§ 143‑215.94G. Authority of the Department to engage in cleanups; actions for fundreimbursement.
(a) The Department mayuse staff, equipment, or materials under its control or provided by othercooperating federal, State, or local agencies and may contract with any agentor contractor it deems appropriate to investigate a release, to develop andimplement a cleanup plan, to provide interim alternative sources of drinkingwater to third parties, and to pay the initial costs for providing permanentalternative sources of drinking water to third parties, and shall pay the costsresulting from commercial underground storage tanks from the Commercial Fundand shall pay the costs resulting from noncommercial underground storage tanksfrom the Noncommercial Fund, whenever there is a discharge or release ofpetroleum from any of the following:
(1) A noncommercialunderground storage tank.
(2) An undergroundstorage tank whose owner or operator cannot be identified or located.
(3) An undergroundstorage tank whose owner or operator fails to proceed as required by G.S. 143‑215.94E(a).
(4) A commercialunderground storage tank taken out of operation prior to 1 January 1974 if,when the discharge or release is discovered, neither the owner nor operatorowns or leases the land on which the underground storage tank is located.
(a1) Every State agencyshall provide to the Department to the maximum extent feasible such staff,equipment, and materials as may be available and useful to the development andimplementation of a cleanup program.
(a2) The cost of anyaction authorized under subsection (a) of this section shall be paid, to theextent funds are available, from the following sources in the order listed:
(1) Any funds to whichthe State is entitled under any federal program providing for the cleanup ofpetroleum discharges or releases from underground storage tanks, including, butnot limited to, the Leaking Underground Storage Tank Trust Fund establishedpursuant to 26 U.S.C. § 4081 and 42 U.S.C. § 6991b(h).
(2) The Commercial Fundor the Noncommercial Fund.
(a3) (Expires October1, 2011) The Department may implement the provisions of subsection (a) ofthis section as provided in G.S. 143‑215.94B(f) and G.S. 143‑215.94D(f).
(b) Whenever thedischarge or release of a petroleum product is from a commercial undergroundstorage tank, the Department may supervise the cleanup of environmental damagerequired by G.S. 143‑215.94E(a). If the owner or operator elects to havethe Commercial Fund reimburse or pay for any costs allowed under subsection (b)or (b1) of G.S. 143‑215.94B, the Department shall require the owner oroperator to submit documentation of all expenditures claimed for the purposesof establishing that the owner or operator has spent the amounts required to bepaid by the owner or operator pursuant to and in accordance with G.S. 143‑215.94E(b).The Department shall allow credit for all expenditures that the Departmentdetermines to be reasonable and necessary. The Department may not pay for anycosts for which the Commercial Fund was established until the owner or operatorhas paid the amounts specified in G.S. 143‑215.94E(b).
(c) The Secretary shallkeep a record of all expenses incurred for the services of State personnel andfor the use of the State's equipment and material.
(d) The Secretary shallseek reimbursement through any legal means available, for:
(1) Any costs notauthorized to be paid from either the Commercial or the Noncommercial Fund;
(2) The amounts providedfor in G.S. 143‑215.94B(b) or G.S. 143‑215.94B(b1) required to bepaid for by the owner or operator pursuant to G.S. 143‑215.94E(b) wherethe owner or operator of a commercial underground storage tank is lateridentified or located;
(3) The amounts providedfor in G.S. 143‑215.94B(b) or G.S. 143‑215.94B(b1) required to bepaid for by the owner or operator pursuant to G.S. 143‑215.94E(b) wherethe owner or operator of a commercial underground storage tank failed toproceed as required by G.S. 143‑215.94E(a);
(3a) The amounts providedfor by G.S. 143‑215.94B(b)(5) required to be paid by the owner oroperator to third parties for the cost of providing interim alternative sourcesof drinking water to third parties and the initial cost of providing permanentalternative sources of drinking water to third parties;
(4) Any funds due underG.S. 143‑215.94E(g); and
(5) Any funds to whichthe State is entitled under any federal program providing for the cleanup ofpetroleum discharges or releases from underground storage tanks.
(e) In the event that acivil action is commenced to secure reimbursement pursuant to subdivisions (1)through (4) of subsection (d) of this section, the Secretary may recover, inaddition to any amount due, the costs of the action, including but not limitedto reasonable attorney's fees and investigation expenses. Any monies receivedor recovered as reimbursement shall be paid into the appropriate fund or othersource from which the expenditures were made.
(f) In the event thata recovery equal to or in excess of the amounts required to be paid for by theowner or operator pursuant to G.S. 143‑215.94E(b) is recovered pursuantto subdivisions (2) and (3) of subsection (d) of this section for the costsdescribed in G.S. 143‑215.94B(b) or G.S. 143‑215.94B(b1), theDepartment shall transfer funds from the Commercial Fund that would have beenpaid from the Commercial Fund pursuant to subsection (b) or (b2) of G.S. 143‑215.94Bif the owner or operator had proceeded with the cleanup, but which were paidfrom the Noncommercial Fund, into the Noncommercial Fund.
(g) (EffectiveJanuary 1, 2009) If the Department paid or reimbursed costs that are notauthorized to be paid or reimbursed under G.S. 143‑215.94B or G.S. 143‑215.94Das a result of a misrepresentation by an agent who acted on behalf of an owner,operator, or landowner, the Department shall first seek reimbursement, pursuantto subdivision (1) of subsection (d) of this section, from the agent of moniespaid to or retained by the agent.
(h) (EffectiveJanuary 1, 2009) The Department shall take administrative action to recovercosts or bring a civil action pursuant to subdivision (1) of subsection (d) ofthis section to seek reimbursement of costs in accordance with the time limitsset out in this subsection.
(1) The Department shalltake administrative action to recover costs or bring a civil action to seekreimbursement of costs that are not authorized to be paid from the CommercialFund under subdivision (1), (2), or (3) of G.S. 143‑215.94B(d) or fromthe Noncommercial Fund under subdivision (1), (2), or (3) of G.S. 143‑215.94D(d)within five years after payment.
(2) The Department shalltake administrative action to recover costs or bring a civil action to seekreimbursement of costs other than those described in subdivision (1) of thissubsection within three years after payment.
(3) Notwithstanding thetime limits set out in subdivisions (1) and (2) of this subsection, theDepartment may take administrative action to recover costs or bring a civilaction to seek reimbursement of costs paid as a result of fraud ormisrepresentation at any time.
(i) (EffectiveJanuary 1, 2009) An administrative action or civil action that is notcommenced within the time allowed by subsection (h) of this section is barred.
(j) (EffectiveJanuary 1, 2009) Except with the consent of the claimant, the Departmentmay not withhold payment or reimbursement of costs that are authorized to bepaid from the Commercial Fund or the Noncommercial Fund in order to recover anyother costs that are in dispute unless the Department is authorized to withholdpayment by a final decision of the Commission pursuant to G.S. 150B‑36 oran order or final decision of a court. (1987 (Reg. Sess., 1988), c. 1035, s. 1; 1989, c.652. ss. 9, 16; 1991, c. 538, ss. 8, 23; 1993, c. 400, s. 15; c. 402, s. 4;1995, c. 377, s. 9; 2001‑442, s. 3; 2008‑195, ss. 3, 11.)
§ 143‑215.94G. Authority of the Department to engage in cleanups; actions for fundreimbursement.
(a) The Department mayuse staff, equipment, or materials under its control or provided by othercooperating federal, State, or local agencies and may contract with any agentor contractor it deems appropriate to investigate a release, to develop andimplement a cleanup plan, to provide interim alternative sources of drinkingwater to third parties, and to pay the initial costs for providing permanentalternative sources of drinking water to third parties, and shall pay the costsresulting from commercial underground storage tanks from the Commercial Fundand shall pay the costs resulting from noncommercial underground storage tanksfrom the Noncommercial Fund, whenever there is a discharge or release ofpetroleum from any of the following:
(1) A noncommercialunderground storage tank.
(2) An undergroundstorage tank whose owner or operator cannot be identified or located.
(3) An undergroundstorage tank whose owner or operator fails to proceed as required by G.S. 143‑215.94E(a).
(4) A commercialunderground storage tank taken out of operation prior to 1 January 1974 if,when the discharge or release is discovered, neither the owner nor operatorowns or leases the land on which the underground storage tank is located.
(a1) Every State agencyshall provide to the Department to the maximum extent feasible such staff,equipment, and materials as may be available and useful to the development andimplementation of a cleanup program.
