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HomeMy WebLinkAboutWI-85476_85476_G_NORR_20210507_NRP May 7, 2021 CERTIFIED MAIL 7017 0190 0000 9527 1898 RETURN RECEIPT REQUESTED Douglas & Tammy Turley 209 Central Blvd. Wilmington, NC 28401-6913 Re: Notice of Regulatory Requirements NCGS 143B-279.9 and 143B-279.11 Notice of Residual Petroleum for Petroleum Aboveground Storage Tanks and Other Sources Leland Auto Salvage 142 & 150 S. Navassa Rd., Leland Brunswick County Incident Number: 85476 Risk Classification: Pending Ranking: Pending Dear Mr. and Mrs. Turley: Please note, as over a year has passed without the submittal of the requested information for the subject site, this Notice of Regulatory Requirements is being sent to your attention again. North Carolina General Statutes (NCGS) 143B-279.9 and 143B-279.11 require that a Notice of Residual Petroleum (Notice) be filed for this site with the Register of Deeds in Brunswick County where the release is located. This requirement applies prior to conveyance of a contaminated property or prior to receiving a Notice of No Further Action when a release from an aboveground storage tank (AST) or other petroleum source that has not been remediated to below “unrestricted use standards”. “Unrestricted use standards” for groundwater are the groundwater quality standards and interim standards contained in the North Carolina Administrative Code (NCAC) Title 15A 2L .0202, and “unrestricted use standards” for soil are the residential maximum soil contaminant concentrations (MSCCs) referenced in Title 15A NCAC 2L .0511, as established in Title 15A NCAC 2L .0411. This incident site exceeds the “unrestricted use standards” for soil and groundwater. The Notice must be prepared in accordance with the attached instructions and format. It must contain a declaration containing a legal description of the property that is the source of contamination as well as any other properties which are contaminated by the release, and, where required by the Department, a survey plat prepared and certified by a professional land surveyor. The Notice must also include appropriate land use restrictions for the source property and any other contaminated properties that are owned by you (or controlled) which are contaminated by the release. The Notice declaration (and plat, if required,) must be sent to this regional office of the UST Section within 30 days of the date of this letter for approval and notarization. The approved and notarized Notice must then be filed by you with the Register of Deeds, with any required plat processed first so that a reference identifying the plat recordation (cabinet and slide, or book and page, etc.) may be appended to the declaration before it is filed. A certified copy of the filed Notice declaration must be submitted to this office within 30 days of its return to you. Although land use restrictions are not required for any contaminated neighboring properties that you do not own, per NCGS 143-215.104AA(e), the landowner for those properties must be informed of the impact to their property and provide their consent for any proposed risk-based corrective action plan. To allow for informed consent, the impacted landowner must be provided with a copy of the statutes that allow for risk-based closure above “unrestricted use standards” (attached) and a copy of a brochure prepared by this Department and others describing common issues and liabilities associated with contaminated property (attached). To document the “off-site” landowner consent, you must obtain a signed copy of the attached Property Owner Consent Form from the landowner, acknowledging their understanding of these factors and their responsibilities, before the risk-based corrective action can be implemented and a Notice of No Further Action issued. Please note that, while the consent affirmed in this form is non-binding, this does not preclude any other private agreement or contract made between you and the impacted landowner. Also, please note your responsibilities with respect to ongoing oversight and maintenance of all consent agreements. For as long as the land use restrictions remain in effect, any change in use at an impacted property that could potentially affect the risk classification for the site (such as property sales, redevelopment, change in zoning/use, installation of supply wells, etc.) and alter the risk-based corrective action plan must be reported to the regional office as soon as possible. Failure to comply with this letter is a violation of North Carolina law and may result in the assessment of civil penalties and/or the use of other enforcement mechanisms available to the state. If you have any questions regarding this letter, please contact me at the address or telephone number listed below. Sincerely, Liz Price Hydrogeologist Wilmington Regional Office UST Section, Division of Waste Management, NCDEQ Attachments: Instructions for Preparing a Notice of Residual Petroleum Contaminated Property: Issues and Liabilities North Carolina General Statute 143-215.104AA Risk-Based Remediation – Property Owner Consent cc: Cheryl Moody - Atlantic Shores Environmental Services, Ltd., via email correspondence Mr. Wyatt Richardson - Operations Service Director, Town of Leland – via email correspondence July 5, 2016 1 INSTRUCTIONS FOR PREPARING A 'NOTICE OF RESIDUAL PETROLEUM' REFERENCING LAND USE RESTRICTIONS FOR FILING AT A SITE IMPACTED BY A PETROLEM RELEASE FROM AN ABOVEGROUND STORAGE TANK OR OTHER SOURCE The following list of instructions will assist in the preparation and filing of a Notice of Residual Petroleum for a petroleum release from a source other than an underground storage tank. 1. The notice and any included restrictions must be agreed to by the owner of the real property, included in a remedial action plan for the site that has been approved by the Secretary, and implemented as part of the remedial action program for the site. The Secretary may approve restrictions included in the remedial action plan in accordance with standards that the Secretary determines to be applicable to the site. 2. The person who proposes to conduct risk-based remediation, which includes filing a Notice with the necessary restrictions on the subject site, and where the contamination has impacted other off-site properties shall: a. Notify the owner(s) of any contaminated off-site property of the proposed remedial action plan; b. Provide the property owner(s) with copies of (i) “Part 7 of Article 21A of Chapter 143 of the General Statutes” (G.S. 143-215.104AA) and (ii) a publication entitled “Contaminated Property: Issues and Liabilities” that has been prepared by the Department; and c. Obtain written consent from the property owner(s) acknowledging receipt of the guidance documentation and authorizing the person to remediate the off-site property using site-specific remediation standards, as required by G.S. 143-214.104AA(e)(1)(b). Forms to document this consent should match the format prescribed by the Department. 