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HomeMy WebLinkAboutMO-88774_91569_G_NORR_20200218_Notice of Regulatory RequirementsROY COOPER NORTH CAROLINA Governor Environmental Quality MICHAEL S. REGAN Secretary MICHAEL SCOTT Director February 18, 2020 DLB Trucking Attn: Donald Bost P.O. Box 1410, Rockwell, NC 28138 (via email) Re: Notice of Regulatory Requirements 15A NCAC 2L .0505 Risk -based Assessment and Corrective Action for Petroleum Aboveground Storage Tanks? DLB Trucking Diesel Spill 6777 Mount Pleasant Road South, Concord Cabarrus County Incident Number: 91569 Risk Classification: Unknown Dear Mr. Bost: The Initial Abatement Action Report received by the UST Section, Division of Waste Management, Mooresville Regional Office on February 18, 2020 has been reviewed. The review indicates soil contamination exceeds the applicable total petroleum hydrocarbons (TPH) screening limit. Therefore, the UST Section hereby confirms that you must comply with assessment and reporting requirements of Title 15A NCAC 2L .0505, within the timeframes specified in the attached rule. The requirements of Title 15A NCAC 2L .0505 include the preparation and submittal of a Limited Site Assessment (LSA) Report, in accordance with the rule and the most recent version of the Guidelines for Site Checks, Tank Closure, and Initial Response and Abatement for Non -UST Petroleum Releases, within 120 days of discovery of the release. Because a release or discharge has been confirmed, a Licensed Geologist or a Professional Engineer, certified by the State of North Carolina, is required to prepare and certify all reports North Carolina Department of Environmental Quality I Division of Waste Management Mooresville Regional Office 1 610 East Center Avenue, Suite 301 1 Mooresville, North Carolina 28115 704.663.1699 submitted to the Department of Environmental Quality in accordance with Title 15A NCAC 2L .0103(e) and 2L .0111(b). Please note that before you sell, transfer, or request a "No Further Action" determination for a property that has not been remediated to below "unrestricted use" standards, you must file a Notice of Contaminated Site ("Notice") plat and declaration with the Register of Deeds in the county where the property is located (NCGS 143B-279.9 and 143B-279.10). Failure to comply with the State's rules in the manner and time specified may result in the assessment of civil penalties and/or the use of other enforcement mechanisms. If you have any questions regarding the actions that must be taken or the rules mentioned in this letter, please contact me by email at Trudy.Beverlygricderingov or by telephone at (704) 235- 2182. Sincerely, k- Trudy Beverly, L.G. Hydrogeologist Mooresville Regional Office UST Section, Division of Waste Management, NCDEQ Enclosures: Title 15A NCAC 2L .0505 A Brief History of North Carolina Session Laws, Rules, and General Statutes... cc: Mike Downs, Cabarrus County Manager (via email) Chrystal Swinger, Cabarrus County Environmental Health (via email) John Matlock, Shamrock Environmental Corporation (via email) pannwY*�` n�ia.nama aal� North Carolina Department of Environmental Quality I Division of Waste Management Mooresville Regional Office 1 610 East Center Avenue, Suite 301 1 Mooresville, North Carolina 28115 704.663.1644 SUBCHAPTER 2L - GROUNDWATER CLASSIFICATION AND STANDARDS SECTION .0500 — RISK -BASED ASSESSMENT AND CORRECTIVE ACTION FOR PETROLEUM RELEASES FROM ABOVEGROUND STORAGE TANKS AND SOURCES 15A NCAC 02L .0505 REQUIREMENTS FOR LIMITED SITE ASSESSMENT If the required showing cannot be made by the responsible party under Rule .0504 of this Section, the responsible party shall submit within 120 days of the discovery of the discharge or release, a report as required in Rule .0504 of this Section, containing information needed by the Department to classify the level of risk to human health and the environment posed by a discharge or release under Rule .0506 of this Section. The responsible party may request an extension prior to the deadline that demonstrates to the Department that the extension would not increase the risk posed by the release. Such report shall include the following: (1) a location map, based on a USGS topographic map, showing the radius of 1500 feet from the source area of a confirmed release or discharge and depicting all water supply wells, surface waters, and designated "wellhead protection areas" as defined in 42 U.S.C. 300h-7(e) within the 1500-foot radius. 42 U.S.C. 300h-7(e), is incorporated by reference including subsequent amendments and editions. Copies may be obtained at no cost from the U.S. Government Bookstore's website at http://www.gpo.gov/fdsys/pkg/USCODE-2010-title42/html/USCODE- 2010-title42-chap6A-subchapXII-partC-sec300h-7.htm. The material is available for inspection at the Department of Environmental Quality, UST Section, 217 West Jones Street, Raleigh, NC 27603. For purposes of this Section," source area" means point of release or discharge from the non -UST petroleum source, or if the point of release cannot be determined precisely, "source area" means the area of highest contaminant concentrations; (2) a determination of whether the source area of the discharge or release is within a designated "wellhead protection area" as defined in 42 U.S.C. 300h-7(e); (3) if the discharge or release is in the Coastal Plain physiographic region as designated on a map entitled "Geology of North Carolina" published by the Department in 1985, a determination of whether the source area of the discharge or release is located in an area in which there is recharge to an unconfined or semi -confined deeper aquifer that is being used or may be used as a source of drinking water; (4) a determination of whether vapors from the discharge or release pose a threat of explosion due to the accumulation of vapors in a confined space; pose a risk to public health from exposure; or pose any other serious threat to public health, public safety, or the environment; (5) scaled site map(s) showing the location of the following that are on or adjacent to the property where the source is located: (a) site boundaries; (b) roads; (c) buildings; (d) basements; (e) floor and storm drains; (f) subsurface utilities; (g) septic tanks and leach fields; (h) underground and aboveground storage tank systems; (i) monitoring wells; 0) water supply wells; (k) surface water bodies and other drainage features; (1) borings; and (k) the sampling points; (6) the results from a limited site assessment that shall include the following actions: (a) determine the presence, the lateral and vertical extent, and the maximum concentration levels of soil and, if possible, groundwater contamination and free product accumulations; (b) install monitoring wells constructed in accordance with 15A NCAC 02C .0108, within the area of maximum soil or groundwater contamination to determine the groundwater flow direction and maximum concentrations of dissolved groundwater contaminants or accumulations of free product. During well construction, the responsible party shall collect and analyze soil samples that represent the suspected highest contaminant -level locations by exhibiting visible contamination or elevated levels of volatile organic compounds, from successive locations at five-foot depth intervals in the boreholes of each monitoring well within the unsaturated zone; collect potentiometric data from each monitoring well; and collect and analyze groundwater or measure the amount of free product, if present, in each monitoring well; (7) the availability of public water supplies and the identification of properties served by the public water supplies within 1500 feet of the source area of a confirmed discharge or release; (8) the land use, including zoning if applicable, within 1500 feet of the source area of a confirmed discharge or release; (9) a discussion of site specific conditions or possible actions that may result in lowering the risk classification assigned to the release. Such discussion shall be based on information known or required to be obtained under this Item; and (10) names and current addresses of all responsible parties for all petroleum sources for which a discharge or release is confirmed, the owner(s) of the land upon which such petroleum sources are located, and all potentially affected real property owners. Documentation of ownership of ASTs or other sources and of the property upon which a source is located shall be provided. When considering a request from a responsible party for additional time to submit the report, the Department shall consider the following: (a) the extent to which the request for additional time is due to factors outside of the control of the responsible party; (b) the previous history of the person submitting the report in complying with deadlines established under the Commission's rules; (c) the technical complications associated with assessing the extent of contamination at the site or identifying