and notice of the
hearings was mailed to all persons currently on the mailing list
just prior to the publication in the North Carolina Reg ister.
Notice of the hearing in New Bern was published in The Sun-Journal
of New Bern, North Carolina, on June 21, 1992. Notice of the
hearing in Raleigh was published in The News and Observer of
Raleigh, North Carolina, on June 21, 1992. Notice of the hearing in
Hickory was published in The Hickory Daily Journal of Hickory, North
Carolina, on June 21, 1992.-·
The hearings were chaired by Mr. James Mulligan in New Bern,
Mr. Arthur Mouberry in Raleigh, and Ms. Carla DuPuy in Hickory.
September 16, 1992 II-1
Attendees
New Bern, North .Carolina
July 7, 1992
1) Mr. Charlie Harrison, Owner/Vice President, UTTS Environmental
Co., Ayden, North Carolina
Attendees
Raleigh, North Carolina
July 9, 1992
1) Ms. Ann Coan, Natural Rseources Division Director, North
Carolina Farm Bureau Federation, Raleigh, North Carolina
2) Mr. Douglas Howey, N.C. Petroleum Marketers Association,
Raleigh, North Carolina
3) Mr. Ethan Naftalin, Associate, Hunton & Williams, Raleigh,
North Carolina
4) Mr. Walter Beckwith, Senior Geologist, S. & M.E. Inc., Raleigh,
North Carolina
5) Ms. Susan Laughinghouse, Project Geologist, S. & M.E. Inc.,
Raleigh, North Carolina
6) Mr. Robert Jenkins, Remediation Engineer, S. & M.E. Inc.,
Raleigh, North Carolina
7) Ms. Elizabeth Powell, Attorney for Federated Mutual Insurance,
Raleigh, North Carolina
8) Mr. Perry Nelson, Groundwater Section Chief, Division of
Environmental Management, Raleigh, North Carolina
9) Mr. Hayden James, President, McCracken Oil Co., Wake Forest,
North Carolina
10) Mr. N. Ray Watson, Jr., Director of Civil Engineering, Hardee's
Food Systems, Inc., Rocky Mount, North Carolina
11) Mr. Jonathan T. Koontz, IBM Corp., Research Triangle Park,
North Carolina
12) Mr. Brian N. Hreks, Business Development Manager, ESE
Biosciences, Inc., Raleigh, North Carolina
13) Mr. Mark A. Creel, Geochem/APEC, Morrisville, North Carolina
September 16, 1992 II-2
Attendees
Hickory, North Carolina
July 13, 1992
1) Gerald N. Baker, Jr., President, Burke, Inc., Valdese, North
Carolina
2) Ms. Diane Eskenasy, Hydrogeologist, Asheville Regional Office,
Division of Environmental Management, Asheville, North Carolina
3) Ms. Jan Anderson, Environmental Engineer, Asheville regional
Office, Division of Environmental Management, Asheville, North
Carolina
4) Mr. Larry Coble, Regional Supervisor, Winston-Salem Regional
Office, Division of Environmental Management, Winston-Salem,
North Carolina
5) Ms. Margaret Foster, Regional Manager, Winston-Salem Regional
Office, Division of Environmental Management, Winston-Salem,
North Carolina
6) Mr. Mick Ussery, Project Hydrogeologist, S. &. M.E. Inc.,
Spartanburg, South Carolina
7) Mr. Michael R. Coble, Assistant manager, Rhodes & Beal Oil Co.,
Lincolnton, North Carolina
September 16, 1992 II-3
Written Comments were received from the following during the
comment period (prior to July 15, 1992 at 5:00 p.m.):
1) Ms. Ann Coan, Natural Resources Division Director, North
Carolina Farm Bureau Federation, Raleigh, North Carolina
2) Mr. Douglas Howeyj Petroleum Marketers Association,
Raleigh, North Carolina
3) Ms. J. Wade, Regional Government Affairs Manager, Waste
Management of North America, Inc., Marietta, Georgia
4) Ms. Angela S. Waldorf, Associate Director, North Carolina
Petroleum Council, Raleigh, North Carolina
5) Smith, Helms, Mulliss, & Moore, Attorneys at Law, Raleigh,
North Carolina, for Hardees Food Systems, Inc.
6) Mr. Robert Madkiff, Jr., Boddie-Noell Enterprises, Rocky
Mount, North Carolina
7) Smith Helms, Mulliss, & Moore, Attorneys at Law, Raleigh,
North Carolina, for many present and former owners and
operators of underground storage tanks
8) Dr. Jason Caplan, President & CEO, ESE Biosciences,
Raleigh, North Carolina
9) Daniel H. Moenter, Manager, Government Affairs, Marathon
Oil Company, Findlay, Ohio
10) Smith, Helms, Mulliss, & Moore, Attorneys at Law, Raleigh,
North Carolina, for Federated Mutual Insurance
11) Mr. Peter Rascoe & Mr. Lacy Thornburg, Department of
Justice, State of North Carolina, Raleigh, North Carolina
(3 separate comments)
September 16, 1992 II-4
SECTION I
SUMMARY OF PUBLIC COMMENTS AND STAFF RESPONSES
September 16, 1992
SUMMARY OF COMMENTS
ON PROPOSED RULES
"LEAKING PETROLEUM UNDERGROUND STORAGE TANK FUNDS"
(15A NCAC 2P)
HEARING DATE(S): New Bern---------July 7, 1992
Raleigh----------July 9, 1992
Hickory----------July 13, 1992
*****NO PUBLIC COMMENT WAS VOLUNTEERED AT THE HICKORY****
HEARING
Individual making comment at the July 7, 1992-New Bern Hearing:
1) Mr. Charlie Harrison, Owner/ Vice Pres., UTTS
Environmental Co., P.O. Box 190, Ayden, NC 28513
Individuals making comment at the July 9, 1992-Raleigh Hearing:
(**Oral comments made at this hearing were accompanied by written
comments and will be referenced as WRITTEN COMMENTS**)
1) Ms. Anne Coan, Natural Resources Division Director,
North Carolina Farm Bureau Federation, P.O. Box 27766,
Raleigh, NC 27611
2) Mr. Douglas Howey, P.G., N.C. Petroleum Marketers
Association, P.O. Box 30519, Raleigh, NC 27622
Written comments were received from the following:
1) Ms. J. Wade; Manager, Governmental Affairs, Waste
Management of North America, Inc., Southeast Region
Satellite Office, Delk Place, Suite 200, 2600 Delk
Road, Marietta, GA 30067
2) Ms. Angela Waldorf, Associate Director, North Carolina
Petroleum Council, P.O. Box 167, Raleigh, NC 27602
3) Smith, Helms, Mulliss & Moore, Attorneys At Law, P.O.
Box 27525, Raleigh, NC 27611
(***Representing Hardee's Food Systems, Inc.***)
1
4) Mr. Robert H. Madkiff, Jr., P.E.; Boddie-Noell
Enterprises, Inc., Hardee's Franchise Operators, P.O.
Box 1908, Rocky Mount, NC 27802-1908.
5) Smith, Helms, Mulliss & Moore; Attorneys At Law, P.O.
Box 27525, Raleigh, NC 27611
(***Representing many present/former owners and
operators of Underground Storage Tanks***).
6) Mr. Jason A. Caplan, Ph.D; President & CEO, ESE
Biosciences, 3208 Spring Forest Rd., Raleigh, NC 27604
7) Mr. Daniel H. Moenter; Manager Governmental Affairs,
Marathon Oil Company, 539 South Main Street, Findlay,
OH 45840
8) Smith, Helms, Mulliss & Moore; Attorneys At Law, P.O.
Box 27525, Raleigh, NC 27611
(***Representing Federated Mutua1 Insurance Company***)
9) Mr. Lacy H. Thornburg, Attorney General, State of North
Carolina, Department of Justice, P.O. Box 629, Raleigh,
NC 27602-0629
10) Mr. J. Peter Rascoe, Assistant Attorney General, State
of North Carolina, Department of Justice, P.O. Box 629,
Raleigh, NC 27602-0629
2
PUBLIC COMMENT AND STAFF RESPONSE BY RULE CITATION
1) RULE 15A NCAC 2P .0101: General
Comment 1a) Rule .0101(c)
DELETE this rule since it is unnecessary. The intent of
this rule is covered by Rule .0404.
Response: The Staff concurs that this p_aragraph is
unnecessary; it is a restatement of existing
statutory authority to perform inspections. Thus,
it is recommended that this paragraph be deleted.
Commentors:
Mr. Lacy H. Thornburg, Attorney General, State of
North Carolina, Department of Justice, P.O. Box
629, Raleigh, NC 27602-0629
Mr. J. Peter Rascoe, Assistant Attorney General,
State of North Carolina, Department of Justice,
P.O. Box 629, Raleigh, NC 27602-0629
Comment 1b) Rule .0101(e)
We perceive that this rule puts the state in direct
competition with private industry. Therefore, the types
of investigations the state intends to engage in needs
to be further defined in the rules. The priority
ranking system described in the rule should be updated
and published bi-monthly.
Response: The Department has the authority to cleanup
sites pursuant to G.S. 143-215.94G; the intent of
this rule is simply to inform the public of the
use of a priority ranking system in this cleanup
process. The Staff, therefore, recommends no
change.
Commentor:
Mr. Jason A. Caplan, Ph.D., President & CEO, ESE
Biosciences, 3208 Spring Forest Rd., Raleigh, NC
27604
3
2) RULE 15A NCAC 2P .0103: False or Misleading Information
Comment 2) Rule .0103
ADD a provision to require that the owner/operator
certify inform~tion sent to the Division (i.e. through
a P.E. or P.G. stamp). This would allow the Division to
notify certification boards to bring disciplinary
action against offenders. It would have a deterrent
effect on would-be violators.
Response: The phrase "or authorized agent" included in
the proposed rule already addresses the issue, and
in a broader, more equitable manner. The Staff,
therefore, recommend no change.
Commenter:
Mr. Jason A. Caplan, Ph.D., President & CEO, ESE
Biosciences, 3208 Spring Forest Rd., Raleigh, NC
27604
3) RULE 15A NCAC 2P .0202: Definitions
Comment 3a) Rule .0202
The Definitions should define the word "Site". A
suggested definition is "any facility upon which or
beneath which a discharge from a UST has occurred and
any and all properties impacted by said discharge."
Response: A change is proposed in the definition of
occurrence which removes the need to add a
definition for "Site"; see response to comment 3e.
Commenter:
Mr. Jason A. Caplan, Ph.D., President & CEO, ESE
Biosciences, 3208 Spring Forest Rd., Raleigh, NC
27604
Comment 3b) Rule .0202(b)(4)
i) This definition of "Discovered release" needs to
include a specific discovery date which will
ensure accessibility to reimbursement. Suggest
this rule specify the incident date on the
Department's "Pollution Incident Report Form".
ii) The meaning of "reasonable basis" is very unclear
and needs clarification.
4
iii) AMEND language in this rule that makes owner and
operators culpable for any UST release discovered
by any employee. It is unreasonable to expect
owners and operators to have full knowledge of
releases at all times. Owners and operators of
USTs should not be penalized under the Subchapter
2P rules by the negligence or sabotage of
employees, subcontractors, or other agents in his
employ who fail to report releases in a timely
manner. If rule is not amended, then the phrase
"or its employee or agent" should be DELETED.
Response:
(i) Discovery date depends on specific
circumstances at each site and should not be
linked to any administrative procedure. The
Staff, therefore, recommend no change.
(ii) "Reasonable basis" is appropriate considering
the site specific nature of the information.
The Staff, therefore, recommends no change.
(iii)Staff conferred with Attorney General's
Office, which advised that the intent of this
Rule appears to confirm that an employee,
acting within the scope of his employement,
will impute liability to the owner and
operator. The Staff, therefore, recommend no
change.
Commentors:
Mr. Jason A. Caplan, Ph.D., President & CEO, ESE
Biosciences, 3208 Spring Forest Rd., Raleigh, NC
27604
Ms. Angela Waldorf, Associate Director, North
Carolina Petroleum Council, P.O. Box 167, Raleigh,
NC 27602
Mr. Douglas Howey, P.G., N.C. Petroleum Marketers
Association, P.O. Box 30519, Raleigh, NC 27622
Comment 3c) Rule .0202(b)(S)
The following changes need to be placed in this rule:
i) AMEND the "Dual usage tank" definition to exclude
businesses located in households. These USTs
should be strictly regarded as noncommercial tanks
since Rule .0202 (b)(12) defines a dual usage tank
as a commercial tank.
ii) REVISE the language to give a more precise meaning
to the phrase "integral to".
5
Response:
( i ) A proposed change in the definition of
"household" covers this concern; for this
proposed change, see comment 3d.
"Integral to" is considered to be very
precise, so Staff recommends no change.
(ii)
Commenter:
Ms. Anne Coan, Natural Resources Division
Director, North Carolina Farm Bureau Federation,
P.O. Box 27766, Raleigh, NC 27611
Comment 3d) Rule .0202 (b)(6)
The
i)
ii)
iii)
iv)
v)
following changes need to be placed in this rule:
AMEND the definition of "Household" to include
mobile homes.
CHANGE the phrase "controlled and maintained by
residents". Renters can't be expected to have
control over · the property. The rule assumes that
all residents own the property they reside at.
AMEND definition of "Household" to include
property that is intermittently vacant. CHANGE the
phrase "used for living" in the rules to "intended
for living".
AMEND the definition of "Household" to
seasonal, tenant, and migrant housing.
not outlined as such and should not be
"multiple dwelling structures".
include
These are
considered
AMEND rules to specify "apartments" that do not
provide primary food preparation facilities as
bona fide households in the rules.
Response: A change in the wording of the definition is
proposed below. The changes suggested in comments
3d(ii) and 3d(v) are considered unnecessary
because the present language implies these
already.
(6) "Household" means a permanent structure,
whether free-standing or connected to other
units, used primarily for living where
primary living space and primary food
preparation facilities are controlled or
maintained by the residents. "Household"
includes single family houses, mobile homes,
apartments, and single living units, whether
or not the residents are related to each
other and whether the units are occupied on a
year-round or seasonal basis. "Household"
does not include dormitories, hospitals,
hotels, motels, apartment buildings (as
6
Commentor:
distinct from the individual units therein),
or other multiple dwelling structures. The
term "four o;r fewer households" shall relate
to underground storage tanks serving
households only.
Ms. Anne Coan, Natural Resources Division
Director, North Carolina Farm Bureau Federation,
P.O. Box 27766, Raleigh, NC 27611
Comment 3e) Rule .0202 (b)(7)
i) DELETE the words "and/or" in the definition of
"Occurrence". REPLACE this with the word "or".
ii) The use of the phrase "single plume" in the
definition of "Occurrence" implies a narrow
definition. DELETE the word "site" at the end of
the rule and REPLACE it with "Underground Storage
Tank".
iii) This rule is the cause of some confusion in the
legal community. The words "emanating from a given
site" are being construed to mean that if a single
plume is travelling beyond the property's
boundaries, then the entire "site" is regarded as
covered by one deductible, regardless of separate
plumes.
Response:
(i) The Staff concurs and so recommends this
change.
(ii) The change suggested in the comment would be
deleterious, but a change is proposed by
Staff to address this issue; see below.
(iii)The Staff proposes the following changes:
(7) "Occurrence" means one or more
release(s) that result(s) in a single
plume of soil, surface water, aaa/or
groundwater contamination (consisting of
free-product aaa/or dissolved
constituents exceeding standards
specified in 15A NCAC 2L or other
applicable laws, rules or regulations)
emaaatiH§-frem-the-site orig inating at a
single property.
Commentors:
Mr. Lacy H. Thornburg, Attorney General, State of
North Carolina, Department of Justice, P.O. Box
629, Raleigh, NC 27602-0629
7
Mr. J. Peter.Rascoe, Assistant Attorney General,
State of North Carolina, Department of Justice,
P.O. Box 629, Raleigh, NC 27602-0629
Ms. J. Wade; Manager, Governmental Affairs, Waste
Management of North America, Inc., Southeast
Region Satellite Office, Delk Place, Suite 200,
2600 Delk Road, Marietta, GA 30067
Comment 3f) Rule .0202 (b)(8)
i) REVISE the underlined language in this rule:
" .... and which is essential in determining
the extent of contamination, in conducting
release response or remediation, or which
comp ensates third parties ..... damage."
REPLACE "is" and "comp ensates" with "are" and
"compensate".
ii) This section needs a clearer, more concise
definition. INSERT underlined text into rule as
follows:
" ..... environmental laws, regulations and
accep ted environmental investig ation
techniq ues and restorative methods which are
essential .... ".
iii) The following changes need to be placed in this
rule:
DELETE "for cleanup work" and REPLACE this
with the phrase "for the cleanup of
environmental damage". This change will make
the language of the rule consistent with
supporting statutes.
ADD the phrase "planning and implementing
corrective action" in the Subparagraph as
follows:
Response:
(i)
(ii)
" ... and which is essential in
determining 'the extent of contamination,
p lanning and imp lementing corrective
action, in conducting release ...... " .
This would make corrective action activities
eligible for 15A NCAC 2P fund reimbursement.
The Staff concur, and recommend this change.
The suggested change is unnecessary because
the intent is already carried in the phrase
"applicable laws, rules and regulations".
The Staff, therefore, recommend no change.
(iii)The first suggested change is concurred with
by Staff, and is recommended. The second
suggested change is considered unnecessary
because the intent is aready carried in the
existing language.
8
Commentors:
Mr. Jason A. Caplan, Ph.D., President & CEO, ESE
Biosciences, 3208 Spring Forest Rd., Raleigh, NC
27604
Ms. Anne Coan, Natural Resources Division
Director, North Carolina Farm Bureau Federation,
P.O. Box 27766, Raleigh, NC 27611
Mr. Lacy H. Thornburg, Attorney General, State of
North Carolina, Department of Justice, P.O. Box
Comment 3g) Rule .0202(b)(10) & (b)(11)
Federal regulations do not distinguish between these
terms. There is no legal basis for these rules to make
the distinction between "Tank in operation" and "Tank
in Use".
Response: The terms "in operation" and "in use" are
used distinctively within the Leaking Petroleum
Underground Storage Tank Cleanup Act of 1988 (G.S.
143-215.94A et seq.), so separate and distinct
definitions of these terms are required.
Commentor:
Ms. J. Wade; Manager, Governmental Affairs, Waste
Management of North America, Inc., Southeast
Region Satellite Office, Delk Place, Suite 200,
2600 Delk Road, Marietta, GA 30067
Comment 3h) Rule . 0202 (b) ( 11)
i) The definition of "Tank in use" in this section
refers to USTs. In Rule .0301 (d) the words "in
use" in the definition refers to operational USTs
not permanently closed after December 22, 1988.
AMEND this rule to make "in use" consistent in
both rules.
ii) The word "intended" gives this definition some
ambiguity. Previously excluded noncommercial and
commercial tanks by definition can now be
considered eligible for the fund under this rule.
REPLACE "intended" with 11 used11
•
9
Response:
( i)
(ii)
The Staff does not consider these two rules
to be inconsistent because whether or not a
tank is in "in operation" is one of the
criteria used in determining whether or not
it is "in use"; recommend no change.·
The Staff considers "intent" to be an
essential element in determining whether a
tank is "in use"; recommend no change.
Commentors:
Mr. Jason A. Caplan, Ph.D., President & CEO, ESE
Biosciences, 3208 Spring Forest Rd., Raleigh, NC
27604
Ms. J. Wade; Manager, Governmental Affairs, waste
Management of North America, Inc., Southeast
Region Satellite Office, Delk ·place, Suite 200,
2600 Delk Road, Marietta, GA 30067
4) RULE 15A NCAC 2P .0301: Fees and Payment
Comment 4a) Rule .0301(a) & (f)
Amend this rule so that a current tank owner is not
responsible for the tank fees of a previous owner. To
prevent individuals from scheming to circumvent this
rule, specific USDA information is available to develop
rule-making language which determines ineligibility.
The rule presented at the public hearings is an unfair
imposition on the public.
Response: The wording in the proposed rule is
consistent with that in G.S. 143-215.94C(a) and
143-251.94E(g). The Staff, therefore, recommends
no change.
Commenter:
Ms. Anne Coan, Natural Resources Division
Director, North Carolina Farm Bureau Federation,
P.O. Box 27766, Raleigh, NC 27611
Comment 4b) Rule .0301(c)(1)
AMEND rule to allow up to sixty (60) days from the last
invoicing date fo~ fees. Also, place provisions in
these rules that will allow prorating fees for tanks
that closed in the year the fees were due but prior to
payment.
10
Response: Prorating of fees for USTs which are removed
prior to the end of the year would be contrary to
the language of G.S. 143-215.94C. The Staff,
therefore, recommends no change.
Commentor:
Mr. Douglas Howey, P.G., N.C. Petroleum Marketers
Association, P.O. Box 30519, Raleigh, NC 27622
Comment 4c) Rule .0301(d)
(i) AMEND this rule to protect property owners who
have purchased or inherited property but are
unaware of the presence of a UST on their land.
Because Rule .0401(b) requires all tank fees be
paid prior to the discovery of a release, people
could be denied access to the fund due to
circumstances outside their control.
(ii) For landowners who possess title to land without
knowledge that a UST is present on the premises,
the following exceptions need to be incorporated
in this rule:
the UST was/is in use on or after December
22, 1988, and;
has not been properly closed in accordance
with 15A NCAC 2N.0800.
If this changed is not made the current rule may
violate the innocent landowner provisions of G.S.
143-215.84(a).
Response: The staff agrees with the comment that this
may be in conflict with the statutory language,
though the citation should be G.S.
143-215.94D(b)(4), and so recommend the following
amendment:
(d) Any commercial underground storage tank
(except commercial underground storage tanks
not regulated under 15A NCAC 2N) which was in
operation on or after December 22, 1988, and
has not been permanently closed in accordance
with 15A NCAC 2N.0800 is considered to be in
use unless the p rovisions of G.S.
143-215.94D (b )(4 ) are a pplicable.
Commentors:
Mr. Douglas Howey, P.G., N.C. Petroleum Marketers
Association, P.O. Box 30519, Raleigh, NC 27622
Ms. Angela Waldorf, Associate Director, North
Carolina Petroleum Council, P.O. Box 167, Raleigh,
NC 27602
11
Comment 4d) Rule .0301(f)
AMEND rule to include the fees listed in G.S.
143-215.94(C). This will give the regulated community
easier access to the needed information.
Response: To list the fees prescribed in G.S.
143-215.94C would constitute a simple repetition
of the statute, which is not permitted pursuant to
G.S. 150B-19(4). In addition, to do so in the
body of the Rule would mandate revision of the
Rule each time the Legislature adjusted those
fees. The Department will attempt to make the
values of these fees readily available, but the
Staff recommends that these not be incorporated in
the Rule.
Commenter:
Ms. J. Wade, Manager, Governmental Affairs, Waste
Management of North America, Inc., Southeast
Region Satellite Office, Delk Place, Suite 200,
2600 Delk Road, Marietta, GA 30067
Comment 4e) Rule .0301(g)
AMEND rule to require refunds be granted if adequate
documentation is provided.
