State Codes and Statutes

State Codes and Statutes

Statutes > North-carolina > Chapter_143B > GS_143B-279_9

§ 143B‑279.9.  Land‑userestrictions may be imposed to reduce danger to public health at contaminatedsites.

(a)        In order to reduceor eliminate the danger to public health or the environment posed by thepresence of contamination at a site, an owner, operator, or other responsibleparty may impose restrictions on the current or future use of the real propertycomprising any part of the site where the contamination is located if therestrictions meet the requirements of this section. The restrictions must beagreed to by the owner of the real property, included in a remedial action planfor the site that has been approved by the Secretary, and implemented as a partof the remedial action program for the site. The Secretary may approverestrictions included in a remedial action plan in accordance with standardsthat the Secretary determines to be applicable to the site. Except as providedin subsection (b) of this section, if the remedial action is risk‑basedor will not require that the site meet unrestricted use standards, the remedialaction plan must include an agreement by the owner, operator, or otherresponsible party to record approved land‑use restrictions that meet therequirements of this section as provided in G.S. 143B‑279.10 or G.S. 143B‑279.11,whichever applies. Restrictions may apply to activities on, over, or under theland, including, but not limited to, use of groundwater, building, filling,grading, excavating, and mining. Any approved restriction shall be enforced byany owner of the land, operator of the facility, or other party responsible forthe contaminated site. Any land‑use restriction may also be enforced bythe Department through the remedies provided by any provision of law that isimplemented or enforced by the Department or by means of a civil action. TheDepartment may enforce any land‑use restriction without first havingexhausted any available administrative remedies. A land‑use restrictionmay also be enforced by any unit of local government having jurisdiction overany part of the site. A land‑use restriction shall not be declaredunenforceable due to lack of privity of estate or contract, due to lack ofbenefit to particular land, or due to lack of any property interest inparticular land. Any person who owns or leases a property subject to a land‑userestriction under this Part shall abide by the land‑use restriction.

(b)        The definitions setout in G.S. 143‑215.94A apply to this subsection. A remedial action planfor the cleanup of environmental damage resulting from a discharge or releaseof petroleum from an underground storage tank pursuant to Part 2A of Article21A of Chapter 143 of the General Statutes must include an agreement by theowner, operator, or other party responsible for the discharge or release ofpetroleum to record a notice of any applicable land‑use restrictions thatmeet the requirements of this subsection as provided in G.S. 143B‑279.11.All of the provisions of this section shall apply except as specificallymodified by this subsection and G.S. 143B‑279.11. Any restriction on thecurrent or future use of real property pursuant to this subsection shall beenforceable only with respect to: (i) real property on which the source ofcontamination is located and (ii) any real property on which contamination is locatedat the time the remedial action plan is approved and that was owned orcontrolled by any owner or operator of the underground storage tank or otherresponsible party at the time the discharge or release of petroleum isdiscovered or reported or at any time thereafter. No restriction on the currentor future use of real property shall apply to any portion of any parcel ortract of land on which contamination is not located. This subsection shall notbe construed to require any person to record any notice of restriction on thecurrent or future use of real property other than the real property describedin this subsection. For purposes of this subsection and G.S. 143B‑279.11,the Secretary may restrict current or future use of real property only as set outin any one or more of the following subdivisions:

(1)        Where soilcontamination will remain in excess of unrestricted use standards, the propertymay be used for a primary or secondary residence, school, daycare center,nursing home, playground, park, recreation area, or other similar use only withthe approval of the Department.

(2)        Where soilcontamination will remain in excess of unrestricted use standards and theproperty is used for a primary or secondary residence that was constructedbefore the release of petroleum that resulted in the contamination isdiscovered or reported, the Secretary may approve alternative restrictions thatare sufficient to reduce the risk of exposure to contaminated soils to anacceptable level while allowing the real property to continue to be used for aresidence.

(3)        Where groundwatercontamination will remain in excess of unrestricted use standards, installationor operation of any well usable as a source of water shall be prohibited.

(4)        Any restriction onthe current or future use of the real property that is agreed upon by both theowner of the real property and the Department.

(c)        This section doesnot alter any right, duty, obligation, or liability of any owner, operator, orother responsible party under any other provision of law.

(d)        As used in thissection:

(1)        "Unrestricteduse standards" means generally applicable standards, guidance, orestablished methods governing contaminants that are established by statute oradopted, published, or implemented by the Environmental Management Commission,the Commission for Public Health, or the Department. Cleanup or remediation ofreal property to unrestricted use standards means that the property is restoredto a condition such that the property and any use that is made of the propertydoes not pose a danger or risk to public health, the environment, or users ofthe property that is significantly greater than that posed by use of theproperty prior to its having been contaminated.

(2)        "Risk‑based",when used in connection with cleanup, remediation, or similar terms, meanscleanup or remediation of contamination of real property to a level that,although not in compliance with unrestricted use standards, does not pose asignificant danger or risk to public health, the environment, or users of thereal property so long as the property remains in the condition and is used in amanner that is consistent with the assumptions as to the condition and use ofthe property on which the determination that the level of risk is acceptable isbased. (1999‑198,s. 1; 2000‑51, s. 1; 2001‑384, ss. 1, 12; 2002‑90, s. 1; 2007‑182,s. 2.)