H 4421 General Bill, By Sheheen, D.W. Beatty, H.M. Hallman, K.G. Kempe, 
H.H. Keyserling, J.T. McElveen, M. McLeod and C.Y. Waites
 A Bill to amend Chapter 56, Title 44, Code of Laws of South Carolina, 1976, by
 adding Section 44-56-135 so as to provide that a generator of hazardous waste
 is liable for improper delivery of the waste; to amend Section 44-56-40,
 relating to powers of the South Carolina Department of Health and
 Environmental Control to carry out the South Carolina Hazardous Waste
 Management Act, so as to provide that the Department may establish and collect
 fees for permits and for costs incurred in conducting investigations of permit
 violations and in connection with issuing permits; to amend Section 44-56-60,
 as amended, relating to permit requirements, so as to require a demonstration
 of need to obtain a permit and to reopen a facility or site when closed or
 condemned, to provide that permits are valid for five years, unless a
 condition of the permit states a shorter duration, to provide criteria for
 evaluating new and renewal permit applications, to require applicants to pay,
 among other things, for costs of investigations related to the evaluation of
 permit applications, and to authorize the Department to require a disclosure
 statement upon application for a permit, to provide for the contents of the
 statement and grounds upon which the application may be denied; to amend
 Section 44-56-140, relating to penalties for violations, so as to include
 specific forms of injunctive relief and to authorize additional fines to be
 paid to the Hazardous Waste Contingency Fund and assessments for costs
 incurred by the Department in investigating violations; and to amend Section
 44-56-160, relating to the Hazardous Waste Contingency Fund, so as to provide
 that financing the Fund includes certain fines assessed for violations.

   02/13/92  House  Introduced and read first time HJ-30
   02/13/92  House  Referred to Committee on Agriculture, Natural
                     Resources and Environmental Affairs HJ-31

A BILL

TO AMEND CHAPTER 56, TITLE 44, CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING SECTION 44-56-135 SO AS TO PROVIDE THAT A GENERATOR OF HAZARDOUS WASTE IS LIABLE FOR IMPROPER DELIVERY OF THE WASTE; TO AMEND SECTION 44-56-40, RELATING TO POWERS OF THE SOUTH CAROLINA DEPARTMENT OF HEALTH AND ENVIRONMENTAL CONTROL TO CARRY OUT THE SOUTH CAROLINA HAZARDOUS WASTE MANAGEMENT ACT, SO AS TO PROVIDE THAT THE DEPARTMENT MAY ESTABLISH AND COLLECT FEES FOR PERMITS AND FOR COSTS INCURRED IN CONDUCTING INVESTIGATIONS OF PERMIT VIOLATIONS AND IN CONNECTION WITH ISSUING PERMITS; TO AMEND SECTION 44-56-60, AS AMENDED, RELATING TO PERMIT REQUIREMENTS, SO AS TO REQUIRE A DEMONSTRATION OF NEED TO OBTAIN A PERMIT AND TO REOPEN A FACILITY OR SITE WHEN CLOSED OR CONDEMNED, TO PROVIDE THAT PERMITS ARE VALID FOR FIVE YEARS, UNLESS A CONDITION OF THE PERMIT STATES A SHORTER DURATION, TO PROVIDE CRITERIA FOR EVALUATING NEW AND RENEWAL PERMIT APPLICATIONS, TO REQUIRE APPLICANTS TO PAY, AMONG OTHER THINGS, FOR COSTS OF INVESTIGATIONS RELATED TO THE EVALUATION OF PERMIT APPLICATIONS, AND TO AUTHORIZE THE DEPARTMENT TO REQUIRE A DISCLOSURE STATEMENT UPON APPLICATION FOR A PERMIT, TO PROVIDE FOR THE CONTENTS OF THE STATEMENT AND GROUNDS UPON WHICH THE APPLICATION MAY BE DENIED; TO AMEND SECTION 44-56-140, RELATING TO PENALTIES FOR VIOLATIONS, SO AS TO INCLUDE SPECIFIC FORMS OF INJUNCTIVE RELIEF AND TO AUTHORIZE ADDITIONAL FINES TO BE PAID TO THE HAZARDOUS WASTE CONTINGENCY FUND AND ASSESSMENTS FOR COSTS INCURRED BY THE DEPARTMENT IN INVESTIGATING VIOLATIONS; AND TO AMEND SECTION 44-56-160, RELATING TO THE HAZARDOUS WASTE CONTINGENCY FUND, SO AS TO PROVIDE THAT FINANCING THE FUND INCLUDES CERTAIN FINES ASSESSED FOR VIOLATIONS.

Be it enacted by the General Assembly of the State of South Carolina:

SECTION 1. The 1976 Code is amended by adding:

"Section 44-56-135. In addition to the liability of a transporter who fails to transport or deliver hazardous waste in accordance with regulations promulgated pursuant to this chapter, a generator of hazardous waste is liable for damages resulting from the delivery of the generator's hazardous waste, when the delivery does not comply with these regulations."

SECTION 2. Section 44-56-40 4. of the 1976 Code is amended to read:

"4. Establish and collect fees for:

(a) collecting waste samples and conducting laboratory analyses as may be necessary upon request of affected persons. to carry out this chapter;

(b) costs incurred in evaluating permit and renewal applications, including, but not limited to, conducting investigations and collecting and testing waste samples;

(c) permits required by this chapter, including renewal permits;

(d) costs incurred in conducting investigations of violations of this chapter."

SECTION 3. Section 44-56-50 of the 1976 Code is amended to read:

"Section 44-56-50. Notwithstanding any other provision of this chapter, the commissioner, upon receipt of information that the storage, transportation, treatment, or disposal of any waste may present an imminent and substantial hazard to the health of persons or to the environment, may take such action as he determines to be necessary to protect the health of persons or the environment. The action the commissioner may take may include, but is not limited to:

1. issuing an order directing the operator of the treatment, storage or disposal facility or site, or the custodian or transporter of the waste, which constitutes the hazard, to take such steps as are necessary to prevent the act or eliminate the practice which constitutes the hazard. Such This action may include, with respect to a facility or site, permanent or temporary cessation of operation of the activity;

2. requesting that the Attorney General commence an action enjoining such these acts or practices. Upon a showing by the department that a person has engaged in such these acts or practices, a permanent or temporary injunction, restraining order, or other order may be granted;

3. issuing an order directing a response action by the department to eliminate the hazard and protect the public from exposure to the hazard; and 4. requesting the Attorney General to commence an action to recover the costs of the response action from all parties liable under state or federal law."

SECTION 4. Section 44-56-60(a)(2) of the 1976 Code, as last amended by Act 590 of 1990, is further amended to read:

"(2) No person may construct, substantially alter, or operate a hazardous wastes treatment, storage, or disposal facility or site, nor may a person transport, store, treat, or dispose of hazardous waste without first obtaining a permit from the department for the facility, site, or activity. To obtain a permit, the applicant shall demonstrate the need for the facility, the expansion, or the activity. A facility or site that is closed or condemned pursuant to Section 44-56-140 A. may not be allowed to reopen or operate unless the need for the facility or site is demonstrated. Beginning July 1, 1990, permitted hazardous waste disposal sites are restricted to a rate of land disposal by burial not to exceed one hundred twenty thousand tons of hazardous waste for the twelve-month period ending July 1, 1991. On July 1, 1991, permitted hazardous waste disposal sites are restricted to a rate of land disposal by burial not to exceed one hundred ten thousand tons of hazardous waste for each twelve-month period thereafter within the permitted area of the site."

SECTION 5. Section 44-56-60 of the 1976 Code, as last amended by Act 590 of 1990, is further amended by adding:

"(d)(1) A permit issued pursuant to this section is valid for five years and must be renewed every five years thereafter, unless as a condition of the permit it is effective for less than five years.

(2) The department's review and evaluation of a new or renewal permit application required by this section must include, but are not limited to:

(A) site suitability;

(B) operational and environmental compliance history of the applicant under prior permits and at other sites;

(C) extent and severity of sanctions, fines, and penalties imposed for violations of this chapter, regulations promulgated pursuant to this chapter, permit conditions, or orders issued by the board, commissioner, or department.

(3) The applicant must pay any costs incurred by the department in connection with evaluating new or renewal permit applications, including, but not limited to, conducting investigations and taking and testing samples.

(e) The department may require a disclosure statement from an applicant for a permit at the same time the permit application is filed, except that this section does not apply if the applicant is a local government or a region comprised of local governments. The disclosure statement must contain the following information with regard to the applicant and the responsible parties:

(1) a description of the experience and credentials, including any past or present permits or licenses for the collection, transportation, treatment, storage, or disposal of hazardous waste, issued to or held by the applicant within the past five years;

(2) a listing and explanation of all convictions by final judgment of a responsible party in a state or federal court, whether under appeal or not, of a crime of moral turpitude punishable by a fine of five thousand dollars or more or imprisonment for one year or more, or both, within five years immediately preceding the date of the submission of the permit application;

(3) a listing and explanation of all convictions by final judgment of a responsible party in a state or federal court, whether under appeal or not, of a criminal or civil offense involving a violation of an environmental law punishable by a fine of five thousand dollars or more or imprisonment for one year or more, or both, in a state or federal court within five years of the date of submission of the permit application;

(4) a listing and explanation of the instances in which a disposal facility permit held by the applicant was revoked by final judgment in a state or federal court, whether under appeal or not, within five years of the date of submission of the permit application; and

(5) a listing and explanation of all adjudications of the applicant for having been in contempt of a valid court order enforcing a federal environmental law or a state environmental law relative to the activity for which the permit is being sought, within five years of the date of submission of the permit application.