Response: The Staff concurs with the comment, and
proposes the following chang~:
(g) In the event that an annual operating fee was
paid for a tank for which a fee was not
required, a refund of that fee payment may be
requested by the owner or operator. A refund
will be g ranted if the ~he owner or operator
mHst provides adequate documentation that the
tank was exempt from the requirement to pay
the annual operating fee.
Commenter:
Mr. Douglas Howey, P.G., N.C. Petroleum Marketers
Association, P.O. Box 30519, Raleigh, NC 27622
12
5) RULE 15A NCAC 2P .0302: Notification
Comment Sa) Rule .0302
Clarification: What is the specific effect of failing
to comply with Rule .0302 requirements? None are
stated in the rule.
Response: The requirements of .0302 allow the
Department to assess fees properly. Failure to
comply may result in improper billing, possibly
resulting in incomplete payment of fees. Such
incomplete payment of fees would result in at
least partial ineligibility for the Trust Fund.
In addition, the Department has the authority to
levee penalties for noncompliance pursuant to G.S.
143-215.94K. The Staff recommends no change.
Commenter:
Mr. Douglas Howey, P.G., N.C. Petroleum Marketers
Association, P.O. Box 30519, Raleigh, NC 27622
Comment Sb) Rule .0302(4)
In fulfilling the 30 day notification requirement,
signatures of both the transferring owner and new owner
need to be obtained.
(i) The Division needs to seek legal review from the
North Carolina Bar Association's, Real Estate
Section to provide an assessment on this rule's
impact on real estate transactions prior to final
approval.
(ii) A more formalized procedure to handle the
information requirements needs to be provided in
the rules.
Other states use real estate liability
notification forms (i.e. Illinois and Indiana).
These forms are filed in the local courthouse
within 30 days of closing as a part of the closing
documents.
A more standardized form needs to be adopted
by the Division to protect seller and buyer during
tank transfers. This provision should stated in
the rule. The Division should develop a "Transfer
of Ownership Form".
Response: The Staff concurs that there may be some
confusion with the requirements, so a change is
recommended, as follows, to make the requirement
compatible with 15A NCAC 2N. To add a specific
form would be unnecessary.
13
"Any person t1:aasfe1:1:iag acq uiring ownership
of an existing commercial underground storage
tank shall provide written notification to
the Division of this action within 30 days of
the transfer. "
Commentors:
Mr. Douglas Howey, P.G., N.C. Petroleum Marketers
Association, P.O. Box 30519, Raleigh, NC 27622
Smith, Helms, Mulliss & Moore; Attorneys At Law,
P.O. Box 27525, Raleigh, NC 27611
(***Representing Hardee's Food Systems, Inc.***)
Ms. Anne Coan, Natural Resources Division
Director, North Carolina Farm Bureau Federation,
P.O. Box 27766, Raleigh, NC 27611
Mr. Robert H. Madkiff, Jr., P.E., Boddie-Noell
Enterprises, Inc., Hardee's Franchise Operators,
P.O. Box 1908, Rocky Mount, NC 27802-1908.
6) RULE 15A NCAC 2P .0401: Elig ibility of Owner or Op erator
Comment 6a) Rule .0401(a)(1)
The implication of the word "discovered" as used in the
rule, should serve to mean tanks should be regarded as
elig ible if no documentation of a release exists.
Response: The definition of "discovered release" is
clear, so the Staff recommends no change.
Commenter:
Mr. Jason A. Caplan, Ph.D; President & CEO, ESE
Biosciences, 3208 Spring Forest Rd., Raleigh, NC
27604 -
Comment 6b) Rule .0401(a)(3)
It is understood that the 120 day reimbursement
ineligibility clause in this rule is statutory. The
General Assembly and the Division need to carefully
reconsider their position. This rule could easily
encourage cheating by some contractors to get cleanup
funds under Subchapter 2P. Actual situations have been
observed where leaking UST tanks can be clearly viewed
but environmental laboratory analysis of samples show
no contamination present. AMEND statute and rule to
14
provide no time limit. Each eligibility assessment can
be best handled on a case-by-case basis through the
Department. This rule as presented in the hearing
notice could put a crippling financial burden on the
public whose ineligibility for the fund is lost due to
the 120 day exclusion.
Response: This provision is controlled by statutory
language which was originally proposed and
promoted by industry, so no change is possible.
Comment:or:
Mr. Charlie Harrison; Vice-President, UTTS
Environmental, P.O. Box 190, Ayden, NC 28513
Comment 6c) Rule .0401(b)
The way this rule· is written will result in unfair
denials to the Trust Fund. A new owner of a UST may
not know "if any annual operating fees due have not
been paid in accordance with Rule .0301". Previous
owners in the title chain may not have paid. The
legislation does not provide a constructive lien on any
owner or operator (past or present) who failed to pay.
The rule needs revising so that it won't penalize an
owner/operator by excluding access to the Fund solely
due to his ignorance of the past owner(s) UST fee
payment history.
Trust fund access should not be denied just
because fees were not paid. Other states allow owners
and operators of USTs to go back and pay fees after
discovery of non-payment. The "prior to discovery"
language needs to revised. The N.C. General Statutes
do not give the Division the expressed authority to
deny access to the fund because tank fees were not paid
by an owner or operator.
Late payment and penalty fees are a better way for
the state to gain compliance with Rule .0301 provisions
without denying access to the fund.
Response: The statutory language sets the requirements
for past owners and operators. To clarify the
requirements for past owners/operators, the Staff
proposes the following change:
(b) An owner or operator of a commercial
underground storage tank is not eligible for
reimbursement of costs related to releases if
any annual operating fees due have not been
paid in accordance with Rule .0301 of this
Subchapter prior to discovery. A p revious
owner or o p erator of a commercial underg round
storag e tank ma y be elig ible for
15
reimbursement of costs for cleanup of a
release:discovered after he ceases owning or
operating the underground storage tank if all
fees due during his period of ownership and
operation have been paid prior to discovery
of the release.
Commentors:
Ms. Angela Waldorf, Associate Director, North
Carolina Petroleum Council, P.O. Box 167, Raleigh,
NC 27602 .
Smith, Helms, Mulliss & Moore; Attorneys At Law,
P.O. Box 27525, Raleigh, NC 27611
(***Representing Hardee's Food Systems, Inc.***)
Mr. Robert H. Madkiff, Jr., P.E.; Boddie-Noell
Enterprises, Inc., Hardee's Franchise Operators,
P.O. Box 1908, Rocky Mount, NC 27802-1908
Smith, Helms, Mulliss & Moore; Attorneys At Law,
P.O. Box 27525, Raleigh, NC 27611
(***Representing many present/former owners and
operators of Underground Storage Tanks***)
Ms. J. Wade, Manager, Governmental Affairs, Waste
Management of North America, Inc., Southeast
Region Satellite Office, Delk Place, Suite 200,
2600 Delk Road, Marietta, GA 30067
Ms. Anne Coan, Natural Resources Division
Director, North Carolina Farm Bureau Federation,
P.O. Box 27766, Raleigh, NC 27611
Comment 6d) Rule .0401(c)
REVISE the rule so that "reasonable" is more clearly
defined.
Response: "Reasonable and necessary" is clearly
defined and reflects the statutory language, so
the Staff recommends no change.
Commenter:
Mr. Jason A. Caplan, Ph.D; President & CEO, ESE
Biosciences, 3208 Spring Forest Rd., Raleigh, NC
27604
16
7) RULE 15A NCAC 2P .0402: Cleanup Costs
Comment 7a) Rule .0402
This rule does not address costs for backfilling,
regrading and repaving property. This should be
addressed in the rules.
Response: The Staff considers these costs to be
clearly eligible for reimbursement and so
inclusion in a list of excluded costs would be
inappropriate. The Staff recommends no change.
Commenter:
Smith, Helms, Mulliss & Moore; Attorneys At Law,
P.O. Box 27525, Raleigh, NC 27611
(***Representing Hardee's Food Systems, Inc.***)
Comment 7b) Rule .0402(a)(1)
The standards and processes that the Division will
utilize to determine which costs are "reasonable and
necessary" and what is meant by "adequacy and cost
effectiveness" must be better defined in these rules.
A reference to the 15A NCAC 2L and 2N standards in this
rule would provide concrete remediation targets for
owners and operators of USTs, the environmental
industry, and the Division. This Rule needs revising
to allow a more competitive "free-market" determination
of rates. The "reasonable rates" approach taken here
will keep cost artificially high by stifling
competitiveness.
Response: "Reasonable and necessary costs" are clearly
defined and "adequacy and cost-effectiveness"
needs to be determined on a site-by-site basis.
The reasonable rates are based on the free-market
rates and should not result in rate control. The
Staff, therefore, recommends no change.
Commentors:
Mr. Jason A. Caplan, Ph.D., President & CEO, ESE
Biosciences, 3208 Spring Forest Rd., Raleigh, NC
27604
Mr. Douglas Howey, P.G., N.C. Petroleum Marketers
Association,-P.O. Box 30519, Raleigh, NC 27622
Ms. Angela Waldorf, Associate Director, North
Carolina Petroleum Council, P.O. Box 167, Raleigh,
NC 27602
17
Mr. Daniel H. Moenter; Manager Governmental
Affairs, Marathon Oil Company, 539 South Main
Street, Findlay, OH 45840
Comment 7c) Rule .0402(a)(2)
REVISE this rule to reflect the typical billing rate of
each particular company providing cleanup services to
the state. The rule must require a show of proof (i.e.
invoices from previous clients) that charges to the
Trust Fund are the actual free market cost for services
rendered. The rule in it's present form may provide the
state with a simplified "typical billing rate" at the
expense of the best quality service. It may also
inflate costs to the Fund.
AMEND reasonable rates for professional services
to reflect the following in the rules:
i) Take the actual salaries (A) times a
multiplier (M): (A) X (M)
ii) The multiplier (M) will include allowable
overhead and a reasonable profit (fixed fee).
iii) Require firms to submit a recent audit
showing their audited overhead rate.
iv) The Division can determine profit or fixed
fee (15-20%) with allowances for employee
raises.
Response: To set "reasonable rates" for each
particular company, let alone each individual,
would be administratively unreasonable and could
result in a loss of control over what is really a
reasonable rate. The Staff, therefore, recommends
no change.
Cornrnentors:
Mr. Jason A. Caplan, Ph.D., President & CEO, ESE
Biosciences, 3208 Spring Forest Rd., Raleigh, NC
27604
Mr. Douglas Howey, P.G., N.C. Petroleum Marketers
Association, P.O. Box 30519, Raleigh, NC 27622
Comment 7d) Rule .0402(a)(2 -4)
ADD provisions to these rules clearly stating the
"typical" rates the Division will provide as reasonable
and necessary". Rate schedules should be made
available to the public.
18
Response: Reasonable rate schedules are determined and
adjusted by analysis of "free-market" rates in
industry. To place these in the Rules would
overly constrain the ability of the Division to
respond to changes in the industry's rate
structures. The rate schedules used by the
Division are presently available to the public.
The Staff, therefore, recommends no change.
Commentors:
Ms. Angela Waldorf, Associate Director, North
Carolina Petroleum Council, P.O. Box 167, Raleigh,
NC 27602
Mr. Daniel H. Moenter; Manager Governmental
Affairs, Marathon Oil Company, 539 South Main
Street, Findlay, OH 45840
Comment 7e) Rule .0402(a)(3)
DELETE the provision requiring the amount of
reimbursement "not exceed the typical purchase price of
such equipment." Most companies do not limit rental
rates to the purchase price of the equipment. The
State would be receiving the benefits of renting
equipment without paying it's fair share of the costs.
Ultimately, consultants would have to bear this
additional burden.
Response: Payment of rental costs that exceed the
purchase price of a piece of equipment is not
reasonable. -The Staff, therefore, recommends no
change.
Commentor:
Mr. Jason A. Caplan, Ph.D., President & CEO, ESE
Biosciences, 3208 Spring Forest Rd., Raleigh, NC
27604
Comment 7f) Rule .0402(a)(4)
The word "necessary" needs to be more clearly defined.
Response: The definition of "reasonable and necessary
costs" is clear. The Staff, therefore, recommends
no change.
19
Commentor:
'Mr. Jason A. Caplan, Ph.D., President & CEO, ESE
Biosciences, 3208 Spring Forest Rd., Raleigh, NC
27604
Comment 7g) Rule .0402(b)(1)
A DISCREPANCY APPEARS IN THIS RULE;
Rule .0402 (b)(1) declares removal and contents
disposal costs ineligible for reimbursement from
noncommercial tanks that were removed after July 3,
1991. Rule .0401 : (a) (2) says the following:
"An owner or operator of a noncommercial
underground storage tank is eligible for
reimbursement for costs without regard to the date
a release is discovered."
Response: The proposed Rule reflects changes in the
statutory language as to what is considered
reasonable and necessary cleanup costs. The
Staff, therefore, recommends no change.
Commentor:
Ms. J. Wade, Manager, Governmental Affairs, Waste
Management of North America, Inc., Southeast
Region Satellite Office, Delk Place, Suite 200,
2600 Delk Road, Marietta, GA 30067
Comment 7h) Rule .0402(b)(3)
(i) AMEND this rule to allow reimbursement for cleanup
proposal preparations. Unique site conditions may
require extensive activities and proposal
preparation.
(ii) REVISE language in this rule to read as follows:
"(3) Cost incurred in preparation of any proposal
or bid by a provider of service for the
purpose of soliciting or bidding for the
opportunity to perform an environmental
investigation or clean-up, even if that
provider is ultimately selected to provide
the service solicited."
The rule as presented in the public notice could
be interpreted to exclude any proposal including
corrective action plans.
Response: This paragraph was intended to apply only to
proposals and bids for the opportunity to do work.
The staff therefore proposes accepting the changes
proposed in comment 7h(ii) as follows:
20
(3) Cost incurred in preparation of any proposals
or bid b y a p rovider of service for the
p urp ose of soliciting or bidding for the
o pportunity to perform weFk-ieF an
environmental investig ation or cleanup , even
if that p rovider is ultimately selected to
p rovide the service solicited;
Commentor:
Ms. Angela Waldorf, Associate Director, North
Carolina Petroleum Council, P.O. Box 167, Raleigh,
NC 27602
Smith, Helms, Mulliss & Moore; Attorneys At Law,
P.O. Box 27525, Raleigh, NC 27611
(Representing Federated Mutual Insurance Company)
Comment 7i) Rule .0402(b)(5)
(i) Large corporations have highly trained staff that
can preform remediation activities without the
need for outside consultants. This rule should be
revised to allow reimbursement from the Fund for
their activities.
(ii) AMEND the rule to allow owners and operators to
charge time for selected tasks such as form
completion and 20 day report_preparation.
Response: Owners and operators are already allowed to
use their own staff to perform remedial
activities. The completion and processing of
reimbursement claims, however, to the extent that
these tasks are performed by the owner or operator
or his employees, is considered to be a basic
element of b~ing a tank owner and is therefore not
considered a reasonable cost within the context of
the statutory language. The Staff, therefore,
recommends no change.
Commentors:
Mr. Douglas Howey, P.G., N.C. Petroleum Marketers
Association, P.O. Box 30519, Raleigh, NC 27622
Ms. Angela Waldorf, Associate Director, North
Carolina Petroleum Council, P.O. Box 167, Raleigh,
NC 27602
Mr. Daniel H. Moenter; Manager Governmental
Affairs, Marathon Oil Company, 539 South Main
Street, Findlay, OH 45840
21
Comment 7j) Rule .0402(b)(6)
REVISE rule to make attorney's fees for third party and
property damage claims eligible for reimbursement.
Response: Attorney's fees are not considered
reasonable and necessary costs for cleanup or
third-party claims. The Staff, therefore,
recommends no change.
Commentor 7g, 7j:
Ms. J. Wade, Manager, Governmental Affairs, Waste
Management of North America, Inc., Southeast
Region Satellite Office, Delk Place, Suite 200,
2600 Delk Road, Marietta, GA 30067
Comment 7k) Rule .0402(b)(9)
REVISE the rule to read as follows:
"(9 ) .Third p arty bodily in j ury or p rop erty
damag e."
The rule as written is too broad and encompassing.
Response: To make the change suggested would be
contrary to the statute and would unnecessarily
limit the Division's ability to reimburse work
necessary to facilitate cleanup. The Staff,
therefore, recommends no change.
Commentor:
Mr. Jason A. Caplan, Ph.D., President & CEO, ESE
Biosciences, 3208 Spring Forest Rd., Raleigh, NC
27604
8) RULE 15A NCAC 2P .0403: Third Party Claims
Comment Ba) Rule .0403
These rules fail to address a third parties eligibility
when the owner or operator can't be identified or
refuses to acknowledge an association with a UST
release. Please CLARIFY rule; Can third parties seek
reimbursement fund if he/she encounters the above
circumstances?
Response: The statute does not allow the third-party
to be reimbursed directly from the Funds. Rather,
the Funds are simply reimbursing the owner or
operator for valid third-party claims in excess of
22
$100,000. Thus, if there is no owner or operator
for the claims to be made against, there are no
third-party claims to be reimbursed. The Staff,
therefore, recommend no change.
Commenter:
Ms. Angela Waldorf, Associate Director, North
Carolina Petroleum Council, P.O. Box 167, Raleigh,
NC 27602
Comment 8b) Rule .0403(a)
This rule does not address third parties who refuse to
provide the adequate information to process claims of
bodily injury or property damage. The owner or
operator may not be the appropriate party ~o supply
these documents to the Division for the following
reasons:
i) These materials contain confidential information
that may make the third party reluctant to provide
them.
ii) Third parties may not trust the owner or operator
to provide some or all the materials to the
Division.
Response: The owner or operator is only allowed to
claim third-party reimbursement for that which
he/she actually pays to the third-party. All this
paragraph requires is that the documentation of
costs be adequate to justify to the Division that
these costs were reasonable and necessary. If the
third-party is unwilling to supply the
information, the owner or operator should not pay
the claim. The third-party can not expect to make
a vaild claim to the owner or operator, either
directly or through legal action, without
disclosing the documentation needed to establish
that the claim is reasonable and necessary. The
Staff, therefore, recommends no change.
Commentors:
Ms. Anne Coan, Natural Resources Division
Director, North Carolina Farm Bureau Federation,
P.O. Box 27766, Raleigh, NC 27611
Mr. Douglas Howey, P.G., N.C. Petroleum Marketers
Association, P.O. Box 30519, Raleigh, NC 27622
23
Comment 8c) Rule .0403(b)
REVISE the rule as follows by inserting the underlined
words:
"(b) The term third party bodily injury means alleg ed
specific physical bodily injury allegedly
proximately resulting ... "
The phrase "specific physical bodily injury"
restrictive definition of third party bodily
than authorized by the enabling legislation.
needs to be revised.
is a more
injury
This
Response: In order to evaluate whether third-party
claims for "bodily injury" are reasonable and
necessary, the Department considers that the
injuries must be specific and physical in nature.
Non-specific, non-physical, or alleged injuries
are considered by the Staff to be unsubstantiated
or unsubstantiable costs, and to reimburse such
would be contrary to the intent of the statutory
language. The Staff, therefore, recommends no
change.
Commentors:
Mr. Douglas Howey, P.G.,. N.C. Petroleum Marketers
Association, P.O. Box 30519, Raleigh, NC 27622
Ms. J. Wade, Manager, Governmental Affairs, Waste
Management of North America, Inc., Southeast
Region Satellite Office, Delk Place, Suite 200,
2600 Delk Road, Marietta, GA 30.067
Comment 8d) Rule .0403(b) & (c)
The third party bodily injury/third party property
damage are best defined in Rule .0202. The rule
proposed in the public notice needs to be AMENDED to
reflect this.
Response: The juxtaposition of the so-called
definitions of third-party damage and bodily
injury with the rules for making third-party
claims will result in less confusion in
interpreting these rules. The Staff, therefore,
recommends no change.
Commenter:
Mr. Jason A. Caplan, Ph.D., President & CEO, ESE
Biosciences, 3208 Spring Forest Rd., Raleigh, NC
27604
24
Comment Be) Rule .0403(c)
(i) REVISE the rule as follows by inserting the
underlined word:
"(c) The term third party property damage means
alleg ed actual physical damage or damage due
to a specific loss of ... ".
(ii) CLARIFY rule; When are third party costs to be
actually paid? When are cases settled or
judgements rendered?
Response: Reimbursement of costs will follow Division
review of settlements/judgements between owners or
operators and third-party claimants. Without
settlement, claims can not be considered
reasonable and necessary. This is especially true
of alleged injuries.
Commenter:
Ms. J. Wade, Manager, Governmental Affairs, waste
Management of North America, Inc., Southeast
Region Satellite Office, Delk Place, Suite 200,
2600 Delk Road, Marietta, GA 30067
9) RULE 15A NCAC 2P .0404: Req uest for Reimbursement
Comment 9a) Rule .0404
AMEND this rule to provide a timetable for
reimbursement.
Response: The determination of reasonable and
necessary costs involves considerable
investigation by a Staff which is also involved in
other high-priority duties. To place a time limit
on the review of reimbursement claims would hinder
the performance of critical tasks related to
protecting the health and welfare of the citizens
of North Carolina and would result in inconsistent
review of claims. In addition, the common need to
request additional information slows down the
review process, making time limits unreasonable.
The Staff, therefore, recommends no change.
Commenter:
Mr. Douglas Howey, P.G., N.C. Petroleum Marketers
Association, P.O. Box 30519, Raleigh, NC 27622
25
Comment 9b) Rule .0404(b)
AMEND this rule to require owners and operators to
submit only the information necessary to the Division
to make a reimbursement request. Medical records and
information several years old may not be available.
The regulated industry should not be denied
reimbursement based solely on the inability to obtain
documents that they could not reasonably expect to
have. The last sentence of the rule could be revised
to read as follows:
"(b) ...... The Division may require the owner of
operator to submit i~f information required for
the purpose of ....... on forms provided by the
DivisionL p rovided such information is reasonably
available."
Response: The Division must be able to require
documentation of costs in order to determine
whether they are reasonable and necessary.
Obviously, if specific documentation is not
available, the Division will consider other
reasonable means in making its determination.
This approach is well within the language in the
proposed Rule, so the Staff recommends no change.
Commenter:
Ms. Angela Waldorf, Associate Director, North
Carolina Petroleum Council, P.O. Box 167, Raleigh,
NC 27602
Comment 9c) Rule .0404(c)
(i) AMEND this rule to require that the Division set a
timetable to return incomp lete reimbursement
claims to owners and operators who have disbursed
payments to contractors. These people would have
a reasonable expectation that they would be
reimbursed.
(ii) AMEND rule presented in the public notice to
require the Division to make a reimbursement
determination claim within a fixed period of time.
We suggest sixty (60) to ninety (90) days.
Response: see response to comment 9a.
Commenter:
Mr. Daniel H. Moenter; Manager Governmental
Affairs, Marathon Oil Company, 539 South Main
Street, Findlay, OH 45840
26
Comment 9d) Rule .0404(d)
AMEND this rule to require monthly invoicing for
expenses. CLARIFY the meaning of "significant phase of
cleanup work".
Response: The statutory limit on billing is 3 months.
To allow more frequent billing without linking it
to definable phases of the cleanup effort would
result in an overload in the review system and
would contravene the statute. The Staff,
therefore, r~commends no change.