3. The Notice shall be prepared in accordance with the format provided in these instructions and shall include reference to the appropriate land use restrictions. (REWORDING OF THE NOTICE IS NOT RECOMMENDED AND WILL SUBSTANTIALLY DELAY APPROVAL.) 4. If the contamination is located on more than one parcel or tract of land, the Department may require that the owner, operator, or other person responsible for the discharge or release prepare a composite map or plat that shows the impacted parcels or tracts Any required survey plat shall be entitled “NOTICE OF RESIDUAL PETROLEUM”, shall be prepared and certified by a professional land surveyor, and shall meet all requirements in G.S. 47-30 for maps and plats, all requirements in G.S. 143B-279.11(c) for the recordation of residual petroleum, and all requirements specified by the county Register of Deeds. (ALL CONTENTS OF THE PLAT MUST BE DRAWN IN INDELIBLE INK.) 5. Any required Notice plat shall include one or more descriptions that would be sufficient as a description in an instrument of conveyance and shall identify all areas designated by the Department, including: a. Property lines, north arrow, scale, bearings and distances as appearing on the deed; b. With respect to permanently surveyed benchmarks, the location and dimensions of any disposal area or area where contamination is known to exist in: - groundwater at a concentration exceeding the standard or interim standard established in 15A NCAC 2L. 0202, and/or - soil at a concentration exceeding the residential maximum soil contaminant concentration established in 15A NCAC 2L .0411; c. Other areas of potential environmental concern, such as all visible and apparent rights-of-way, watercourses, utilities, roadways, and other such improvements or structures whether wholly contained within, or crossing or forming any boundary for a disposal area or area of contamination; d. The following language: "The areas of contamination depicted upon the map are approximations derived from the best available information at the time of filing.”; e. The type, location, and quantity of contamination known to the owner of the site to exist on the site; July 5, 2016 2 f. Any restriction approved by the Department on the current or future use of the site to protect public health, the environment, or users of the property; g. The printed name(s) and title(s) and properly notarized signature(s) of individual(s) with authority to legally bind the responsible party(ies) (i.e., the responsible party(ies), an individual with power of attorney for the responsible party(ies), officer of a corporation, etc.) (PRINTED TEXT, SIGNATURES, AND NOTARY SEALS, AS WITH ALL MARKINGS ON THE PLAT, MUST BE MADE IN INDELIBLE INK); h. The following language, for use by the Department, positioned in the upper left corner of the plat: "Approved for the purposes of N.C.G.S. 143B-279.9 and 143B-279.11 , (signature of Regional Supervisor) , Regional Supervisor (printed name of Regional Supervisor) Regional Office (name of Region) Underground Storage Tank Section Division of Waste Management Department of Environmental Quality NORTH CAROLINA COUNTY I certify that the following person(s) personally appeared before me this day, each acknowledging to me that he or she signed the foregoing document: (printed full name of Regional Supervisor). WITNESS my hand and official seal, this the ______ day of _______________, 20____. (Official Seal) (signature of Notary Public) (printed or typed name of Notary Public) Notary Public My commission expires: i. Surveyor's certification and seal (using a permanent ink stamp). 6. Where a contaminated site is located on more than one parcel or tract of land, a composite map or plat showing all parcels or tracts may be recorded in lieu of multiple maps or plats, if required. 7. A separate text Declaration of Perpetual Land Use Restriction shall be prepared as part of the Notice to be filed with the applicable county Register of Deeds. 8. Once complete, the signed and notarized Notice declaration (and plat, if required,) shall be sent to the appropriate UST Section Regional Office for review. 9. After the Department approves, notarizes and returns the Notice declaration (and plat, if required,) the responsible party shall, within thirty (30) days of its return: a. If applicable, file the approved Notice plat in the County Register of Deeds' office of the county or counties in which the site is located, with the applicable plat book(s) and page number(s) from recordation immediately added to the Notice declaration as a reference; July 5, 2016 3 b. File the Notice declaration in the County Register of Deeds' office of the county or counties in which the site is located; and c. Send to the appropriate UST Section Regional Office, a certified copy of the Notice declaration (and plat, if required,) affixed with the seal of the Register of Deeds and reflecting the book(s) and page number(s) where recorded, along with a copy of the page(s) in the grantor index where the Notice(s) are referenced. July 5, 2016 4 NOTICE OF RESIDUAL PETROLEUM ____________________________________, _______________County, North Carolina (Site name) The property that is the subject of this Notice (hereinafter referred to as the “Site”) contains residual petroleum and is a petroleum release incident from a source other than an Underground Storage Tank (UST) under North Carolina’s Statutes and Regulations, which consist of Article 21A of Chapter 143 of the General Statutes (N.C.G.S.) and the regulations adopted thereunder. This Notice is part of a remedial action for the Site that has been approved by the Secretary (or his/her delegate) of the North Carolina Department of Environmental Quality (or its successor in function), as authorized by N.C.G.S. Sections 143B-279.9 and 143B-279.11 for the purpose of protecting public health and the environment. The North Carolina Department of Environmental Quality (or its successor in function) shall hereinafter be referred to as “DEQ”. NOTICE Petroleum product was released and/or discharged at the Site. Petroleum constituents remain on the site, but are not a danger to public health and the environment, provided that the restrictions described herein, and any other measures required by DEQ pursuant to N.C.G.S. Sections 143B-279.9 and 143B-279.11, are strictly complied with. This "Notice of Residual Petroleum" is composed of a description of the property, the location of the residual petroleum, and the land use restrictions on the Site. The Notice has been approved and notarized by DEQ pursuant to N.C.G.S. Sections 143B-279.9 and 143B-279.11 and has/shall be recorded at the ________________ Register of Deeds’ office Book ____, Page ____. (name of county) Any map or plat required by DEQ has been/shall be recorded at the ______________ Register of (name of county) Deeds’ office Book ____, Page ____, and has been/shall be incorporated into the Notice by this reference. When the Site or portion(s) of the Site defined within this notice is/are sold, leased, conveyed or transferred, pursuant to N.C.G.S 143B-279.11, the deed or other instrument of transfer