H*4807 Session 108 (1989-1990)
H*4807(Rat #0566, Act #0473 of 1990) General Bill, By House Ways and Means
A Bill to amend Sections 44-2-40, 44-2-60, both as amended, 44-2-70, 44-2-90,
44-2-110, and 44-2-130, Code of Laws of South Carolina, 1976, relating to the
State Underground Petroleum Environmental Response Bank Act, so as to further
provide for the manner in which and conditions under which certain costs and
expenses may be paid from the SUPERB account, to impose a one-half cent a
gallon environmental impact fee and provide for the manner in which it is to
be used and collected, to revise certain tank registration fees and
registration requirements, to further provide for the financial responsibility
requirements of owners of underground storage tanks, and to revise the
duration of certain provisions of this Act.-amended title
03/08/90 House Introduced, read first time, placed on calendar
without reference HJ-6
03/21/90 House Special order, set for Wed 3/21/90 follow
uncontested calendar (Under H 4881) HJ-15
03/21/90 House Amended HJ-31
03/21/90 House Read second time HJ-33
03/21/90 House Unanimous consent for third reading on next
legislative day HJ-34
03/23/90 House Read third time and sent to Senate HJ-1
03/27/90 Senate Introduced, read first time, placed on calendar
without reference SJ-15
04/04/90 Senate Read second time SJ-51
04/04/90 Senate Ordered to third reading with notice of
amendments SJ-51
04/04/90 Senate Special order SJ-51
04/11/90 Senate Debate adjourned SJ-75
04/12/90 Senate Amended SJ-183
04/12/90 Senate Read third time and returned to House with
amendments SJ-188
04/25/90 House Concurred in Senate amendment and enrolled HJ-48
05/08/90 Ratified R 566
05/09/90 Signed By Governor
05/09/90 Act No. 473
05/09/90 See act for exception to or explanation of
effective date
06/13/90 Copies available
(A473, R566, H4807)
AN ACT TO AMEND SECTIONS 44-2-40, 44-2-60, BOTH AS AMENDED, 44-2-70,
44-2-90, 44-2-110, AND 44-2-130, CODE OF LAWS OF SOUTH CAROLINA, 1976,
RELATING TO THE STATE UNDERGROUND PETROLEUM ENVIRONMENTAL RESPONSE BANK
ACT, SO AS TO FURTHER PROVIDE FOR THE MANNER IN WHICH AND CONDITIONS
UNDER WHICH CERTAIN COSTS AND EXPENSES MAY BE PAID FROM THE SUPERB
ACCOUNT, TO IMPOSE A ONE-HALF CENT A GALLON ENVIRONMENTAL IMPACT FEE AND
PROVIDE FOR THE MANNER IN WHICH IT IS TO BE USED AND COLLECTED, TO REVISE
CERTAIN TANK REGISTRATION FEES AND REGISTRATION REQUIREMENTS, TO FURTHER
PROVIDE FOR THE FINANCIAL RESPONSIBILITY REQUIREMENTS OF OWNERS OF
UNDERGROUND STORAGE TANKS, AND TO REVISE THE DURATION OF CERTAIN
PROVISIONS OF THIS ACT.
Be it enacted by the General Assembly of the State of South Carolina:
Superb Account established, uses
SECTION 1. (1) Section 44-2-40(B) of the 1976 Code is amended to
read:
"(B) The Superb Account is established to ensure the
availability of funds for the rehabilitation of sites contaminated with
petroleum or petroleum products released from an underground storage tank
and for the administration of the underground storage tank regulatory
program established in this chapter. Site rehabilitation includes
cleanup of affected soil, groundwater, and surface waters. The
department shall use the fund to pay the costs of site rehabilitation by
owners or operators who qualify for reimbursement or direct billing. The
department may use the fund to clean up any site which does not qualify
for reimbursement or direct billing or any site which does qualify but
the owner or operator is unwilling or unable to undertake site
rehabilitation, and the department shall diligently pursue the recovery
of any sum so incurred from the owner or operator responsible or from the
United States government under any applicable federal law, unless the
department finds the amount involved too small or the likelihood of
success too uncertain. The fund must be further used for the payment of
any reasonable costs incurred by the department in providing field and
laboratory services and other assistance by the department in the
investigation of alleged contamination. This fund must not be used for
the cleanup of any other pollutant or by any other department in the
State. Funds in the Superb Account also may not be used to pay any
liability claims against the owners or operators of the underground
storage tank but may be used only for the purpose of cleaning up releases
from the tank or the rehabilitation of any contaminated site."