Commenter:
Mr. Jason A. Caplan, Ph.D; President & CEO, ESE
Biosciences, 3208 Spring Forest Rd., Raleigh, NC
27604
10) RULE 15A NCAC 2P .0405: Method of Reimbursement
Comment 10a) Rule .0405
(i) REVISE rule to incorporate language that would
allow authorized representatives to receive
reimbursement payment. This will cover situations
where estate administrators, elderly people, the
incompetent, and others in need of representation
due to unique circumstances.
(ii) REVISE the rule to incorporate a provision to
allow the regulatory owner to assign his right of
eligibility under the trust fund to a third party.
Many operators desire to cleanup UST sites yet the
regulatory owner is unable or unwilling. The
strict statutory definition of "owner" (G.S.
143-215.94A) creates this circumstance.
Response: The Division already accepts individuals who
have "power of attorney" to apply for
reimbursement on behalf of an owner or operator,
because such an individual is considered a legal
extension of the owner/operator. To allow any
less of a legal connection between the
representative and the owner/operator would be in
direct contradiction of the statutory language of
G.S. 143-215.94E. The Staff, therefore,
recommends no change. [Note: Senate Bill 1169,
ratified July 1, 1992, allows reimbursement of
landowners under specific circumstances. We plan
to address reimbursement of landowners for
releases from commercial tanks under a separate
rule-making effort.]
27
Commentors:
Ms. Anne Coan, Natural Resources Division
Director, North Carolina Farm Bureau Federation,
P.O. Box 27766, Raleigh, NC 27611
Mr. Robert H. Madkiff, Jr., P.E., Boddie-Noell
Enterprises, Inc., Hardee's Franchise Operators,
P.O. Box 1908, Rocky Mount, NC 27802-1908.
Smith, Helms, Mulliss & Moore; Attorneys At Law,
P.O. Box 27525, Raleigh, NC 27611
(***Representing Hardee's Food Systems, Inc.***)
Mr. Douglas Howey, P.G., N.C. Petroleum Marketers
Association,.P.O. Box 30519, Raleigh, NC 27622
Comment 10b) Rule .0405(a)
REVISE this ·. rule to read as follows:
"(a) Reimbursement for cleanup costs shall ..... .
tank, or jointly to an owner and/or operator
and a provider of service."
The owner and operator may have contributed jointly to
the fund even if property was leased ..
Response: The Attorney General's Office advises, "or"
may be considered conjunctive in cases such as
this. The Staff, therefore, recommends no change.
Commenter:
Ms. J. Wade, Manager, Governmental Affairs, Waste
Management of North America, Inc., Southeast
Region Satellite Office, Delk Place, Suite 200,
2600 Delk Road, Marietta, GA 30067
Comment 10c) Rule .0405(b)
(i) Why is this rule necessary in light of Rule
.0405(a)?
(ii) Where will the money come from to pay consultants
prior to reimbursement?
Response: This Rule requires the owner or operator to
provide documentation that costs have been paid
prior to being reimbursed. This is appropriate· as
a documentation requirement pursuant to G.S.
143-215.94E(e). The Staff, therefore, recommends
no change.
28
Commenter:
Mr. Jason A. Caplan, Ph.D., President & CEO, ESE
Biosciences, 3208 Spring Forest Rd., Raleigh, NC
27604
Comment 10d) Rule .0405 (c)
The rule should be rewritten to prioritize joint
reimbursement to the financially needy. Many large UST
remediation firms are simply using joint reimbursement
as a marketing tool to larger corporations. The rule as
presented in the public notice prevents free market
competition and does not serve the public's best
interest.
Response: To restrict joint reimbursement to small or
"needy" owners/operators would be unfair and
impractical. The time lag between payment of a
contractor and receipt of reimbursement can
represent a significant hardship to even a large
corporation. Attempting to determine the level of
need that constitutes "needy" would be an
unreasonable burden to place on the Division
staff~ The Staff, therefore, recommends no
change.
Commenter:
Mr. Charlie Harrison, Vice-President, UTTS
Environmental, P.O. Box 190, Ayden, NC 28513
11) RULE 15A NCAC 2P .0406: Reimbursement Apportionment
Comment 11a) Rule .0406(a)
CLARIFY this rule; What criteria is used to determine a
multiple occurrence? How will reimbursement be
apportioned?
Response: The definition of "occurrence is ,clearly
defined in Rule .0202. The proposed Rule clearly
states how reimbursement will be apportioned. The
Staff, therefore, recommends no change.
Commenter:
Mr. Jason A. Caplan, Ph.D:, President & CEO, ESE
Biosciences, 3208 Spring Forest Rd., Raleigh, NC
27604
29
Comment 11b) Rule .0406(b) & (c)
For multiple tank release scenarios, REVISE the rule so
that an individual's share.of the fund would not be
reduced even if other potentially responsible parties
exist. Many in the legal community feel that a tank
owner can be jointly and severely held liable for all
damages.
Response: The Funds are available jointly to all
owners and operators contributing to an
occurrence. Because multiple owners/operators
working independently on the cleanup of a single
occurrence will generally result in duplication of
actions and extra costs, which would be considered
unnecessary and unreasonable, this is discouraged.
No single owner's or operator's potential
reimbursement is reduced, however, simply because
other owners and operators exist. This is clearly
addressed in paragraph (c). Because potential for
confusion concerning the possible causes for
ineligibility within paragraph (b), the Staff
recommends the following change:
"(b) Where aaaaal-eperatiag-fees-have-aet-aeea
paia-eR not all underground storage tanks
contributing to an occurrence are elig ible
for reimbursement, reimbursement will be made
at a rate equal to the number of tanks
contributing to the occurrence fer which are
elig ible for reimbursement all-assaal
eperatisg-fees-aae-have-aeea-paia divided by
the total number of tanks contributing to the
occurrence.
Commenter:
Mr. Douglas Howey, P.G., N.C. Petroleum Marketers
Association, P.O. Bog 30519~ Raleigh, NC 27622
Comment 11c) Rule .0406(c)
REVISE the rule to give a clearer definition of the
word "site". Owners need clear guidance to identify
their "site" in areas of multiple UST release
incidents.
Response: The Staff recommend making the following
change to make this paragraph conform to the
changes already recommended for Rule .0202(b)(7):
"(c) If multiple underground storage tanks at a
single site property are contributing to a
single occurrence and the tanks are owned or
operated by different persons, reimbursement
30
may be made to any of the owners or operators
as if the occurrence were caused solely by
that person's underground storage tanks.
Commenter:
Mr. Jason A. Caplan, Ph.D., President & CEO, ESE
Biosciences, 3208 Spring Forest Rd., Raleigh, NC
27604
12) RULE 15A NCAC 2P .0407: Final Action
Comment 12a) Rule .0407(a)
REVISE the rule as follows: DELETE references to "a
final decision" and REPLACE with "the agency
decision.".
Response: The Staff recommends that the proposed
change be incorporated into the Rule.
Commentors:
Mr. Lacy H. Thornburg, Attorney General, State of
North Carolina, Department of Justice, P.O. Box
629, Raleigh, NC 27602-0629
Mr. J. Peter Rascoe, Assistant Attorney General,
State of North Carolina, Department of Justice,
P.O. Box 629, Raleigh, NC 27602-0629
Comment 12b) Rule .0407(b)
ADD to the end of the rule this sentence:
"The Secretary of the De p artment of Environment ,
Health and Natural Resources shall make the final
a g ency decision in any contested case p ursuant to
G.S. 150B-36."
Response: The Staff recommends that the proposed
amendment be made to the Rule.
Commentors:
Mr. Lacy H. Thornburg, Attorney General, State of
North Carolina, Department of Justice, P.O. Box
629, Raleigh,-NC 27602-0629
Mr. J. Peter Rascoe, Assistant Attorney General,
State of North Carolina, Department of Justice,
P.O. Box 629, Raleigh, NC 27602-0629
31
September 16, 1992
APPENDIX I
TITLE 15A, SUBCHAPTER 2P
as proposed for adoption
TITLE 15A
SUBCHAPTER 2P
RULES FOR THE ADMINISTRATION OF THE
LEAKING PETROLEUM UNDERGROUND STORAGE TANK CLEANUP FUNDS
.0100 GENERAL CONSIDERATIONS
.0101 General
.0102 Copies of Rules Incorporated By Reference
.0103 False or Misleading Information
.0200 PROGRAM SCOPE
.0201 Applicability
.0202 Definitions
.0300 ANNUAL OPERATING FEES
.0301 Fees and Payment
.0302 Notification
.0400 REIMBURSEMENT PROCEDURE
.0401 Eligibility of Owner or Operator
.0402 Cleanup Costs
.0403 Third Party Claims
.0404 Requests for Reimbursement
.0405 Method of Reimbursement
.0406 Reimbursement Apportionment
.0407 Final Action
....
TITLE 15A
SUBCHAPTER 2P
LEAKING PETROLEUM UNDERGROUND STORAGE TANK CLEANUP FUNDS
SECTION .0100 -GENERAL CONSIDERATIONS
15A NCAC 2P.0101 is adopted with changes as published in 7:6 NCR
525 as follows:
.0101 GENERAL
(a) The purpose of this Subchapter is to establish criteria
and procedures for the reimbursement of costs incurred by owners
and operators from the Leaking Petroleum Underground Storage Tank
Cleanup Funds.
(b) The Groundwater Section of the Division of Environmental
Management of the Department of Environment, Health and Natural
Resources shall administer the Commercial and Noncommercial
Underground Storage Tank Cleanup Funds for the State of North
Carolina.
-fe-}---Staff -ef -tl=le -iH:visiea -ef -ERvi:reRmeRtal -MaRagemeat -shall
eeaattet -iaspeetieRs -aRa -:r:eview -:r:eee:r:as -as -Reeessa:r:y -te -asstt:r:e
eempliaRee-with-this-Sttaehapte:r:T
-fa-}-(c) As authorized by G.S. 143-215.94G, the Department may
engage in cleanup work it deems appropriate and pay the costs
from the Noncommercial Fund in accordance with G.S. 143-215.94D.
-fe-}-(d) The Department may engage in investigations and
cleanups in accordance with a priority ranking system and the
availability of resources as determined by the Division.
History Note: Statutory Authority: G.S. 143-215.94E;
143-215.94G; 143-215.94L
Eff.
1
•·
15A NCAC 2P. 0103 is adopted as published in 7: 6 NCR 525 as
follows:
.0103 FALSE OR MISLEADING INFORMATION
An y owner or o p erator or authorized a g ent who knowing l y submits
any false or misleading information with reg ard to these Rules
ma y be considered to be contributing to a discharg e , interfering
with the mitig ation of a discharg e , or p reventing the early
detection of a discharg e p ursuant to G.S. 143-215.94E (g) (1 ) if
the false or misleading information results in delay of any
efforts to stop the release or discharg e , results in delay of
detection of ,any p ortion of the discharg e or release , or results
in delay of investig atory or remedial activities.
History Note: Statutory Authority : G.S. 143-215.94E;
143-215.94L
Eff.
3
..
SECTION .0200 PROGRAM SCOPE
15A NCAC 2P.0201 is adopted as published in 7:6 NCR 525-526 as
follows:
.0201 APPLICABILITY
(a ) This Subchap ter shall a ppl y to the disbursement of funds
from the Commercial Leaking Petroleum Underg round Storag e Tank
Cleanup Fund and Noncommercial Leaking Petroleum Underg round
Storag e Tank Cleanup Fund , and to the collection of annual
o p erating fees.
(b ) An y p ortions of this Subchap ter which concern annual tank
o p erating fees a ppl y to all owners and o p erators of Commercial
Underground Storage Tanks that have been in use in North Carolina
on or after January 1 , 1989.
(c ) This Subchap ter shall a ppl y to discharg es or releases from
noncommercial or commercial underg round storag e tank s y stems ,
reg ardless of whether such s y stems are reg ulated under Subchap ter
2N of Title 15A , of the North Carolina Administrative Code.
History Note: Statutory Authority : G.S. 143-215.94E;
143-215.94L
Eff.
4
15A NCAC 2P.0202 is adopted with changes as published in 7:6 NCR
526-527 as follows:
.0202 DEFINITIONS
(a) The Definitions for "Criteria and Standards Applicable to
Underground Storage Tanks" contained in 15A NCAC 2N . 0203 are
hereby incorporated by reference including subsequent amendments
and editions, except that for the purposes of this Subchapter,
the definition of "Underground Storage Tank" shall be as defined
in Subparagraph (b)(12) of this Rule.
(b) The following terms are defined for use in this
Subchapter:
(1) "Annual operating fee" is an annual fee required to be
paid to the Department by th~ owner or operator of each
commercial underground storage tank in use on or after
1 January of the year, beginning with 1989 ..
(2) "Commission" means the Environmental Management
Commission as organized under Chapter 143B of the
General Statutes ..
(3) "Department" means Department of Environment, Health
and Natural Resources.
(4) "Discovered release" means a release which an owner or
operator, or its employee or agent, has been made aware
of, has been notified of, or has a reasonable basis for
knowing has occurred.
(5) "Dual usage tank" means an underground storage tank
which could be considered both a commercial underground
storage tank and a noncommercial underground storage
tank and for which both the commercial and the
noncommercial usages are integral to the operation or
existence of the tank.
(6) "Household" means a permanent structure, whether
free-standing or connected to other units, used
primarily for living, where primary living space and
primary food preparation facilities are controlled or
maintained by the residents. "Household" includes
single-family houses, mobile homes, apartments, and
single living units, whether or not the residents are
related to each other and whether the units are
occupied on a year-round or seasonal basis.
"Household" does . not include dormitories, hospitals,
hotels, motels, apartment buildings (as distinct from
the individual apartments therein), or other multiple
dwelling structures. The term "four or fewer
households" shall relate to underground storage tanks
serving households only.
(7) "Occurrence" means one or more release(s) that
result(s) in a single plume of soil, surface water,
aaa./-or groundwater contamination ( consisting of free
product aaa./-or dissolved contaminants exceeding
standards specified in 15A NCAC 2L or any other
applicable laws, rules or regulations) emaaatia~-frem-a
~ivea-site originating at a single property.
5
(8) "Reasonable and necessary expenditures" means
expenditures for the cleanup weFk of environmental
damag e performed in accordance with applicable
environmental laws and regulations and which :i:s are
essential in determining the extent of contamination,
in conducting release response or remediation, or which
compensates third parties for resulting bodily injury
and · property damage. The Commission shall consider
such expenditures reasonable and necessary to the
extent that they are sufficiently documented, are
performed in an effipient manner considering comparable
costs for labor, equipment, and materials, and utilize
cost-efficient methods.
(9) "Substantive law, rule, or regulation" shall mean any
law, rule, or regulation requiring an owner or operator
to perform any act necessary and essential in
preventing discharges or releases, in facilitating
their early detection, and in mitigating the impact of
discharges or releases.
(10) "Tank in operation" means an underground storage tank
into which product is added or from which product is
removed for purposes other than closure.
(11) "Tank in use" means an underground storage tank
intended for the containment or dispensing of petroleum
product.
(12) "Underground storage tank", as used in this Subchapter
means any Commercial or Noncommercial Underground
Storage Tank as defined in G. S. 143-215. 94A. A dual
usage tank is considered to be a Commercial underground
storage tank.
History Note: Statutory Authority: G.S. 143-215.94E;
143-215.94L
Eff.
6
SECTION .0300 ANNUAL OPERATING FEES
15A NCAC 2P.0301 is adopted with changes as published in 7:6 NCR
527 as follows:
.0301 FEES AND PAYMENT
(a) The owner or operator of each commercial underground
storage tank shall pay all annual tank operating fees due for
that underground storage tank.
(b) The Division shall send an invoice, for the amount of the
annual operating fees due, to the owner or operator of any
commercial petroleum underground storage tank in use on January 1
of the year and which has been registered with the Department.
The annual operating fee shall be due and payable 30 days
following the date of the invoice and shall be submitted to the
Division accordingly.
· (c) Any owner or operator not receiving an invoice for annual
operating fees shall still pay any fees due according to the
following schedule:
(1) If the owner or operator has paid annual operating fees
for the subject tank in previous years, the payment
will be submitted to the Division within 30 days of the
anniversary of the last invoicing date for the fees.
(2) If the owner or operator has no.t previously paid annual
operating fees for the subject tank, any annual
operating fee is due on 1 January of that year and
shall be submitted to the Division accordingly.
(d) Any commercial underground storage tank (except commercial
underground storage tanks not regulated under 15A NCAC 2N) which
was in operation on or after December 22, 1988 and has· not been
permanently closed in accordance with 15A NCAC 2N . 0800 is
considered to be in use unless the p rovisions of . G. S.
143-215.94D (b )(4 ) are a pp licable.
(e) Any annual operating fee due on or after January 1, 1992,
that is not paid within 30 days of the due date shall be subject
to a late penalty of five dollars ($5.00) per day up to an amount
equal to the original fee. The late penalty will be assessed
based on the date of receipt of fee payment by the Division.
(f) All annual operating·fees due for any year are assessed in
accordance with the schedule of fees in effect during that year.
Payment of · fees due for a prior year will be at the rate in
effect during that prior year. It is the responsibility of the
owner or operator to determine that all fees have been paid in
accordance with Paragraph (a) of this Rule.
( g) In the event that an annual operating fee was paid for a
tank for which a fee was not required, a refund of that fee
payment may be requested by the owner or operator. A refund will
be g ranted if 'Phe the owner or operator Rtl:lSt provides adequate
documentation that the tank was exempt from the requirement to
pay the annual operating fee.
History Note: Statutory Authority: G.S. 143-215.94E;
143-215.94L
Eff.
7
15A NCAC 2P.0302 is adopted with changes as published in 7:6 NCR
527 as follows:
.0302 NOTIFICATION
Any person traRsferriRg acquiring ownership of an existing
commercial underground storage tank shall provide written
notification to the Division of this action within thirty (30)
days of the date of transfer. This notification must indicate
the following:
(1) Name and address of the previous owner and the new owner;
(2) Name, identification number, and street address of the
facility;.
(3) Date of transfer;
(4) Signatures of the transferring owner and the new
owner or their authorized representatives.
History Note: Statutory Authority: G.S. 143-215.94L;
143-215.94T
Eff.
8
SECTION .0400 REIMBURSEMENT PROCEDURE
15A NCAC 2P.0401 is adopted with changes as published in 7:6 NCR
527-528 as follows:
.0401 ELIGIBILITY OF OWNER OR OPERATOR
(a) Date of Release.
(1) An owner or operator of a commercial underground
storage tank is not eligible for reimbursement for
costs related to releases which were discovered prior
to June 30, 1988.
(2) An owner or operator of a noncommercial underground
storage tank is eligible for reimbursement for costs
without regard to the date a release is discovered.
(3) An owner or operator of a commercial underground
storage tank, from which a release is discovered on or
after July 3, 1991, is not eligible for reimbursement
if the tank had been removed from the ground more than
120 days prior to the date of discovery of the release.
(b) An owner or operator of a commercial underground storage
tank is not eligible for · reimbursement for costs related to
releases if any annual operating fees due have not been paid in
accordance with Rule .0301 of this Subchapter prior to discovery.
A previous owner or operator of a commercial underground storage
tank may be eligible for reimbursement of costs for cleanup of a
release discovered after he ceases owning or operating the
underground storage tank if all fees due during his period of
ownership and operation have been paid prior to discovery of the
release.
(c) An owner or operator of a commercial or noncommercial
underground storage tank is not eligible for reimbursement of any
expended costs which are in excess of the amount determined
reasonable in accordance with Rule . 0402, and which are not
necessary in performing cleanup of environmental damage and in
compensating third parties for bodily injury and property damage,
and which are less than any deductible established for the
appropriate fund.
(d) An owner or operator of a commercial or noncommercial
underground storage tank may be reimbursed for eligible costs
only after submittal of a written application to the Division, on
forms provided by the Division, and which includes any
information and documentation necessary to determine eligibility
and to determine that any expended costs are reasonable and
necessary.
(e) An owner or operator of a commercial or noncommercial
underground storage tank shall not be eligible for reimbursement
for costs related to releases if the owner or operator has
willfully violated any substantive law, rule, or regulation
applicable to underground storage tanks intended to prevent,
mitigate, or facilitate the early detection of discharges or
releases.
(f) The release response and corrective action requirements of
any rules of the Commission and of any statute administered by
the Department shall not in any way be construed as limited by,
9
or contingent upon, any reimbursement
Noncommercial Fund or the Commercial Fund.
from either
History Note: Statutory Authority: G.S. 143-215.94E;
143-215.94L
Eff.
10
the
15A NCAC 2P.0402 is adopted with changes as published in 7:6 NCR
528 as follows:
.0402 CLEANUP COSTS
(a) In determining whether costs expended by an owner or
operator are reasonable and necessary, the Division shall
consider the following:
(1) Adequacy and cost-effectiveness of any work performed
and technical activity utilized by the owner or
operator in performing release response, site
assessment and corrective action.
(2) Typical billing rates of engineering, geological, or
other environmental consulting firms providing similar
services in the State as determined by the Division.
(3) Typical rental rates for any necessary equipment as
determined by the Division. The amount reimbursed for
equipment rental shall not exceed the typical purchase
price of such equipment.
(4) Typical costs or rates of any other necessary service,
labor or expense as determined by the Division.
(b) Expenditures not eligible for reimbursement shall include
the following:
(1) Costs of the removal and disposal of noncommercial
underground storage tanks and contents removed on or
after July 3, 1991, and of commercial underground
storage tanks and contents removed on or after January
1, 1992;
(2) Costs of the repl~cement of any underground storage
tank, piping, fitting, or ancillary equipment;
(3) Costs incurred in preparation of any proposals or bid
b y a p rovider of service for the p urp ose of soliciting
or bidding for the o pportunity to perform werk-fer an
environmental investig ation or cleanup , even if that
p rovider is ultimatel y selected to p rovide the service
solicited;
(4) Interest on any accounts, loans, etc.;
(5) -Expenses charged by the owner or operator in the
processing and management of a reimbursement
application or subsequent claims;
(6) Attorney's fees;
(7) Pen~lties, fees, and fines assessed by any court or
agency;
(8) Loss of profits, fees, and wages incurred by the owner
or operator;
(9) Any other expenses not specifically related to
environmental cleanup, or implementation of a cost
effective environmental cleanup, or third party bodily
injury or property damage.
History Note: Statutory Authority: G.S. 143-215.94B;
143-215.940; 143-215.94E; 143-215.94L
Eff.
1 1
15A NCAC 2P.0403 is adopted as published in 7:6 NCR 528-529 as
follows:
.0403 THIRD PARTY CLAIMS
(a ) An owner or o p erator seeking reimbursement from the
a pprop riate fund for any third p arty claim for bodily in j ury or
p rop erty damag e must notify the Division of an y such claim. The
owner or o p erator must p rovide the Division with all p leading s
and other related documents if a lawsuit has been filed. The
owner or o p erator shall p rovide to the Division cop ies of any
medical rep orts , statements . investig ative rep orts , or .
certifications from licensed p rofessionals necessary to determine
that a claim for bodily in j ury or p rop erty damag e is reasonable
and necessary .
(b ) The term third p arty bodily in j ury means s p ecific p h y sical
bodily in j ury p roximately resulting from exp osure . exp losion , or
fire caused b y the p resence of a p etroleum release and which is
incurred b y a p erson other than the owner or o p erator , or
em p loy ees or a g ents of an owner or o p erator.
(c ) The term third p arty p rop erty damag e means actual p h y sical
damag e or damag e due to s p ecific loss of normal use of p rop erty
owned b y a p erson other than the owner or o p erator of an
underg round storag e tank from which a release has occurred. A
p rop erty owner shall not be considered a third p arty if the
p rop erty was transferred b y the owner or o p erator of an
underg round storag e tank in antici p ation of damag e due to a
release. Third p art y p rop erty damag e shall be reimbursed from
the a pprop riate fund based on the rental costs of com p arable
p ro p erty during the p eriod of loss of use u p to a maximum amount
e g ual to the fair market value. In the case of p rop erty that is
actuall y destroy ed as a result of a p etroleum release ,
reimbursement shall be at an amount necessary to rep lace or
rep air the destroy ed p rop erty .
History Note: Statutory Authority : G.S. 143-215.94B;
143-215.94D ; 143-215.94E ; 143-215.94L
Eff.
12
1 SA NCAC 2P. 0404 is adopted as published in 7: 6 NCR 529 as
follows:
.0404 RE QUESTS FOR REIMBURSEMENT
(a ) An a pplication for reimbursement must be made on a form
p rovided b y the Division. The a pplication form must accomp an y the
initial reimbursement req uest.
( b } A req uest for reimbursement shall include cop ies of any
documentation req uired b y the Division to determine that exp ended
costs are reasonable and necessary . Proof of p a y ment must
accomp any any req uest for reimbursement , excep t when
reimbursement will be made j ointly to the owner or o p erator and
either a p rovider of serv-ice or a third p arty claimant. The
Division ma y req uire the owner or o p erator to submit any
information req uired for the p urp ose of substantiating any claim
for reimbursement on forms p rovided b y the Division.
(c ) A req uest for reimbursement ma y be returned or additional
information req uested b y the Division , if it is found to be
incomp lete.
(d ) · The Division shall reimburse an owner or o p erator for
exp enses following com p letion of any sig nificant p hase of cleanup
work or in accordance with the schedule allowed b y G.S.
143-215.94E (e ).
(e ) If any amount a pproved for reimbursement is less than the
amount of . reimbursement req uested , the Division shall issue a
written exp lanation of wh y the amount req uested was not a pproved.
History Note: Statutory Authorit y : G.S. 143-215.94E ;
143-215.94L
Eff.
13
15A NCAC 2P. 0405 is adopted as published in 7: 6 NCR 529 as
follows:
.0405 METHOD OF REIMBURSEMENT
(a ) Reimbursement for cleanup costs shall be made only to an
owner or o p erator of a p etroleum underg round storag e tank , or
j ointly to an owner or o p erator and a p rovider of service.
Cb ) Reimbursement of cleanup costs to the owner or o p erator
shall be made onl y after p roof of p a yment for such costs has been
received b y the Division.
( c ) Joint reimbursement of cleanup costs shall be made to an
owner or o p erator and a p rovider of service onl y u p on recei p t of
a written a g reement acknowledg ed b y both p arties. An y
reimbursement check shall be sent directly to the owner or
o p erator.
(d ) Pay ment of third p arty claims shall be made to the owner
or o p erator , or j ointly to the owner or o p erator and the third
p art y claimant.
History Note: Statutory Authorit y : G.S. 143-215.94E ;
143-215.94L
Eff.
14
15A NCAC 2P.0406 is adopted with changes as published in 7:6 NCR
529 as follows:
.0406 REIMBURSEMENT APPORTIONMENT
(a) Where multiple occurrences
cleanup action, expenses will
apportionment among the occurrences.
will be as follows:
are addressed in a single
be reimbursed based on
The method of apportionment
(1) Expenses related directly to a particular occurrence
shall be applied only to that occurrence;
(2) Expenses that are related to more than one
occurrence will be apportioned equally among
occurrences.
the
(b) Where aRRHal-epeFaeiR~-fees-aHe-aave-aee-aeea-paia-ea not
all underground storage tanks contributing to an occurrence are
elig ible for reimbursement, reimbursement will be made at a rate
equal to the number of tanks contributing to the occurrence feF
which are elig ible for reimbursement all -aRRHa± -epeFaeiR~ -fees
dHe--aave--aeea--paia divided by the total number of tanks
contributing to the occurrence.
(c) If multiple underground storage tanks at a single siee
property are contributing to a single occurrence and the tanks
are owned or operated by different persons, reimbursement 'may be
made to any of the owners or operators as if the occurrence were
caused solely by that person's underground storage tanks.
History Note: Statutory Authority: G.S. 143-215.94E;
143-215.94L.
Eff.
15
...
15A NCAC 2P.0407 is adopted with changes as published in 7:6 NCR
529-530 as follows:
.0407 FINAL ACTION
(a) The Director, or his delegate, shall make a -i:i:Ral the
agency decision on a written application for eligibility for
reimbursement from the appropriate fund. The Director, or his
delegate, shall make a-i:i:Ral the a g ency decision on any written
request for reimbursement made subsequent to an initial
application.
( b) An owner or operator who has been denied eligibility for
reimbursement from the appropriate fund after submittal of a
written application in accordance with the procedures of this
Subchapter, or who has had any written reimbursement request
denied after submittal in accordance with the procedures of this
Subchapter, shall be notified of the right to petition for a
contested case in the Office of Administrative Hearings in
accordance with the procedure set out in G.S. 150B-23. The
Secretary of the De p artment of Environment , Health , and Natural
Resources shall make the final a g ency decision in any contested
case p ursuant to G.S. 150B-36.
History Note: Statutory Authority: G.S. 143-215.94E;
143-215.94L.
Eff.
16
-._ . ... __ ·· ... -~1:~-.
:,t ...
·•21 s. 94:E (p_t) ( Se~~ibn :taws 1991, c ... 817,. s ~ 2) :: which . was enacted
by the legislatqt~' -qti -J1.7:iy· 1 ; 1 9-9 2 ·• --TKese ch.an.ges are neeae·d to
include the pr9y:i:~j,ons4af'· this amendrlleht within the rules:
Effects· on State Revenues
The .~oriies for reimburserllen.t ·to be made under the proposed
changes ~r~:contained within the Commercial Leaking Petroleum
Undergrm.1,Qd · Storage Tank Cleanup Fund. Revenue for the
Commercial;.·Fund comes from two sources.
-Pursu.ant tp G.S. 105-445, the Commerc _ial Fund gets .the
revenue derived from 0.25¢ of the tax on motor fuel collected
pursuant t'o G.S. 105-434(a); based on projections of thes'e .
revenues ·provided by the _Department,·of Revenue, approximately
$9,800,000 in annual income can be expected from this -sou:i;ce.
--~-.
PursJ.ant tci G. S. 143-215. 94C, an annual operating f ·ee is
collected from owners and operators of commercial under.ground
storage t~nks in use during each year beginning with 1989. These
monies (total~ $7,500,000 in 1992} go to the Commercial Fund.
The proposed changes will increase the rate at which monies
are disbursed by an undeterniinable amount. However, based on our
experience with the Funds, the additional disbursements will
comprise less than .10% of total disbursements.
Effect on Local Revenues
The proposed rules will apply to some claims for payment of
cleanup costs made by local government agencies. Reimbursement
1 .of costs would be available to local government agencies in the
same manner and with the same conditions that apply to private
individuals. These changes may allow local governments to be
reimbursed for cleanup costs for which they .would previously have
been ineligible; the amount of additional reimbursed costs will
depend ori the number of leaks discovered at properties owned by
these agencies and the availability of willing tank owners and
operator~.
If you have any questions concerning these rules, please
contact either Bill Reid or Paul Washington at 733-8486.
Enclosure
cc:enc: Ms. Carol Shaw, Fiscal Research. ,Di visio~
North Carolina Association of County Commissioners
North Carolina League of Municipalities
·Perry Nelson
Burrie ·Boshoff
Portia Rochelle
\ ..
1991. These monies are the entire source of funding for the
Noncommercial Fund.
Pursuant to G.S. 143-215.94C, an annual operating fee is
collected from owners and operators of commercial underground
storage tanks in use during each year beginning with 1989. These
monies (total::::: $7,500,000 in 1992) go to the Commercial Fund.
On December 31, 1991, th~ Commercial Fund had $15,138,296.17
and the Noncommercial Fund had $5,064.138.99. Pursuant to G.S.
143-215.94J(e), a contingency reserve of no more than $500,000 is
established within the Noncommercial Fund. In addition, G.S.
143-215.94J(e) makes provision for sequencing reimbursements
should there be insufficient funds to pay all valid claims
immediately~
Effect on Local Revenues
The proposed rules will apply to the payment of cleanup
costs and third-party claims made by local government agenc1es.
Reimbursement of costs would be available to local government
agencies in the same manner and with the same conditions as to
private individuals. Likewise,.annual tank fees are required of
local governments just as they are required of private tank _
owners and operators. The specific effects on ·local revenues can
not be determined at this time; the amount of annual tank fees
will vary depending on the numbers and sizes of commercial tanks,
and the amount of cleanup costs will depend on the number of
leaks discovered.
If you have any questions concerning these rules, please
contact either Bill Reid _or Paul Washington at 733-8486.
Enclosure
cc:enc: Ms. Carol Shaw, Fiscal Research Division
North Carolina Association of County Commissioners
North Carolina League of Municipalities
Perry Nelson
Burrie Boshoff
Portia Rochelle
* * * * * * * * * * * * * * * * * *
Notice is hereby given in accordance with G.S.
JS0B-21.2 that the DE}d-Groundwater Section
intends to adopt rule(s) cited as /SA NCAC 2P
.0101 -.0103, .0201 -.0202, .0301 -.0302, .0401
-.0407.
The proposed effective date of this action is No-
vember 1, 1992.
The public hearing will be cond~cted on the fol-
lowing dates and locations:
NEW BERN
July 7, 1992
7:00 p.m.
Superior Court, 2nd Floor
Cr.aven County Courthouse
RALEIGH
July 9, 1992
7:00 p.m.
Ground Floor Hearing Room
Archdale Building
512 N. Salisbury Street
HICKORY
July 13, 1992
7:00 p.m.
Auditorium
Catawba Valley
Community College
Reason for Proposed Action: The proposed
rules enable the operation of the commercial and
non-commercial leaking petroleum underground
storage tank cleanup funds. The rules set forth
conditions and procedures for reimbursement of
cost for environmental damage cleanup, bodily in-
jury, or property damage resulting from the re-
lease of petroleum from an underground storage
tank. Rules for the collection of annual fees are
also included.
Comment Procedures: All persons interested in
these matters are invited to attend the public
hearing. Written comments may be presented at
the public hearing or submitted through July 15,
1992. Please subrnit comments to :\4r. David
Hance, Division of Environmental Afonagement,
Groundwater Section, P.O. Box 29535, Raleigh,
NC 27626-0535, [phone]. Please notify
Mr. Hance prior to the public hearing if you desire
to speak. Oral presentation lengths may be lim-
ited depending on the number of people tha1 H·ish
to speak at the public hearing.
IT IS VERY 1'1PORTAl\T THAT ALL l;\TER-
ESTED· A~D POTE~TIALLY AFFECTED PER-
SO'.\S, GROlJPS, BLSI:\ESSES, ASSO-
CIATIO;\S, 1'.\STITUTIO'.'i'S OR AGEl\CIES
i\lAKE THEIR VIEWS AND OPl~101'S K;\/0\.Y:\
TO THE DEPART\1El\T THROUGH THE PUB-
LIC HEARING Al\O COMVlENT PROCESS,
WI-IETHER THEV SLPPORT OR OPPOSE AI\Y
OR ALL PROVISIO:\S OF THE PROPOSED
RULES.
Fiscal Note: These Rules affect the expendi1ures
or. revenues of local funds. A fiscal note was sub-
mitted to the Fiscal Research Division on May 6,
/992, OSBM on May 6, /992, N.C. League of
Municipalities on May 7, 1992, and N.C. Associ-
ation of County Commissioners on May 7, /992.
SUBCHAPTER 2P -LEAKING PETROLEL:\1
UNDERGROUND STORAGE TANK CLE.Al\UP
FUNDS
SECTION .0100 -GENERAL CO'.'l'SIDERATIONS
.0 IO I · GENERAL
W The purpose of this Subchapter ~ to es-
tablish criteria and procedures for the reimburse-
ment of costs incurred QY owners and operators
from the Leaking Petroleum Underground Stor-
~ Tank Cleanup Funds.
{Q.l The C.rroundwater Section of the Division
of Environmental Management of the Depart-
ment of Environment, Health, and ~ural Re-
sources shall administer the Commercial and
Noncommercial Undergroun.d Storage Tank
Cleanup Funds for the State of ~orth Carolina.
{£1 Staff of the Division of Emironmental
Management shall conduct .inspections and ~
view records as necessary to assure compliance
with this Subchapter.
@ As authorized 21 G.S. l43-215.94G. the
Department may engage in cleanup work !!.
deems appropriate and ~ the costs from the
:\oncommercial Fund in accordance with G.S.
143-215.94D.
{!)_ The Department may engage in investi-
gations and cleanups in accordance with ~ prior-
ity ranking system and the availabilitv of
resources as detennined 2Y the Division.
Statutory Authority G.S. /43-215.94£;
/43-2!5.94G; /43-2!5.94L.
.0102 COPIES OF RULES
l:\CORPORATED BY REFERE'.'CE
W Copies of applicable sections of Suhchapter
2:'-.; of Title I SA. '.'\orth Carolina Administrative
Code i~orated bv reference in this Subchap-
ter. includin!! am· subsequent amendments and
editions. arc available for public inspection at
Department of En,·ironment. Health. and '.\a-
tural Rcsourc~s Regional Offices . Thcv ar~:
ill Asheville Re ci onal Office, Interchan ge
Building, 59 Woodfin Place, Asheville,
North Carolina 2880 I;
ill Winston-Salem Regional Office, Suite 100,
8025 North Point Boulevard , Winston-
Salem, North Carolina 27106;
Ll.l Mooresville Regional Office, 919 North
Main Street, Mooresville, North Carolina
28115;
~ Raleigh Regional Office, 3800 Barrett
Drive, Post Office Box 27687, Raleigh,
North Carolina 27611;
ill Fayetteville Regional Office, Wachovia
Building, Suite 714, Favetteville, North
Carolina 28301;
{§1 Washine:ton Regional Office, 1424
Carolina Avenue, Farish Building,
Washington , North Carolina 27889;
Ql Wilmington Regional Office, 127 Cardinal
Drive Extension, Wilmington, North
Carolina 28405.
ill Copies of such regulations can be made at
these regional offices for ten cents ($0. IO) pg
~
Statutory Authority G.S. I 2-3./ ( c); 143-215.94£;
/43-2/5.94L.
.0103 FALSE OR MISLEADL'\G
l;";FORMATIOJ\
Any owner or operator or authorized agent who
knowingly submits ~ false or misleading inf or-
mation with regard to these Rules may be con-
sidered to be contributin g to i! discharge,
interfering with the mitigation of i! discharge, or
preventing the early detection of i! discharge
pursuant to G.S. 143-215.94E(g)( I) !f the false
or misleadin e information results in delay of any
efforts to stop the release or discharge , results in
delay of detection of ~Y portion of the discharge
or release, or results in delay of investi!mtory 2!:
remedial activities.
Statutory Authority G.S. 143-215.94£;
/43-2/5.94L.
SECTI0:'11 .0200 -PROGR.-\\1 SCOPE
.0201 APPLICABILITY
{i!l This Subchapter shall ~ to the dis-
bursement of funds from the Commercial Leak-
~ Petroleum U~!!round Storage Tank
Cleanup Fund and :\oncommercial Leaking Pe-
troleum Cndergr ound Storage Tank Cleanup
Fund. and to the collection of annual operating
fees.
W Anv portions of this Subcha pter which
concern annual tank o perating fees ~ to all
owners and operators of Commercial Cnder-
crounJ Storage Tanks that ha,·c heen in use in
'-;orth Carolina on or after J~u-Y 1. 1989-:--
(£1 This Subcha pter shall ~ to dischare.es
or releases from noncommercial or commercial
undergr ound storage tank svstems. regardless of
whether such systems are rerulated under Sub-
chapter 2'.'1 of Title I SA, of the North Carolina
Administrative Code.
Statutory Authority G.S. 143-2/5.94£;
/43-2/5.94L.
.0202 DEFl~ITIONS
{i!l The definitions for "Criteria and Standards
Applicable to Underground Storage Tanks"
contained in ISA NCAC 2:\1 .0203 are hereby
incorporated 2Y reference includin g subseq uent
amendments and editions, except that for the
purposes of this Subchapter. the definition of
"Underground Storage Tank" shall be as defined
in Subparagraph <!ill..Lll of this Rule.
ill The following terms ~ defined for use in
this Subchapter:
ill "Annual operating fee" ~ an annual fee
required to be paid to the Department 2Y
the ~ or operator of each commercial
underground storage tank in use on or af-
ter! January of the year, beginning with
1989.
ill ~mmission" means the Environmental
Manag_ement Commission ~ organized
under Chapter 143B of the General Stat-
utes.
Ll.l "Department" means Department of En-
vironment , Health, and Natural Re-
sources.
ill "Discovered release" means i! release
which an owner 2!: operator, or its em-
ployee or agent, has been made aware Qh
has been notified Q.L. QI has i! reasonable
basis for knowing has occurred.
ill "Dual usage tank" means an undernround
storage tank which could be considered
both a commercial undergr ound storage
tank and a noncommercial under~
storage tank and for which both the com-
mercial and the noncommercial usages are
integral to the operation or exi~ of
the tank.
ill .......-Household" means !!-permanent struc-
ture, whether free-standin g or connected
to other units, used for living, where pri-
~ living space and primary food P!:£P.:.
aration facilities are controlled or
rriamtained bv -the residents.
"Household" includes sincle-famil v
houses, a partments. and single living
units, v.·hether or not the residents arc re-
lated to each other. "Household" docs
not include do~ries. hos pitals. hotels.
motels. apartment buildings ~ d1stmct
from the indi,·i<lual a p artments thcrcin·i.
or other multiple Jwcllim: structures. The
term "four or fewer households" shall re-
late tounclerirround storage tanks serving
households only.
ffi "Occurrence" means one or ~
release(s) that result(s) in !! single plume
of soit surface water, and/or groundwater
contamination {consisting of free product
and/or dissolved contaminants exceeding
standards specified in ISA NCAC 2L or
any other applicable laws, rules or m:_
lations) emanating from~ given site.
{.fil "Reasonable and necessary expendi-
tures" means expenditures for cleanup
work performed in accordance with ~
plicable environmental laws and m:_
lations and which is essential in
~nniningthe extent of contamination,
in conductinE! release response or remedi-
ation, or which compensates third parties
for resulting bodily injury and property
damage. The Commission shall consider
such expenditures reasonable and neces-
~ to the extent that they are sufficient! v
documented,~ performed in an efficient
manner considering comparable costs for
labor, equipment, and materials, and uti-
lize cost-efficient methods.
(2). -"Substantive law, rule, or regulation"
shall mean any law, rule, or regulation~
quiring an owner or operator to perform
any act necessary and essential in pre-
venting discharges QI releases, in facilitat-
!,!!g their early detection, and in mitigating
the impact of discharges or releases.
UQl "Tank in operation" means an under-
ground storage tank into which product
~ added QI from which product ~ re-
moved for purposes other than closure.
!..ill "Tank in use" means an undere:round
storage tank intended for the containment
or dispensing of petroleum product.
{.ill "Underground storage tank", as used in
this Subchapter means ~ Commercial
or Noncommercial Cnderground Storage
Tank as defined in G.S. 143-215.94A. A
dual usage tank ~ considered to be !!.
Commercial undergrnund storage tank.
Statutory Authority G.S. 143-215.94£;
143-2/5.94L.
SECTION .0300 -A::'\::'\UAL OPERATl'.\'G FEES
.0301 FEES A::'\0 PA Y\IE;'\T
~ The owner or operator of each commercial
undenrround storage tank shall ~ all annual
tank operating fees due for that underground
storage tank. -----
.(Ql The Division shall send an invoice. for the
amount of the annual opcrahngfees due. to the
owner or operator of~ commercial petroleum
underground~ tank i!}_ use on Januarv fof
the vear and which has been recistered with the
Dep"irtment." The annualoperating fee shall be
due and payable 30 days following the date of the
invoice and shall be submitted to the Division acccmfmiiv.___ --
f.£1 Anv owner or operator not receiYing an
invoice for annual operating fees shall still ~
~ fees due according to the following schedule:
ill !f the owner or operator has paid annual
operating fees for the subject tank in pre-
vious years, the payment will be submit-
ted to the Division within 30 days of the
anniversary of the last invoicing date for
the fees.
ill !f the owner Q! operator has not previ-
ously paid annual operating fees for the
subject tank, ~ annual operating fee ~
due on l Janu~ of that year and shall
be submitted to the Division accordinelv.
@ Any commercial urulerground storage tank
( except commercial underground storage tanks
not regulated under ISA NCAC 2N) which was
in operation on QI after December lli_ 1988 and
has not been permanently closed in accordance
with 15A NCAC 2N .0800 is considered to be in
use.
U:)_ Anv annual operating fee due on or after
Janu!!_TY L. I 992, that ~ not paid within 30 davs
of the due date· shall be subject to a late penalty
of five dollars ($5.00) ~· dav !!2 to an amount
equal to the original fee. The late penalty will
be assessed based on the date of receipt of fee
payment Q_V the Division.
ill All annual operating fees due for any ~
are assessed in accordance with the schedule of
fees in effect during that year. Pavment of fees
due for a prior year will be at the rate in effect
during that prior year. !!. ~ the responsibilitv of
the ~ or operator to determine that all fees
have been paid in accordance with Paragraph ~
of this Rule. Tu-In the event that an annual operating fee
was paid for a tank for which a fee was not re-
quired, ~ refund of that fee pavment ™ be re-
guested b'. the owner or operator. The owner
or operator must provide adequate documenta-
tion that the tank was exempt from the require-
ment to pav the annual operating fee.
Statutory Authority G.S. 143-215.94£;
/43-2/5.94L.
.0302 i\OTIFICATIO:\
Anv person transferring ownership of ~ com-
mercial undenrround storage tank shall pro\·i<le
written notification to the DiYision of this action
within 30 davs of th~ date of transfer. -This no-
tification must indicate the following:
ill \"ame and address of the previom mrncr
and the new owner: -------
Lll Name, identification number, and street
address of the facilitv;
ill Date of transfer;
ill Signatures of the transfcning owner and the
new owner or their authorized represen-
tatives.
Statutory Authority G.S. 143-2 I 5.94L;
143-215.94T.
SECTION .0400 -REIMBURSEl\tENT
PROCEDLRE
. 0401 ELIGIBILITY OF OWNER OR
OPERATOR
~ Date of Release:
ill An owner or operator of ~ commercial
underground storage tank h not eligible
for reimbursement for costs related to re-
leases which ~ dtseovered prior to June
~ 1988. rn An ~ or operator of~ noncommercial
underground storage tank h eligible for
reimbursement for costs without ~ to
the date a release is discovered.
ill An owner or operator of ~ commercial
underground storage tank, from which ~
release h discovered Q!! Q! after July ,1
1991, h not eligible for reimbursement g
the tank had been removed from the
groundmore than 120 days prior to the
date of discovery of the release.
ili). An ~ or operator of ~ commercial
undenrround storage tank h not eligible for re-
imbursement for costs related to releases if any
annual operating fees due have not been paid in
accordance with Rule .0301 of this Subchapter
prior to discovery.
