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
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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;
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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;
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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
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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
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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
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___________________________, 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
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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: