Regulatory Reform Act Signed Into Law

On October 22, Governor McCrory signed into law NC House Bill 765, or the Regulatory Reform Act. The bill addresses some significant issues, most notably changes associated with risk-based remediation of contaminated sites in North Carolina. The summary of this new legislation provides the following 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.”

Previous risk-based remediation legislation contained several limitations, including :

  • Only “industrial” sites qualified for risk-based remediation;
  • Contamination on the site must have been reported to the regulatory agency prior to March 1, 2011; and
  • Contamination had to be maintained on site (i.e. no off-site migration).

These have now been eliminated/addressed with this new legislation. A few other key highlights of the legislation include the following.

  • Releases from petroleum aboveground storage tanks (ASTs) can now be included in the risk-based remediation program.
  • The definition of “prospective developer” (PD) under the law governing brownfields redevelopment has been amended. The new legislation defines Prospective Developer as follows (deleted and added verbiage included):  “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 develop or redevelop a brownfields property and who did not cause or contribute to the contamination at the brownfields property.

    This is important in that a PD no longer has to show a demonstrative intent to buy or sell the property, only that they want to redevelop it.  To see a full copy of the bill click here.  A summary of the bill can be viewed by clicking here.

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