shall contain in the description section, in no smaller type than that used in the body of the deed or instrument, a statement that the real property being sold, leased, conveyed, or transferred is a contaminated Site and shall include a reference by book(s) and page(s) to the recordation of the Notice of Residual Petroleum plat and declaration. The owner shall notify DEQ within fourteen (14) calendar days of the effective date of any conveyance, grant, gift, or other transfer, whole or in part, of the owner’s interest in the Site. This notification shall include the name, business address and phone number of the transferee and the expected date of transfer. This provision shall not apply to leases that do not provide for the right to take actions that July 5, 2016 5 would violate any prohibitions or restrictions of this Notice. SOURCE PROPERTY _______________________________ of __________________________________ is the owner in fee (owner’s name) (city & state of owner) simple of all or a portion of the Site, which is located in the County of _______________, State of North Carolina, and is known and legally described as: (Insert Real Property Description Here for Source Property) ADDITIONAL AFFECTED PROPERTY OWNED OR FORMERLY OWNED BY THE RESPONSIBLE PARTY AND SUBJECT TO RESTRICTIONS ______________________ of ____________________________ is the owner in fee simple of a (owner’s name) (city & state of owner) Parcel that constitutes a portion of the Site, which is located in the County of __________________, State of North Carolina. Petroleum contamination is located on this property at the time this Notice is approved. This property is or was also owned or controlled by the owner or operator or another party responsible for the petroleum discharge or release at the time the discharge or release was discovered or reported, or at any time thereafter. This property is known and legally described as: (Insert Real Property Description Here for Additional Properties Owned or Controlled by any Owner or Operator of the Aboveground Storage Tank or Other Petroleum Source, or any Other Responsible Party, if Applicable) For protection of public health and the environment, the following land use restrictions required by N.C.G.S. Section 143B-279.9(a) shall apply to all of the above-described real property. ADDITIONAL AFFECTED PROPERTY NOT SUBJECT TO RESTRICTIONS [Note to be deleted on final document - Include a separate reference for each off-site, non-site- owner parcel that has been impacted by the release.] Residual petroleum is also located on the following property. This property is not and has not been owned by the party responsible for the release, and therefore is not subject to the subsequent land use restrictions pursuant to N.C.G.S. Section 143B-279.9(a), but is included within this Notice for the purpose of protecting public health and the environment. The landowner for this unrestricted property, July 5, 2016 6 ___________________________, has been informed of the presence of contamination, and has provided (owner’s name) written consent for the use of this Notice as part of the remedial action plan for this Site. The following property is known and legally described as: (Insert Legal Description of Other Real Property Affected by Residual Petroleum Not Owned or Controlled by Any Owner or Operator of the Aboveground Storage Tank or Other Petroleum Source, or Other Responsible Party, if Applicable) DECLARATION OF PERPETUAL LAND USE RESTRICTIONS [Note to be deleted on final document - Restrictions apply to activities on, over, or under the land. Choose one, two, or all of the following as appropriate.] Site Use: The Site shall be used for industrial/commercial use only. Industrial/commercial use allows exposure to soil contamination that is limited in time and does not involve exposure to children or other sensitive populations such as the elderly or sick. The real property shall not be developed or utilized for residential purposes including but not limited to: primary or secondary residences (permanent or temporary), schools, daycare centers, nursing homes, playgrounds, parks, recreation areas and/or picnic areas. Soil: Soil containing residual petroleum, above applicable regulatory standard(s), remains on the site as depicted within the Notice of Residual Petroleum plat or map, recorded in the applicable plat book as described above. Any action that has the potential to expose the residual soil contamination at the Site (such as construction, grading, trenching, or drilling/boring, etc.) shall be approved in writing in advance by the appropriate Regional Office of the DEQ, Division of Waste Management, Underground Storage Tank Section, or its successor in function, and shall be conducted in accordance with all applicable state and federal statutes, regulations and guidelines. Groundwater: Groundwater from the site is prohibited from use as a water supply. The installation of groundwater wells or any other action (such as excavating or drilling/boring, etc.) that will produce or expose contaminated groundwater for any purpose other than monitoring groundwater quality or providing for the remediation of contaminated groundwater is prohibited without prior written approval by the appropriate Regional Office of the DEQ, Division of Waste Management, Underground Storage Tank Section, or its successor in function. These restrictions shall continue in effect as long as residual petroleum remains on the site in excess of unrestricted use standards and cannot be amended or cancelled unless and until the _____________County Register of Deed receives and records the written concurrence of the Secretary (or his/her delegate) of DEQ (or its successor in function). RIGHT OF ENTRY The property owner for the Site grants and conveys to DEQ, its agents, contractors, and employees, and any person performing pollution remediation activities under the direction of DEQ, access at reasonable times and under reasonable security requirements to the Site to determine and monitor compliance with the land-use restrictions set forth in this Notice. Such investigations and actions are necessary by DEQ to ensure July 5, 2016 7 that use, occupancy, and activities of and at the Site are consistent with the land-use restrictions and to ensure that the structural integrity and continued effectiveness of any engineering controls (if appropriate) described in the Notice are maintained. Whenever possible, at least 48 hours advance notice will be given to the owner of the Site prior to entry. Advance notice may not always be possible due to conditions such as response time to complaints and emergency situations No person conducting environmental assessment or remediation at the Site or involved in determining compliance with applicable land-use restrictions, at the direction of, or pursuant to a permit or order issued by DEQ may be denied access to the Site for the purpose of conducting such activities. ENFORCEMENT Adherence to the above land use restrictions is necessary to protect public health and the environment. The owner, _________________, hereby declares that the property shall be held, sold and conveyed subject to the aforementioned perpetual land use restriction(s), which shall run with the land; shall be binding on all parties having any right, title or interest in the Parcel of Property or any part thereof, their heirs, successors and assigns; and as provided in N.C.G.S. 143B-279-9(a), shall be enforceable without regard to lack of privity of estate or contract, lack of benefit to particular land, or lack of any property interest in particular land by any owner of the land, operator of the facility, or party responsible for the site. The above land use restriction(s) may also be enforced by DEQ through any of the remedies provided by law or by means of a civil action, and may also be enforced by any unit of local government having jurisdiction over any part of the Site. Failure by any party required or authorized to enforce any of the above restriction(s) shall in no event be deemed a waiver of the right to do so thereafter as to the same violation or as to one occurring prior or subsequent thereto. If any provision of this Declaration is found to be unenforceable in any respect, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired. IN WITNESS WHEREOF, ______________________________________ has caused this Notice to be executed pursuant to N.C.G.S. Sections 143B-279.9 and 143B-279.11, this _____ day of _______________,20____. (name of responsible party if agent is signing) By: (signature of responsible party, attorney or other agent if there is one) (Title of agent for responsible party if there is one) Signatory’s name typed or printed: (Note to be deleted on final document - Preparer of document must assure that the correct acknowledgement is used and complies with changes effective October 1, 2006.) [Choice One: Instrument signed by one person] July 5, 2016 8 NORTH CAROLINA COUNTY (Name of county in which acknowledgment was taken) I certify that the following person personally appeared before me this day, acknowledging to me that he or she signed the foregoing document: _____________________________. WITNESS my hand and official seal, this the ______ day of _______________, 20____. (Official Seal) (signature of Notary Public) (printed or typed name of Notary Public) Notary Public My commission expires: [Choice Two: Acknowledge by attorney in fact] NORTH CAROLINA COUNTY (Name of county in which acknowledgment was taken) I, , a Notary Public for said County and State, do hereby certify that ___ _______________ , attorney in fact for , personally appeared before me this day, and being by me duly sworn, says that he executed the foregoing and annexed instrument for and in behalf of the said , and that his authority to execute and acknowledge said instrument is contained in an instrument duly executed, acknowledged, and recorded in the office of in the County of , State of , on the day of , 20__ and that this instrument was executed under and by virtue of the authority given by said instrument granting him power of attorney. I do further certify that the said ________ acknowledged the due execution of the foregoing and annexed instrument for the purposes therein expressed for and in behalf of the said _____________ . WITNESS my hand and official seal, this the ______ day of _______________, 20____. (Official Seal) (signature of Notary Public) (printed or typed name of Notary Public) Notary Public July 5, 2016 9 My commission expires: [Choice Three: Conveying security interest in personal property of a corporation] NORTH CAROLINA COUNTY (Name of county in which acknowledgment was taken) I, ___ _ , a Notary Public for said County and State, do hereby certify that _ personally came before me this day and acknowledged that he is ___ _____ _ of ___ __ and acknowledged, on behalf of ___________ , the grantor the due execution of the foregoing instrument. WITNESS my hand and official seal, this the ______ day of _______________, 20____. (Official Seal) (signature of Notary Public) (printed or typed name of Notary Public) Notary Public My commission expires: "Approved for the purposes of N.C.G.S. 143B-279.11 , (signature of Regional Supervisor) , Regional Supervisor (printed name of Regional Supervisor) Regional Office (name of Region) UST Section Division of Waste Management Department of Environmental Quality NORTH CAROLINA COUNTY (Name of county in which acknowledgment was taken) I certify that the following person(s) personally appeared before me this day, each acknowledging to me that he or she signed the foregoing document: (printed full name of Regional Supervisor). WITNESS my hand and official seal, this the ______ day of _______________, 20____. (Official Seal) July 5, 2016 10 (signature of Notary Public) (printed or typed name of Notary Public) Notary Public My commission expires: Contaminated Property: Issues and Liabilities May 2016 The North Carolina Department of Environmental Quality (NC DEQ) is authorized to approve risk-based cleanup remedies for contaminated properties as long as those remedies adequately protect human health and the environment. This brochure is intended to provide current and future owners and users of contaminated properties with information about risk-based cleanups, potential risks from residual contamination, and possible real estate issues associated with contaminated property. Why am I receiving this brochure? In 2015, the North Carolina General Assembly passed Session Law 2015-286 that requires certain parties responsible for cleaning up environmental pollution to provide this brochure to owners of property where that contamination has spread. The new law allows groundwater contamination to be cleaned up to risk-based standards only if owners of all affected properties give consent to limit the use of their property so that contact with residual contamination can be avoided. If you do agree to limit the use of your property and allow risk-based standards, you will be asked to sign a consent form granting such permission. However, as a property owner you are not required to consent to the use of risk-based standards for your property. The intent of this brochure is to help you and future property owners be aware of and understand environmental contamination, and provide resources to assist you in making informed decisions. This brochure provides answers to commonly asked questions and contact information if you have additional questions. How does contamination occur? Environmental contamination is common in many urban and industrial areas. The potential for releases to the environment exists wherever hazardous materials are stored or managed. While most releases occur in industrial or commercial settings, products used in residential settings such as pesticides, gasoline, paints and cleaning agents can also contribute to contamination if not handled properly. Releases to the environment can occur in many ways, including spills, leaks, dumping, burying, pumping or abandoning of hazardous materials. If releases are not addressed promptly, contaminants