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§ 143-215.94E. Rights and obligations of the owner or operator.

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§ 143‑215.94E.  Rightsand obligations of the owner or operator.(a)        Upon adetermination that a discharge or release of petroleum from an undergroundstorage tank has occurred, the owner or operator of the underground storagetank shall notify the Department pursuant to G.S. 143‑215.85. The owneror operator of the underground storage tank shall immediately undertake tocollect and remove the discharge or release and to restore the area affected inaccordance with the requirements of this Article.(a1)      If a spill oroverfill associated with a petroleum underground storage tank results in arelease of petroleum to the environment of 25 gallons or more or causes a sheenon nearby surface water, the owner or operator of the petroleum undergroundstorage tank shall immediately clean up the spill or overfill, report the spillor overfill to the Department within 24 hours of the spill or overfill, andbegin to restore the area affected in accordance with the requirements of thisArticle. The owner or operator of a petroleum underground storage tank shallimmediately clean up a spill or overfill of less than 25 gallons of petroleumthat does not cause a sheen on nearby surface water. If a spill or overfill ofless than 25 gallons of petroleum cannot be cleaned up within 24 hours of thespill or overfill or causes a sheen on nearby surface water, the owner oroperator of the petroleum underground storage tank shall immediately notify theDepartment.(b)        In the case of adischarge or release from a commercial underground storage tank where the owneror operator has been identified and has proceeded with cleanup, the owner oroperator may elect to have the Commercial Fund pay or reimburse the owner oroperator for any costs described in subsection (b) or (b1) of G.S. 143‑215.94Bthat exceed the amounts for which the owner or operator is responsible underthat subsection. The sum of payments by the owner or operator and the paymentsfrom the Commercial Fund shall not exceed one million dollars ($1,000,000) perdischarge or release except as provided in G.S. 143‑215.94B(b2).(b1)      In the case of adischarge or release from a commercial underground storage tank where the ownerand operator cannot be identified or located, or where the owner and operatorfail to proceed as required by subsection (a) of this section, if the currentlandowner of the land in which the commercial underground storage tank islocated notifies the Department in accordance with G.S. 143‑215.85 andundertakes to collect and remove the discharge or release and to restore thearea affected in accordance with the requirements of this Article andapplicable federal and State laws, regulations, and rules, the currentlandowner may elect to have the Commercial Fund pay or reimburse the currentlandowner for any costs described in subdivisions (1), (2), (2a), (3), and (4)of G.S. 143‑215.94B(b) or G.S. 143‑215.94B(b1) that exceed theamounts for which the owner or operator is responsible under that subsection.The current landowner is not eligible for payment or reimbursement until thecurrent landowner has paid the costs described in subdivisions (1), (2), (2a),(3), and (4) of G.S. 143‑215.94B(b) or G.S. 143‑215.94B(b1) forwhich the owner or operator is responsible. Eligibility for reimbursement underthis subsection may be transferred from a current landowner who has paid thecosts described in subdivisions (1), (2), (2a), (3), and (4) of G.S. 143‑215.94B(b)or G.S. 143‑215.94B(b1) to a subsequent landowner. The sum of paymentsfrom the Commercial Fund and from all other sources shall not exceed onemillion dollars ($1,000,000) per discharge or release except as provided inG.S. 143‑215.94B(b2). This subsection shall not be construed to require acurrent landowner to cleanup a discharge or release of petroleum from anunderground storage tank for which the current landowner is not otherwiseresponsible. This subsection does not alter any right, duty, obligation, orliability of a current landowner, former landowner, subsequent landowner,owner, or operator under other provisions of law. This subsection shall not beconstrued to limit the authority of the Department to engage in a cleanup underthis Article or any other provision of law. In the event that an owner oroperator is subsequently identified or located, the Secretary shall seekreimbursement as provided in G.S. 143‑215.94G(d). The current landownershall submit documentation of all expenditures as required by G.S. 143‑215.94G(b).(c)        In the case of adischarge or release from a noncommercial underground storage tank or acommercial underground storage tank eligible for the Noncommercial Fund inaccordance with G.S. 143‑215.94D(b), the owner or operator may elect tohave the Noncommercial Fund pay or reimburse the owner or operator for thecosts described in G.S. 143‑215.94D(b1) up to a maximum of one milliondollars ($1,000,000) per discharge or release.