S.L. 1979-535

NORTH CAROLINA GENERAL ASSEMBLY

1979 SESSION

CHAPTER 535

HOUSE BILL 175

AN ACT TO AMEND THE OIL POLLUTION CONTROL ACT OF 1973; G.S. 143-215.75, ET SEQ.

The General Assembly of North Carolina enacts:

Section 1. G.S. 143-215.75 as it now appears in the 1978 Replacement Volume 3C of the General Statutes is amended by deleting the words "Oil Pollution Control Act of 1973" as they appear in line 2 and by inserting instead "Oil Pollution and Hazardous Substances Control Act of 1978".

Sec. 2. G.S. 143-215.76 as it now appears in the 1978 Replacement Volume 3C of the General Statutes is amended by

(a) inserting a comma after the word "products" as it appears in line 4 and by deleting the word "and" as it appears in line 4; and then

(b) deleting the period in line 4 and substituting instead a comma followed by the phrase "and other hazardous substances".

Sec. 3. G.S. 143-215.77(4) as it now appears in the 1978 Replacement Volume 3C of the General Statutes is amended by

(a) inserting the phrase "or other hazardous substances" after the word "oil" and before the word "into" as the same appears in line 2;

(b) inserting the phrase "or other hazardous substances" after the word "oil" and before the word "is" as the same appears in line 3;

(c) inserting the phrase "or other hazardous substances" after the word "oil" and before the comma as the same appears in line 10;

(d) deleting the word "on" in line 13 and substituting therefor the words "in accepted" and by deleting the word "crops" in line 14 and substituting therefor the word "practices"; and

(e) adding thereto, immediately before the period at the end of the definition of the word "discharge", the following: "; provided, further, that the use of a pesticide regulated by the North Carolina Pesticide Board in a manner consistent with the labelling required by the North Carolina Pesticide Law shall not constitute a 'discharge' for purposes of this Article."

Sec. 4. G.S. 143-215.77 as it now appears in the 1978 Replacement Volume 3C of the General Statutes is amended by inserting a new subpart (6) which reads: "(6) 'Hazardous substance' shall mean any substance, other than oil, designated by regulation of the commission upon a finding that the discharge of the substance in any minimum prescribed quantity into or upon the waters of the State presents an imminent and substantial danger to public health or welfare; or to fish, shellfish, wildlife, or vegetation. Provided, that only those substances and corollary harmful quantities which have been designated by the Administrator of the United States Environmental Protection Agency pursuant to 33 U.S.C. 1321(b)(2)(A) shall be designated by the commission as hazardous substances. Additions to or deletions from the list of hazardous substances by the Administrator of the Environmental Protection Agency shall be deemed to be automatically added to or deleted from this definition unless the commission objects within 120 days of publication of the action in the Federal Register. If the commission objects to a particular addition or deletion, the substance so designated will neither be added to nor deleted from the definition pending a public hearing pursuant to Article 2 of Chapter 150A of the General Statutes" and by then renumbering the existing subpart (6) as subpart (7) and appropriately renumbering all succeeding subparts.

Sec. 5. G.S. 143-215.77(5) as it now appears in the 1978 Replacement Volume 3C of the General Statutes is amended by

(a) inserting the phrase "or other hazardous substances" after the word "oil" and before the closing quotation mark as the same appears in line 1;

(b) inserting the phrase "or other hazardous substances" after the word "oil" and before the word "immediately" as the same appears in line 2;

(c) inserting the phrase "or other hazardous substances" after the word "oil" and before the word "onto" as the same appears in line 3; and

(d) inserting the phrase "or other hazardous substances" after the word "oil" and before the period as the same appears in line 4.

Sec. 6. G.S. 143-215.77(6) as it now appears in the 1978 Replacement Volume 3C of the General Statutes is amended by adding the phrase "or other hazardous substances" after the word "oil" at the end of line 1.

Sec. 7. G.S. 143-215.77(9) as it appears in the 1978 Replacement Volume 3C of the General Statutes is amended by

(a) deleting the phrase "oil bailee" as it appears at the beginning of line 1 and inserting instead the word "Bailee"; and

(b) inserting the phrase "or other hazardous substances" after the word "oil" and before the word "to" as the same appears in line 1.

Sec. 8. G.S. 143-215.77(10) as it appears in the 1978 Replacement Volume 3C of the General Statutes is amended by

(a) deleting the phrase "Oil Carrier" as it appears at the beginning of line 1 and inserting instead the word "Carrier"; and

(b) inserting the phrase "or other hazardous substances" after the word "oil" and before the word "for" in line 2.

Sec. 9. G.S. 143-215.77(15) as it appears in the 1978 Replacement Volume 3C of the General Statutes is amended by inserting the phrase "or other hazardous substances" after the word "oil" and before the word "discharge" as the same appears in line 5.

Sec. 10. G.S. 143-215.77(16) as it appears in the 1978 Replacement Volume 3C of the General Statutes is amended by inserting the phrase "or other hazardous substances" after the word "oil" and before the word "between" in line 2.

Sec. 11. G.S. 143-215.78 as it appears in the 1978 Replacement Volume 3C of the General Statutes is amended by deleting the phrase "within the office" as it appears in line 2.

Sec. 12. G.S. 143-215.79 as it appears in the 1978 Replacement Volume 3C of the General Statutes is amended by inserting the phrase "or other hazardous substances" after the word "oil" as it appears in lines 6, 12, 13, and 15.

Sec. 13. G.S. 143-215.82 as it appears in the 1978 Replacement Volume 3C of the General Statutes is amended by inserting the phrase "or other hazardous substances" after the word "oil" and before the word "discharges" as the same appears in line 5.

Sec. 14. G.S. 143-215.83 as it appears in the 1978 Replacement Volume 3C of the General Statutes is amended by inserting the phrase "or other hazardous substances" after the word "oil" as it appears in lines 3, 6, 8, and 22.

Sec. 15. G.S. 143-215.84 as it appears in the 1978 Replacement Volume 3C of the General Statutes is amended by inserting the phrase "or other hazardous substances" after the word "oil" as it appears in lines 2, 16, and 32.

Sec. 16. G.S. 143-215.85 as it appears in the 1978 Replacement Volume 3C of the General Statutes is amended by

(a) inserting the phrase "or other substances" after the word "oil" and before the word "discharged" as the same appear in line 2; and

(b) deleting the words "in violation of the provisions of this Article" as they appear in line 2, and substituting instead the words "in any circumstances other than pursuant to existing regulation of the Environmental Management Commission or the U.S. Environmental Protection Agency or pursuant to a permit required by G.S. 143-215.1 or the Federal Water Pollution Control Act."

Sec. 17. G.S. 143-215.85 is hereby amended by adding thereto at the end thereof the following sentence: "If the discharged substance of which the Department is notified is a pesticide regulated by the North Carolina Pesticide Board, the Department shall immediately inform the Secretary of the Pesticide Board. Removal operations under this Article of substances identified as pesticides defined in G.S. 143-460 shall be coordinated in accordance with the Pesticide Emergency Plan adopted by the North Carolina Pesticide Board; provided that, in instances where entry of such hazardous substances into waters of the State is imminent, the Department may take such actions as are necessary to physically contain or divert such substance so as to prevent entry into the surface waters."

Sec. 18. G.S. 143-215.86 as it appears in the 1978 Replacement Volume 3C of the General Statutes is amended by inserting the phrase "or other hazardous substances" after the word "oil" as it appears in lines 7 and 19.

Sec. 19. G.S. 143-215.86 as it appears in the 1978 Replacement Volume 3C of the General Statutes is amended by rewriting the catchline to read: "§ 143-215.86. Other State agencies and State-designated local agencies."

Further, G.S. 143-215.86 is amended in subsection (a) on line 3 after the word "State" by inserting the phrase "and any local agency designated by the State".

And further, G.S. 143-215.86 is amended in subsection (c) on line 1 after the word "agency" by inserting the phrase "or other State-designated local agency".

Sec. 20. G.S. 143-215.87 as it appears in the 1978 Replacement Volume 3C of the General Statutes is amended by inserting the phrase "or other hazardous substances" after the word "oil" as it appears in lines 1, 2, 7, and 13.

Sec. 21. G.S. 143-215.88 as it appears in the 1978 Replacement Volume 3C of the General Statutes is amended by rewriting the catchline to read: "§ 143-215.88. Payment to State agencies or State-designated local agencies."

And further, G.S. 143-215.88 is amended on line 3 by inserting between the words "State" and "that" the following: "or any State-designated local agency".

Sec. 22. G.S. 143-215.88 as it appears in the 1978 Replacement Volume 3C of the General Statutes is amended by inserting the phrase "or other hazardous substances" after the word "oil" as it appears in lines 1, 6, 7, 10, 13, 15, 16, and 18.

Sec. 23. G.S. 143-215.89 as it appears in the 1978 Replacement Volume 3C of the General Statutes is amended by inserting the phrase "or other hazardous substances" after the word "oil" as it appears in lines 2, 4, and 7.

Sec. 24. G.S. 143-215.90 as it now appears in the 1978 Replacement Volume 3C of the General Statutes is amended as follows:

By deleting it and rewriting it to read as follows:

"§ 143-215.90. Liability for damage to public resources. — (a) Any person who discharges oil or other hazardous substances in violation of this Article or violates any order, rule or regulation of the Environmental Management Commission adopted pursuant to this Article, or fails to perform any duty imposed by this Article, or violates an order or other determination of the Environmental Management Commission made pursuant to the provisions of this Article, including the provisions of a discharge permit issued pursuant to G.S. 143-215.1, and in the course thereof causes the death of, or injury to fish, animals, vegetation or other resources of the State or otherwise causes a reduction in the quality of the waters of the State below the standards set by the Environmental Management Commission, shall be liable to pay the State damages. Such damages shall be an amount equal to the cost of all reasonable and necessary investigations made or caused to be made by the Environmental Management Commission in connection with such violation and the sum of money necessary to restock such waters, replenish such resources, or otherwise restore the rivers, streams, bays, tidal flats, beaches, estuaries or coastal waters and public lands adjoining the seacoast to their condition prior to the injury as such condition is determined by the Environmental Management Commission in conference with the Wildlife Resources Commission, and any other State agencies having an interest affected by such violation (or by the designees of any such boards, commissions, and agencies).

(b) Upon receipt of the estimate of damages caused, the Department shall give written notice by registered or certified mail to the person responsible for the death, killing, or injury to fish, animals, vegetation, or other resources of the State, or any reduction in quality of the waters of the State, describing the damages and their causes with reasonable specificity, and shall request payment from such person. Damages shall become due and payable upon receipt of such notice. Upon written application to the Department within 30 days of receipt of notice, the person assessed damages may request an administrative hearing pursuant to G.S. 143‑215.4. On such hearing, the estimate of the replacement cost of fish or animals or vegetation destroyed, and the estimate of costs of replacing or restoring other resources of the State, and the estimate of the cost of restoring the quality of waters of the State shall be prima facie evidence of the actual replacement cost of fish, animals, vegetation or other resources of the State, and of the actual cost of restoring the quality of the waters of the State; provided, that such evidence is rebuttable. In arriving at such estimate, any reasonably accurate method may be used and it shall not be necessary for any agent of the Department or Wildlife Resources Commission to collect, handle, or weigh numerous specimens of dead or injured fish, animals, vegetation or other resources of the State, or to calculate the costs of restoring the quality of the waters using any technology other than that which is existing and practicable, as found to be such by the Secretary. Provided, that the Department may effect such mitigation of the amount of damages as the commission may deem proper and reasonable. Appeal from final determination of the commission or its agents pursuant to such a hearing shall be pursuant to G.S. 143-215.5. If the damages are not paid to the Department within 30 days of receipt of notice, or if the amount of damages provided in an order issued subsequent to an application to the Department is not paid within 30 days of the issuance thereof, the Attorney General, upon request of the Department, shall bring an action to recover such damages in the name of the State, in the Superior Court of Wake County, or in his discretion, in the superior court of any other county in which the damages occurred. Upon such action being brought, the scope of the court's review shall be as provided in G.S. 150A‑51. Any money recovered by the Attorney General or by payment of damages by the person charged therewith by the Department shall be transferred by the Environmental Management Commission to appropriate funds administered by the State agencies affected by the violation for use in such activities as food fish or shellfish management programs, wildlife and waterfowl management programs, water quality improvement programs and such other uses as may best mitigate the damage incurred as a result of the violation. No action shall be authorized under the provisions of this section against any person operating in compliance with the conditions of a waste discharge permit issued pursuant to G.S. 143-215.1 and the provisions of this Part.

(c) For the purpose of carrying out its duties under this Article, the Environmental Management Commission shall have the power to direct the investigation of any death, killing, or injury to fish, animals, vegetation or other resources of the State, or any reduction in quality of the waters of the State, which in the opinion of the Environmental Management Commission is of sufficient magnitude to justify investigation."

Sec. 25. G.S. 143-215.91 as it appears in the 1978 Replacement Volume 3C of the General Statutes is amended by inserting the phrase "or other hazardous substances" after the word "oil" as it appears in lines 2 and 40.

G.S. 143-215.91(a), as the same now appears in the 1978 Replacement Volume 3C of the General Statutes is amended by inserting into line 9, after the comma, the words "the amount expended by the violator in complying with the provisions of G.S. 143-215.84, the estimated damages attributed to the violator under G.S. 143-215.90" and inserting a comma thereafter.

Sec. 26. G.S. 143-215.91 is hereby amended by adding at the end thereof an additional subsection (c), to read as follows:

"(c) The civil and criminal penalties provided by this section (except the civil penalty for failure to report) shall not apply to the discharge of a pesticide regulated by the North Carolina Pesticide Board, if such discharge would constitute a violation of the North Carolina Pesticide Law and if such discharge has not entered the surface waters of the State."

Sec. 27. G.S. 143-215.92 as it appears in the 1978 Replacement Volume 3C of the General Statutes is amended by inserting the phrase "or other hazardous substances" after the word "oil" as it appears in lines 3 and 5.

Sec. 28. G.S. 143-215.93 as it appears in the 1978 Replacement Volume 3C is amended by inserting the phrase "or other hazardous substances" after the word "oil" as it appears in line 2.

Sec. 29. G.S. 143-215.94 as it appears in the 1978 Replacement Volume 3C is amended by inserting the phrase "or other hazardous substances" after the word "oil" as it appears in lines 5 and 6.

Sec. 30. This act is effective upon ratification.

In the General Assembly read three times and ratified, this the 9th day of May, 1979.