(a)  The rules in this Section are the rules required by G.S. 130A-310.12(b) to govern the selection and use of private environmental consulting and engineering firms to implement and oversee voluntary remedial actions by owners, operators, or other responsible parties under G.S. 130A-310.9(c).

(b)  No provision of the rules in this Section shall be construed to relieve any person of the necessity of complying with applicable federal, state or local laws.

(c)  Any person who violates any provision of this Section, or any other requirement in connection with the voluntary remedial action program, including making any false statement, representation or certification, or knowingly rendering inaccurate any recording or monitoring device or method, shall be subject to enforcement including disqualification as an REC or RSM.

(d)  A party wishing to conduct a voluntary remedial action shall enter into a written agreement with the Department pursuant to G.S. 130A-310.9(c).

(e)  For the purpose of administration and enforcement of the voluntary remedial action program and for protection of human health or the environment, employees, agents and contractors of the Department may enter any site, vessel or other location undergoing a voluntary remedial action pursuant to this Section, at reasonable times and upon reasonable notice, to investigate, sample or inspect any documents, conditions, equipment, practice or property.  In the event that the Department reasonably determines as a result of an investigation, sampling or inspection that there has been a release or that there exists a threat of release of a hazardous substance, the Department may enter a site, vessel or location, and  areas proximate thereto, and perform or arrange for the performance of such response actions as it reasonably deems necessary.

(f)  Remedial Actions conducted pursuant to this Section shall be overseen by an REC.  All work performed by an REC shall be under the supervision and direction of an RSM representing the REC.  Rule .0306 of this Section specifies requirements relating to certifications by RSMs.

(g)  The Department shall have complete discretion to effect cleanup itself, or directly oversee a remediating party's cleanup, if the Department determines that the site poses an imminent hazard, if there is significant public concern, if the Department has initiated an enforcement action, if the Department is concerned about material misrepresentations or environmental non-compliance on the part of a party seeking to effect or effecting remedial action at a site pursuant to this Section, if hazardous substances have migrated to adjoining property, or if other conditions, such as the presence of sensitive environments or mixed wastes (commingled radioactive and chemical wastes), so warrant.

(h)  The remedial investigation shall be completed within three years of the effective date of the agreement to conduct a voluntary remedial action.  Non-groundwater remedial action shall be completed within eight years of the effective date of that agreement.  Groundwater remedial action shall be initiated within two years of completion of the remedial investigation.  Responsible parties failing to meet these deadlines shall be subject to enforcement and loss of approved voluntary remedial action status.  The affected sites shall no longer be eligible for exemption from the Inactive Hazardous Waste Sites Priority List pursuant to G.S. 130A-310.9(b).

(i)  Any information, document, or particular part thereof obtained by the Department or its contractors upon request pursuant to this Section shall be confidential, and shall not be considered to be a public record, when it is determined by the Department that such information, if made public, would divulge a trade secret.

(j)  The Department shall be under no obligation to act upon any request for confidentiality in relation to this Section that is not made and substantiated in accordance with G.S. 66, Article 24, and such information may be made available to the public by the Department without further notice to the remediating party.

(k)  The rules in this Section may not serve as grounds for refusal to disclose any information necessary for an enforcement or cost recovery action or to comply with any provision of law.

(l)  The REC shall preserve and maintain all documents submitted to the REC on behalf of or by the remediating party, prepared by the REC, or within the REC's possession, custody or control, that in any way relate to work performed pursuant to the rules in this Section including, but not limited to, documents of sufficient detail to substantiate the facts, data, conclusions and other information set forth in any REC opinion or certification.  Such documents shall be kept at one or more locations reasonably accessible to the Department and in such a form as to enable the Department to ascertain whether the response actions which are the subject of the REC opinion or certification have been performed in compliance with the provisions of the rules in this Section until such time as the record is provided to the Department for the public file. The REC shall submit to the Department for the public file all work plans and reports within 30 days of their completion.  The REC shall submit to the Department for the public file all other site documents at the following milestones:

(1)           completion of each phase of the remedial investigation;

(2)           completion of the remedial investigation;

(3)           at the close of the 30-day public comment period which follows notice of the proposed remedial action plan;

(4)           completion of remedial design and construction; and

(5)           completion of all remedial action activities.

(m)  Any person required by Paragraph (l) of this Rule to preserve and maintain any documents shall preserve and maintain those documents for six years after termination of the remediating party's agreement with the Department to perform a voluntary remedial action pursuant to the rules in this Section.  With the Department's written approval based on the likelihood of future need for enforcement or review purposes, documents required to be maintained need no longer be maintained.

(n)  Failure to comply with Department site-related requests for information shall cause revocation of an REC's approval to perform work and disapproval of any work product in question.  Remediating parties shall lose their eligibility for the voluntary remedial action program unless, within 60 days of notice by the Department of revocation of the REC's approval, the name of a successor REC is submitted to the Department.  Program ineligibility shall also result from failure by a remediating party to provide written notice to the Department within 60 days of a change in RECs for any other reason.

(o)  Nothing in this Section shall be construed to limit the Department's authority to take or arrange, or to require a responsible party  to perform, any response action which the Department deems necessary to protect public health, safety or welfare or the environment.

(p)  Nothing in this Section shall be construed to imply authorization by the Department to any person other than the Department, or the Department's employees, agents or contractors, to enter any property not owned by him or her to carry out a response action, or otherwise injure or interfere with any other person's rights or interests in real or personal property, without that person's consent.  After making reasonable efforts to obtain reasonable access to any site or other location to be investigated as a possible site not owned by the remediating party, an REC or remediating party who is unable to obtain such access may request, in writing, that the Department authorize him or her, or his or her employees, agents, representatives or contractors, to enter such site or location for the purpose of performing one or more necessary response actions.  Each such request for authorization shall include all of the following information:

(1)           the identity of the person making the request and his or her relationship to the site or location;

(2)           the nature and location of the actions(s) that he or she intends to undertake, the anticipated duration of the action(s) and the reasons(s) such access is (are) necessary to perform the action(s);

(3)           the identity of each person who owns or operates the site or location to which access is sought;

(4)           the results of any and all attempts to obtain such access; and

(5)           certification that a copy of the request has been sent to each person who owns or operates such sites or locations.


History Note:        Authority G.S. 130A-310.1(c); 130A-310.1(e); 130A -310.3(c); 130A-310.5(a); 130A-310.6;

130A-310.12(b); 132-1; 132-1.2; 132-6;

Eff. April 1, 1997.