(c1)      In the case of adischarge or release from a noncommercial underground storage tank where theowner and operator cannot be identified or located, or where the owner andoperator fail to proceed as required by subsection (a) of this section, if thecurrent landowner of the land in which the noncommercial underground storagetank is located notifies the Department in accordance with G.S. 143‑215.85and undertakes to collect and remove the discharge or release and to restorethe area affected in accordance with the requirements of this Article andapplicable federal and State laws, regulations, and rules, the currentlandowner may elect to have the Noncommercial Fund pay or reimburse the currentlandowner for ninety percent (90%) of any costs described in subdivisions (1)and (2) of G.S. 143‑215.94D(b1) that exceed five thousand dollars($5,000). Eligibility for reimbursement under this subsection may be transferredto a subsequent landowner from a current landowner who has paid the costs forwhich the landowner is responsible under this subsection. The sum of paymentsfrom the Noncommercial Fund and from all other sources shall not exceed onemillion dollars ($1,000,000) per discharge or release. This subsection shallnot be construed to require a current landowner to clean up a discharge orrelease of petroleum from an underground storage tank for which the currentlandowner is not otherwise responsible. This subsection does not alter anyright, duty, obligation, or liability of a current landowner, former landowner,subsequent landowner, owner, or operator under other provisions of law. Thissubsection shall not be construed to limit the authority of the Department toengage in a cleanup under this Article or any other provision of law. Thecurrent landowner shall submit documentation of all expenditures as required byG.S. 143‑215.94G(b).(d)        In any case wherethe costs described in G.S. 143‑215.94B(b), 143‑215.94B(b1), or 143‑215.94D(b1)exceed one million dollars ($1,000,000), or one million five hundred thousanddollars ($1,500,000) if G.S. 143‑215.94B(b2) applies, the provisions ofArticle 21A of this Chapter or any other applicable statute or common law principleregarding liability shall apply for the amount in excess of one million dollars($1,000,000) or, if G.S. 143‑215.94B(b2) applies, one million fivehundred thousand dollars ($1,500,000). Nothing contained in this Part shalllimit or modify any liability that any party may have pursuant to Article 21Aof this Chapter, any other applicable statute, or at common law.(e)        When an owner,operator, or landowner pays the costs described in G.S. 143‑215.94B(b),143‑215.94B(b1), or 143‑215.94D(b1) resulting from a discharge orrelease of petroleum from an underground storage tank, the owner, operator, orlandowner may seek reimbursement from the appropriate fund for any costs thatthe owner, operator, or landowner may elect to have either the Commercial Fundor the Noncommercial Fund pay in accordance with the applicable subsections ofthis section.(e1)      The Department maycontract for any services necessary to evaluate any claim for reimbursement orcompensation from either the Commercial Fund or the Noncommercial Fund, maycontract for any expert witness or consultant services necessary to defend anydecision to pay or deny any claim for reimbursement, and may pay the cost ofthese services from the fund against which the claim is made; provided that inany fiscal year the Department shall not expend from either fund more than onepercent (1%) of the unobligated balance of the fund on 30 June of the previousfiscal year. The cost of contractual services to evaluate a claim or for expertwitness or consultant services to defend a decision with respect to a claimshall be included as costs under G.S. 143‑215.94B(b), 143‑215.94B(b1),and 143‑215.94D(b1).(e2)      An owner or operatorwhose claim for reimbursement is denied may appeal a decision of the Departmentas provided in Article 3 of Chapter 150B of the General Statutes. If the owneror operator is eligible for reimbursement under this section and the cleanupextends beyond a period of three months, the owner or operator may apply to theDepartment for interim reimbursements to which he is entitled under thissection on a quarterly basis. If the Department fails to notify an owner oroperator of its decision on a claim for reimbursement under this section within90 days after the date the claim is received by the Department, the owner oroperator may elect to consider the claim to have been denied, and may appealthe denial as provided in Article 3 of Chapter 150B of the General Statutes.(e3)      The Department shallnot pay any third party or reimburse any owner or operator who has paid anythird party pursuant to any settlement agreement or consent judgment relatingto a claim by or on behalf of a third party for compensation for bodily injuryor property damage unless the Department has approved the settlement agreementor consent judgment prior to entry into the settlement agreement or consentjudgment by the parties or entry of a consent judgment by the court. Theapproval or disapproval by the Department of a proposed settlement agreement orconsent judgment shall be subject to challenge only in a contested case filedunder Chapter 150B of the General Statutes. The Secretary shall make the finalagency decision in a contested case proceeding under this subsection.(e4)     (1)        Ifthe owner or operator takes initial steps to collect and remove the dischargeor release as required by the Department and completes the initial assessmentrequired to determine degree of risk, the owner or operator shall not besubject to any violation or penalty for any failure to proceed with furtherassessment or cleanup under G.S. 143‑215.84 or this section before theowner or operator is authorized to proceed with further assessment or cleanupas provided in subsection (e5) of this section. The lack of availability offunds in the Commercial Fund or the Noncommercial Fund shall not relieve anowner or operator of responsibility to immediately undertake to collect andremove the discharge or release or to conduct any assessment or cleanup orderedby the Department or be a defense against any violations and penalties issuedto the owner or operator for failure to conduct required assessment or cleanup.