.{fl An owner or operator of ~ commercial Q!
noncommercial underground storage tank h not
eligible for reimbursement of~ expended costs
which are in excess of the amount determined
reasonahle in acxordance with Rule .0402, and
which ~ not necessary in performing cleanup
of environmental damage and in compensating
third parties for bodily injurv and property dam-
~ and which ~ less than ~ deductible es-
tablished for the appropriate fund.
@ An O\Vner or operator of !!_ commercial or
noncommercial undern:round storage tank may
be reimbursed for eligible costs only after sub-
mittal of !!_ written application to the Division.
on forms provided bv the Division. and which
includes anv information and documentation
neccssarv to determine clilribilitv and to deter-
mine that anv expended costs are reasonable and
nccessarv.
~ An owner or operator of !!_ commercial or
noncommercial underground storage tank shall
not be eliciblc for rcirnburn:mc~osts related
to rcica~he mrnn or opcr:.itor has \\illfuiiv
violated ~ substantive law. rule. or regulation
applicable to underground storage tanks intended
to prevent, mitigate, or facilitate the early de-
tection of discharnes or releases.
ffi The release response and corrective action
requirements of~ rules of the Commission and
of any statute administered 2Y the Department
shall not in i!.!!Y way be construed as limited 2Y.,_
or contingent upon, ~ reimbursement from ei-
ther the Noncommercial Fund or the Commer-
cial Fund. -------
Statutory Authority G.S . 143-215 .94£;
/43-2/ 5.94L.
.0402 CLEANUP COSTS
~ In determining whether costs expended 2Y
!!.!! owner Q!: operator are reasonable and neces-
~ the Division shall consider the following:
ill Adequacy and cost-effectiveness of any
work performed and technical activity
utilized QY the ~ or operator in per-
forming release response, site assessment
and corrective action. rn Typical billing rates of engineering,
geological, Q! other environmental £2!!:
suiting fums providing similar services in
the State as determined !2Y_ the Division.
ill Typical rental rates for any necessary
equipment as determined Q.Y the Division.
The amount reimbursed for equipment
rental shall not exceed the typical pur-
chase price of such equipment.
ill Typical costs or rates of any other neces-
~ service, labor or expense as deter-
mined !2Y_ the Division.
ili). Expenditures not eligible for reimbursement
shall include the following:
ill Costs of the removal and disposal of
noncommercial underground storage
tanks and contents removed on or after
July 1_ 199 l, and of commercial under-
ground storage tanks and contents ~
moved Q!! or after Januarv .L 1992;
Lll Costs of the replacement of any under-
ground storage tank, P!£!!!& fitting, or
ancillary equipment;
ill Costs incurred in preparation of any pro-
posals to perform work for environmental
cleanup;
ill Interest on !!_!!Y accounts. loans, etc.;
ill Expenses charged bv the owner Q! opera-
tor in the processing and management of
!!_ reimbursement application or subse-
quent claims;
IB Attornev's fees;
f.2.1 Penalties . fees . and fines assessed bY ~
court or agencv;
ill Loss of profits, fees. anJ ~ incurred
bv the owner or op~rator:
(2l Any other expenses not specifically related
to environmental cleanup, or implemen-
tation of a cost effective environmental
cleanup-: or third party bodily injury or
property damage.
Statutory Authority G.S. 143-2/5.94B;
/43-2!5.94D; 143-215.94£; f43-2!5.94L.
. 0403 THIRD PARTY CLAI:\-IS
W An owner or operator seeking reimourse-
ment from the appropriate fund for . ~ third
~ claim for bodily injury O.! property damage
must notify the . Division of~ such claim. The
~ or operator must provide the Division
with all pleadings and other related documents g
! lawsuit has been filed. The owner or operator
shall provide to the Division copies of~ med-
ical reports, statements , investigative reports, gr
certifications from licensed professionals ~ m to determine that ! claim for bodily injury
or property damage~ reasonable and necessary.
ili). The term third ~ bodily injury ~
specific physical bodily injury proximately re-
sulting from exp osure . exp losion , or fire caused
QY the presence of~ p etroleum release and which
~ incurred QY ! person other than the owner or
operator, 21 emp lovees gr agents of an owner or
operator.
!£)_ The term third partv property damage
~ actual physical damage 2!: damage due to
specific loss of normal ~ of property owned £Y_
~ person other than the owner or operator of an
underground storage tank from which ~ release
has occurred. A property ~ shall not be
considered ! third ~ g the property ~
transferred .QY the owner Q£ operator of a.Ii
underground storage tank in antici pation of
damage due to ! release. Third rn property
damage shall be reimbursed from the appropriate
fund based on the rental costs of com parable
property during the period of loss of use !!Q to ~
maximum amount equal to the fair market value.
In the·~ of property that ~ actually destroyed
as ~ result of~ petroleum release, reimbursement
shall be at an amount necess~ to replace or re-
pair the de st roved property.
Statutory Authority G.S. /43-2/5.94B;
/43-2!5.94D; 143-215.94£; !43-2l5.94L.
.0404 REQUESTS FOR REI\IBURSEME~T
W An application for reimbursement-must be
made on ~ form p rovided bv the Division. The
~pplication form must accom p anv the initial ie-
unbursement request:
ilil ~ request for reimbursement shall include
copies of !!!!_y documentation required by the
Division to determine that expended costs are
reasonable anJ necessarv. Proof of pavment
must accom p anv ~ request for reimbursement .
except when reimbursement will be made jointly
to the ~ or operator and either i! provider
of service or! third partv claimant. The Division
may require the owner or operator to submit ~
information required for the purpose of substan-
tiating ~ claim for reimbursement on forms
provided £Y_ the Division.
(£1 ~ request for reimbursement may be ~
turned or additional information re q uested bv the
Division , g i! ~ found to be incom p lete .
@. The Division shall reimburse ~ ~ or
operator for ex penses followin g comp letion of
~ significant phase of cleanup work or in ac-
cordance with the schedule allowed QY G.S;
143-215.94E(e ).
W !f ~ amount approved for reimbursement
is less than the amount of reimbursement re-
quested, the Division shall issue ! written expla-
nation of why the amount ·req uested ~ not
approved.
Statutory Authority G.S. 143-215.94£;
/43-2!5.94L.
.0405 METHOD OF RE.IMBLRSEMENT
W Reimbursement for cleanup costs shall be
made only to an owner or operator of ~ petro-
leum underground storage tank, or iointlv to an
owner or o perator and ~ provider of service.
ili). Reimbursement of cleanup costs to the
owner gr operator shall be made only after proof
of payment for such costs has been received QY
the Division.
(£1 Joint reimbursement of cleanup costs shall
be made to i!!! owner or o p erator and i:'1-provider
of service only 1!P2!l receipt of ! written agree-
ment acknowled ged 2Y both parties. Anv re-
imbursement check shall be sent directly to the
~ 2!: o perator.
@. Pavment of third party claims shall be made
to the ~ or operator, o..r jointly to the owner
2!: operator and the third partv claimant.
Statutory Authority G.S. /43-2/5.94£;
/43-2!5 .94L.
.0406 REIMBLRSE:\fE'\T APPORTIO'\:\IE~T
W Where multiple occurrences are addressed
in ! single cleanup action, ex penses will be reim-
bursed based Q!! a pportionment ~ the oc-
currences. The method of apportionment will
be as follows:
-ill Ex penses related directly to ! p articular
occurrence shall be applied onlv to that
occurrence:
ill Expenses that arc related to more than one
occurrence will be a pportioned equally
among the occurrences.
ili} \Vhcre annual o p cratin£ fees due have not
been paid on all undenrrollnd stora!!c 1:tnks con-
tributing to an occurrence. reimbursement \\ ill
be made at a rate equal to the number of tanks
contributin g to the occurrence for which all an-
nual operating fees due have been paid drvided
QI the total number of tanks contributin g to the
occurrence.
(£1 ![ multiple undenrround storage tanks at~
single site ~ contributing to ~ single occurrence
and the tanks are owned or operated QY. different
persons, reimbursement may be made to any of
the owners or operators as !!" the occurrence were
caused solely 2.Y. that person's undergr ound stor-
~ tanks.
Statutory Authority G.S. 143-215 .94£;
/43-2/5.94L.
. 0407 FINAL ACTION
~ The Director ,~ his delegate, shall make~
final decision on ~ written application for eligi-
bility for reimbursement from the appropriate
fund . The Director . or his dcle!!ate. shall make
!! final &cision on ~ written requestfor re-
imbursement made subseq uent to an initial ~
p lication.
ilil An owner or operator who has been denied
eligibility for reimbursement from the appropri-
ate fund after submittal of a written application
in accordance with the proccduresof this Sub-
chapter, or who has had any written reimburse-
ment request denied after submittal in accordance
with the procedures of this Subchap ter . shall be
notified of the tiBJ:!! to petition for !! contested
case in the Office of Administrative Hearings in
~rda~ with the p rocedure set out in G .S.
150B-23 .
Statutory Authority G .S. 143-215 .94£;
/43-2/5.94L.
HICKORY DAILY RECORD
'
11 00 PARK PL. -11th AVE . S.E. P.O. BOX 968
HICKORY, NORTH CAROLINA 28603-0968
PHONE: 704°322-4510
TOLL FREE: N.C ONLY
1-800-222-8163
NC Dept o of Environment, Heal th r
and Natural Re,sources
P.O. Box 29535
L Raleigh, North Carolina
oescRJPil:~ .
27626-0535
DATE
L
INCHES StM RA'IE
~gal-Proposed adoption of
ltle 15A 06-21-92 336 .68
1e extra affidavit 06-21-92
~i-·
~-1 t ~r
~~
t\f
PAYMENT DUE BY 10th OF MONTH
CURR-ENT NO DISCOUNT
JODAYS WE APPRECIATE YOUR BUSINESS .
231.48
ACCOUNT NO. DATE
June 24, 1992
CHARGE QREOITS BALANCE
228.48
3.00 231.48
.. '
,~Ji~~1t1 \ I ) I ~~ iJ:h~, -. -,. _¥;.;I ;--,1 ,~ 13'2
-~,t)~
Q\\\~~\Nl\~l\l
t•tt\! -Al ,,_,\\!>. I ,
\'\C \\~\,.t\0~
DAYS PAST DUE TOTAL
60QAYS .9'0 PAYS . 8AIANCE
231.48
•
PUBLIC CXMvJENI'S AND ON ANALYSIS BY THE GROUNI:mATER STAFF, I WILL MAKE A
REXXMVIENDATIOO 'IO THE ENVIRCJNlVIENI'AL MANAGENENI' CXMvIISSICN. IN MAKING
THE FINAL DOCISION, THE ENVIR<NVIENl'AL MANAGEMENI' CQVMISSICN <X:NSIDERS
THE WRITI'EN REa>RD, THE ~ATION OF THE HEAruN:i OFFICER, AND THE
CXNCERNS OF ITS MEMBERS. THE PROPOSED EFFECl'IVE DATE FOR THE AMEN[tJJENl'
'IO 15A NCAC 2P IS rovEMBER 1, 1992.
AT '!HIS TIME, I WJLD LIKE 'IO ~ZE [names of loca1 or state
officials] AND 'IHANK YOO FOR ATI'ENDING THIS HEARING. I ro.JID ALSO LIKE
TO RElX)3'ITZE 'IBE FOLI..OITNG POOPLE FRCJvl THE DIVISICN OF ENVIRCNMENI'AL
MANAGEMENI'; [DEM central office and DEM regiooa.l office perscrmel].
MR. [GROUNI:MATER SECT'ION STAFF SPEAKER] WILL ~ S(M,JARIZE THE
PROPOSED RULES WHIOI ARE THE SUBJECI' OF THIS HEARING.
srAFF SPEAKER: (STAFF SPEAKER SlJMvlARIZES THE REQJLATICN).
HF.ARING OFFICER: THANK YOO. WE WILL JnlJ ACCEPl' PUBLIC CXlJMENI' CN
THE PROPOSED RULES. I \'OJLD LIKE 'IO ~ '!HAT EVERYCNE Fil..L WI' A
REX;IS'IRATICN FORM. AFTER ALL REX;ISTERED SPEAKERS HAVE HAD AN
OPPORIUNITY TO c:x:J+1ENI', I WILL AU.J:lil ADDITIOOAL SPEAKERS AS TIME
PERMITS. WHEN YOUR · NAME IS CALLED, PLEASE CXlvJE UP 'IO THE MICROP~ AND
STA'IE YOUR NAME AND AFFILIATICN. ALL · CXJVflIENI'S SHOULD BE LIMITED 'IO
MA'lTERS '!HAT ARE RELATIVE 'IO THE PROPOSED ADOPTICN. . IF YOOR <XM"1ENI'S
ARE UNGER 'lliAN THREE MINUI'ES, I ~ LIKE 'IO Rm.JEST ~T THEY BE
SUBMITI'ED IN WRITING. I RESERVE THE RIGHT 'IO QUESTICN SPEAKERS IF THE
NEED SHCXJLD ARISE. DIVISICN OF ENVIRGIMENI'AL MANAGEMENI' STAFF WILL BE
AVAILABLE 'IO ANSWER YOOR QUESTICNS IF :NEX::FSSARY. I WJLD N:m LIKE 'IO
CALL [FIRsr SPEAKER] •
[SPF.AKERS ••. ]
('IHE HF.ARING OFFICER, REFERRING 'IO THE REX;ISTRATICN CARDS, CALLS
FAQI SPEAKER 'IO THE MICROPHONE IN 'IURN)
HF.ARING OFFICER: THANK YOU [LAST SPEAKER]. ARE THERE ANY
ADDITICNAL CXM-1ENI'S? IF THERE ARE NO MJRE a::M-1ENI'S, I WILL DEX::LARE 'IBE
HEARING CLOSED. THE HEARING REO)RD WILL REMAIN OPEN UNrIL JULY 15,
1992. ANYOIB WISHING 'IO SUBMIT WRI'ITEN <XJvMENI'S MAY 00 SO UNrIL '!HAT
DATE. AFTER WHIOI TIME, THE CXMv1ENI'S WILL BE MADE PARI' OF THE PUBLIC
REXX)RI) AND I SHALL MAKE MY ~ATICN TO 'IBE ~
MANAGEiv1ENI' a:M1ISSICN. IT IS THE DESIRE OF THE CQ.\'JfilSSICN 'IO AIJilAYS ACT
IN THE BEST POSSIBLE INIEREST OF THE PUBLIC. 'IHEREFORE, PUBLIC
PARI'ICIPATICN IS A VERY IMPORI'ANI' PARI' OF THE RULE-MAKING PRCX:ESS. WE
~ LIKE TO THANK YOU FOR A'ITENDING THE HEARING AND OFFERING YOUR
CXMVIENI'S.
..
Public Hearing
Amendment to 15A NC'AC 2P
Raleigh, North carolina
July 9, 1992
HE'ARlN:; CFFICER Is SPEEXlt
HEARING OFFICER: MR. ARIHUR 1'-0.JBERRY, DIVISICN OF ENVIRCNMENl'AL
MANAGEMEN1' REXTICNAL_ SUPERVISOR,.· RALEIGH REX3ICNAL
OFFICE
HEARING OFFICER: QX)D EVENIN3, I WJLD LIKE 'IO CALL THIS PUBLIC
HEARING 'IO ORDER. MY NAME IS ARIHUR M:XJBERRY, AND I AM THE DIVISICN OF
ENVIRCNvIENI'AL MANAGEMENI'' S REX;ICNAL SUPERVISOR FOR THE RALEIGH REXiICNAL
OFFICE. I HAVE BEEN DESI~TED HEARIN; OFFICER FOR THIS E:VENiliG' S
HEARING.
'IHIS HEARING IS BE~ HELD PURSUANI' 'IO N)RIB CAROLINA GENERAL
SI'A'IUIE 150B-21 • 2. IN ACCORDANCE WI'IH THE GENERAL STA'IUI'ES, A PUBLIC
OOI'ICE OF THIS HEARING WAS PUBLISHED IN THE JUNE EDITICN OF THE IDRl'H
CAROLINA REXiISTER AND IN SEVERAL UX'AL PAPERS. NOI'ICES WERE ALSO
DIS'IRIBUI'ED 'IO THE PUBLIC AT LARGE.
THE PURPOSE OF THIS HEARIN:; IS 'IO OBI'AIN PUBLIC <XMvlENI' CN THE
PROPOSED AOOPTICN OF 15A N:'.AC 2P ENI'ITLED ''RULES FOR '1HE ArMINISTRATICN
OF '1HE LFAKIN:; PEI'ROLEXJM UNDERGRCOND S'IORAGE TANK FUND. 11 THIS PROPOSED
RULE ENABLES THE OPERATICN OF THE CXM1ERCIAL AND J:iKNCCM,1ERCIAL LEAKING
UNDERGRCXJND PEIROLEU'.l S'IORAGE TANK CLF.ANUP FUNDS. 15A N:'.AC 2P SEl'S
F'ORIH CCtIDITICNS AND PROCEOORES FOR THE DEPARIMENI' 'IO AI:MINISTER CLEANUP
FUIDS 'IO REIMBURSE ~/OPERA'IORS OF UNDERGRCUID S'IQRAGE TANKS (USTs)
FOR CLEANUP OF ENVJ:RCHIIENI'AL DAMAGE. ADDITICNAL PROVISICNS OF 1 SA OC.AC
2P no:.uDE 'I'HIRD-PARI'Y a:MPENSATICN FOR PROPERI'Y DAMAGE /OODILY HARM OOE
'IO PEI'ROI.Ell-1 RELEASES FRCM UNDERGRCUND S'IORAGE TANKS AND THE a:>I.LECT'ICN
OF ANNUAL OPERA~ FEES. THE AUIHORIZATICN FOR THIS RULE-MAKING
PROPOSAL IS THE LEAKING PEffiOLEUvI UNDERGRCXJND S'IORAGE TANK CLEANUP /Cr
OF 1988 (G.S. 143-215.94A ET SEQ.). ADDITICNAL AUIHORIZATICN 'IO
ESTABLISH RULES CDVERING "RF.ASCNABLE AND NECESSARY COSTS" FOR
REIMBURSEMENI' IS FOOND IN '1HE IDST RECENr REVISICN OF SFSSICN LAWS 1991 , ·
C. 538, S. 24; (ENACIMENI' DATE: JUNE 3, 1991). OOPIES OF THE PROPOSED
RULE MAY BE FOOND AT '1HE CXXE.
A WRITI'EN RECORD OF 'IHIS HEARIN:; WILL BE PREPARED WHICH WILL
no:.uDE ALL '1HE RELEVANI' CXl+1ENI'S, ~CNS, AND DISClJSSICNS. FOR THIS
REASCN, 'lHE HEARING IS BE~ TAPE REXX>RDED. WRI'ITEN CXMVIENI'S REX:!EIVED
BY JULY 15, 1992 WILL ALSO BE IlCLUDED IN '!HE REroRD. BASED CN 'IHESE
PUBLIC CXM-1ENl'S AND CN ANALYSIS BY 'lHE GRaJNI:MATER srAFF, I WILL MAKE A
REXXMvlENDATICN 'IO 'lHE ENVIRCR1ENI'AL f.WW3EMENI' CXJvMISSICN. IN MAKING
'lHE FINAL DOCISICN, 'IHE ENVIRCR1ENI'AL MAN1IGEMENI' CXJvMISSICN a:NSIDERS
'IHE WRITI'EN REXl)RD, 'IHE REXXM-1ENDATICN OF 'IHE HEARING OFFICER, AND 'lHE
<XNCE:RNS OF ITS MEMBERS. 'IHE PROPOSED EFFECI'IVE DA'IE FOR THE .AMENil\1ENI'
'TO 15A 1'CAC 2P IS NJVEMBER. 1, 1992.
AT 'IHIS Tn-'IE, I ~ LIKE 'TO ~ZE [names of local or state
officials] AND 'IHANK YOO FOR A'I'IllIDING 'IHIS HEARING. I w:xJLD ALSO LIKE
'TO ~ZE 'IHE FOLIOrrNG PEJPLE FRCM 'IHE DIVISICN OF ENVIRCR1ENI'AL
MANAGEMENI'; [DEM cenb:al office and DEM regiaial. office permnd] •
MR. [GRa.JNJ:MAT.ER SECI'ICN srAFF SPEAKER] WILL KM StMWUZE 'IHE
PROPOSED RULES WHIOI ARE 'IHE SUB.JECI' OF ·'!HIS HF.ARING:·
srAFF SPEAKER: (srAFF SPEAKER mM-WUZES 'IHE REG.JLATICN).
HEARING OFFICER: '!HANK YOO. WE WILL N:M ACCEPT PUBLIC a:MllENI' CN
THE_ PROPOSED ~. I w:xJLD LIKE 'TO ~ · THAT EVERYCNE FIIL our A
REGIS'IRATICN FORM. AFI'ER ALL Rm!~ SPF.AKERS HAVE HAD AN
OPPORIUNITY 'IO CCM1ENI', I WILL AU.J:1M ADDITICNAL SPEAKERS AS Til-'IE
PERMITS. WHEN YOOR NAME IS CALLED, PLF.ASE a:JvIE UP 'IO 'IHE MICDJPfllm AND
STA'IE YCXJR NAME AND AFFILIATICN. ALL CXJvr.1ENI'S SHOOLD BE LIMITED . 'IO
MA'ITERS THAT ARE RELATIVE 'IO 'lHE PROPOSED AOOPITCN. IF Ya.JR <XM-1ENl'S
ARE I..CNGER. THAN 'IHREE MINcn'ES, I ~ LIKE 'IO ~ '!HAT 'IHEY BE
SUBMITI'ED IN WRITING. I RESERVE 'IHE RIGHI' 'IO QUESI'ICN SPEAKERS IF 'lHE
NEED SHCULD ARISE. DIVISICN OF ENVIRCN-1ENl'AL MANAGEMENI' STAFF WILL BE
AVAILABLE 'IO ANSWER YOOR Q(JFSTICNS IF NECESSARY. I ~ 1'0'1 LIKE 'IO
CALL [FIRST SPEAKER] •
[SPF.AKERS ••• ]
('IHE HEARING OFFICER, REFERRING 'IO 'IHE REGIS'mATICN CARDS, CALLS
. EAal SPEAKER 'IO 'lHE MICHJPH:NE IN '!URN)
HEARING OFFICER: '!HANK YOO [LAST SPEAKER]. ARE '!HERE ANY
ADDITIOUu. CXM,,1ENl'S? IF '!HERE ARE N) rvmE ~, I WILL D~ 'IHE
HF.ARING . CLOSED. 'lHE HEARING REXXlID WIIL REMAIN OPEN UNI'IL JULY 15,
1992. ANYCNE WISHING 'IO SUBMIT WRITI'EN ~ MAY 00 SO UNl'IL THAT
DA'IE. AFIER WHIOi TIME, 'IHE a:MvlENI'S WILL BE MADE PARI' OF 'IHE PUBLIC
REXXiID AND I SHALL MAKE MY REXXMvlENDATICN · 'IO 'IHE ENVIRCN-'IENI'AL
MANAGEMENI' CXJwM[SSICN. IT IS 'IHE DESIRE OF 'IHE a:»rrSSICN 'IO AI.lilAYS ACr
IN THE BEST POSSIBLE INI'EREST OF 'IHE PUBLIC. 'IHEREroRE, PUBLIC
PARI'ICIPATICN IS A VERY IMPORrANI' PAR!' OF 'lHE RULE-MAKING PRCX::ESS. WE
w:xJL0 LIKE 'IO THANK YOO FOR ATI'ENDING 'IHE' HF.ARIN; AND OFFERIN:i YOOR
a:»1ENI'S.
d
✓
♦ .