potential receptors; and (d) the necessity for action to eliminate an imminent threat to public health or the environment. History Note: Authority G.S. 143-215.3(a)(1); 143B-282; 143-215.84; 143-215.104AA. Eff March 1, 2016 A Brief History of North Carolina Session Laws, Rules, and General Statutes from 1979-2012 Relating to the Rights and Obligations of Underground Storage Tank Owners, Operators, and Landowners Version 160115 Title 15A North Carolina Administrative Code (NCAC) 2L; "Classifications and Water Quality Standards Applicable 06/10/79 to Groundwaters ", adopted as 15A NCAC 2L .0100 and .0200, under North Carolina General Statute (GS) 143-214.1. Groundwater quality policy, classifications, and standards were first established in these rules. Session Law (SL) 1985-551 (Senate Bill (S)831); "Underground Storage Tank Regulation-2 ". This law required the 07/01/85 State to develop standards and regulations to prevent pollution from oil and hazardous substance underground storage tanks (USTs) in response to the Federal Resource Conservation and Recovery Act (RCRA), including the Hazardous and Solid Waste Amendments of 1984. SL 1987-1035 (House Bill (H)1304); `Establish Leaking Tank Fund". This law amended GS 143, Article 21A, adding 06/30/88 Part 2A (GS 143-215.94A-M), titled "Leaking Petroleum Underground Storage Tank Cleanup ". It designated funding and authority over the cleanup of environmental damage caused by leaking petroleum USTs, along with tank owner rights and obligations. 12/22/88 Code of Federal Regulations 40 CFR 280.21 required that new UST installations meet certain criteria to help reduce leaks and spills, and that old UST systems be upgraded by 12122198. SL 1989-652 (H957); "Tank Cleanup Amendments ". This law amended GS 143, Article 21A, by supplementing Part 2A 07/15/89 (GS 143-215.94N), and creating Part 2B (GS 143-215.94T), titled "Underground Storage Tank Regulation ". Required the Environmental Management Commission (EMC) adopt and the Department implement and enforce rules to regulate USTs 15A NCAC 2N; "Criteria and Standards Applicable to Underground Storage Tanks ", adopted as 15A NCAC 2N .0100- 01/01/91 .0800 using the authority in the General Statutes including SL1989-652. The 2N rules "establish[ed] the technical standards and corrective action requirements for owners and operators of underground storage tank systems". The 2N rules incorporate by reference the requirements under 40 CFR 280.10 to 280.74. 15A NCAC 2P; "Rules for the Administration of the Leaking Petroleum Underground Storage Tank Cleanup Funds 02/01/93 adopted as 15A NCAC 2P .0100-.0400, under the authority of the General Statues including SL1987-1035. Assigned the Leaking Petroleum UST Cleanup Fund to reimburse reasonable costs incurred by owners, operators, and landowners in the cleanup of contamination from leaking petroleum USTs. SL 1995-377 (51012); "Underground Storage Tank Amends ". Revised Part 2A of GS 143 and added sections to Part 2B (GS 143-215.94V, U, W, X, and Y). GS 143-215-94V directed a risk -based approach for the assessment and cleanup of 07/05/95 petroleum UST releases to the maximum extent possible. Site -specific characteristics are used to determine cleanup standards maintaining an acceptable level of risk to human health and the environment. It excluded Cleanup Fund reimbursement for additional work at a site if no cleanup (or no further cleanup) is necessary to address the risk at a site. SL 1995-648 (51317); "Underground Storage Tank Amends `96". To promote Cleanup Fund solvency, sites were required to be ranked (as class A, B, C, D, or E), primarily on the risk to groundwater supply wells using information 06/21/96 provided by the responsible party. All responsible parties were required to take immediate action to halt any ongoing release, to address any fire, explosion, or vapor hazards, and to recover any free product found onsite. Cleanup was still required at class A and B sites. Reimbursement was suspended for routine work at class C, D, or E sites from 07/21/96 until the risk -based rules required under GS 143-215.94V (SL 1995-377) were adopted (01102198 in 15A NCAC 2L .0115). 07121196 Temporary suspension of cleanup activities began at incident sites ranked C, D, and E, per SL 1995-648 above. 