The burden of proof with regard to an application lies with the applicant. The department shall deny a permit if it finds by a preponderance of the evidence that:

(A) the applicant is not financially or technically qualified to carry out the activity for which the permit is sought;

(B) the applicant has knowingly misrepresented or concealed a material fact in the permit application, disclosure statement, or in any other report or certification required under this chapter or under regulations promulgated pursuant to this chapter;

(C) the applicant has obtained or attempted to obtain the permit by misrepresentation or fraud; or

(D) the applicant has a documented and continuing history of criminal convictions or a documented history of violation of state or federal environmental laws such that the applicant's ability to operate within the law is questionable."

SECTION 6. Section 44-56-130 of the 1976 Code, as last amended by Act 196 of 1989, is further amended by adding:

"(7) It is unlawful for a person to store, transport, treat, or dispose of waste that is not hazardous with hazardous waste."

SECTION 7. Section 44-56-140 A. of the 1976 Code is amended to read:

"A. Whenever the department finds that any a person is in violation of any a permit, regulation, standard, or requirement under this chapter, the department may issue an order requiring such the person to comply with such the permit, regulation, standard, or requirement, or the department may request that the Attorney General bring civil action for injunctive relief in the appropriate court, which may include, but is not limited to, closing the facility or condemning the site, a temporary prohibition against accepting hazardous waste at the facility or site or against transporting the waste, or a revocation of the permit; or, the department may request that the Attorney General bring civil enforcement action under subsection B of this section. Violation of any a court order issued pursuant to this section shall be is deemed contempt of the issuing court and punishable therefor as provided by law. The department may also may invoke civil penalties as provided in this section for violations of the provisions of this chapter, including any order, permit, regulation, or standard. Any A person against whom a civil penalty is invoked by the department may appeal the decision of the department to the Court of Common Pleas in Richland County."

SECTION 8. Section 44-56-140 of the 1976 Code is amended by adding:

"F. In addition to the penalties assessed under this section, a person who violates any provision of Section 44-56-130 may be required to:

1. pay an additional fine to the hazardous waste contingency fund; and

2. pay for any costs incurred by the department in connection with investigating the violation."

SECTION 9. Section 44-56-160(A) of the 1976 Code, as last amended by Act 196 of 1989, is further amended to read:

"(A) The Department of Health and Environmental Control is directed to establish a Hazardous Waste Contingency Fund to ensure the availability of funds for response actions necessary at permitted hazardous waste landfills, and necessary from accidents in the transportation of hazardous materials, and to defray the costs of governmental response actions at uncontrolled hazardous waste sites. The contingency fund must be financed through the imposition of fees provided in Sections 44-56-170 and 44-56-510 and annual appropriations which must be provided by the General Assembly; in addition, any fines assessed under Section 44-56-140(F)(1) must be remitted to the contingency fund. An amount equal to three dollars a ton for wastes reported under Section 44-56-170(A), four dollars a ton for wastes reported under Section 44-56-170(E), one dollar a ton for wastes reported under Section 44-56-510(1), and two dollars a ton for wastes reported under Section 44-56-510(2) must be held separate and distinct within the fund for the purpose of response actions arising from the operation of the permitted land disposal facilities in this State. From the fund created for permitted sites, an amount equal to one dollar a ton for hazardous waste must be held separate and distinct within the fund for the purpose of being returned to the governing body of a county in which a permitted commercial land disposal facility is located. Of the fee imposed under Section 44-56-170(E), one dollar a ton must be returned to the governing body of a county in which a permitted commercial land disposal facility is located. The funds returned to a county must be used by the local law enforcement, fire, health care, and emergency units to provide protection, assistance, and emergency preparedness for any contingency which might arise from the transportation and disposal site within the county. The county governing body shall distribute the funds in an equitable manner to the involved local units including, but not limited to, municipalities and special purpose districts, as well as county entities. The State Treasurer shall disburse the funds quarterly to counties which contain commercial hazardous waste land disposal sites. Any Interest accruing from the management of the funds held pursuant to this section must be credited to the contingency fund."

SECTION 10. This act takes effect upon approval by the Governor.