can migrate through the ground and impair the quality of soil, groundwater, surface water, sediments and even air. Where the release occurs, the nature of the release, and its chemical characteristics will affect how much risk the contaminants pose to human health and the environment. What is risk-based remediation? Remediation is action taken to clean up, reduce, remove or prevent the migration of contaminants in order to protect human health and the environment. Remediation standards are the target concentrations for each contaminant that must be met in order for a site to be considered “clean.” Traditional remediation standards require reducing contaminant levels so that the affected media (e.g., soil or groundwater) have no limits on their use – these are known as unrestricted use standards. Unrestricted use standards rely on conservative assumptions about how a person may become exposed to contamination. When potential exposure to contamination can be prevented by using land-use controls, risk-based remediation standards may be a viable alternative to cleaning up to unrestricted use standards. Risk-based remediation standards are target cleanup levels that protect people and the environment from risks posed by residual contamination for the actual current use and the projected future use of affected property. Risk-based remediation is designed to control risks by reducing contaminant concentrations as needed by performing active remediation, using engineered controls to prevent contact with contamination, and using land-use controls to prevent future activities that may expose residual contamination. A simple example of risk-based remediation would involve an urban site where a leaky drum has caused low levels of groundwater contamination. If public water service is provided to properties in the affected area and groundwater is not a drinking water source, a risk-based remedy may include removing the drum and the most highly impacted soil (i.e., active remediation), and filing restrictions in the chain of title of affected properties to prevent installation of future drinking water wells (i.e., land-use controls). Risk-based cleanups have been successfully performed at many sites across the state to provide appropriate and reliable protection from potential exposure to residual contamination. What goes into making risk-based cleanup decisions? Investigating and cleaning up contamination requires expertise from many disciplines including environmental engineers, geologists, toxicologists and risk assessors. Such professionals working for private companies and local, state and federal agencies are key to adequately assessing and remediating contaminated sites. The first step in the cleanup process is an environmental assessment of the site. A site assessment involves collecting and analyzing environmental samples and other information to understand the existing site conditions. A typical assessment includes evaluating the characteristics of contaminated media (soil, groundwater, etc.), determining the type and concentration of chemicals present, defining the extent of contamination and how it’s moving, evaluating the stability of the contamination, and determining who is (or may become) exposed to contaminants. A complete site assessment allows for a thorough understanding of the conditions at a site and provides the information necessary to evaluate site risks. Risk-evaluation involves using standard U.S. Environmental Protection Agency risk calculation methods to determine if unacceptable risks are present at a contaminated site. Examples of unacceptable risk might include a contaminated drinking water supply well that exceeds a safe drinking water standard; surface soil with contaminant levels above an acceptable residential concentration in a homeowner’s back yard; or indoor air that has unacceptable levels of a contaminant that originated from the site. Once the immediate unacceptable risks are made safe, parties responsible for cleanup will evaluate the site assessment and risk information to develop a remedial strategy designed to ensure long-term protection from future risks posed by residual contamination. Risk-based cleanups allow remediating parties to (i) use site-specific information to evaluate the risks from residual contamination; (ii) set cleanup goals for the amount of contamination that can safely remain in place; and (iii) use land-use controls to prevent future activities that could result in exposure to residual contamination. If a remediating party proposes to use the risk-based approach set out under state law to clean up its site, it must have permission from affected parties and the remedy must be reviewed and approved by the N.C. Department of Environmental Quality (NC DEQ) prior to implementation. If the approved risk-based remedy is completed and adequately protects current and future users of the property, NC DEQ may issue a No Further Action decision to document that no additional remediation work is necessary. Perpetual maintenance of land-use controls is required when a No Further Action decision is made for a site where the remedy relies on land-use controls. Such maintenance may include the current property owner certifying annually that the controls are being complied with, and remain recorded at the register of deeds office. No Further Action decisions can also be rescinded with further remediation required if new information reveals that a site poses an unacceptable risk or if land-use controls have been compromised. Active remediation is the work performed to reduce contaminant concentrations in order to eliminate a current risk or to minimize a potential future risk. Engineering controls are barriers or systems that prevent contact with contamination, such as a concrete pad to prevent contact with contaminated soil, or a vapor barrier system to control the intrusion of vapors from the subsurface into a building. Land-use controls document the permissible uses of property in the chain of title to eliminate potential future risks from residual contamination. All unacceptable risks must be made safe. What are land-use controls and how do they work? Land-use controls, which are also called “land-use restrictions,” “institutional controls,” or “notices” are a necessary part of risk-based cleanups. Land-use controls are typically made up of a document listing the restricted uses, and a survey plat depicting the property where the restrictions apply. These documents are filed in the property chain of title at the register of deeds office, and serve to inform current and future property owners that residual contamination exists at the property and to specify how the property can safely be used. As an example, a property with residual contamination in groundwater may not pose a health concern if public water service is provided and groundwater is not used as a drinking water source. However, to help ensure that no one drinks contaminated well water in the future, a notice or restriction may be filed in the chain of title prohibiting the installation of water supply wells. Land-use controls that are part of a risk-based remedy allowed by Session Law 2015-286 can only be filed with the permission of the property owner. Contamination from a neighboring property has migrated to my property, should I allow land-use controls to be recorded in my chain of title? If a party responsible for cleanup is asking you to agree to place land-use controls on your property as part of its environmental cleanup, it is recommended that you carefully review the proposed land-use controls and seek the advice of an environmental attorney, as appropriate. If the remediating party cleaning up the contamination intends to use a risk-based remedial strategy under Session Law 2015-286, and that remedy proposes to use land-use controls on your property, they will need your permission. You should be aware that land-use controls are legally binding and are recorded in the chain of title for your property to help ensure that you and future owners are aware of the residual contamination and how the property can be safely used. If you agree to land-use controls, once the controls are recorded in the chain of title, they can only be removed with NC DEQ’s approval. Are properties with residual contamination safe? Properties with residual contamination are safe when owners and occupiers adhere to recorded land- use controls in order to avoid contact with contamination. Risk-based cleanups, like traditional cleanups, are designed to protect human health and the environment. Risk-based cleanups involve using a combination of active remediation, engineering controls and/or land-use controls to ensure that properties with residual contamination are safe. Risk-based remediation has been used across the state to clean up contamination to safe levels and provide appropriate long-term land-use controls to prevent future contact with residual contamination. It is important to remember that properties cleaned up to risk-based standards are safe as long as users comply with the restrictions that apply to the property. Do I have any legal obligations for residual contamination on my property? If your property has residual contamination, even if you did not cause it to occur, you are responsible for ensuring safe use of your property by complying with the controls or restrictions that apply to your property. In certain situations, you may be held liable if you are found to be responsible for knowingly contributing to the further migration of contamination. Legal questions related to property rights and owner liability are best answered by a qualified attorney. Does residual contamination affect property value and marketability? Property values are influenced by many factors including, but not limited to location, property characteristics and condition, and the overall health of the real estate market. Environmental contamination may also be a factor based on the extent and nature of contaminants, the effectiveness of the cleanup, and the real (or perceived) risks associated with the contamination. Due to the wide variety of market factors and property-specific factors that influence value, it’s not possible to give a definitive answer about whether environmental contamination affects a given parcel’s value. While environmental contamination may carry a stigma that affects the perceived value of a property, the potential for exposure to residual contamination can be safely managed using the cleanup strategies described in this brochure. In the long-term, residual contamination may have little to no impact on property value if other factors are favorable to the buyer or seller. Does residual contamination affect real estate financing? Lending institutions follow standard policies and procedures in order to help minimize the financial risks they assume when lending money for real estate transactions. Lenders will require that an appropriate level of due diligence be conducted to evaluate the subject property. The property condition, including the presence of any residual contamination, must be considered when evaluating the terms of a loan. Most lending institutions will request details about residual contamination, any potential unknown risk, regulatory status, and the manner in which potential human health or environmental risks are managed. Lending institutions vary with regard to their comfort level when it comes to lending money for contaminated property. Some institutions routinely work with borrowers seeking to buy or refinance loans on property with residual contamination. The more information that you provide to address the above considerations, the higher the chance the lender will be comfortable with the financial risk. It is recommended that borrowers inquire with multiple lenders in order to obtain the best terms for their borrowing situation. As a property owner, am I required to disclose the presence of residual contamination? Most purchases of residential property are subject to the Residential Property Disclosure Act which requires the seller to provide a Residential Property and Owners Association Disclosure Statement (“disclosure statement”). This disclosure statement asks questions about the property conditions, including one regarding the presence of contamination, and allows the seller to answer, “Yes,” “No” or “No Representation” to any of the questions. Sellers must sign the disclosure statement, attesting that the information is true and correct. While sellers may choose to answer “No Representation” to any question in the disclosure statement, if you are a seller working with a licensed real estate broker, the broker has a duty to disclose material facts that the broker knows or reasonably should know, regardless of the seller’s representations. You are encouraged to consult a North Carolina real estate attorney if you have any questions regarding matters of real estate law. How do I find out more? You can learn more about contaminated properties in North Carolina by going to the North Carolina Department of Environmental Quality’s (NC DEQ) website: http://deq.nc.gov/. In addition to locating contaminated properties, the website provides access to contact information and online records. NC DEQ’s environmental cleanup programs are overseen by the state Division of Waste Management, (919) 707-8200, and the state Division of Water Resources, (919) 707- 9000. Questions about North Carolina’s real estate disclosure laws may be directed to the North Carolina Real Estate Commission (NC REC) at (919) 875-3700. In addition, the NC REC’s website, https://www.ncrec.gov/, provides a wide variety of additional real estate resources. The overview of disclosure law provided in this publication is not a substitute for receiving situation-specific professional advice. Sellers and buyers of real estate are urged to seek advice from a licensed real estate professional and/or an attorney if they have questions. This publication is intended solely as guidance, and does not contain any mandatory requirements, except where requirements found in statute or