(a2) The cost of anyaction authorized under subsection (a) of this section shall be paid, to theextent funds are available, from the following sources in the order listed:
(1) Any funds to whichthe State is entitled under any federal program providing for the cleanup ofpetroleum discharges or releases from underground storage tanks, including, butnot limited to, the Leaking Underground Storage Tank Trust Fund establishedpursuant to 26 U.S.C. § 4081 and 42 U.S.C. § 6991b(h).
(2) The Commercial Fundor the Noncommercial Fund.
(a3) (Expires October1, 2011) The Department may implement the provisions of subsection (a) ofthis section as provided in G.S. 143‑215.94B(f) and G.S. 143‑215.94D(f).
(b) Whenever thedischarge or release of a petroleum product is from a commercial undergroundstorage tank, the Department may supervise the cleanup of environmental damagerequired by G.S. 143‑215.94E(a). If the owner or operator elects to havethe Commercial Fund reimburse or pay for any costs allowed under subsection (b)or (b1) of G.S. 143‑215.94B, the Department shall require the owner oroperator to submit documentation of all expenditures claimed for the purposesof establishing that the owner or operator has spent the amounts required to bepaid by the owner or operator pursuant to and in accordance with G.S. 143‑215.94E(b).The Department shall allow credit for all expenditures that the Departmentdetermines to be reasonable and necessary. The Department may not pay for anycosts for which the Commercial Fund was established until the owner or operatorhas paid the amounts specified in G.S. 143‑215.94E(b).
(c) The Secretary shallkeep a record of all expenses incurred for the services of State personnel andfor the use of the State's equipment and material.
(d) The Secretary shallseek reimbursement through any legal means available, for:
(1) Any costs notauthorized to be paid from either the Commercial or the Noncommercial Fund;
(2) The amounts providedfor in G.S. 143‑215.94B(b) or G.S. 143‑215.94B(b1) required to bepaid for by the owner or operator pursuant to G.S. 143‑215.94E(b) wherethe owner or operator of a commercial underground storage tank is lateridentified or located;
(3) The amounts providedfor in G.S. 143‑215.94B(b) or G.S. 143‑215.94B(b1) required to bepaid for by the owner or operator pursuant to G.S. 143‑215.94E(b) wherethe owner or operator of a commercial underground storage tank failed toproceed as required by G.S. 143‑215.94E(a);
(3a) The amounts providedfor by G.S. 143‑215.94B(b)(5) required to be paid by the owner oroperator to third parties for the cost of providing interim alternative sourcesof drinking water to third parties and the initial cost of providing permanentalternative sources of drinking water to third parties;
(4) Any funds due underG.S. 143‑215.94E(g); and
(5) Any funds to whichthe State is entitled under any federal program providing for the cleanup ofpetroleum discharges or releases from underground storage tanks.
(e) In the event that acivil action is commenced to secure reimbursement pursuant to subdivisions (1)through (4) of subsection (d) of this section, the Secretary may recover, inaddition to any amount due, the costs of the action, including but not limitedto reasonable attorney's fees and investigation expenses. Any monies receivedor recovered as reimbursement shall be paid into the appropriate fund or othersource from which the expenditures were made.
(f) In the event thata recovery equal to or in excess of the amounts required to be paid for by theowner or operator pursuant to G.S. 143‑215.94E(b) is recovered pursuantto subdivisions (2) and (3) of subsection (d) of this section for the costsdescribed in G.S. 143‑215.94B(b) or G.S. 143‑215.94B(b1), theDepartment shall transfer funds from the Commercial Fund that would have beenpaid from the Commercial Fund pursuant to subsection (b) or (b2) of G.S. 143‑215.94Bif the owner or operator had proceeded with the cleanup, but which were paidfrom the Noncommercial Fund, into the Noncommercial Fund.
(g) (EffectiveJanuary 1, 2009) If the Department paid or reimbursed costs that are notauthorized to be paid or reimbursed under G.S. 143‑215.94B or G.S. 143‑215.94Das a result of a misrepresentation by an agent who acted on behalf of an owner,operator, or landowner, the Department shall first seek reimbursement, pursuantto subdivision (1) of subsection (d) of this section, from the agent of moniespaid to or retained by the agent.
(h) (EffectiveJanuary 1, 2009) The Department shall take administrative action to recovercosts or bring a civil action pursuant to subdivision (1) of subsection (d) ofthis section to seek reimbursement of costs in accordance with the time limitsset out in this subsection.
