H 4618 Session 112 (1997-1998)
H 4618 General Bill, By Sharpe and W. McLeod
Similar(S 1062)
A BILL TO AMEND CHAPTER 56, TITLE 44, CODE OF LAWS OF SOUTH CAROLINA, 1976,
RELATING TO THE SOUTH CAROLINA HAZARDOUS WASTE MANAGEMENT ACT BY ADDING
ARTICLE 7, SO AS TO ESTABLISH THE VOLUNTARY CLEANUP PROGRAM AND TO PROVIDE FOR
ITS PURPOSES AND THE PROCEDURES UNDER WHICH IT IS TO OPERATE.
02/11/98 House Introduced and read first time HJ-63
02/11/98 House Referred to Committee on Agriculture, Natural
Resources and Environmental Affairs HJ-63
03/18/98 House Committee report: Favorable Agriculture, Natural
Resources and Environmental Affairs HJ-5
03/19/98 House Member(s) added as co-sponsor(s): Rep(s) McLeod HJ-7
03/19/98 House Read second time HJ-11
03/19/98 House Unanimous consent for third reading on next
legislative day HJ-13
03/20/98 House Read third time and sent to Senate HJ-3
03/24/98 Senate Introduced and read first time SJ-9
03/24/98 Senate Referred to Committee on Medical Affairs SJ-9
05/27/98 Senate Committee report: Favorable Medical Affairs SJ-19
05/28/98 Senate Read second time SJ-47
05/28/98 Senate Ordered to third reading with notice of
amendments SJ-47
COMMITTEE REPORT
May 27, 1998
H. 4618
Introduced by Reps. Sharpe and McLeod
S. Printed 5/27/98--S.
Read the first time March 24, 1998.
THE COMMITTEE ON MEDICAL AFFAIRS
To whom was referred a Bill (H. 4618), to amend Chapter 56, Title
44, Code of Laws of South Carolina, 1976, relating to the South
Carolina Hazardous Waste Management Act, etc., respectfully
REPORT:
That they have duly and carefully considered the same, and
recommend that the same do pass:
THOMAS L. MOORE, for Committee.
A BILL
TO AMEND CHAPTER 56, TITLE 44, CODE OF LAWS OF
SOUTH CAROLINA, 1976, RELATING TO THE SOUTH
CAROLINA HAZARDOUS WASTE MANAGEMENT ACT BY
ADDING ARTICLE 7, SO AS TO ESTABLISH THE
VOLUNTARY CLEANUP PROGRAM AND TO PROVIDE FOR
ITS PURPOSES AND THE PROCEDURES UNDER WHICH IT IS
TO OPERATE.
Be it enacted by the General Assembly of the State of South
Carolina:
SECTION 1. Chapter 56, Title 44, of the 1976 Code is amended
by adding:
"Article 7
Voluntary Cleanup Program
Section 44-56-710. The purpose of the Voluntary Cleanup
Program is to:
(1) return to use idled or underused industrial facilities whose
redevelopment is complicated by real or perceived environmental
contamination;
(2) provide an incentive to conduct response actions at a site by
providing nonresponsible parties CERCLA liability protection; and
(3) provide reimbursement to the department for oversight
costs.
Section 44-56-720. As used in this article:
(1) 'CERCLA' means the Comprehensive Environmental
Response, Compensation and Liability Act and its amendments, 42
U.S.C. Section 9601.
(2) 'Contaminant' includes, but is not limited to, any element,
substance, compound, or mixture, including disease-causing agents,
which after release into the environment and upon exposure,
ingestion, inhalation, or assimilation into any organism, either
directly from the environment or indirectly by ingestion through food
chains, will or may reasonably be anticipated to cause death, disease,
behavioral abnormalities, cancer, genetic mutation, physiological
malfunctions, including malfunctions in reproduction, or physical
deformations in organisms or their offspring; except that the term
'contaminant' does not include petroleum, including crude oil or any
part of crude oil which is not otherwise specifically listed or
designated as a hazardous substance under subparagraphs (A)
through (F) of paragraph (14) of CERCLA, Section 101, 42 U.S.C.
Section 9601, and does not include natural gas, liquefied natural gas,
or synthetic gas of pipeline quality or mixtures of natural gas and
synthetic gas. The term 'contaminant' has the same meaning as the
term 'pollutant or contaminant' as defined by CERCLA Section 101
(33), 42 U.S.C. Section 9601 (33), and its amendments.
(3) 'Department' means the South Carolina Department of
Health and Environmental Control.
(4) 'Nonresponsible party' means a party which is not a
responsible party at the time the voluntary cleanup contract is signed,
including lenders, economic development agencies, fiduciaries,
trustees, executors, administrators, custodians, subsequent holders of
a security interest or a person who acts on behalf of a holder of a
security interest and not a parent, subsidiary, or successor to a
responsible party.
(5) 'Oversight costs' means those costs, both direct and indirect,
incurred by the department in implementing the Voluntary Cleanup
Program.
(6) 'Response action' means any assessment, cleanup,
inspection, or closure of a site as necessary to remedy actual or
potential damages to public health, public welfare, or the
environment.
(7) 'Responsible party' means:
(a) the owner and operator of a vessel or a facility;
(b) a person who at the time of disposal of any hazardous
substance owned or operated a facility at which these hazardous
substances were disposed of;
(c) a person who by contract, agreement, or otherwise
arranged for disposal or treatment, or arranged with a transporter for
transport for disposal or treatment, of hazardous substances owned or
possessed by the person or by any other party or entity at any facility
or incineration vessel owned or operated by another party or entity
and containing these hazardous substances; and
(d) a person who accepts or accepted any hazardous
substances for transport to disposal or treatment facilities or to
incineration vessels or sites selected by the person from which there
is a release, or a threatened release which causes the incurrence of
response costs, of a hazardous substance.
(8) 'Voluntary cleanup' means a response action taken under and
in compliance with this article.
(9) 'Voluntary cleanup contract' means a contract entered into
between the department and a responsible or nonresponsible party to
conduct a voluntary cleanup.
Section 44-56-730. (A) Any site known or perceived to be
impacted by a contaminant is eligible for participation in the
Voluntary Cleanup Program unless the site is listed or proposed to be
listed on the National Priorities List pursuant to CERCLA Section
105.
(B) A responsible party subject to a department order or permit for
assessment and remediation is not eligible to participate in the
Voluntary Cleanup Program for that site.
(C) All nonresponsible parties who demonstrate financial viability
to meet their obligations under the contract are eligible to participate
in the Voluntary Cleanup Program.
Section 44-56-740. (A) After signing a voluntary cleanup
contract, the responsible or nonresponsible party shall prepare and
submit the appropriate work plans and reports to the department. The
department shall review and evaluate the work plans and reports for
accuracy, quality, and completeness. If a work plan or report is not
approved, the department shall notify the party concerning additional
information or commitments needed to obtain approval.
(B) The department shall charge for and retain all monies collected
as oversight costs. Pursuant to Section 44-56-100, the South
Carolina Hazardous Waste Contingency Fund must be reimbursed for
any funds expended from the contingency fund.
(C) The department's decision to enter or not to enter into a
contract is final and is not a contested case within the meaning of the
South Carolina Administrative Procedures Act, Section 1-23-10.
(D) A voluntary cleanup contract executed on behalf of a
responsible party inures to the benefit of the responsible party's
signatories, parents, successors, and subsidiaries. The voluntary
cleanup contract provides the responsible party the department's
covenant not to sue for the work done in completing the response
actions specifically covered in the contract and completed in
accordance with the approved work plans and reports. The covenant
not to sue is contingent upon the department's determination that the
responsible party successfully and completely complied with the
contract.
(E)(1) A voluntary cleanup contract executed on behalf of a
nonresponsible party must, in the department's sole discretion,
provide a measurable benefit to the State, the community, or the
department.
(2) The nonresponsible party must:
(a) submit to the department its proposed scope of work;
(b) identify a contact person, whose name, address, and
telephone number must be updated throughout the term of the
contract;
(c) provide the department the opportunity to inspect and
copy any and all documents or records in its custody, possession, or
control identifying any potentially responsible parties;
(d) provide a legal description of the site; and
(e) identify the business activities planned to be carried out
on the property.
(3) The nonresponsible party must certify to the department
that:
(a) it is not a responsible party at the site;
(b) it is not a parent, successor, or subsidiary of a responsible
party at the site;
(c) its activities will not aggravate or contribute to existing
contamination on the site and will not pose significant human health
or environmental risks;
(d) it is financially viable to meet the obligations under the
contract; and
(e) the department has an irrevocable right of access to the
property unless and until a complete remediation is accomplished for
unrestricted use.
(4) After considering existing and future uses of the site, the
department may approve submitted work plans or reports that do not
require removal or remedy of all discharges, releases, and threatened
releases at a site as long as the response action is consistent and
compatible with the proposed future use of the site and:
(a) will not contribute to or exacerbate discharges, releases,
or threatened releases;
(b) will not interfere with or substantially increase the cost of
response actions to address the remaining discharges, releases, or
threatened releases; and
(c) placement of deed notices and restrictions, determined
appropriate by the department, will occur after completion of the
work plan.
(5) A voluntary cleanup contract executed on behalf of a
nonresponsible party inures to the benefit of its lenders, signatories,
parents, subsidiaries, and successors. A voluntary cleanup contract
executed on behalf of a nonresponsible party does not inure to the
benefit of a responsible party.
(6) The voluntary cleanup contract provides the nonresponsible
party:
(a) the department's covenant not to sue the nonresponsible
party for CERCLA liability, except for releases and consequences
that the nonresponsible party causes. This liability protection must
not be granted or must be revoked if a contract or letter of completion
is acquired by fraud, misrepresentation, knowing failure to disclose
material information, or failure to satisfactorily complete the
approved work plan;
(b) protection from claims for contribution under CERCLA
Section 113, 42 U.S.C. Section 9613, regarding environmental
conditions at the site prior to the signing of the contract. This
protection may be granted at the conclusion of the period allowed for
comment from the site's potentially responsible parties as identified
through a reasonable search.
(F)(1) The department, responsible party, or nonresponsible party
may terminate a voluntary cleanup contract by giving thirty days'
advance written notice to the other. The department may not
terminate the contract without cause.
(2) The CERCLA liability protection, covenant not to sue, and
contribution protection must be revoked for a party or its successors
for conducting activities at the site that are inconsistent with the terms
and conditions of the voluntary cleanup contract.
(3) If, after receiving notice that costs are due and owing, the
responsible or nonresponsible party does not pay the department
oversight costs associated with the voluntary cleanup in a timely
manner, the department shall bring an action to recover the amount
owed and all costs incurred by the department in bringing the action
including, but not limited to, attorney's fees, department personnel
costs, witness costs, court costs, and deposition costs.
(4) Termination of the contract does not affect any right the
department has under any other law to require additional response
actions or recover costs.
Section 44-56-750. (A) Upon completion of the contract, the
responsible or nonresponsible party must submit a request to the
department for a certificate of completion. If the department
determines that a responsible or nonresponsible party has
successfully and completely complied with the contract and has
successfully completed the voluntary cleanup approved under this
article, the department shall certify that the action has been completed
by issuing the party a certificate of completion. The certificate of
completion shall:
(1) provide a covenant not to sue for successfully and
completely complying with the terms and conditions of the contract;
(2) indicate the proposed future land use and place on the deed
any notice and restriction that the department determines appropriate;
and
(3) include a legal description of the site and the name of the
site's owner.
(B) If the department determines that the party has not successfully
completed a voluntary cleanup approved under this article, the
department shall notify the party who undertook the cleanup and the
current owner of the site.
(C) The liability protection or covenant not to sue are revoked for
a party or successor who changes land use from the use specified in
the certificate of completion to one which requires a more
comprehensive cleanup.
Section 44-56-760. (A) Upon signature of a voluntary cleanup
contract by a nonresponsible party, the department shall provide
notice and opportunity for public participation. Notification of the
proposed contract must be placed in a newspaper in general
circulation within the affected community. The public has thirty days
within which to comment on the contract. The public notice period
must precede the department's scheduled date for execution of the
contract. A public meeting must be conducted upon request to the
department's Bureau of Land and Waste Management by twelve
South Carolina residents or an organization representing twelve or
more South Carolina residents. Under any other circumstances, a
public meeting may be conducted at the department's discretion.
(B) Beginning with the thirty day notice period and continuing
through completion of the terms of the contract, the nonresponsible
party must post a sign, in clear view from the main entrance to the
site, stating the name, address, and telephone number of a contact
person for information describing the site's response actions and
reuse."
SECTION 2. This act takes effect upon approval by the Governor.
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