(2)        The Department shallestablish the degree of risk to human health and the environment posed by adischarge or release of petroleum from a commercial underground storage tankand shall determine a schedule for further assessment and cleanup that is basedon the degree of risk to human health and the environment posed by thedischarge or release and that gives priority to the assessment and cleanup ofdischarges and releases that pose the greatest risk. If any of the costs ofassessment and cleanup of the discharge or release from a commercialunderground storage tank are eligible to be paid or reimbursed from theCommercial Fund, the Department shall also consider the availability of fundsin the Commercial Fund and the order in which the discharge or release wasreported in determining the schedule.(3)        The Department shallestablish the degree of risk to human health and the environment posed by adischarge or release of petroleum from a noncommercial underground storage tankand shall determine a schedule for further assessment and cleanup that is basedon the degree of risk to human health and the environment posed by thedischarge or release and that gives priority to the assessment and cleanup ofdischarges and releases that pose the greatest risk. If any of the costs ofassessment or cleanup of the discharge or release from a noncommercialunderground storage tank are eligible to be paid or reimbursed from theNoncommercial Fund, the Department shall also consider the availability offunds in the Noncommercial Fund and the order in which the discharge or releasewas reported in determining the schedule.(4)        The Department mayrevise the schedules that apply to the assessment and cleanup of any dischargeor release at any time based on its reassessment of any of the foregoingfactors.(e5)     (1)        Asused in this subsection:a.         "Authorization"means a determination by the Department that a person may proceed with one ormore tasks associated with the assessment or cleanup of a discharge or releasefrom a petroleum underground storage tank. To "authorize' means to makesuch a determination.b.         "Preapproval"means a determination by the Department that:1.         The nature and scopeof a task is reasonable and necessary to be performed under G.S. 143‑215.94B(b),143‑215.94B(b1), or 143‑215.94D(b1) in order to achieve thepurposes of this Part.2.         The amount estimatedfor the cost of a task does not exceed the amount or rate that is reasonablefor that task.(2)        The Department mayrequire an owner, operator, or landowner to obtain preapproval beforeproceeding with any task. The Department shall specify those tasks for whichpreapproval is required. The Department shall deny any request for payment orreimbursement of the cost of any task for which preapproval is required if theowner, operator, or landowner failed to obtain preapproval of the task.Preapproval of a task by the Department does not guarantee payment orreimbursement in the amount estimated for the cost of the task at the timepreapproval is requested. The Department shall pay or reimburse the cost of atask only if all of the following apply:a.         The cost is eligibleto be paid under G.S. 143‑215.94B(b), 143‑215.94B(b1), or 143‑215.94D(b1).b.         Payment is inaccordance with G.S. 143‑215.94B(d) or G.S. 143‑215.94D(d).c.         The Departmentdetermines that the cost is reasonable and necessary.(3)        The Commission mayadopt rules governing payment or reimbursement of reasonable and necessarycosts and, consistent with any rules adopted by the Commission, the Departmentshall develop, implement, and periodically revise a schedule of costs that theDepartment determines to be reasonable and necessary costs for specific tasks.Statements that specify tasks for which preapproval is required and schedulesof reasonable and necessary costs for specific tasks are statements within themeaning of G.S. 150B‑2(8a)g. This subsection shall not be construed toinvalidate any rule of the Commission related to preapproval of tasks that willresult in a cost that is eligible to be paid or reimbursed under G.S. 143‑215.94B(b),143‑215.94B(b1), or 143‑215.94D(b1), provided, however, that theDepartment may specify additional tasks for which preapproval is required.(4)        In all cases, theDepartment shall require an owner, operator, or landowner to submitdocumentation sufficient to establish that a claim is eligible to be paid orreimbursed under this Part before the Department pays or reimburses the claim.(5)        The Department shallauthorize a task the cost of which is to be paid or reimbursed from theCommercial Fund or the Noncommercial Fund only when the task is scheduled to beperformed on the basis of a priority determination pursuant to subsection (e4)of this section. The Department shall not pay or reimburse the cost of any taskfor which authorization is required under this subsection until the Departmenthas preapproved and authorized the task.