On October 22, the governor signed into law NC House Bill 765, or the Regulatory Reform Act. The bill was designed to make amendments to a variety of state laws related to business regulation, State and local government regulation, and environmental regulation. The bill contains a significant number of key points, and discussing it in its entirety is beyond the scope of our normal monthly newsletter! But this month we wanted to focus on some of the changes that the bill makes to environmental regulation in North Carolina, most notably changes associated with risk-based remediation of contaminated sites. Changes to the non-commercial Leaking Underground Storage Tank Fund were also enacted in this legislative session. We will discuss these changes in a separate upcoming newsletter.
What exactly is Risk Based Cleanup?
The summary of NC House Bill 765 provides the following useful description of standard vs. risk-based remediation:
“Generally, cleanup of environmental contamination must be performed to meet unrestricted use standards, meaning contaminant concentrations present at a location are acceptable for all uses; are protective of public health, safety, and welfare and the environment; and comply with an applicable program’s standards established by statute or rule adopted by the Environmental Management Commission, the Commission for Public Health, or DENR. Risk-based cleanup, however, allows cleanup based on site-specific risk factors, which are generally not as stringent as the applicable unrestricted use standards.”
The key point to understand is that risk-based remediation is both site-specific and typically provides an avenue to site closure that is easier to obtain with regards to contaminant concentrations. Prior to this bill, several limitations were placed on which sites could qualify for risk-based cleanup. Specifically:
- Only “industrial” sites qualified for risk-based remediation.
- Only sites where the release of contamination was reported to DENR prior to March 1, 2011, were eligible.
- Only sites where there was no migration of contaminants off the industrial site property were eligible.
So What is Changing?
The new bill eliminates these restrictions, thereby opening up a wide number of new sites to the possibility of risk-based remediation, including properties adjacent to a contaminant source where contaminants have migrated off-site. In these instances, the person who is conducting risk-based remediation at the source site must provide the property owner(s) off-site with proper documentation and notice, and obtain their written permission to use risk-based remediation at the off-site property. The documentation would include a publication that will be developed by NCDENR (now known as the NC Department of Environmental Quality, or NCDEQ) called “Contaminated Property: Issues and Liabilities.” The publication would provide some level of background information to the property owner on the differences between risk-based remediation and more stringent unrestricted use standards.
Additionally, the bill now includes petroleum aboveground storage tanks (ASTs) in the risk-based remediation program. This will allow for a risk-based approach to cleaning up spills/releases of petroleum from ASTs, resulting in potentially lower remediation costs for the property owners and more rapid closures associated with AST releases.
Changing the definition of “Prospective Developer” for Brownfields
Another key change to environmental regulations that HB 765 introduces is amending the definition of “prospective developer” (PD) under the law governing brownfields redevelopment. A Brownfields site is any real property that is abandoned, idled, or underutilized where environmental contamination, or perceived environmental contamination, hinders redevelopment. The Brownfields program was implemented as a tool to help remove certain barriers that were preventing such properties from being redeveloped and bettering the community.
The following was also obtained from the NC State Legislation Summary of HB 765:
“Under current law ‘prospective developer’ means any person with a bona fide, demonstrable desire to either buy or sell a Brownfields property for the purpose of developing or redeveloping that Brownfields property and who did not cause or contribute to the contamination at the brownfields property. The bill would eliminate the requirement that a prospective developer have a demonstrable intent to “buy or sell” a property.”
This change would potentially allow for the PD to be the primary party associated with redevelopment without also being required to initiate a real estate transaction.
The Regulatory Reform Acts contains a multitude of additional changes and amendments to environmental and business regulation that are not discussed in this article. Some of these topics include:
- Environmental self-audit privilege and limited immunity
- Engineered option permit (EOP) for on-site wastewater system design
- Isolated wetlands regulated by the state to include only Basin Wetland and Bogs, and exclude man-made ditches or ponds (as well as other amendments to the wetlands law)
- Changes to the approval of on-site wastewater systems
Please click through the links above to read the full summary of the bill. Contact us today if you have any questions or feel that these regulatory changes may affect you and your property.
Successful Application of UVF Analysis of Soils for Contaminants
Pyramid recently completed a successful contaminated soil excavation project in Hickory, North Carolina, using ultraviolet fluorescence (UVF) field analysis technology. A limited Phase II environmental site assessment had revealed petroleum contaminated soil at the project site, and a soil cleanup program was recommended. Two locations were identified as containing petroleum-impacted soil, resulting in two areas of soil excavation.
It was determined that hydraulic oil discharge was the source of contamination. Unlike gasoline or diesel fuel, which will typically exhibit strong odors and/or discoloration that can be detected in the field, hydraulic oil contamination will often be odorless and difficult to track during an excavation. For this reason, Pyramid contracted QROS, LLC of North Carolina to use their QED Analyzer for field screening of soils during a soil removal excavation. The QED Analyzer uses UVF technology to analyze soils for hydrocarbons in the field. Results are obtained within minutes and can provide essentially real-time contaminant concentration levels during a soil cleanup project. The NC Department of Environmental Quality (NCDEQ, formerly NCDENR) recognizes Ultra Violet Fluorescence (UVF) field analysis as an acceptable method to provide total petroleum hydrocarbon (TPH) results for soil in lieu of conventional laboratory analysis.
The use of UVF technology allowed for confirmation that all contaminated soil had been removed in real-time, thereby eliminating the wait times associated with laboratory analysis. Based on the findings of the field laboratory analysis of soil samples collected from the limits of the two soil excavations performed at the site, the petroleum release incident qualified for regulatory incident closure. No additional soil excavation or assessment was required.
If you have any questions regarding UVF technology, its applications, or its benefits please feel free to contact us today!