15A NCAC 2L .0115 (Temporary Adoption); "Risk Based Assessment and Corrective Action for Petroleum Underground O1/02/98 Storage Tanks". Site risk reclassified to `High', `Intermediate', or `Low', to satisfy GS 143-215.94V and SL 1995-648. The rule specified a risk -based approach to assessment and cleanup for petroleum UST releases. Reimbursement continued for sites posing the greatest risk, and restricted for those sites posing less of a threat to human health or the environment. SL 1998-161 (H1483); "Expedite Low -Risk Closures". Promoted the use of Cleanup Funds risk for reevaluations at older sites and closure of `Low' risk incidents that predated the 15A NCAC 2L .0115. Allowed at -risk well owners to be 09/28/98 connected to alternate water supply systems as an eligible `cleanup' action. Modified GS 143-215.94E, starting 01/01/2009, to require formal preapproval of tasks as a reasonable and necessary cost to be eligible for Cleanup Fund reimbursement. 15A NCAC 2L .0115 was made permanent as it satisfied the requirements of GS 143-215.94V. 12/22/98 Deadline under 40 CFR 280.21 for old UST systems to be upgraded to the current leak and spill reduction standards. 08/22/02 SL 2002-90 (H1575); "Clarify LUST Land -Use Restrictions/Deed Recordation". Revised GS 14313-279. Responsible parties may record a Notice of Residual Petroleum at a release site without requiring agreement by the current landowner. SL 2003-352 (H897); "Underground Storage Tank Program Amendments" Modified GS 143-215.94 to reimburse only the most cost-effective cleanup option to promote Cleanup Fund solvency. Required that the Department implement a priority 07/27/03 schedule for cleanup and assessment based on site risk and Commercial Fund balance. Following the initial release response and the subsequent risk classification, Fund eligible incidents that were not on the priority schedule could remain inactive without violation or penalty. Non -priority site claims would be reimbursable after all priority scheduled sites were addressed. Allowed the EMC to revise the 15A NCACA 2L .0115 test requirements without a formal `finding of need'. Section 10 of SL 2003-352 implemented by the Department via public memorandum dated 10121103. The priority schedule presented in this memo stated that, after the risk classification was determined (typically during the Limited Site Assessment (LSA)), responsible parties for Cleanup Fund eligible sites would be directed as described below: 1) `High' risk UST incidents — continue assessment and cleanup of soil and/or groundwater as directed; 10/21/03 2) "Low" and "Intermediate" risk UST incidents — continue to remove or remediate only the source of contamination (soil or free product greater that'/a inch in thickness) to the appropriate risk -based levels, as directed; and 3) `Intermediate' risk UST incidents — suspend further assessment, monitoring, or cleanup of contaminated groundwater or of free product (if present but less than '/a inch in thickness) until directed, unless the responsible party agrees that such non -priority efforts would be reimbursed after all higher -priority claims were paid. SL 2004-124 (H1414); "2004 Appropriations Act". Section 30.10, titled "Leaking Underground Storage Tanks Cleanup Funds Solvency", allocated additional funding and extended the priority schedule to Noncommercial Fund incidents. As the Cleanup Fund balances fluctuated, the risk priority schedule for each would also be routinely adjusted based upon a 90- 07/20/04 day projection. Preapproval was used to define work as either high -priority ("Directed") or not ("Non -Directed") based upon the prioritization schedule at the time of the request. Non -priority (Non -Directed) work would only be preapproved if the Responsible Party voluntarily agreed to the reimbursement of all higher -priority sites first. Emergency response actions were considered to be highest priority ("Directed") regardless of other factors. Section 30 of SL 2004-124 implemented by the Department via public memorandum dated 09114104. The Cleanup Fund priority schedule revisions presented in this memo state that: 1) Initial release response and initial risk assessment (typically the LSA) was required without needing preapproval; 10/01/04 2) After 10/1/04, all work after the risk assessment would require preapproval to be eligible for reimbursement; and 3) After 10/01/04, the Department would use Notices of Regulatory Requirements to direct the post-LSA assessment and cleanup activities according to a schedule based on the site risk and ranking in relation to other sites, as well as the applicable Cleanup Fund balance. SL 2005-365 (H1385); "Underground Storage Tank Amendments". The law made permanent the risk prioritization schedule described in SL 2003-352 and SL 2004-12 and clarified/reorganized GS 143-215.94E regarding the rights and 09/08/05 obligations of UST owners and operators. The owner/operator of a Cleanup Fund eligible site was directed to take initial release response actions and perform an initial risk assessment (the LSA). All subsequent work would be directed under a schedule giving priority to those incidents posing the highest risk, including consideration of the current Fund balances. 12/01/05 15A NCAC 2L .0400, the UST risk -based rule, was modified and re -codified from 2L .0115, implementing the requirements in SL 2003-352 to reduce costs by modifying sampling and testing requirements. 09/01/06 15A NCAC 2T; "Waste Not Discharged to Surface Waters ", adopted as 15A NCAC 2T .0100-.1600, under GS 143.215.1 and 143.215.3. This rule included the minimum requirements for contaminated soil treatment and containment systems. SL 2008-195 (H2498); Underground Storage Tank Program Amendments 2008 ". Defined statutes of limitations on cost 08/08/08 recovery by the State for improper Cleanup Fund payments, required secondary containment for all components of a UST system, assigned Cleanup Funds for free product recovery regardless of the prioritization schedule, and, starting 01/01/09, increased annual UST permit fees and instituted a one year statute of limitations on claiming potentially eligible costs. SL 2010-154 (S1337); Amended GS 143, Article 21A, adding Part 2D, titled "UST Operator Training Program ". The 07/22/10 law established training requirements for operators of regulated UST systems to comply with the federal Energy Policy Act of 2005. Amended GS 143-215.94E(c) and (cl) to remove the landowner deductible for the Noncommercial Fund. 07/01/11 SL 2011-145 (H200); "Appropriations Act of 2011". Section 28.25A removed the inspection tax contributions to the Commercial and Noncommercial Leaking Petroleum Underground Storage Tank Funds. SL 2011-394 (H119); "Amend Environmental Laws". This law revised GS 143-215.94 as follows: Commercial Fund coverage was granted to directed leak detection investigations (unless required by statute or rule); A responsible party for a release commingled with an orphaned UST release would not have additional deductible costs; A portion of each State 07/01 / 1 1 Cleanup Fund was set aside for financial hardship cases; Annual UST permit fees may be paid quarterly; The secondary containment of repaired UST components was clarified; Corrosion protection could be added to existing non -tank metallic components (versus replacement) if there was no evidence of corrosion or leaks; Risk assignments based on a distance to a drinking water well must be based on the likelihood that the well will be affected; Setback variances were allowed for USTs near certain public water supply wells; and Steel USTs with cathodic protection were approved for use. 01/01/12 Part II. CONTESTED CASES, Sections 15 — 55, of SL 2011-398 (S781); "Regulatory Reform Act of 2011". Outside of EPA programs, OAH decisions no longer return to DEQ or EMC for final decision (subject to appeal to superior court). 06/12/13 SL 2013-108 (H789); "USTs Eligible for Brownfields". Removed the brownfields exclusion for leaking petroleum USTs. 07/01/13 SL 2013-360 (S402); "Appropriations Act of 2013". Added a $1000 +10% / $2000 maximum deductible for claims against the Noncommercial Fund. 09/18/15 Section 14.16B of SL 2015-241 (H97); "Appropriations Act of 2015". Initial abatement of noncommercial UST releases is not required, except in extreme cases. No further actions (including soil remediation) are necessary at low risk sites. 09/30/15 SL 2015-263 (S513); "North Carolina Farm Act of 2015". Defines who is a "Third Party" for evaluating injury or property damage from a Fund -eligible UST release. Outlines how third -party settlements may be eligible for reimbursement. Section 14.16A of SL 2015-241 (H97); "Appropriations Act of 2015". This section sunsets the Noncommercial Leaking 10/01/15 Petroleum Underground Storage Tank Cleanup Fund. Noncommercial releases reported to the Department on or after October 1, 2015 are not eligible. All claims for eligible Noncommercial releases must be filed prior to July 1, 2016. 10/22/15 SL 2015-286 (H765); "Regulatory Reform Act of 2015". Directs the implementation of a risk -based cleanup approach for petroleum releases from aboveground storage tanks and other sources.