(1) The Department shalltake administrative action to recover costs or bring a civil action to seekreimbursement of costs that are not authorized to be paid from the CommercialFund under subdivision (1), (2), or (3) of G.S. 143‑215.94B(d) or fromthe Noncommercial Fund under subdivision (1), (2), or (3) of G.S. 143‑215.94D(d)within five years after payment.
(2) The Department shalltake administrative action to recover costs or bring a civil action to seekreimbursement of costs other than those described in subdivision (1) of thissubsection within three years after payment.
(3) Notwithstanding thetime limits set out in subdivisions (1) and (2) of this subsection, theDepartment may take administrative action to recover costs or bring a civilaction to seek reimbursement of costs paid as a result of fraud ormisrepresentation at any time.
(i) (EffectiveJanuary 1, 2009) An administrative action or civil action that is notcommenced within the time allowed by subsection (h) of this section is barred.
(j) (EffectiveJanuary 1, 2009) Except with the consent of the claimant, the Departmentmay not withhold payment or reimbursement of costs that are authorized to bepaid from the Commercial Fund or the Noncommercial Fund in order to recover anyother costs that are in dispute unless the Department is authorized to withholdpayment by a final decision of the Commission pursuant to G.S. 150B‑36 oran order or final decision of a court. (1987 (Reg. Sess., 1988), c. 1035, s. 1; 1989, c.652. ss. 9, 16; 1991, c. 538, ss. 8, 23; 1993, c. 400, s. 15; c. 402, s. 4;1995, c. 377, s. 9; 2001‑442, s. 3; 2008‑195, ss. 3, 11.)
§ 143‑215.94G. Authority of the Department to engage in cleanups; actions for fundreimbursement.
(a) The Department mayuse staff, equipment, or materials under its control or provided by othercooperating federal, State, or local agencies and may contract with any agentor contractor it deems appropriate to investigate a release, to develop andimplement a cleanup plan, to provide interim alternative sources of drinkingwater to third parties, and to pay the initial costs for providing permanentalternative sources of drinking water to third parties, and shall pay the costsresulting from commercial underground storage tanks from the Commercial Fundand shall pay the costs resulting from noncommercial underground storage tanksfrom the Noncommercial Fund, whenever there is a discharge or release ofpetroleum from any of the following:
(1) A noncommercialunderground storage tank.
(2) An undergroundstorage tank whose owner or operator cannot be identified or located.
(3) An undergroundstorage tank whose owner or operator fails to proceed as required by G.S. 143‑215.94E(a).
(4) A commercialunderground storage tank taken out of operation prior to 1 January 1974 if,when the discharge or release is discovered, neither the owner nor operatorowns or leases the land on which the underground storage tank is located.
(a1) Every State agencyshall provide to the Department to the maximum extent feasible such staff,equipment, and materials as may be available and useful to the development andimplementation of a cleanup program.
(a2) The cost of anyaction authorized under subsection (a) of this section shall be paid, to theextent funds are available, from the following sources in the order listed:
(1) Any funds to whichthe State is entitled under any federal program providing for the cleanup ofpetroleum discharges or releases from underground storage tanks, including, butnot limited to, the Leaking Underground Storage Tank Trust Fund establishedpursuant to 26 U.S.C. § 4081 and 42 U.S.C. § 6991b(h).
(2) The Commercial Fundor the Noncommercial Fund.
(a3) (Expires October1, 2011) The Department may implement the provisions of subsection (a) ofthis section as provided in G.S. 143‑215.94B(f) and G.S. 143‑215.94D(f).
(b) Whenever thedischarge or release of a petroleum product is from a commercial undergroundstorage tank, the Department may supervise the cleanup of environmental damagerequired by G.S. 143‑215.94E(a). If the owner or operator elects to havethe Commercial Fund reimburse or pay for any costs allowed under subsection (b)or (b1) of G.S. 143‑215.94B, the Department shall require the owner oroperator to submit documentation of all expenditures claimed for the purposesof establishing that the owner or operator has spent the amounts required to bepaid by the owner or operator pursuant to and in accordance with G.S. 143‑215.94E(b).The Department shall allow credit for all expenditures that the Departmentdetermines to be reasonable and necessary. The Department may not pay for anycosts for which the Commercial Fund was established until the owner or operatorhas paid the amounts specified in G.S. 143‑215.94E(b).
(c) The Secretary shallkeep a record of all expenses incurred for the services of State personnel andfor the use of the State's equipment and material.
(d) The Secretary shallseek reimbursement through any legal means available, for:
(1) Any costs notauthorized to be paid from either the Commercial or the Noncommercial Fund;
(2) The amounts providedfor in G.S. 143‑215.94B(b) or G.S. 143‑215.94B(b1) required to bepaid for by the owner or operator pursuant to G.S. 143‑215.94E(b) wherethe owner or operator of a commercial underground storage tank is lateridentified or located;
(3) The amounts providedfor in G.S. 143‑215.94B(b) or G.S. 143‑215.94B(b1) required to bepaid for by the owner or operator pursuant to G.S. 143‑215.94E(b) wherethe owner or operator of a commercial underground storage tank failed toproceed as required by G.S. 143‑215.94E(a);
(3a) The amounts providedfor by G.S. 143‑215.94B(b)(5) required to be paid by the owner oroperator to third parties for the cost of providing interim alternative sourcesof drinking water to third parties and the initial cost of providing permanentalternative sources of drinking water to third parties;
(4) Any funds due underG.S. 143‑215.94E(g); and
(5) Any funds to whichthe State is entitled under any federal program providing for the cleanup ofpetroleum discharges or releases from underground storage tanks.
(e) In the event that acivil action is commenced to secure reimbursement pursuant to subdivisions (1)through (4) of subsection (d) of this section, the Secretary may recover, inaddition to any amount due, the costs of the action, including but not limitedto reasonable attorney's fees and investigation expenses. Any monies receivedor recovered as reimbursement shall be paid into the appropriate fund or othersource from which the expenditures were made.
(f) In the event thata recovery equal to or in excess of the amounts required to be paid for by theowner or operator pursuant to G.S. 143‑215.94E(b) is recovered pursuantto subdivisions (2) and (3) of subsection (d) of this section for the costsdescribed in G.S. 143‑215.94B(b) or G.S. 143‑215.94B(b1), theDepartment shall transfer funds from the Commercial Fund that would have beenpaid from the Commercial Fund pursuant to subsection (b) or (b2) of G.S. 143‑215.94Bif the owner or operator had proceeded with the cleanup, but which were paidfrom the Noncommercial Fund, into the Noncommercial Fund.
(g) (EffectiveJanuary 1, 2009) If the Department paid or reimbursed costs that are notauthorized to be paid or reimbursed under G.S. 143‑215.94B or G.S. 143‑215.94Das a result of a misrepresentation by an agent who acted on behalf of an owner,operator, or landowner, the Department shall first seek reimbursement, pursuantto subdivision (1) of subsection (d) of this section, from the agent of moniespaid to or retained by the agent.
(h) (EffectiveJanuary 1, 2009) The Department shall take administrative action to recovercosts or bring a civil action pursuant to subdivision (1) of subsection (d) ofthis section to seek reimbursement of costs in accordance with the time limitsset out in this subsection.
(1) The Department shalltake administrative action to recover costs or bring a civil action to seekreimbursement of costs that are not authorized to be paid from the CommercialFund under subdivision (1), (2), or (3) of G.S. 143‑215.94B(d) or fromthe Noncommercial Fund under subdivision (1), (2), or (3) of G.S. 143‑215.94D(d)within five years after payment.
(2) The Department shalltake administrative action to recover costs or bring a civil action to seekreimbursement of costs other than those described in subdivision (1) of thissubsection within three years after payment.
(3) Notwithstanding thetime limits set out in subdivisions (1) and (2) of this subsection, theDepartment may take administrative action to recover costs or bring a civilaction to seek reimbursement of costs paid as a result of fraud ormisrepresentation at any time.
(i) (EffectiveJanuary 1, 2009) An administrative action or civil action that is notcommenced within the time allowed by subsection (h) of this section is barred.
(j) (EffectiveJanuary 1, 2009) Except with the consent of the claimant, the Departmentmay not withhold payment or reimbursement of costs that are authorized to bepaid from the Commercial Fund or the Noncommercial Fund in order to recover anyother costs that are in dispute unless the Department is authorized to withholdpayment by a final decision of the Commission pursuant to G.S. 150B‑36 oran order or final decision of a court. (1987 (Reg. Sess., 1988), c. 1035, s. 1; 1989, c.652. ss. 9, 16; 1991, c. 538, ss. 8, 23; 1993, c. 400, s. 15; c. 402, s. 4;1995, c. 377, s. 9; 2001‑442, s. 3; 2008‑195, ss. 3, 11.)