(6)        Except as providedin subdivisions (8) and (9) of this subsection, the Department shall notauthorize any task the cost of which is to be paid or reimbursed from theCommercial Fund or the Noncommercial Fund unless the Department determines,based on the scope of the work to be performed and the schedule of reasonableand necessary costs, that sufficient funds will be available in the CommercialFund or the Noncommercial Fund, whichever applies, to pay or reimburse the costof that task within 90 days after the Department determines that the owner,operator, or landowner has submitted a claim with documentation sufficient toestablish that the claim is eligible to be paid under this Part.(7)        This subsectionshall not be construed to establish a cause of action against the Commission orthe Department for any failure to pay or reimburse any cost within any specificperiod of time. This subsection shall not be construed to establish a defenseto any action to enforce the requirements of either G.S. 143‑215.84 orsubsection (a) of this section.(8)        The Department maypreapprove and authorize a task the cost of which is to be paid or reimbursedfrom the Commercial Fund or the Noncommercial Fund that has not been authorizedpursuant to subdivisions (5) and (6) of this subsection if the owner, operator,or landowner specifically requests that the task be authorized and agrees thatthe claim for payment or reimbursement of the cost will not be paid until afterthe Department has paid all claims for payment or reimbursement of costs for tasksthat the Department has authorized pursuant to subdivisions (5) and (6) of thissubsection.(9)        The Department maypreapprove and authorize a task the cost of which is to be paid or reimbursedfrom the Commercial Fund or the Noncommercial Fund that has not been authorizedpursuant to subdivisions (5) and (6) of this subsection if the discharge orrelease creates an emergency situation. An emergency situation exists when adischarge or release of petroleum results in an imminent threat to human healthor the environment. A claim for payment or reimbursement of costs for tasksthat are authorized under this subdivision shall be paid or reimbursed on thesame basis as tasks that are authorized under subdivisions (5) and (6) of thissubsection.(f)         Repealed bySession Laws 2003‑352, s. 6, effective July 27, 2003.(f1)       Any person seekingpayment or reimbursement from either the Commercial Fund or the NoncommercialFund shall certify to the Department that the costs to be paid or reimbursed bythe Commercial Fund or the Noncommercial Fund are not eligible to be paid orreimbursed by or from any other source, including any contract of insurance. Ifany cost paid or reimbursed by the Commercial Fund or the Noncommercial Fund iseligible to be paid or reimbursed by or from another source, that cost shallnot be paid from, or if paid shall be repaid to, the Commercial Fund or theNoncommercial Fund. As used in this Part, the phrase "any other sourceincluding any contract of insurance" does not include self‑insurance.(g)        No owner oroperator shall be reimbursed pursuant to this section, and the Department shallseek reimbursement of the appropriate fund or of the Department for any moniesdisbursed from the appropriate fund or expended by the Department if any of thefollowing apply:(1)        The owner oroperator has willfully violated any substantive law, rule, or regulationapplicable to underground storage tanks and intended to prevent or mitigatedischarges or releases or to facilitate the early detection of discharges orreleases.(2)        The discharge orrelease is the result of the owner's or operator's willful or wantonmisconduct.(3)        The owner oroperator has failed to pay any annual tank operating fee due pursuant to G.S.143‑215.94C.(h)        Subdivision (1) ofsubsection (g) of this section shall not be construed to limit the right of anowner or operator to contest notices of violation or orders issued by theDepartment. Subdivision (1) of subsection (g) of this section shall not applyto a payment or reimbursement pursuant to this section if, at the time of thedischarge or release, the owner or operator holds a valid operating permit asrequired by G.S. 143‑215.94U.(i)         Repealed bySession Laws 2005‑365, s. 1, effective September 8, 2005.(j)         An owner,operator, or landowner shall request that the Department determine whether anyof the costs of assessment and cleanup of a discharge or release from apetroleum underground storage tank are eligible to be paid or reimbursed fromeither the Commercial Fund or the Noncommercial Fund within one year aftercompletion of any task that is eligible to be paid or reimbursed under G.S. 143‑215.94B(b),143‑215.94B(b1), or 143‑215.94D(b1).(k)        An owner, operator,or landowner shall request payment or reimbursement from the Commercial Fund orthe Noncommercial Fund for the cost of a task within one year after thecompletion of the task. The Department shall deny any request for payment orreimbursement of the cost of any task that would otherwise be eligible to bepaid or reimbursed if the request is not received within 12 months after thelater of the date on which the:(1)        Departmentdetermines that the cost is eligible to be paid or reimbursed.(2)        Task is completed.  (1987 (Reg. Sess., 1988), c.1035, s. 1; 1989, c. 652, ss. 7, 16; 1991, c. 538, ss. 7, 22; 1991 (Reg. Sess.,1992), c. 817, s. 2; 1993, c. 400, s. 15; c. 402, s. 3; 1995, c. 377, s. 8;1995 (Reg. Sess., 1996), c. 648, ss. 3, 4; 1998‑161, ss. 4, 5, 8(a), (b),11(b); 1998‑215, s. 68; 2000‑172, s. 7.1; 2003‑352, ss. 6, 7;2004‑124, s. 30.10(d); 2005‑365, ss. 1, 2; 2008‑195, s.2(a).)
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  • § 143‑215.94E.  Rightsand obligations of the owner or operator.