administrative code are referenced. This guidance does not establish or affect legal rights or obligations, and is not finally determinative of any of the issues addressed. This guidance does not create any rights enforceable by any party in litigation with the N.C. Department of Environmental Quality. Any decisions made by the N.C. Department of Environmental Quality in any matter addressed by this guidance will be made by applying the governing statutes and administrative codes to the relevant facts. Prepared by the N.C. Department of Environmental Quality, in consultation with the N.C. Real Estate Commission, and the N.C. Department of Justice’s Consumer Protection Division. G.S. 143-215.104AA Page 1 Part 7. Risk-based remediation for petroleum releases from aboveground storage tanks and other sources. § 143-215.104AA. Standards for petroleum releases from aboveground storage tanks and other sources. (a) Legislative Findings and Intent. (1) The General Assembly finds the following: a. Risk-based corrective action gives the State flexibility in requiring different levels of cleanup based on scientific analysis of different site characteristics and allowing no action or no further action at sites that pose little risk to human health or the environment. b. A risk-based approach to the cleanup of environmental damage can adequately protect human health and the environment while preventing excessive or unproductive cleanup efforts, thereby assuring that limited resources are directed toward those sites that pose the greatest risk to human health and the environment. c. Risk-based corrective action has successfully been used to clean up contamination from petroleum underground storage tanks, as well as contamination at sites governed by other environmental programs. (2) The General Assembly intends the following: a. To direct the Commission to adopt rules that will provide for risk-based assessment and cleanup of discharges and releases of petroleum from aboveground storage tanks and other sources. These rules are intended to combine groundwater standards that protect current and potential future uses of groundwater with risk-based analysis to determine the appropriate cleanup levels and actions. b. That these rules apply to all discharges or releases that are reported on or after the date the rules become effective in order to ascertain whether cleanup is necessary, and if so, the appropriate level of cleanup. c. That these rules may be applied to any discharge or release that has been reported at the time the rules become effective at the discretion of the Commission. d. That these rules, and decisions of the Commission and the Department in implementing these rules, facilitate the completion of more cleanups in a shorter period of time. (b) The Commission shall adopt rules to establish a risk-based approach for the cleanup of discharges and releases of petroleum from aboveground storage tanks and other sources. At a minimum, the rules shall address all of the following: (1) The circumstances where site-specific information should be considered. (2) Criteria for determining acceptable cleanup levels. (3) The acceptable level or range of levels of risk to human health and the environment. Rules that use the distance between a source area of a confirmed discharge or release to a water supply well or a private drinking water well, as those terms are defined under G.S. 87-85, shall include a determination whether a nearby well is likely to be affected by the discharge or release as a factor in determining levels of risk. (4) Remediation standards and processes. (5) Requirements for financial assurance, where the Commission deems it necessary. G.S. 143-215.104AA Page 2 (6) Appropriate fees to be applied to persons who undertake remediation of environmental contamination under site-specific remediation pursuant to this Part to pay for administrative and operating expenses necessary to implement this Part and rules adopted to implement this Part. (c) The Commission may require an owner, operator, or landowner to provide information necessary to determine the degree of risk to human health and the environment that is posed by a discharge or release of petroleum from an aboveground storage tank or other source. (d) If the Commission concludes that a discharge or release poses a degree of risk to human health or the environment that is no greater than the acceptable level of risk established by the Commission, the Commission shall notify an owner, operator, or landowner who provides the information required by subsection (c) of this section that no cleanup, further cleanup, or further action will be required unless the Commission later determines that the discharge or release poses an unacceptable level of risk or a potentially unacceptable level of risk to human health or the environment. If the Commission concludes that a discharge or release poses a degree of risk to human health or the environment that requires further cleanup, the Commission shall notify the owner, operator, or landowner who provides the information required by subsection (c) of this section of the cleanup method approved by the Commission. This section shall not be construed to prohibit an owner, operator, or landowner from selecting a cleanup method other than the cleanup method approved by the Commission so long as the Commission determines that the alternative cleanup method will address imminent threats to human health and the environment. (e) Remediation of sites with off-site migration shall be subject to the following provisions: (1) Contaminated sites at which contamination has migrated to off-site properties may be remediated pursuant to this Part if either of the following occur: a. The person who proposes to conduct the remediation pursuant to this Part remediates the contaminated off-site property to unrestricted use standards. b. The person who proposes to conduct the remediation pursuant to this Part (i) provides the owner of the contaminated off-site property with a copy of this Part and the publication produced by the Department pursuant to subdivision (2) of this subsection and (ii) obtains written consent from the owner of the contaminated off-site property for the person to remediate the contaminated off-site property using site-specific remediation standards pursuant to this Part. Provided that the site-specific remediation standards shall not allow concentrations of contaminants on the off-site property to increase above the levels present on the date the written consent is obtained. Written consent from the owner of the off-site property shall be on a form prescribed by the Department and include an affirmation that the owner has received and read the publication and authorizes the person to remediate the owner's property using site-specific remediation standards pursuant to this Part. (2) In order to inform owners of contaminated off-site property of the issues and liabilities associated with the contamination on their property, the Department, in consultation with the Consumer Protection Division of the North Carolina Department of Justice and the North Carolina Real Estate Commission, shall develop and make available a publication entitled G.S. 143-215.104AA Page 3 "Contaminated Property: Issues and Liabilities" to provide information on the nature of risk-based remediation and how it differs from remediation to unrestricted use standards, potential health impacts that may arise from residual contamination, as well as identification of liabilities that arise from contaminated property and associated issues, including potential impacts to real estate transactions and real estate financing. The Department shall update the publication as necessary. (3) If, after issuance of a no further action determination, the Department determines that additional remedial action is required for a contaminated off-site property, the responsible party shall be liable for the additional remediation deemed necessary. (4) Nothing in this subsection shall be construed to preclude or impair any person from obtaining any and all other remedies allowed by law. (f) This section shall not be construed to limit the authority of the Commission to require investigation, initial response, and abatement of a discharge or release pending a determination by the Commission under subsection (d) of this section as to whether cleanup, further cleanup, or further action will be required. Notwithstanding any authority provided under this section to the Commission and the Department allowing use of a risk-based approach for the cleanup of discharges and releases of petroleum from aboveground storage tanks and other sources, a responsible party shall, at a minimum, do all of the following: (1) Perform initial abatement actions to (i) measure for the presence of a release where contamination is most likely to be present and to confirm the precise source of the release; (ii) determine the possible presence of free product and to begin free product removal immediately; (iii) continue to monitor and mitigate any additional fire, vapor, or explosion hazards posed by vapors or by free product; and (iv) submit a report summarizing these initial abatement actions within 20 days after a discharge or release. For purposes of this subdivision, the term "free product" means a non-aqueous phase liquid which may be present within the saturated zone or in surface water. (2) Remove, or in situ remediate, contaminated soil or free product that would act as a continuing source of contamination to groundwater. Actions conducted in conformance with this subdivision shall require approval by the Department. (g) This section shall apply to discharges of petroleum from aboveground storage tanks and other sources not otherwise governed by the provisions of G.S. 143-215.94V. (2015-286, s. 4.7(b).) July 6, 2018 1 Risk-Based Remediation Pursuant to Part 7 of Article 21A of Chapter 143 of the General Statutes Property Owner Consent The forms following these instructions should be used by the remediating party to document consent of owners of “source site” property, and currently and/or potentially contaminated “off- site property,” as defined in G.S. 143-215.104AA, to allow remediation to site-specific remediation standards on their property. Recordation of any land use restrictions for the contaminated site cannot occur without approval by all off-site, impacted property owners. The owners of “off-site property” must be provided a copy of the appropriate legislation (N.C.G.S. 143, Article 21A, Part 7 “Risk-Based Remediation for Petroleum Releases from Aboveground Storage Tanks and Other Sources”) and DEQ’s publication entitled “Contaminated Property: Issues and Liability.” Owners consenting to site-specific remediation standards must sign a consent form in the format depicted below affirming that they have read the publication and agree to the use of site-specific remediation standards. Note that off-site property also includes any affected publicly owned property, including rights-of-way for public streets, roads and sidewalks. Property Owner Consent to Risk-Based Remediation Pursuant to Part 7 of Article 21A of Chapter 143 of the General Statutes I, ______________________ as <Owner of> / <Representative of _______________________ (entity name) which owns> the property identified by Parcel/Tax ID # _____________________, located at _______________________, in ________________________, ________________ County, (address) (city/town name) (county name) North Carolina, affirm the following: 1. That I am authorized to provide the consent requested herein; 2. That I have been provided a copy of (1) Part 7 of Article 21A of Chapter 143 of the North Carolina General Statutes and (2) a document entitled “Contaminated Property: Issues and Liability” prepared by the N.C. Department of Environmental Quality, in consultation with the N.C. Real Estate Commission and the N.C. Department of Justice’s Consumer Protection Division, and have read and understood said documents; 3. That I hereby consent to remediation of the above-identified property to site-specific remediation standards pursuant to Part 7 of Article 21A of Chapter 143 of the North Carolina General Statutes provided that, within the error margins of the applicable laboratory test procedures, and with consideration of normal seasonal fluctuation of the water table, the site- specific remediation standards approved for this site shall not allow concentrations of contaminants on the above-identified property to increase above the levels present on the date of this written consent; July 6, 2018 2 4. That I consent to a reference to the above-identified property as an impacted property on the Notice of Residual Petroleum declaration and, if required, plat as filed with the County Register of Deeds, in lieu of remediation to unrestricted use standards; and 5. That I understand I am responsible for notifying the responsible party for the contaminated site, and all appropriate local and state agencies, of any change in property use that might affect the conditions of this agreement, including, but not limited to, the sale of the property, redevelopment of the property, or the installation of any wells onsite for purposes other than the assessment or abatement of any residual contamination. IN WITNESS WHEREOF, I execute these presents on this ___ day of _____________, 20___. (signature of owner/owner’s representative) (printed or typed name of owner) (printed or typed name and position of signatory, if different from owner) NORTH CAROLINA COUNTY (Name of county in which acknowledgment was taken) I, ____________________________________, a Notary Public, do hereby certify that _________________________________________ personally appeared before me this day, produced proper identification in the form of _______________________, and signed this Off- Site Property Owner Consent to Risk-Based Remediation. WITNESS my hand and official seal, this the ______ day of _______________, 20____. (Official Seal) (signature of Notary Public) (printed or typed name of Notary Public) Notary Public My commission expires: