Time's Up!
One Year "Reprieve" in UST Land Use Restrictions Expires
Due to a hot controversy on the issue, the North Carolina General Assembly had granted landowners a one-year delay on the imposition of land use restrictions when leaking fuel tanks had caused contamination on the property. The General Assembly adopted S.B. 1279 during calendar year 2000 to grant a one-year "reprieve" to allow further study of the issue until September 1, 2001. Then, in 2001, the General Assembly adopted a permanent provision imposing restrictions on petroleum-contaminated properties, when certain triggers occur.
Either of two triggering events can invoke the land use restriction requirement: One is a sale of the property, and the other is a request by the landowner, or others responsible, for a "No Further Action" letter from the State. In both cases, a "Notice of Residual Petroleum" containing the required restrictions must be filed with the register of deeds in the county where the property is located. Simply state, closing on the sale of petroleum-contaminated property without recording the Notice of Residual Petroleum is prohibited.
Brief History
Since 1987, land use restrictions have been in effect for properties contaminated with hazardous waste or residual chemicals. Under "Brownfields" laws, a landowner is able to gain agency approval for redevelopment of a piece of land involving less than full cleanup to State standards, providing an agreement was negotiated with the State agency (North Carolina DENR). The trade-off for such an agreement is that the developer must agree to restrict the use of the land in a way designed to minimize public exposure to the contamination.
Unfortunately, an ambiguous provision of S.B. 1159, enacted by the General Assembly in 1999, caused
DENR to interpret the new law so as to include petroleum contamination. That is, DENR
said the new law required that owners of UST-contaminated properties must put use restrictions on the land unless the sites are cleaned up to current State standards. [See 15A NCAC 2L] According to the drafters of S.B. 1159, the inclusion of UST-contaminated sites was never intended. Apparently, the original intent was merely to extend the trade-off between risk-based cleanup standards and land use
restrictions to so-called "Inactive Waste Sites" under North Carolina law.
Of course, DENR's interpretation of S.B. 1159 has caused considerable controversy. However, the even more interesting issue is the imposition of land-use restrictions on neighboring properties when the contamination has spread beyond the original property boundaries. Gaining an agreement from neighboring property owners to legally restrict the use of their property due to off-site contamination poses quite a challenge!!!
Need Help with
Underground Storage Tanks
or Site Cleanup?
Please Contact OMNI at 800-951-7625 or visit our website at www.environmentalengineers.com |
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