    (a)        Upon adetermination that a discharge or release of petroleum from an undergroundstorage tank has occurred, the owner or operator of the underground storagetank shall notify the Department pursuant to G.S. 143‑215.85. The owneror operator of the underground storage tank shall immediately undertake tocollect and remove the discharge or release and to restore the area affected inaccordance with the requirements of this Article.

    (a1)      If a spill oroverfill associated with a petroleum underground storage tank results in arelease of petroleum to the environment of 25 gallons or more or causes a sheenon nearby surface water, the owner or operator of the petroleum undergroundstorage tank shall immediately clean up the spill or overfill, report the spillor overfill to the Department within 24 hours of the spill or overfill, andbegin to restore the area affected in accordance with the requirements of thisArticle. The owner or operator of a petroleum underground storage tank shallimmediately clean up a spill or overfill of less than 25 gallons of petroleumthat does not cause a sheen on nearby surface water. If a spill or overfill ofless than 25 gallons of petroleum cannot be cleaned up within 24 hours of thespill or overfill or causes a sheen on nearby surface water, the owner oroperator of the petroleum underground storage tank shall immediately notify theDepartment.

    (b)        In the case of adischarge or release from a commercial underground storage tank where the owneror operator has been identified and has proceeded with cleanup, the owner oroperator may elect to have the Commercial Fund pay or reimburse the owner oroperator for any costs described in subsection (b) or (b1) of G.S. 143‑215.94Bthat exceed the amounts for which the owner or operator is responsible underthat subsection. The sum of payments by the owner or operator and the paymentsfrom the Commercial Fund shall not exceed one million dollars ($1,000,000) perdischarge or release except as provided in G.S. 143‑215.94B(b2).

    (b1)      In the case of adischarge or release from a commercial underground storage tank where the ownerand operator cannot be identified or located, or where the owner and operatorfail to proceed as required by subsection (a) of this section, if the currentlandowner of the land in which the commercial underground storage tank islocated notifies the Department in accordance with G.S. 143‑215.85 andundertakes to collect and remove the discharge or release and to restore thearea affected in accordance with the requirements of this Article andapplicable federal and State laws, regulations, and rules, the currentlandowner may elect to have the Commercial Fund pay or reimburse the currentlandowner for any costs described in subdivisions (1), (2), (2a), (3), and (4)of G.S. 143‑215.94B(b) or G.S. 143‑215.94B(b1) that exceed theamounts for which the owner or operator is responsible under that subsection.The current landowner is not eligible for payment or reimbursement until thecurrent landowner has paid the costs described in subdivisions (1), (2), (2a),(3), and (4) of G.S. 143‑215.94B(b) or G.S. 143‑215.94B(b1) forwhich the owner or operator is responsible. Eligibility for reimbursement underthis subsection may be transferred from a current landowner who has paid thecosts described in subdivisions (1), (2), (2a), (3), and (4) of G.S. 143‑215.94B(b)or G.S. 143‑215.94B(b1) to a subsequent landowner. The sum of paymentsfrom the Commercial Fund and from all other sources shall not exceed onemillion dollars ($1,000,000) per discharge or release except as provided inG.S. 143‑215.94B(b2). This subsection shall not be construed to require acurrent landowner to cleanup a discharge or release of petroleum from anunderground storage tank for which the current landowner is not otherwiseresponsible. This subsection does not alter any right, duty, obligation, orliability of a current landowner, former landowner, subsequent landowner,owner, or operator under other provisions of law. This subsection shall not beconstrued to limit the authority of the Department to engage in a cleanup underthis Article or any other provision of law. In the event that an owner oroperator is subsequently identified or located, the Secretary shall seekreimbursement as provided in G.S. 143‑215.94G(d). The current landownershall submit documentation of all expenditures as required by G.S. 143‑215.94G(b).

    (c)        In the case of adischarge or release from a noncommercial underground storage tank or acommercial underground storage tank eligible for the Noncommercial Fund inaccordance with G.S. 143‑215.94D(b), the owner or operator may elect tohave the Noncommercial Fund pay or reimburse the owner or operator for thecosts described in G.S. 143‑215.94D(b1) up to a maximum of one milliondollars ($1,000,000) per discharge or release.