•
******************
Notice is hereby given in accordance with G.S.
lSOB-21.2 that the DEM-Groundwater Section
intends to adopt rule(s) cited as /SA NCAC 2P
.0/0/ -.0/03, .020/ -.0202, .030/ -.0302, .040/
-.0407.
The proposed effective date of thi.s action i.s No-
vember I, /992.
The public hearing will be conducted on the fol-
lowing dates and locations:
NEWBERN
July 7, 1992
7:00 p.m.
Superior Court, 2nd Floor
Craven County Courthouse
RALEIGH
July 9, 1992
7:00 p.m.
Ground Floor Hearing Room
Archdale Building
512 N. Salisbury Street
HICKORY
July /3, /992
7:00 p .m.
Auditorium
Catawba Valley
Community College
Reason for Proposed Action: The proposed
rules enable the operation of-the commercial and
non-commercial leaking petroleum underground
storage tank cleanup funds. The rules set forth
conditions and procedures for reimbursement of
cost for environmental damage cleanup, bodily in-
jury, or property damage resulting from the re-
lease of petroleum from an underground storage
tank. Rules for the collection of annual fees are
also included.
Comment Procedures: All persons interested in
these matters are in11ited to attend the public
hearing. Written comments may be presented at
the public hearing or submitted through July 15,
1992. Please submit comments to Mr. David
Hance, Dii,ision of Emironmental Management.
Groundwater Sec/ion. P.O . Box 29535, Raleigh,
1\'C 27626-0535, (9/9) 733-322/. Please no1ify
Mr. Hance prior to the public hearing ifyou desire
to speak. Oral prcsenta1ion lengths ma_r be lim-
ited depending on the number of people that ,vish
lo speak <If zhe public /rearing.
IT IS VERY n1rORTAl\T THAT ALL l:'\TER-
ESTED· A:--iD POTE:\TIALLY AFFECTED PER-
SO:\S, GROCrs, BJ.,'SI:\ESSES, ASSO-
CIATIO:\S, l:\STITUTIO~S OR AGEl\CIES
i\lAKE THEIR VIEWS AND OPl'\101\S KNOW:-1
TO THE DEPART.\IEi\T THROUGH THE PCB-
UC HEARING Ai\D COi\l:\1ENT PROCESS,
WHETHER TIIEV SLPPORT OR OPPOSE AI\Y
OR ALL PROVISIO:\S OF THE PROPOSED
RULES.
hscal Note: These Rules affect the expenditures
or. revenues of local funds. A fiscal note was sub-
mitted to the Fiscal Research Division on May 6,
/992, OSBM on May 6, /992, N.C. League of
Municipalities on May 7, /992, and N.C. Associ-
ation of County Commissioners on May 7, 1992.
SUBCHAPTER 2P -LEAKl:\G PETROLEL:VI
UNDERGROUND STORAGE TANK CLEAl'iUP
FUNDS
SECTION .0l00 -GENERAL C0'.'181DERATIONS
.0101-GENERAL
W, The purpose of this Subchapter ~ to es-
tablish criteria and p rocedures for the reimburse-
ment of costs incurred 2Y owners and o perators
from the Leaking Petroleum Underground Stor-
~ Tank Cleanup Funds. . --
@ The Groundwater Section of the DiYision
of Environmental Management of the Depart-
ment of Environment , Health, and 1\'atural Re-
sources shall administer the Commercial and
Noncomrnmial Underground Storage Tanlc
Cleanup Funds for the State of '.\/orth Carolina.
!.£} Staff of the Division of Environmental
Management shall conduct -inspections and re-
view records ~ necessa ry to assure comp liance
with this Subchapter.
@ As authorized ~ G.S. 143-215.9-iG. the
De partment may engage in cleanup w'ork !!.
deems appropriate and ~ the costs from the
;\"oncomrnercial Fund in-accordance with G .S.
143-215 .94D.
~ The De p artment may engage in investi-
gations and cleanups in accordance with i! prior-
ity ranking system and the availabilitv of
resources as determined QY the Division.
Szatutory Authority G.S. 143-2/5.94£;
/43·-2l5.94G; l4J-2/5.94L.
_0102 COPIES OF RLI.ES
l:'iCORPOR . .\TED BY REFERE:\CE
~ Copies of applicable sections of Suhch::i p ter
2'-: of Title 15A. '.\orth Carolina Administrative
Code i~OrJkd bv reference in this Subchar -
ter. including i!!!l subseq uent amendmrnb and
editions. are ::i\·ailahle for puhlic ins pection ~
De partment of Em·ironmcnt. llc::ilth ;111d '.'-"a-
tural Rcsourc,:~ RcLrion:i.l Oflicc5. The\· :1rl'
ill Asheville Regional Office, Interchange
Building , 59 Woodfin Place, Asheville.
!\orth Carolina 2880 I;
ffi Winston-Salem Regional Office, Suite 100,
8025 North Point Boulevard, Winston-
Salem, North Carolina 27106;
ill Mooresville Regional Office, 919 North
Main Street, Mooresville, North Carolina
28115;
~ Raleigh Regional Office, 3800 Barrett
Drive, Post Office Box 27687, Raleigh,
North Carolina 27611;
ill Fayetteville Regional Office, Wachovia
Building, Suite 714, Fayetteville, North
Carolina 28301;
{§1 Washington Regional Office, 1424
Carolina Avenue, Farish Building,
Washington, North Carolina 27889j
ill Wilmington Regional Office, 127 Cardinal
Drive Extension, Wilmington, North
Carolina 28405.
ili). Copies of such regulations S!!! be made at
these regional offices for ten cents ($0. IO) ~
~
Statutory Authority G.S. 12-3./ ( c); /43-2/5.94£;
/43-2/5.94L.
.0l03 FALSE OR MISLEADl:\G
l:'\FORMATIOI\
Any owner or operator or authorized agent who
knowingly submits !!!!Y false or misleading infor-
mation with regard to these Rules may be £Q!!:
sidered to be contributing to ~ discharge,
interfering with the mitigation of ~ discharge, or
preventing the early detection of ~ discharge
pursuant to G.S. 143-215.94E(g)(l) if the false
or misleading information results in delay of !!!!Y
efforts to stop the release or discharge, results in
delay of detection of !!!!Y portion of the discharge
or release, or results in delay of investigatory Q!:
remedial activities.
Statutory Authority G.S. 143-2/5.94£;
/43-215.94L.
SECTIO:\' .0200 -PROGRA\I SCOPE
.020 I APPLICABILITY
W. This Subchapter shall ~ to the dis-
bursement of funds from the Commercial Leak-
~ Petroleum Under!?:round Storage Tank
Cleanup Fund and :---:oncommercial Leaking Pe-
troleum Lnderground Storage Tank Cleanup
Fund. and to the collection of annual operating
fees.
(hl. Anv portions of this Suhchaptcr which
concern annual tank operatin!! fees ~ to all
owners and operators of Commercial l."nder-
~rounJ Stora!!c Tanks th:11 h:1\"C hccn in use in
'.\or1h Carolina on or :dicr J~rY .L I 989-:--
{fl This Subchapter shall ~ to discharges
or releases from noncommercial or commercial
underground storage tank svstems";-regardless of
whether such systems ~ rerulated under Sub-
chapter 2N of Title 15A, of the North Carolina
Administrative Code.
Statutory Authority G.S. 143-215.94£;
/43-215.94L.
.0202 DEFl'.':ITIONS
(fil The definitions for "Criteria and Standards
Applicable to Underground Storage Tanks"
contained in 15A NCAC 2:S .0203 are hereby
incorporated QY reference including subsequent
amendments and editions, except that for the
purposes of this Subchapter, the definition of
"Underground Storage Tank" shall be as defined
in Subparagraph lli.l!.,gl of this Rule.
ili). The following terms are defined for ~ in
this Subchapter:
ill "Annual operating fee" !§. an annual fee
required to be paid to the Department QY
the owner or operator of each commercial
underground storage tank in use on or af-
ter! January of the year. beginning with
1989.
ill "Coin.mission" means the Environmental
Management Commission as organized
under Chapter 143B of the General Stat-
utes.
ill "l5epartment" ~ Department of En-
vironment, Health, and Natural Re-
sources.
8). "Discovered release" means !!, release
which an owner or operator, or its em-
ployee or agent, has been made aware Qf,,
has been notified Qf,, or has ~ reasonable
basis for knowing has occurred.
{21 "Dual usage tank" ~ an underground
storage tank which could be considered
both a commercial underground storage
tank and a noncoihmercial underground
storage tank and for which both the com-
mercial and the noncommercial usages are
integral to the operation or existence of
the tank.
@ -;-;-Household" ~ ~ permanent struc-
ture, whether free-standing or connected
to other units. used for living, where pri-
~ living space and primary food I!.!:£.P.:.
aration facilities are controlled or
mamtained bv -the residents.'
"Household" includes simtle-familv
houses, apartments. and sirntle living
units, v.·hether or not the residents arc re-
lated to each other. ·· Household" docs
not include do~rie5. hospitals. hotels.
motels. apartment huildings ~ distinct
from the inJi\·idual apanmcnts thcrL"inl.
or other multi pk J\\ cllin~ ~tructurcs. The
term "four or fewer households" shall re-
late tounderground storage tan.ks serving
households only.
{ll "Occurrence" means one or more
release(s) that result(s) in ! ~ plume
of soil, surface water, and/or groundwater
contamination (consisting of free product
and/or dissolved contaminants exceedin e.
standards specified in ISA NCAC 2L or
any other applicable laws, rules or ~
lations) emanating from ! given site .
<.fil. "Reasonable and necessary expendi-
tures" ~ expenditures for cleanup
work performed in accordance with i!P.:.
plicable environmental laws and ~
lations and which is essential in
determiningthe extent -of contamination,
in conducting release response or remedi-
ation, or which compensates third parties
for resulting bodily injury and property
damage. The Commission shall consider
such expenditures reasonable and ~
~ to the extent that they are sufficientl y
documented , are performed in !!!! ·efficient
manner considering com parable costs for
labor, equipment, and materials , and uti-
lize cost-efficient methods.
{21 -"Substantive law, rule, Q! regulation"
shall mean any law, rule, or regulation re-
quiring !!,!! ~ Q! operator to perform
any act necessary and essential · in pre-
venting discharges or releases, in facilitat-
!!}g their early detection , and in mitigating
the impact of discharges or releases.
UQl "Tank in o peration" means !!!! under-
ground storage tank into which product
i§. added or from which product ~ re-
moved for purposes other than closure .
illl "Tank in use" ~ i!:!! undergr ound
storage tank intended for the containment
or dispensing of petroleum product.
illl "Underground storage tank", as used in
this Subchapter ~ i!!!Y Commercial
or Noncommercial Cnderground Storage
Tank as defined in G.S. 143-215 .94A. A
dual usage tank !§. ronsidered to be !
Commercial undergr ound storage tank .
Statutory Authority G.S. 143-2/5.94£;
/43-2/5.94L.
SECTIO:\ .0300 -AY\t.;AL OPERATl:'\G FEES
.0301 FEES A:\O PA Y\IE:\T
ill The owner or operator of each commercial
underground storage tank shall ~ all annual
tank o perating fees due for that undcrla!.Tound
storage tank.
{hl The Di\·ision shall send an im·oice. for the
amount of thl· annual operating ft:1.·s due . to the
Cl\n1cr or o r cr;.itor of~ commercial p drol,:um
underground ~ tank in use on January l of
the vear and which has been reeistered with the
Dep:irtmCTrt. The annual o pe rating fee shall be
due and payable 30 days following the date of the
invoice and shall be submitted to the Division accorilingiv. -----
(.£1 Anv owner or operator not recei\-in g an
invoice for annual operating fees shall still ~
!!!!Y fees due accordin g to the followin g schedule:
ill !f the owner or operator has paid annual
operating fees for the subject tank in pre-
vious years, the pavment will be submit-
ted to the Division within 30 days of the
anniversary of the last invoicin g date for
the fees .
.{l)_ !f the owner Q! operator has not previ-
ously paid annual operating fees for the
subject tank, ~ annual operating fee !§.
due on l January of that year and shall
be submitted to the Division accordin alv.
@ Any commercial uncierground storage tank
( except commercial underground storage tanks
not regulated under ISA NCAC 2N) which~
in operation on Q! after December 22. 1988 and
has not been permanently closed in accordance
with ISA NCAC 2N .0800 is considered to be in
use.
{tl Anv annual operating fee due on or after
January 1 1992, that !§. not paid within 30 daYs
of the due date shall be subject to a late penaltv
of five dollars ($5 .00) ~ day ·!:!.Q. to an amount
equal to the original fee. The late penalty will
be assessed based on the date of receipt of fee
payment Q.Y. the Division.
ID All annual operating fees due for !!!Y \'ear
are assessed in accordance with the schedule of
fees in effect during that year. Pavment of fees
due for a prior year will be at the rate in effect
during that prior ~ !! ~ the res ponsibilitv of
the owner or operator to determine that all fees
have been paid in accordance with Paragraph .@).
of this Rule.
-~In the event that an annual o perating fee
was paid for a tank for which a fee was not re-
quired, ! refund of that fee pavment ™ be re-
quested bv the owner or o perator. The owner
or operator must provide ade q uate documenta-
tion that the tank was exempt from the require-
ment to pav the annual operating fee.
Statutory Authority G.S. 143-2 I 5 . 94£;
/43-215.9.JL.
.0302 :\OTIFICATIO:\
Anv person transferring ownershi p of '.! com-
mercial undcnrround storal!e tank shall pro\·iJ e
written notification to the Di\ision of thi ~ ac1i0n
\\ ithin 30 d:JI s of the date of lr:msf~. --~fhi ~ 11 ()-
tification mu~t indicate the followin!!:
W '\ame anJ address of 1h1.· rrn·iou~ o,1 ·n ,-r
anJ the new (lwncr: -------
@ Name, identification number, and street
address of the facility;
ill Date of transfer;
~ Signatures of the transferring owner and the
new owner or their authorized represcn-
tatwes-.--
Statutory Authority G.S. /43-2/5.94L;
/43-2!5.94T.
SECTION .0400 -REl!\IBlJRSEMENT
PROCEDl:RE
. 0401 ELIGIBILITY OF OWNER OR
OPERATOR
~ Date of Release:
ill An ~ or operator of !!_ commercial
underground storage tank ~ not eligible
for reimbursement for costs related to re-
leases which were dIBCovered prior to June
~ 1988.
ill An ~ Q! operator of!!_ noncommercial
underground storage tank ~ eligible for
reimbursement for costs without ~ to
the date a release is discovered.
ill An owner or operator of !! commercial
underground storage tank, from which !!
release ~ discovered on or after July 1.
1991 1 ~ not eligible for reimbursement if
the tank had been removed from the
groundmore than 120 days prior to the
date of discovery of the release.
{hl An ~ or operator of !! commercial
undenrround storage tank ~ not eligible for re-
imbursement for costs related to releases !f any
annual operating fees due have not been paid in
accordance with Rule .030 I of this Subchapter
prior to discovery.
{£1 An ~ or operator of !! commercial or
noncommercial underground storage tank ~ not
eligible for reimbursement of any expended costs
which are in excess of the amount determined
reasonahle in accmdance with Rule .0402 1 and
which are not necessary in performing cleanup
of environmental damage and in compensating
third parties for bodily injury and property dam-
~ and which ~ less than ~ deductible es-
tablished for the appropriate fund.
@ An ~ or operator of !! commercial or
noncommercial undern:round storage tank may
be reimbursed for eligible costs only after sub-
mittal of !! written application to the Division ,
on forms provided by the Division. and which
includes anv information and documentation
necessarv to""" determine cli~bilitY and to deter-
mine that any expended costs are r~n-;ble and
nccessarv.
(£l An owner or operator of '.! commercial or
noncommercial undern:rounJ storage tank shall
rwt be clicihk for n:imbur~L·mrnt for costs related
to ri.Tt_:~bcs U" the owner or \1pn~1tm has \\~
violated !!!!}'. substantive law, rule. or regulation
applicable to underground storage tanks intended
to prevent, mitigate, or facilitate the earh de-
tection of discharges QI releases.
ill The release response and corrective action
requirements of~ rules of the Commission and
of any statute administered gy the Department
shall not in !!!!Y way be construed as limited !2.Y.,_
or contingent upon, anv reimbursement from ei-
ther the Noncommercial Fund or the Commer-
cial Fund. -------
Statutory Authority G.S . /43-2/5.94£;
/43-2/5.94L.
.0402 CLEANUP COSTS
~ In determining whether costs expended QY
an ~ or operator are reasonable and neces-
~ the Division shall consider the following:
ill Adequacy and cost-effectiveness of any
work performed and technical activity
utilized QY the owner or operator in per-
forming release response, site assessment
and corrective action.
ill 7'ypical billing rates of engineering,
geological, or other environmental con-
sulting firms providing similar services in
the State as determined bv the Division . rn Typfcii rental rates for any necessary
equipment as determined QY the Division.
The amount reimbursed for equipment
rental shall not exceed the typical pur-
chase price of such equipment.
~ Tvpical costs or rates of~ other neces-
~ service, labor or expense as deter-
mined QY the Division.
{hl Expenditures not eligible for reimbursement
shall include the following:
ill Costs of the removal and disposal of
noncommercial underground ~
tanks and contents removed on or after
July 1_ 1991, and ~f commeraal under-
ground storage tanks and contents re-
moved on or after Januarv _L 1992;
ill Costs of the replacement of !!!!Y under-
ground storage tank, PiQ!!!& fitting, or
ancillary equipment;
ill Costs incurred in preparation of any pro-
posals to perform work for environmental
cleanup;
_l:!.}_ Interest on !!!!}'. accounts. loans. etc.;
ill Expenses charned bY the owner or opera-
tor in the processing and manal!ement of
!! reimbursement application or subse-
quent claims;
@ Attorney's fees;
G'.l Penalties. fees. and fines assessed b,· ~
court or aczcncY;
~ 1.oss of proiits. fee-;. and ~ incum:d
l,y the o\\·ncr or OpLT31()r:
{2.l Any other expenses not specificallv related
to environmental cleanup, or im plemen-
tation of a cost effective environmental
cleanup--:-or third partv bodily injurv or
propertv damage .
Statutory Authority G.S . /43-2/5.94B;
/43-2!5.94D; /43-215.94£; /43-2/5.94L.
. 0403 THIRD PARTY CLAl\-lS
@l An ~ 2.! operator seeking reimlforse-
ment from the appropriate fund for ~ third
~ claim for bodily injury or property damage
must notify the Division of i!!!Y such claim. The
owner 2.! operator must provide the Division
with all pleadings and other related documents g
!!_ lawsuit has been filed . The ~ 2.! operator
shall provide to the Division copies of~ med-
ical reports, statements, investigative reports, or
certifications from licensed professionals ~
~ to determine that !!_ claim for bodily injury
or property damage!.§. reasonable and necessary.
.{hl_ The term third·~ bodily injury means
specific physical bodily injury proximately re-
sulting from exposure, explosion, or fire caused
QY the p resence of!!_ p etroleum release and which
!.§. incurred QY ~ person other than the owner or
operator, Q! emplovees or agents of!!!. owner or
o perator.
{E_)_ The term third party property damage
~ actual physical damage Q!: damage due to
specific loss of normal use of property owned QY
!!_ person other than the ~ or operator of an
undernround storage tank from which !!. release
has occurred. A property owner shall not be
considered !!_ third ~ g the propertv ~
transferred Q.Y the owner Q! operator of an
underground storage tank in antici pation of
damage due to !!_ release . Third ~ property
damage shall be reimbursed from the appropriate
fund based on the rental costs of com parable
property during the period of loss of~ !:!Q to i!
maximum amount equal to the fair market value.
In the case of property that ~ actually destro yed
as ~ result of a p etroleum release, reimbursement
shall be at an amount necessarv to replace or ~
pair the destroyed propertv.
Statutory Authority G.S. /43-2/5.94B;
!43-2!5.94D; 143-215.94£; !43-2/5.94l.
.0404 REQLESTS FOR REI\IBLRSD1E~T
ti!} An application for reimbursement must be
made on i! form p rO\Tckd b,· the Division. The
application fonn must accom pam the initial re-
imbursement request.
{hl A request for reimbursement shall include
copies -of ~ documentation requITT<l b, the
Di,ision to dctennine that c:<r cndcd costs are
rcasonabk and lll'CL':'Saf\. Proof of 11:iyment
must accom p:in, ~ rcyuest for reimburseml'lll.
except when reimbursement will be made jointlv
to the owner or operator and either i! provider
of service or~ third party claimant. The Division
may require the~ or operator to submit anv
information required for the purpose of substan-
tiating i!!!Y claim for reimbursement on forms
provided !;!y the Division.
{E_)_ ~ request for reimbursement ~ be re-
turned or additional information re q uested bv the
Division , if it is found to be incom p lete .
@ The-DtVtswnshall reimburse an owner or
operator for expenses followin e com pletion of
any significant phase of cleanup work or in ac-
cordance with the schedule allowed QY G .S:
143-215.94E(e).
~ !f i!!!Y amount approved for reimbursement
is less than the amount of reimbursement re-
quested, the Thvision shall issue!!_ written expla-
nation of why the amount ·req uested was not
approved.
Statutory Authority GS /43-2/5.94£;
143-2/ 5 .94L.
-0405 METHOD OF REIMBLRSEMENT
W Reimbursement for cleanup costs shall be
made only. to e!!. ~ or operator of ~ petro-
leum underground storage tank, or jointlv to an
owner QI operator and !!_ provider of service.
lli} Reimbursement of cleanup costs to the
~ QI operator shall be made only after proof
of payment for such costs has been received bv
the Division.
{E_)_ Joint reimbursement of cleanup costs shall
be made to an owner or operator and ~ provider
of service only upon receipt of i! written ~
ment acknowledged ~ both parties. Anv ~
imbursement check shall be sent directlv to the
owner or operator.
@ Payment of third partv claims shall be made
to the owner or operator, or jointly to the owner
or operator and the third part,· claimant. ..
Statutory Authority G.S. 143-2/5.94£;
/43-2/5.94L.
.0406 REt:\IBLRSDlE:\T APPORTIOY\IE:'\T
W Where multiple occurrences are addressed
in~~ cleanup action, ex penses will be reim-
bursed based on a pportionment ~ the oc-
currences. The method of apportionment will
be as follows:
-ill Ex penses related direct!\" to §! particular
occurrence shall be applied onlv to that
occurrence:
0 Ex penses that arc related to mon: than one
occurrence will he a pportioned cqu:i.J]y
amonu the oc,:urrcnces.
{Ql \\'here annual o p cr~11in!! fees due h~H' ~
hccn paid on ill und,:rn.round :-t,1ra!!c Lmk, n111-
tributin2. to an Ol'Cll TTl'nn·. r~imbur5L'lllc'llt ,, ill
be made at a rate equal to the number of tanks
contributin 12 to the occurrence for which alJ an-
nual o p eratin2 fees due have been paid dwided
Q.Y the total number of tanks contributing to the
occurrence.
{£1 !f multiple undere:round storage tanks at !!
single site are contributing to ~ single occurrence
and the tanks ~ owned or operated bv different
persons, reimbursement may be made to any of
the owners or operators as !f the occurrence were
caused solely ~ thatperson's underground stor-
~ tanks .
Statutory Authority G.S. /43-215.94£;
l43-2!5.94L.
. 0407 FINAL ACTION
{!}. The Director, Q! his dele gate , shall make~
final decision on ~ written application for eligi-
bility for reimbursement from the appropriate
fund. The Director, or his delegate, shall make
a final decision on ~ written request for re -
m1bursement made subseq uent to an initial !!£.:_
plication .
ili} An owner or operator who has been denied
eligibility for reimbursement from the appropri-
ate fund after submittal of a written application
in accordance with the proce~of this Sub-
chapter, or who has had ~ written reimburse-
ment request denied after submittal in accordance
with the procedures of this Subcha pter, shalJ be
notified of the !iBh!_ to petition for ~ contested
case in the Office of Administrative Hearings in
~rdance with the procedure set out in G.S.
150B-23 .
Statutory Authority G.S. /43-2/5.94£;
l43-2!5.94L.
AGENDA:
EXPLANATION:
RECOMMENDATIONS:
Re q uest To Proceed To Public Hearing On
Pro p osed Rules For Administration Of The
Leaking Petroleum Under g round Storag e
Tank Cleanu p Funds
A public hearing will be set to consider
the proposed regulations concerning
administration of the State Trust Funds.
(proposed 15A NCAC 2P). The purpose of
these rules is to establish criteria and
procedures for the reimbursement of
costs incurred by owners and operators
from the State Trust Funds. These rules
address procedures for payment of annual
tank operating fees and requesting
reimbursement, eligibility requirements,
determination of reasonable and
necessary costs associated with release
cleanup and third party liability, and
appeals of agency decisions.
It is recommended that permission be
granted to proceed to public hearing
with the proposed rules. Final
recommendations will be presented to the
Commission after evaluation of public
comment.
ESE Biosciences' comments on Title 15A, Subchapter 2P -Rules for the
administration of the leaking petroleum UST Cleanup Funds
1. Change title to -"Rules for the administration of the commercial and non-commercial leaking
Petroleum UST Cleanup Funds" -more specifically ties these rules to the law definition. ·
2. .lOl(e) -This is perceived to be in direct competition with private firms who offer similar
services. This entry should be more definitive as to which investigations can be performed
by said department with respect to the priority ranking system. We believe this ranking
system should be updated and published bi-annually.
3. .0103 False or Misleading Information
Need to put a certification statement in this passage to make owner/operator responsible (i.e.,
maybe a CPA with P.E. or P.G. stamp.). This would weed out those groups not
responsible for doing this type of work. Additionally, it would allow the DEM to contact
those prospective certification boards to bring disciplinary actions against those individuals
submitting "false" documents.
4 . .0202 Definitions
No mention is made. to·the term "SITE". This should be·added to specifically L D. an area
that is subject to such impact from a UST discharge. Site should be defined.as any facility
upon· which or beneath which a discharge from a UST has occurred. This may include any
and all properties which have been impacted from said discharge.
5 . .0202 {b) (8) Reasonable and Necessary Expenditures
Because investigations and remediations are perfotmed without the benefit of 20/20
hh1dsight, it seems "unreasonable" to be able to employ 20/20 hindsight in the DEHNR's
review ofreimbursement packages for the purpose of determining what was"reasonable and
necessary". There should be clear and concise definitions of what the DEHNR considers
"reasonable and necessary", not the nebulous statement that concludes this item. Need to
insert statement between "regulations" and the word "and" to read .... "e1ivironmental laws,
regulations and accepted environmental investigation techniques and restorative methods
which are essential" ..... .
6. .0202 (b) (4) Discovered Release
This definition needs to be tied to a date to ensure proper reimbursement can occur. This can
easily be.tied to the "Pollution Incident Report Form" the DEM is using for reporting these
incidents. · ·
7. .0202 (b) (11) Tank in Use
This definition is vague. The word intended should be deleted and replaced with used.
Without this change any tank excluded in the definition of a commercial or non commercial
tank now becomes eligible for the fund.
. i
ESE Biosciences' Comments (can't)
8. .0401 "Eligibility of Owner or Operator"
(a) (1) Note the word "discovered" in this passage. If no document exists then the tank
should be eligibk for the fund.
9. .0401 (c) The word "reasonable" needs to be defined as it pertains to reimbursement. The
lack of cl: clear definition of "reasonable" costs leaves this item wide open to the individual
interpretations of the particular reimbursement package reviewer.
10. .0402 (a) -Cleanup Costs _
(1) A clear definition of "adequacy and cost~effectiveness" needs to be included. If the
DEHNR is to be the client in these situations then they must provide adear definition of their
requirements if they -have any hope of receiving consistent. quality service. The "adequacy
standards" term needs to be defined and/or tied to the 2N & 2L regulations and such
"adequacy standards" should be listed.
(2) This should be typical billing rates for each particular company, not some average. The
DEHNR should ensure that the consultant is charging their standard rates (those they charge
all other clients). Have the consultant show proof (by copies of invoices to other clients) that
they are billing the Trust Fund their normal rates (i.e.; let the democratic system of free
market enterprise work for them). Under the curi'ent proposal, the DEHNR is risking
sacrifice ofQ_uality in order to gain an "average" billing cost.
(3) This passage should be deleted because most companies do not limit their rental rates to
the purchase price of the equipment. The state is getting the benefit of this equipment with
incremental payments without necessarily having to purchase the equipment. It is
unreasonable to the consultant to expect them to rent equipment they don't own without any
markup. If that is tf1e case the DEHNR should rent the equipment directly and also deal with
the related an-angernents and headaches.
It is also unreasonable to expect the consultant to rent out equipment that' it owns
without any markup and capped at the "typical" purchase p1ice. This clause would allow the
Trust Fund to obtain free financing on all rental equipment at the expense of the consultant.
This should not be considered "the cost of doing business".
11. .0402 (a) item 4: Again a DEHNR definition of "necessary" is needed.
(b) (9) Strike aHup to "third part bodily" ... This is too sweeping a clause.
12. .0403 Third Paity Claims
(b) & (c) should be put under definitions section of .0202.
13. .0404 Request for Reimbursement
(d) We believe the Trust Fund would find the reimbursement review process much easier if
they would allow or require monthly invoicing. They use the term "significant phase of
cleanup work". First, what is considered significant and second, what about all other phases
of environmental work leading up to cleanup and also following cleanup?
14. .0405 (b) Why is this necessary in light of.0405 (a)? If the owner/operator can't afford the
remediation costs, where will the money • come from to pay the cons1,.1ltant prior to
reimbursement? This can be a significant hardship.
)
ESE Biosciences' Comments (can't)
15 . .0406 Reimbursement Apportionment
(a) This sta1ement is unclear. How will a multiple occurrence be determined? How will
reimbursement be "apportioned'.'?
(c) The word "site" appears here. Without a good definition, multiple occurrences in an area
can be deemed a site. Thus the owner has no separate bounds from which to I. D. his site
from an occurrence. Therefore, the clean~up cost cap could be affected at a large site with
many poorly or well defined problem areas.
,...,
smith Helms Mulliss & Moore
Comments to Subchapter 2P
Proposed Rules for the Administration of the
Leaking Petroleum Underground Storage Tank Clean-Up Funds
The law firm of Smith Helms Mulliss & Moore's Environmental
Section submits these comments on behalf of its many clients who
presently own or operate underground storage tanks, or who owned
or operated underground storage tanks in the past and are now in
the process of closing and addressing contamination from such
tanks. These comments will address a specific issue that we see
occurring in many cases which we believe is not only an injustice
to tank owners and operators, but also contradicts the intention
of the legislature in enacting the UST Trust Fund statute and
exceeds the Department's statutory authority.
The issue involves the proposed rule at Section .0401(b)
which states that "An owner or operator of a commercial
underground storage tank is not eligible for reimbursement for
cost related to releases if any annual operating fees due have
not been paid in accordance with Rule .0301 of the Subchapter
prior to discovery." Rule .0301 sets out the requirement for
paying commercial tank fees under the statutory authority of G.S.
143-215.94E. The proposed requirement that such fees must be
paid p rior to discovery is contrary to the intent of the
legislature in the statute and exceeds the Department's statutory
authority.
N.C.G.S. 143-215.94E states at subsection (g) (3) that an
owner or operator cannot be reimbursed if he has "failed to pay
any annual tank operating fee due pursuant to G.S. 143.215.94C."
There is no mention at this point in the statute of the timing of
payment of such fees. Section 143.215.94C. similarly does not
directly discuss the timing of payment of fees as such relates to
eligibility for reimbursement. However, Section 143-214.94C.
does address when the fees are due and sets out a penalty for
failure to timely pay annual fees. Section 143-215.94C(e) states
that "an owner or operator who fails to pay a tank fee due under
this section within 30 days of the date that the fee is due shall
pay, in addition to the fee, a late penalty fee of five dollars
($5.00) per day per commercial underground storage tank, up to a
maximum equal to the tank fee due."
The express language of the statute shows that the General
Assembly looked at the issue of timing of payment of fees, took
into account the possibility of late payment of fees and imposed
a penalty for late payment. In the proposed rules, the Division
of Environmental Management attempts to impose an additional
penalty upon owners and operators by denying eligibility for
reimbursement for failure to pay fees in a timely manner. Such
is simply beyond the authority provided under the statute. Where
the General Assembly has already addressed an issue clearly in
the statute it enacts, an agency cannot later, through
regulations, change the statute.
The error in the Division's proposal is seen even more
clearly when you look at the effect that the proposed regulation
will have on owners and operators. Fees on commercial tanks are
imposed on tank owners and operators to provide money for the
trust funds by charging a premium upon the population that will
be using the fund. Much like a premium in a life insurance
scenario, the rules require an owner or operator to have paid the
fees to access the fund. Unlike life insurance, however, the
trust fund statute does not require that the fees be paid at any
particular time to be eligible, but only imposes a penalty for
late payment. It has been our experience, in representing many
property owners, that often a property owner is owner of the
tanks under the regulatory definition of "owner", but in fact
never operated the tanks.
Sometimes a property owner never even knows the tank exists.
In such cases, should contamination be discovered during closure,
or at any other time, the tank owner often will not have been
aware of the need to pay tank fees. However, under the proposed
rules, this tank owner will be denied access to the Commercial
Fund because he has not paid his tank fees p rior to discovery .
If the owner or operator makes its payment after discovery,
paying the statutory penalty for late payment, all purposes and
requirements of the statute will be met. The Funds will be
funded, the owner will be penalized for late payment in
accordance with the legislative intent, and the tank
owner/operator will have access to the trust fund.
Under the proposed rule, which is being implemented by the
agency informally now, such an owner/operator is denied access to
the fund, going against the intent of the statute and likely
keeping the most deserving and innocent of owner/operators from
accessing trust funds. The owner/operator of a commercial tank,
who is not aware of the presence of tanks, or who never operated
them and therefore was not aware of the need to pay tank fees,
should not be penalized for this action beyond the penalty
already provided in the statute.
2
CHARLOTTE OFFICE
MAILING ADDRESS
POST OFFICE BOX 31247
CHARLOTTE, N.C. 28231
STREET ADDRESS
227 NORTH TRYON STREET
CHARLOTTE,N.C.28202
TELEPHONE 704/343·2D00
TELECOPIER 704/334·8467
TELEX 572460
IIAND-DELJ:VERED
Mr. David Hance
SMITH HELMS MULLISS & MOORE
ATTORNEYS AT LAW
RALEIGH, NORTH CAROLINA
MAILING ADDRESS
POST OFFICE BOX 27525
RALEIGH, N. C. 27611
STREET ADDRESS
316 WEST EDENTON STREET
RALEIGH, N. C. 27603
TELEPHONE [phone] •• -;"7cli~.
TELECOPIER 919/828-793~) ,-,;;,'\ · , i' \y/' ~!~ ·,:;: @~~(~ ~~ ~ ~ lju
~ JUL li-
GROUNDWATER SECTION
RALEIGH, NC
July 15, 1992
Division of Environmental Management
Groundwater Section
P. o. Box 29535
Raleigh, North Carolina 27626-0535
Re: Comments to Subchapter 2P
Leaking Petroleum Underground Storage Tank
Trust Funds
Dear Mr. Hance:
GREENSBORO OFFICE
MAILING ADDRESS
POST OFFICE BOX 21927
GFIEENSBORO,N.C.27420
STREET ADDRESS
SUITE 1400
300 NORTH GREENE STREET
GREENSBORO, N. C. 27401
TELEPHONE [phone]
TELECOPIER 919/379-9558
WASHINGTON O. C. OFFICE
MAILING ADDRESS
POST OFFICE BOX 66826
WASHINGTON, D. C. 20035-6826
STREET ADDRESS
:• SUITE 1205 ---.e,s L STREET, N.W.
WASHINGTON, D.C. 20036·5601
TELEPHONE [phone]
TELECOPIER 202/429-9418
Please find attached the comments of Hardee's Food Systems,
Inc., regarding the proposed Subchapter 2P rules published in the
North Carolina Register on June 15, 1992.
These comments are submitted by Hardee's for consideration
by the Division of Environmental Management, Groundwater Section
in its rulemaking pursuant to G.S. 150B-21.2.
Thank you for the opportunity to present these comments and
for your consideration.
EMP/cab
cc: Mr. Ray Watson
Steve Earp, Esq.
Very truly yours,
SMITH HELMS MULLISS & MOORE
1tAJ.>fe~;;" rmJ!Jl-(_
Elizabeth M. Powell
Attorneys for
Hardee's Food Systems, Inc.
HARDEE'S FOOD SYSTEMS, INC.
COMMENTS TO PROPOSED RULES ON
REIMBURSEMENT FROM UNDERGROUND STORAGE TANK TRUST FUND
SUBCHAPTER 2P
Hardee's Food Systems, Inc. is a frequent purchaser of
commercial property in North Carolina. As such, Hardee's and its
franchisees have often, and will continue to, purchase and
consider the purchase of properties on which underground storage
tanks exist or have existed. In many cases, contamination is
discovered to be associated with such tanks and Hardee's must
become involved in the remediation of such properties before it
can put the properties to use. For this reason, Hardee's is very
interested in the procedures for reimbursement and the scope of
reimbursement from the Commercial Leaking Underground storage
Tank Trust Fund. Hardee's will address each of its comments by
the affected section number.
Section .0302 -Notification.
Under this section, the Division of Environmental Management
proposes to require that any person transferring ownership of a
commercial underground storage tank ("UST") provide written
notification of the transfer to the Division within thirty days
of the date of transfer. Such notice would require specific
information, including signatures of the transferring owner and
the new owner. Hardee's is concerned about the effect of this
requirement on real estate transactions and strongly advises the
Division to seek comments from the Real Estate Section of the
North Carolina Bar Association before finalizing this provision.
Hardee's also suggests that, as guidance, the Division look to
the states of Illinois and Indiana, which use real estate
liability notification forms as part of any real estate
transaction. On such forms, both parties (owner and purchaser)
are responsible for providing information including the number of
tanks and any environmental hazard involved. Such forms are
filed at the courthouse within thirty days of closing, as part of
the closing documents. Hardee's is presently attempting to
obtain copies of these state forms and will provide them to the
Division under separate cover. Use of such a procedure in North
Carolina would formalize the information to be transferred at
ownership. We are aware that the Division and the legislature
have discussed these issues previously. However, our concern at
this juncture is the potential for the transfer notification
requirement to affect real estate transactions without proper
review and approval of the Real Estate bar and study on the part
of the Division.
Section .0401 (b } -Elig ibility of Owner or Op erator.
Proposed Section .040l{b) states that an owner or operator
of a commercial UST is not eligible for reimbursement if any tank
fees have not been paid in accordance with Rules .0301 prior to
discovery of the contamination. Hardee's is opposed to the
adoption of this section due to the language requiring that all
fees must be paid "prior to discovery." In other states in which
Hardee's operates, trust fund access is not denied for failure to
pay fees. In fact, once a release is discovered, should an owner
or operator be found to not have paid all the fees, they are
allowed to go back and pay up the fees in order to be eligible to
access the fund.
There is no authority in the implementing statute requiring
fees to be paid prior to discovery of a release for eligibility
purposes. In fact, the only penalty for failure to pay fees is
set out in Section 143-215.94(c) (e), which requires that failure
to pay fees in a timely manner will result in a penalty of $5.00
per day up to a maximum equal to the tank fee due. It is clear
from the language of the statute that the legislature intended
the only penalty for failure to pay fees in a timely manner to be
the penalty set out in Section 143-215.94(c) (e). By basing
access to the fund on payment of fees prior to discovery of a
release, the agency is adding another penalty for the late
payment of fees not authorized under the statute. We know of no
authority for the agency to add additional penalties or
limitations for nonpayment of fees not authorized by statute.
Therefore, we maintain that the provision in Section .0401(b) is
beyond the authority given to the Division by the legislature in
the statute and contrary to the language of the statute.
Section .0402 -Clean-Up Costs.
This proposed section sets out which specific costs will be
considered "reasonable and necessary" by the Division. Neither
the statute at Section 143-215.94(b), nor proposed Section .0402
of the proposed rule addresses specifically whether activities
taken to restore property to its original condition would be
considered "reasonable and necessary." In both the statute and
the proposed rule, it is clear that cost of tank removal and tank
replacement as well as replacement of other equipment is not
recoverable, and Hardee's understands, certainly, the need to
keep the fund from having to reimburse costs of upfitting service
stations. Still, Hardee's maintains that costs to restore the
ground surface to its original condition should be recoverable.
For instance, the cost of backfilling a hole, re-grading and
paving the area to its original condition should be recoverable.
Hardee's requests that this issue be addressed in Section .0402.
Section .0405 -Method of Reimbursement.
Under Section .0405, as proposed, reimbursement of clean-up
costs can only be made to an owner or operator or a petroleum UST
or jointly to an owner or operator and a provider of service.
Due to the strict definition in the regulation of "owner" at
Section 143-215.94(a) of the Rules, often the regulatory "owner"
is either unwilling or unable to begin cleanup. As personnel
from the Division are well aware, situations often arise where a
2
current landowner or other party who is not the regulatory
"owner" or "operator" may need or desire to clean up petroleum
contamination from a UST, for various reasons, but cannot do so
without recovery under the trust fund. In such cases, there
should be a mechanism for the regulatory "owner" to assign his
rights to eligibility under the trust fund to a third party. As
Division personnel are aware, on an informal basis, this has been
achieved through use of a power of attorney. Hardee's would
request that either this power of attorney form or some other
mechanism be formalized in these rules to allow owners or
operators to assign their rights for eligibility to the trust
fund to a third party. We believe strongly that such would
facilitate cleanup at many sites and avoid transferring such
sites to either the Non-Commercial Fund or to the Federal Trust
Fund. In addition, in light of the recently ratified Senate Bill
1169, which amends G.S. 143-215.94E, we believe that this issue
needs to be addressed in these rules.
[BPOWELL]hardeescomments
3
CHARI.OTTE OFFICE
MAILING A00RESS
PCST 0,.FICE ■ox 31247
CMA.RLOTTE, N .C . 28231
STREET AOCRESS
227 NORTH TRYON STREET
CHARLOTTE, N. C. 28202
TELEPMONE 704/343-2000
TELECCl'IEII 704/334-8487
TELEX 1572480
HAND-DELIVERED
Mr. David Hance
SMITH HELMS MULLISS & MOORE
ATTORNEYS AT LAW
RALEIGH, NORTH CAROLINA
MAILING ADDRESS .
POST 0,-FICE BOX 27525
RALE:IGH, N. C. 27ell
STREET ADORESS
318 WEST EDENTON STREET
RALEIGM, N. C. 27803
TELEPHONE [phone] ~~ ~ n~m"" ~•,a•&;'.j©li }l ~ ~ I JUL 151992
GROUNOWAlER SECTION
RALEIGH. NC
July 15, 1992
Division of Environmental Management
Groundwater Section
P. o. Box 29535
Raleigh, North Carolina 27626-0535
Re: Comments to Subchapter 2P
Leaking Petroleum Underground Storage Tank
Trust Funds
Dear Mr. Hance:
GREENSBORO OFFICE
MAtLING ADDRESS
POST Ol'l'ICE BOX 21927
·• GREENSBORO. N. C. 27420
STREET ADDRESS
SUITE 1400
300 NORTH GREENE STREET
GREENSBORO, N. C. 27401
TELEPMONE !ill9/378-IS200
TELECOPIER 919/37!il-9$SB
WASHINGTON O. C. OFFICE
MAILING AOOl'IESS
POST o,-,·,cc BOX 88826
WASHINGTON, 0. C. 2003S-i5828
STREET ADDRESS
SUITE 1205
fats L STREET, N. w.
WASHINGTON, 0. C •. 2003&-SEIOI
TELEPHONE [phone]-QSSO
TELECOPIEII 202/42!il·B4f8
Please find attached the comments of Federated Mutual
Insurance Company regarding the proposed Subchapter 2P rules
published in the North Carolina Register on June 15, 1992.
These comments are submitted by Federated Mutual for
consideration by the Division of Environmental Management,
Groundwater Section in its rulemaking pursuant to G.S. 1soa-21.2.
Thank you for the opportunity to present these comments and
for your consideration.
EMP/jm
cc: Jeanne Hankerson
Very truly yours,
SMITH HELMS MULLISS & MOORE
~-LA~li /ll~
Elizabeth M. Powell
Attorneys for
Federated Mutual Insurance Company
FEDERATED MUTUAL INSURANCE COMPANY
COMMENTS TO
SUBCHAPTER 2P PROPOSED RULE REGARDING
LEAKING PETRO~EUM UNDERGROUND STORAGE TANK CLEANUP FUNDS
Federated Mutual Insurance Company is and has been a
provider of pollution liability insurance since February 1980.
As it is handling multiple claims in North Carolina, Federated
Mutual is very interested in the proposed·regulation affecting
the procedure for reimbursement under the trust funds.
Generally, Federated Mutual supports the .proposed regulation
and finds little problem with the r~gulations as drafted.
Federated Mutual only suggests one minor change to Section
.0402{b) (3). In this section, DEM sets out which costs will not
be considered "reasonable and necessary" and, therefore, not
eligible for reimbursement. Subsection (b) (3) proposes to
exclude from reimbursement "the costs incurred in the preparation
of any proposals to perform work for environmental cleanup."
Federated Mutual believes that this language needs to be revised
to clarify that the word "proposal" refers only to proposals
obtained by an owner or operator from companies soliciting to
perform an investigation or remediation. As presently drafted,
this language could be interpreted to exclude any proposal,
including a proposal to the state for corrective action or other
work, from reimbursement. Federated Mutual proposes that Section
.0402{b) (3) be modified to read as follows:
Section .0402 "Cost incurred in preparation of any proposal
or bid by a ·provider of service for the purpose of soliciting or
bidding for the opportunity to perform an environmental
investigation or clean-up, even if that provider is ultimately
selected to provide the service solicited;"
Federated Mutual appreciates the opportunity t9 ,provide
these comments and suggest that if the Groundwater Section has
any additional questions for Federated Mutual, it should contact
Ms. Jeanne Hankerson, Federated Mutual's environmental
coordinator, at 1-800-523-0472 or Elizabeth M. Powell, local
environmental counsel at Smith Helms Mulliss & Moore in Raleigh,
919-828-8207.
I
WILLIAM H. WEATHERSPOON
Executive Director
Mr. David Hance
NORTH CAROLINA
PETROLEUM
COUNCIL
A Division of the American Petroleum Institute
P.O. BOX 167 • RALEIGH, N.C .. 27602
919/828-5438 • DEX 919/821-0337
July 15, 1992
Division of Environmental Management
Groundwater Section
P.O. Box 29535
Raleigh, NC 27626-0535
Dear Mr. Hance:
@ j©il1!i V ~ 'UJ;lt 15199, JW
GROUNDWATER SECTION
RALEIGH. NC
ANGELA S. WALDORF
Associate Director
The following comments regarding the proposed Leaking Petroleum Underground
Storage Tank Cleanup Funds regulations are submitted on behalf of the
American Petroleum Institute ·(API), a trade association with approximately
200 corporate and 6,000 individual members representing all aspects of the
petroleum industry.
The API supports the promulgation of regulations that clearly outline all of
the requirements for participation in the Leaking Petroleum Underground
Cleanup Funds. We, therefore, believe that reliance on ancillary guidance
documents which are developed without the benefit of public input should be
limited. Where guidance documents are deemed necessary, we believe that the
staff's reliance on ancillary documents and the standards utilized to develop
them should be clearly stated in the rules. This will put the regulated
community on notice that there may be additional requirements and will allow
public input on how these requirements are developed.
The follc:,wing comments refer to the specific~lly .referenced sections:
;t : •' ••• ' .
• 0202(4)
This section, as written, would impute any knowledge.regarding a release that
an employee or agent has to the owner or operator of an UST. There are many
circumstances where prudent and diligent owners and operators may not have
actual knowledge of a release because of misconduct on the part of an
employee or agent. For example, an employee may want to conceal a spill or
overfill that occurred because of his own negligence. This section should be
changed to create no more than a rebuttable presumption that an owner or
operator has the same knowledge as an employee or agent.
Mr. Bavid Hance
Page 2 ··
;July 15, 1992
.0301(d)
An exc~pt~on to the requirement that an UST in use on or after December 22,
1988 1.s . 1.n use if not properly closed should be made for subsequent
landowners who take title to the land without. actual knowledge of the
existence of the UST. If this change is not made, it may violate tbe
innocent landowner provision in G.S. 143-215.84(a) .
• 0401(b)
The statutory authority for penalizing sµQsequent p~_previous UST owners or
operators who properlypay tank fees for the period of time that they own or
operate an UST is not clear. The legislation does not create a constructive
lien for failure to pay tank fees and it would not be clear to a subsequent
or previous UST owner who follows the law that they would not be covered
under the fund if another person in the title chain failed to pay their fees.
This section should be changed to more accurately reflect the intention of
the legislation and to avoid unfair denials for access to the Fund •
• 0402 (a) ( 1)
The standards and process by which the Division shall determine which costs
are "reasonable and necessary" should be clearly defined in the rules. As
written, it is impossible for an owner or operator to determine how their
cleanup project will be evaluated regarding adequacy and cost-effectiveness.
This is critical since it appears that work not determined to be adequate or
cost-effective would not be reimbursable. Failure to provide clear standards
could substantially delay timely cleanup efforts since owners and operators
would be inclined to get virtually all work preapproved .
• 0402 (a) (2-4)
The standards arid process by which "typical r.ates" are determined should be
clearly stated in the rules. In addition, it should be clear that these rate
schedules are available to owners and operators so that they can use this
critical information during contract negotiations .
• 0402 (b) (3)
The prohibition regarding reimbursement for the preparation of proposals to
perform work for environmental cleanup should be reevaluated especially for
complex cleanups or unique site conditions. If the Groundwater Rules are
changed to provide for greater cleanup flexibility, it may become even more
cost effective to evaluate two or more cleanup techniques before a decision
is made •.
\
Mr. Oavid Hance
Page 3
,July 15, 1992
• 0402 (b) (5)
Some owners and operators of large numbers of USTs have highly trained and
qualified UST remediation experts on their corporate staffs. These employees
can do a great deal of the site evaluation and cleanup plan development work
in house at a great savings over outside consultants. They do the same work
as outside contractors whose work would be reimbursable from the Fund. Where
owners and operators have employees that have comparable training as outside
consultants and who do work that would be reimbursable if done by outside
consultants, they ·should be able to charge the Fund the reasonable costs
associated with doing the work .
• 0403
The rules fail to address a situation where an owner or operator can not be
identified or refuses to acknowledge any association with an UST release.
Even if an owner or operator can be identified, they may refuse to defend an
action allowing a default judgement to be entered. It is not clear what
happens under these circumstances. Can a third party seek reimbursement from
the Fund if an owner or operator can not be located or refuses to cooperate?
.0404(b)
This section should be modified to require owners and operators to submit
1only information that is reasonably available to the owner and operator and
necessary for the Division to make a reimbursement determination. As
written, the Division could deny a legitimate claim solely on the basis of
the owner or operator's inability to produce a document that they could not
reasonably be expected to have. This is especially true in the case of
medical records, etc. for third party claims or information that may be
several years old •
• 0404 (c)
The rules should state a time frame by which incomplete reimbursement claims
will be returned so that an owner or operator who may have already paid a
contractor may · have some reasonable expectation regarding reimbursement.
Many owners and <:>perators rely on timely reimbursements to maintain cleanup
schedules and need to know as soon as possible if additional information is
needed to support a claim.
I appreciate the opportunity to off er comments on behalf of API and our
member companies. Please feel free to contact me if you would like
additional information regarding the comments we have offered in this letter
or at any of the informational meetings regarding these regulations.
sincerely,
,Q.n.@.~ A~~e~ s. Waldorf
BODDIE NOELL TEL No.919-937-2816 Jul 15 .,92 17:17 No.O28 P.03
BOOOIE-NOELL ENTERPRISES, INC.
COMMENTS TO PROPOSED REGULAT.IONS ON
REIHBURSEHEN'I' FROM UNDERGROUND STORAGE TANK TRUS'l' FUND
SUBCHAPTER 2P
Boddie-Hoell Enterprises, Inc. (BNE) is a frequent purchaser of
commercial property in North Carolina. In many cases, contamination is
discovered to be associated with such tanks and BNE must become involved
in the remediation of such properties before it can put the properties to
use. For this reason, BNE is very interested in the procedures for
reimbursement and the scope of reimbursement from the Commercial Leaking
Underground Storage Tank T~st Fund.
Section .0302 -Notification
Under this section, the Division of Environmental Management proposes
to require that any person transferring ownership of a comniercial
underground storage tank ("UST") provide written notification cf the
transfer to the Division within thirty days of the date of transfer. Such
notice would. req\lire specific information, including signatures of the
aeller and the new owner. BNE is concerned about the ettect of this ,
requirement on real estate transactions and strongly advises the Division
to seek comments from the Real Estate Section of the North Carolina Bar
Association before finalizing this provision. Our concern at thia
juncture 1s the potential for the transfer notification requirement to
affect real estate transactions without proper review and approval of the
Real Estate Bar and study on the part ot the Division.
Page 1
BODDIE NOELL TEL No.919-937-2816 Jul 15,92 17:17 No.028 P.04
Division ,0401 and (b l -Elia ib111ty of owner or Op erator
Section .0401 (b). states that an owner or operator of a commercial UST
is not eligible for reimbursement if any tank fees have not been paid in
accordance with Rules ,0301 prior to discovery of the contamination. BNE
is opposed to the adoption of this section due to-language requiring that
all fees must be paid "prior to discovery". In other states in which BNE
operates, trust fund access is not denied for failure_t<?_Pay fees~ In
fact, once a release is discovered, should an owner or operator be found
to not have paid all the fees, they are allowed to go back and pay up the
fees in order to be eligible to access the fund,
There 1s no authority 1n the implementing statue requiring tees to be
paid prior to discovery of a release for eligibility purposes. In fact,
the only penalty for failure to pay fees is set out 1n Section 143-215,94
(c) (e), which requires that failure to pay fees in a timely manner will
result in a penalty of $5,·oo per day up to a maximum equal to the tank fee
due. It is clear from the language of the statute that the legislature
intended the only penalty for failure to pay te~s to be the penalty set
out in Section 143-215,94 (c) (e), By basing access on the fund to
payment of fees prior to discovery of a release, the agency is adding
another penalty for the late payment of fees not authorized under
Page 2
..
LACY H. THORNBURG
State of North Carolina
Department of Justice
ATTORNEY GENERAL P.O. BOX 629
RALEIGH
27602-0629
July 15, 1992
Mr; David Nance
DEM Groundwater Section
Post Office Box 29535
Raleigh, North Carolina 27626-0535
RE: Proposed "2P" Trust Fund Rules
Dear Mr. Nance:
Please accept this as what we hope to be the final comment on the "2P"
rules from the Office of the Attorney General.
There seems to be some confusion among attorneys in the private bar over
the definition of "occurrence" at proposed .0202(b)(7). The confusion is stemming
from the words "emanating from a given site." Apparently some attorneys are
interpreting the definition to mean that if a single plume is travelling beyond a
property's boundaries (i.e.: emanating from) then the entire "site" is considered
covered by one deductible, regardless of other discernible separate plumes. The
logic behind this is shaky; However I question the need for the words
"emanating from a given site" in the rule. This office would be glad -to confer
with staff in considering deletion of these words.
JPR/vph
cc: Perry F. Nelson
ep:nance2Pltr.pr
Yours truly,
LACY H. THORNBURG
Attorney G_i!neral
~ ~r.--;.;~~.£7? ~--. --) ~ (/ _, a..~~---------
s.--·1?eter Rascoe, III
Associate Attorney General
An Equal Opportunity/ Affirmative Action Employer
LACY H. THORNBURG
ATTORNEY GENERAL
David Hance
DEM Groundwater Section
Post Office · Box 29535
State of North Carolina
Department of Justice
P .O .BOX629
RALEIGH
27602-0629
July 15, 1992
@J©~K'Wlrn\)
Jm; JUL 151992
GROUNDWATER SECTION
RALEIGH, NC
Raleigh, North Carolina 27626-0535
RE: Title 16A, Subchapter 2P NCAC
Dear David:
Please accept this as further comment on the proposed Subchapter 2P
rules. After further review and discussion with the Counsel to the
Environmental Management Commission, it is evident that the potential for
numerous contested cases exists due to denial of small amounts of requested
reimbursement amounts. Therefore it is suggested that the Secretary of the
Department of Environment, Health and Natural Resources make the final agency
decision in any contested case. This will keep the Environmental Management
Commission's agenda clear of the numerous cases.
Rule· .0407(a) should be changed by deleting the references to "a final
decision" and subsituted with "the agency decision". The following sentence
should be added to Rule .0407(b): "The Secretary of the Department of
Environment, Health and Natural Resources shall make the final agency decision
in any contested case pursuant to G.S. 150B-36."
Thank you for the opportunity to comment on behalf of the Department of
Justice.
JPR/vph
ep:hanceTit15.pr
Yours truly,
LACY H. THORNBURG
Attorney General
2>/:li;~_
J. Peter Rascoe, Ill
Associate Attorney General
An Equal Opportunity/ Affirmative Action Emp!Qyer
..
Mr. David Hance
July 15, 1992
Page 2
If a structure is vacant for some period of time, is it "used for
living"? If the structure is intended for living is that
adequate to qualify as a household, even if the structure is
vaca~t? Perhaps some "intended for" language would be
appropriate to deal with situations such as vacancy.
We would object to migrant and seasonal housing, tenant housing,
and other similar arrangements being considered as 11 mul tiple
dwelling structures" and not qualifying as households. At a
minimum, the same distinction that is made for "apartments"
versus "apartment buildings" should be made for all multiple
dwelling structures ... adding the distinction of individual units
therein, which may or may not have shared kitchen facilities.
In summary, the entire definition of "household" needs to be
rewritten with all of these items addressed (and perhaps others)
and a substantial effort is needed to craft the definition in a
more fair and reasonable way.
"Du.al usage tank" and •underground storage tanJc• definitions--
• 0202 (b) (5) and (12)
These two definitions seem to combine to make some tanks that
could reasonably be considered "noncommercial" tanks into
"commercial" tanks. We speak specifically here of situations
where there · is an office in which a person conducts business,
but that office is located in a structure that is a dwelling
(commonly referred to as an "office in the home"). This could
include farmers, company employees not employed at an office
building but in their homes, lawyers, tax preparers,
salespersons, landscapers, consultants, etc.
These persons could have heating oil tanks that meet the
statutory definition of "noncommercial", but would be considered
dual usage under this rule. Some attempt has been made to modify
this with the "integral to" language in the definition of "dual
usage". This "integral to" language is unclear. It should be
made clear that only if the tank is necessary for the conduct of
the business, and without the product being dispensed from a tank
the business could not be conducted--such as a motor fuel tank in
a service station that also serves as a residence--is what is
meant by a "dual usage tank" under the definition. Some
clarification of this issue is needed.
Mr. David Hance
July 15, 1992
Page 3
"Reasonable and necessary expenditures" definition--.0202 (b) (8)
The language in this definition should be consistent with the
statutory language of what is actually reimbursable--
"expenditures for the cleanup of environmental damage", not "for
cleanup work". Also, "planning and implementing corrective
action" should probably be added to the list in this definition
for clarification that "corrective action"--a term used in other
groundwater rules related to this program--is reimbursable in an
underground storage tank cleanup. (In our oral comments we
mentioned "containing contamination" as well. "Planning and
implementing corrective action" may address that concern in a
more appropriate manner.)
Fees and Payment--.0301 (a) and (f) and Eligibility of Owner or
Operator--.0401 (b)
We oppose the provision that a current tank owner is responsible
for fees that were due from a previous tank owner but were never
paid. Current owners should not be responsible for past owners•
bills. Further, a current tank owner who has paid his or her
tank fees for the years that they owned or operated the tank
should be eligible to participate in the tank cleanup funds.
Not allowing participation by requiring them to be responsible
for past owners• unpaid bills is absolutely unfair and could be
financially devastating. We vigorously oppose this.
We feel that a statutory change may not be needed to fix this.
If it is determined that a statutory change is needed, we urge
the Division to seek this change in the General Statutes as soon
as possible.
It is our understanding that the Department has some fear that
tanks will be transferred to family members or others in order to
avoid the tank fee responsibility. This could be addressed using
language similar to that used by the US Department of Agriculture
in implementing farm programs. Those persons determined to be
conducting certain activities in order to circumvent rules are
found to be engaging in a "scheme or device" and determined to be
ineligible. We can provide you with the specific USDA language
describing "scheme or device" if it would be helpful in resolving
this issue.
Mr. David Hance
July 15, 1992
Page 4
Notification--.0302
We feel that notification is beneficial and we support
notification. Farmers do not want to buy land with commercial
tanks on it that they do not know about. However, there is no
prescribed form for this which will create confusion for
regulated parties. Further, this will be an administrative
headache for the Division unless there is a standard form.
What if the previous owner did not know of the existence of the
tank? Is he held accountable for something about which he had no
knowledge? What is the penalty for not notifying the Division
under these or other circumstances? How are people to know that
this is a requirement? This is a good idea that needs further
work.
Third Party Claims--.0403
.0403 (a) We continue to question whether an owner or operator
is the appropriate person to supply the copies of medical reports
and other documents to the Division. These types of documents
are generally confidential and a third party will be reluctant to
supply them to an owner or operator. Further, the third party
may fear that the owner or operator will not supply the Division
with all documents supplied to the owner or operator by the third
party. This subsection needs to describe an alternate method of
supplying documents in anticipation of such situations.
Is there any time limit for filing or collecting on third party
claims? If so, language such as "The time limit for filing for
and payment of third party claims shall be in accordance with the
provisions of G.S. _____ --,-____,,~ and subsequent amendments
thereto" should be included to indicate to owners, operators, and
third parties that there are statutory requirements as well as
rule requirements for timely application for reimbursement of
third party claims. If there is no specific statutory time
frame, then the rule as currently drafted leaves this as an open
question which may need to be addressed.
Method of Rei:mbursement--.0405
It is not clear that payment may be made to an agent acting for
an owner, operator, provider of service, or third party, or to an
estate. Elsewhere in the rule the language "or their authorized
representatives" is used regarding transfer notification.
Similar language could be used here, and may or may not require a
Mr. David Hance
July 15, 1992
Pages
definition or description of a method to become an "authorized
representative" for purposes of receiving payment. Situations
like this could arise with persons such as estate administrators,
elderly or incompetent persons who have others acting in their
behalf, etc. We feel some clarification may be needed here.
These are some of the concerns that we have regarding this rule.
Other concerns have been expressed by other persons and
organizations. We feel that there are still many issues that
need to be resolved with this proposed rule and hope that the
Division will work to improve this important rule.
Thank you for this opportunity to comment.
questions, please feel free to contact me.
Sincerely,
C~fv!u ~
Anne Coan
Natural Resources Division Director
for
W. B. Jenkins
President
AFC:bms
If you have
July 9, 1992
The following comments are presented pertaining to the adoption by the DEM-
Groundwater Section of 15A NCAC 2P .
Pages
Page?
. 0202 Definitions
(b) (4) As written, the definition presumes all employees or agents are
loyal, honest, etc. The owner or operator is responsible under 15A
NCAC 2N. Therefore, "or its employee or agent" should be
removed from this definition .
. 0301 Fees and Payment
(c) (1) If the owner or operator does not receive an invoice, the owner or
operator should have longer than 30 days from the last invoicing
date in order to submit payment. We recommend 60 days from an-
niversary of last invoicing date.
In addition, we recommend that provisions be added for prorating fees for
tanks which are closed in the year fees are due but before fees are paid.
(d) This provision provides that any tank that has not been closed in ac-
cordance with the regulations and is used after December 22, 1988, will be
considered to be in use. The intent is to require payment of the tank fees
for all tanks that are operational and have not been closed in accordance
with the regulations after the specified date. We have no problem with this.
The effect, however, when considered in conjunction with .0401 (b) which
requires all fees to be paid prior to discovery could present several
problems. Consider the following situations: ABC Oil is a small company
engaged in the distribution of petroleum products in North Carolina. It has
installed and owned one or more tanks at a convenience store in a rural
area. In 1985, ABC is purchased by a new enti~ XYZ Oil Company. The
terms of the purchase agreement are-such that title to the tank in question
passes to XYZ. Unfortunately, the purchase agreement does not specify
the locations of the tanks transferred and XYZ is unaware of the existence
of the tank. Furthermore, the operator of the C-store does not desire to do
business with XYZ. This operator begins purchasing the product from a
new distributor Rural Petroleum, Inc. In 1992, a discharge is discovered at
the convenience store and following an investigation by DEM, it is deter-
mined that the operator of the convenience store and XYZ as the owner of
the tanks are the responsible parties. XYZ never .knew it owned the tanks,
and consequently it never paid any fees. For this reason they are denied
access to the fund. The same problem could result if there had been a
change in ABC ownership due to death, or some other contingency. The
regulation should not make someone responsible who had no knowledge
or involvement with the tank in question.
(g) authorizes a request for a refund but does not require that the refund
be granted even if adequate documentation is provided.
THARRINGTON, SMITH & HARGROVE
Mr. David _ Hance
July 13, 1992
Page 2
A possible solution to this problem would be to amend section .0301( e) by adding
this sentence: "No such late penalty shall be assessed if the Department mails the invoices
late due to problems internal to the Department."
Thank you for the opportunity to comment on the proposed regulations.
Best regards.
Sincerely,
THARRINGTON, SMTIH & HARGROVE
tzldt
Ed Turlington
'·
U7/l5 /9l lJ:47 < FAX [phone] WASTE MANAGEMENT
C. Section -Oi02(b)(l0 BDd (b)(ll) 'Tank in Operation• and 'Tauk in "tj"se•
The federal regulations • don't distiDgawl between the two terms, and there
doesdt seem to be any ·need to ·do so i:o. application in the draft ~e here.
Also-muse" is defined in the next section at .0301(d) -essentially aey U~
not permanently closed after 12/22/88. "In use" µeeds to be made co~istent
throughout.
2. Section .0301(f) • Amount or Fees Included Wlth These Rules
;
We suggest that the f~ in 'Iitle 15A 2N NCAC Section 143-215.94-(C) be
included in these rules for ease of information for the regulated comm~.
By knowing the fees and how to pay them [as in .0301( c) which ~ not
require an invoice], the regulated commnnitys payment should also be more
reliable. '
The . statute also allows "for prorata payment of fees. Such prorata payment
should be included in thae regulations for new tanks or new owhers of
~~~ i
.3. Section JMOI(b) • IneliiJbility
This section would be , more a¢ceptable if there was allowance for late
payments and late fees for that tardin,5. · ·
4. _Sedioa J>402(b)(l) • Noncommercial UST
s.
6.
This section appears to conflict with the .eligibiliey statement made in Section
.0401 (a)(2). · ·
Sedioo .0402 (b)(6) • F.ligibleAUorney's Fees
Attomey fees that should be eligible for reimbmsement are those for third
partJ: bodl)J: and propeny dama&e claims. This exception should be ljsted: in
.0402(b )(6) and thereby: exempt ·such attorney fees from being ineliSJr"ble.
;
Section .o403(b) and (c) • Third Party Oaims
We suggest that the teim "alleged• /"allegedly" be added to this se<#on 'as
noted: I
•(b) The tenn third party bodily injury means alleged specific physical
bodily iDJwy a1]egedly proximately resulting from exposure, explosi9D,
or fire caused by the presence of a petroleum release and which is
! '
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Tl] 1 '31 '3733'341 :::-F·.cc
• , ·-· V -7 -,. ..,:; , •• '-' N 1 Ii:;! : 2 0 NC c; RN l) w TR ? j_ '9 / 7' '.3 0 9 4 i :?; p. 0 :.-s
A total of twenty-one (21) people attended the
three ( 3) presenting oral comments. A total of
people provided verbal and/or written comments
proposed rules.
hearin9s, with
thirteen (13)
regarding the
As a )result of con'll'l\ents received some changes were made to
clarify the intent of specific rules. A summary of th~ public
comments received, the Agency' a response, the draft f ina.l :rule,s
and the Hearing Offieers' recommendations are attached.
The Hearing Officers recommend th~t the draft rules, as
am~~de~, b~ adopted by the Environmental Management Commission.
CEB,BR
Attachments
cc: Preston Howard
Burrie Boshoff