    (c1)      In the case of adischarge or release from a noncommercial underground storage tank where theowner and operator cannot be identified or located, or where the owner andoperator fail to proceed as required by subsection (a) of this section, if thecurrent landowner of the land in which the noncommercial underground storagetank is located notifies the Department in accordance with G.S. 143‑215.85and undertakes to collect and remove the discharge or release and to restorethe area affected in accordance with the requirements of this Article andapplicable federal and State laws, regulations, and rules, the currentlandowner may elect to have the Noncommercial Fund pay or reimburse the currentlandowner for ninety percent (90%) of any costs described in subdivisions (1)and (2) of G.S. 143‑215.94D(b1) that exceed five thousand dollars($5,000). Eligibility for reimbursement under this subsection may be transferredto a subsequent landowner from a current landowner who has paid the costs forwhich the landowner is responsible under this subsection. The sum of paymentsfrom the Noncommercial Fund and from all other sources shall not exceed onemillion dollars ($1,000,000) per discharge or release. This subsection shallnot be construed to require a current landowner to clean up a discharge orrelease of petroleum from an underground storage tank for which the currentlandowner is not otherwise responsible. This subsection does not alter anyright, duty, obligation, or liability of a current landowner, former landowner,subsequent landowner, owner, or operator under other provisions of law. Thissubsection shall not be construed to limit the authority of the Department toengage in a cleanup under this Article or any other provision of law. Thecurrent landowner shall submit documentation of all expenditures as required byG.S. 143‑215.94G(b).

    (d)        In any case wherethe costs described in G.S. 143‑215.94B(b), 143‑215.94B(b1), or 143‑215.94D(b1)exceed one million dollars ($1,000,000), or one million five hundred thousanddollars ($1,500,000) if G.S. 143‑215.94B(b2) applies, the provisions ofArticle 21A of this Chapter or any other applicable statute or common law principleregarding liability shall apply for the amount in excess of one million dollars($1,000,000) or, if G.S. 143‑215.94B(b2) applies, one million fivehundred thousand dollars ($1,500,000). Nothing contained in this Part shalllimit or modify any liability that any party may have pursuant to Article 21Aof this Chapter, any other applicable statute, or at common law.

    (e)        When an owner,operator, or landowner pays the costs described in G.S. 143‑215.94B(b),143‑215.94B(b1), or 143‑215.94D(b1) resulting from a discharge orrelease of petroleum from an underground storage tank, the owner, operator, orlandowner may seek reimbursement from the appropriate fund for any costs thatthe owner, operator, or landowner may elect to have either the Commercial Fundor the Noncommercial Fund pay in accordance with the applicable subsections ofthis section.

    (e1)      The Department maycontract for any services necessary to evaluate any claim for reimbursement orcompensation from either the Commercial Fund or the Noncommercial Fund, maycontract for any expert witness or consultant services necessary to defend anydecision to pay or deny any claim for reimbursement, and may pay the cost ofthese services from the fund against which the claim is made; provided that inany fiscal year the Department shall not expend from either fund more than onepercent (1%) of the unobligated balance of the fund on 30 June of the previousfiscal year. The cost of contractual services to evaluate a claim or for expertwitness or consultant services to defend a decision with respect to a claimshall be included as costs under G.S. 143‑215.94B(b), 143‑215.94B(b1),and 143‑215.94D(b1).

    (e2)      An owner or operatorwhose claim for reimbursement is denied may appeal a decision of the Departmentas provided in Article 3 of Chapter 150B of the General Statutes. If the owneror operator is eligible for reimbursement under this section and the cleanupextends beyond a period of three months, the owner or operator may apply to theDepartment for interim reimbursements to which he is entitled under thissection on a quarterly basis. If the Department fails to notify an owner oroperator of its decision on a claim for reimbursement under this section within90 days after the date the claim is received by the Department, the owner oroperator may elect to consider the claim to have been denied, and may appealthe denial as provided in Article 3 of Chapter 150B of the General Statutes.

    (e3)      The Department shallnot pay any third party or reimburse any owner or operator who has paid anythird party pursuant to any settlement agreement or consent judgment relatingto a claim by or on behalf of a third party for compensation for bodily injuryor property damage unless the Department has approved the settlement agreementor consent judgment prior to entry into the settlement agreement or consentjudgment by the parties or entry of a consent judgment by the court. Theapproval or disapproval by the Department of a proposed settlement agreement orconsent judgment shall be subject to challenge only in a contested case filedunder Chapter 150B of the General Statutes. The Secretary shall make the finalagency decision in a contested case proceeding under this subsection.

    (e4)     (1)        Ifthe owner or operator takes initial steps to collect and remove the dischargeor release as required by the Department and completes the initial assessmentrequired to determine degree of risk, the owner or operator shall not besubject to any violation or penalty for any failure to proceed with furtherassessment or cleanup under G.S. 143‑215.84 or this section before theowner or operator is authorized to proceed with further assessment or cleanupas provided in subsection (e5) of this section. The lack of availability offunds in the Commercial Fund or the Noncommercial Fund shall not relieve anowner or operator of responsibility to immediately undertake to collect andremove the discharge or release or to conduct any assessment or cleanup orderedby the Department or be a defense against any violations and penalties issuedto the owner or operator for failure to conduct required assessment or cleanup.

    (2)        The Department shallestablish the degree of risk to human health and the environment posed by adischarge or release of petroleum from a commercial underground storage tankand shall determine a schedule for further assessment and cleanup that is basedon the degree of risk to human health and the environment posed by thedischarge or release and that gives priority to the assessment and cleanup ofdischarges and releases that pose the greatest risk. If any of the costs ofassessment and cleanup of the discharge or release from a commercialunderground storage tank are eligible to be paid or reimbursed from theCommercial Fund, the Department shall also consider the availability of fundsin the Commercial Fund and the order in which the discharge or release wasreported in determining the schedule.

    (3)        The Department shallestablish the degree of risk to human health and the environment posed by adischarge or release of petroleum from a noncommercial underground storage tankand shall determine a schedule for further assessment and cleanup that is basedon the degree of risk to human health and the environment posed by thedischarge or release and that gives priority to the assessment and cleanup ofdischarges and releases that pose the greatest risk. If any of the costs ofassessment or cleanup of the discharge or release from a noncommercialunderground storage tank are eligible to be paid or reimbursed from theNoncommercial Fund, the Department shall also consider the availability offunds in the Noncommercial Fund and the order in which the discharge or releasewas reported in determining the schedule.

    (4)        The Department mayrevise the schedules that apply to the assessment and cleanup of any dischargeor release at any time based on its reassessment of any of the foregoingfactors.

    (e5)     (1)        Asused in this subsection:

    a.         "Authorization"means a determination by the Department that a person may proceed with one ormore tasks associated with the assessment or cleanup of a discharge or releasefrom a petroleum underground storage tank. To "authorize' means to makesuch a determination.

    b.         "Preapproval"means a determination by the Department that:

    1.         The nature and scopeof a task is reasonable and necessary to be performed under G.S. 143‑215.94B(b),143‑215.94B(b1), or 143‑215.94D(b1) in order to achieve thepurposes of this Part.

    2.         The amount estimatedfor the cost of a task does not exceed the amount or rate that is reasonablefor that task.

    (2)        The Department mayrequire an owner, operator, or landowner to obtain preapproval beforeproceeding with any task. The Department shall specify those tasks for whichpreapproval is required. The Department shall deny any request for payment orreimbursement of the cost of any task for which preapproval is required if theowner, operator, or landowner failed to obtain preapproval of the task.Preapproval of a task by the Department does not guarantee payment orreimbursement in the amount estimated for the cost of the task at the timepreapproval is requested. The Department shall pay or reimburse the cost of atask only if all of the following apply:

    a.         The cost is eligibleto be paid under G.S. 143‑215.94B(b), 143‑215.94B(b1), or 143‑215.94D(b1).

    b.         Payment is inaccordance with G.S. 143‑215.94B(d) or G.S. 143‑215.94D(d).

    c.         The Departmentdetermines that the cost is reasonable and necessary.

    (3)        The Commission mayadopt rules governing payment or reimbursement of reasonable and necessarycosts and, consistent with any rules adopted by the Commission, the Departmentshall develop, implement, and periodically revise a schedule of costs that theDepartment determines to be reasonable and necessary costs for specific tasks.Statements that specify tasks for which preapproval is required and schedulesof reasonable and necessary costs for specific tasks are statements within themeaning of G.S. 150B‑2(8a)g. This subsection shall not be construed toinvalidate any rule of the Commission related to preapproval of tasks that willresult in a cost that is eligible to be paid or reimbursed under G.S. 143‑215.94B(b),143‑215.94B(b1), or 143‑215.94D(b1), provided, however, that theDepartment may specify additional tasks for which preapproval is required.

    (4)        In all cases, theDepartment shall require an owner, operator, or landowner to submitdocumentation sufficient to establish that a claim is eligible to be paid orreimbursed under this Part before the Department pays or reimburses the claim.

    (5)        The Department shallauthorize a task the cost of which is to be paid or reimbursed from theCommercial Fund or the Noncommercial Fund only when the task is scheduled to beperformed on the basis of a priority determination pursuant to subsection (e4)of this section. The Department shall not pay or reimburse the cost of any taskfor which authorization is required under this subsection until the Departmenthas preapproved and authorized the task.

    (6)        Except as providedin subdivisions (8) and (9) of this subsection, the Department shall notauthorize any task the cost of which is to be paid or reimbursed from theCommercial Fund or the Noncommercial Fund unless the Department determines,based on the scope of the work to be performed and the schedule of reasonableand necessary costs, that sufficient funds will be available in the CommercialFund or the Noncommercial Fund, whichever applies, to pay or reimburse the costof that task within 90 days after the Department determines that the owner,operator, or landowner has submitted a claim with documentation sufficient toestablish that the claim is eligible to be paid under this Part.

    (7)        This subsectionshall not be construed to establish a cause of action against the Commission orthe Department for any failure to pay or reimburse any cost within any specificperiod of time. This subsection shall not be construed to establish a defenseto any action to enforce the requirements of either G.S. 143‑215.84 orsubsection (a) of this section.

    (8)        The Department maypreapprove and authorize a task the cost of which is to be paid or reimbursedfrom the Commercial Fund or the Noncommercial Fund that has not been authorizedpursuant to subdivisions (5) and (6) of this subsection if the owner, operator,or landowner specifically requests that the task be authorized and agrees thatthe claim for payment or reimbursement of the cost will not be paid until afterthe Department has paid all claims for payment or reimbursement of costs for tasksthat the Department has authorized pursuant to subdivisions (5) and (6) of thissubsection.

    (9)        The Department maypreapprove and authorize a task the cost of which is to be paid or reimbursedfrom the Commercial Fund or the Noncommercial Fund that has not been authorizedpursuant to subdivisions (5) and (6) of this subsection if the discharge orrelease creates an emergency situation. An emergency situation exists when adischarge or release of petroleum results in an imminent threat to human healthor the environment. A claim for payment or reimbursement of costs for tasksthat are authorized under this subdivision shall be paid or reimbursed on thesame basis as tasks that are authorized under subdivisions (5) and (6) of thissubsection.

    (f)         Repealed bySession Laws 2003‑352, s. 6, effective July 27, 2003.

    (f1)       Any person seekingpayment or reimbursement from either the Commercial Fund or the NoncommercialFund shall certify to the Department that the costs to be paid or reimbursed bythe Commercial Fund or the Noncommercial Fund are not eligible to be paid orreimbursed by or from any other source, including any contract of insurance. Ifany cost paid or reimbursed by the Commercial Fund or the Noncommercial Fund iseligible to be paid or reimbursed by or from another source, that cost shallnot be paid from, or if paid shall be repaid to, the Commercial Fund or theNoncommercial Fund. As used in this Part, the phrase "any other sourceincluding any contract of insurance" does not include self‑insurance.

    (g)        No owner oroperator shall be reimbursed pursuant to this section, and the Department shallseek reimbursement of the appropriate fund or of the Department for any moniesdisbursed from the appropriate fund or expended by the Department if any of thefollowing apply:

    (1)        The owner oroperator has willfully violated any substantive law, rule, or regulationapplicable to underground storage tanks and intended to prevent or mitigatedischarges or releases or to facilitate the early detection of discharges orreleases.

    (2)        The discharge orrelease is the result of the owner's or operator's willful or wantonmisconduct.

    (3)        The owner oroperator has failed to pay any annual tank operating fee due pursuant to G.S.143‑215.94C.

    (h)        Subdivision (1) ofsubsection (g) of this section shall not be construed to limit the right of anowner or operator to contest notices of violation or orders issued by theDepartment. Subdivision (1) of subsection (g) of this section shall not applyto a payment or reimbursement pursuant to this section if, at the time of thedischarge or release, the owner or operator holds a valid operating permit asrequired by G.S. 143‑215.94U.

    (i)         Repealed bySession Laws 2005‑365, s. 1, effective September 8, 2005.

    (j)         An owner,operator, or landowner shall request that the Department determine whether anyof the costs of assessment and cleanup of a discharge or release from apetroleum underground storage tank are eligible to be paid or reimbursed fromeither the Commercial Fund or the Noncommercial Fund within one year aftercompletion of any task that is eligible to be paid or reimbursed under G.S. 143‑215.94B(b),143‑215.94B(b1), or 143‑215.94D(b1).

    (k)        An owner, operator,or landowner shall request payment or reimbursement from the Commercial Fund orthe Noncommercial Fund for the cost of a task within one year after thecompletion of the task. The Department shall deny any request for payment orreimbursement of the cost of any task that would otherwise be eligible to bepaid or reimbursed if the request is not received within 12 months after thelater of the date on which the:

    (1)        Departmentdetermines that the cost is eligible to be paid or reimbursed.

    (2)        Task is completed.  (1987 (Reg. Sess., 1988), c.1035, s. 1; 1989, c. 652, ss. 7, 16; 1991, c. 538, ss. 7, 22; 1991 (Reg. Sess.,1992), c. 817, s. 2; 1993, c. 400, s. 15; c. 402, s. 3; 1995, c. 377, s. 8;1995 (Reg. Sess., 1996), c. 648, ss. 3, 4; 1998‑161, ss. 4, 5, 8(a), (b),11(b); 1998‑215, s. 68; 2000‑172, s. 7.1; 2003‑352, ss. 6, 7;2004‑124, s. 30.10(d); 2005‑365, ss. 1, 2; 2008‑195, s.2(a).)

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