(2) Section 44-2-40(C) of the 1976 Code, as last amended by
SECTION 40, Part II, Act 189 of 1989, is further amended to read:
"(C) The Superb Account must be used by the department for
carrying out the purposes of this chapter. The fund must be credited
with all fees, charges, and judgments allowable under this chapter.
Charges against the Superb Account may be made only in accordance with
the provisions of this chapter. At any time the balance of the Superb
Account exceeds fifteen million dollars, the one-half cent a gallon
environmental impact fee imposed in Section 44-2-60(B) is suspended until
that time the balance of the Superb Account becomes less than five
million dollars. The department is responsible for notifying the
Department of Agriculture when these amounts have been reached. The
suspension of the environmental impact fee occurs at the end of the month
in which the Department of Agriculture is notified by the department.
The lifting of the suspension occurs on the first day of the month
following the month in which the Department of Agriculture is notified
by the department. No more than twenty-five dollars of the one hundred
dollar registration fee may be used by the department for the
administration of the underground petroleum storage tank regulatory
program established by this chapter. The amount used for administration
of the program may not exceed six hundred thousand dollars a year."
Tank registration and environmental impact fee
SECTION 2. (1) Section 44-2-60(A) of the 1976 Code is amended to
read:
"(A) Any person who owns an underground tank which stores
petroleum or petroleum products shall register the tank with the
department. The owner or operator of the tank shall display a
registration certificate listing all registered tanks at a facility and
in plain view in the office or the kiosk of the facility where the tanks
are registered."
(2) Section 44-2-60(B) of the 1976 Code, as last amended by
Section 40, Part II, Act 189 of 1989, is further amended to read:
"(B) Upon application for a registration sticker or
certificate as described in subsection (A) above, the owner shall pay to
the department an initial registration fee in the amount of one hundred
dollars a tank and an annual renewal fee of one hundred dollars a tank
a year. In addition to the inspection fee of one-fourth cent a gallon
imposed pursuant to Section 39-41-120, an environmental impact fee of
one-half cent a gallon is imposed which must be deposited in the Superb
Account and used for its purposes. This one-half cent a gallon
environmental impact fee must be paid and collected in the same manner
that the one-fourth cent a gallon inspection fee is paid and collected
except that the monies generated from these environmental impact fees
must be transmitted by the Department of Agriculture to the Department
of Health and Environmental Control for deposit in the Superb
Account."
Financial responsibility
SECTION 3. Section 44-2-70 of the 1976 Code is amended to read:
"Section 44-2-70. (A) No later than January 1, 1990, or
after the federal government mandates financial responsibility for
underground storage tank owners, whichever date is later, a person who
owns an underground storage tank containing petroleum or petroleum
products shall maintain financial responsibility in the lesser of that
required by the federal government or in the amount of twenty-five
thousand dollars for corrective action or cleanup of releases and
twenty-five thousand dollars for third party property damage and
twenty-five thousand dollars for third party bodily injury an occurrence
with an annual aggregate of twenty-five thousand dollars. Financial
responsibility requirements may be maintained through insurance,
guarantee, surety bond, letter of credit, self-insurance, risk retention
group, or any other method satisfactory to the department. No insurance
policy, guarantee, surety bond, or any other financial responsibility
mechanism which is executed to provide this or additional amounts of
coverage shall contain any terms, endorsements, conditions, provisions,
or other language that requires expenditure of funds from the Superb
Account prior to or in lieu of payment by the mechanism. The owner shall
demonstrate evidence of financial responsibility to the department.
(B) The department shall promulgate regulations specifying
requirements for maintaining evidence of financial responsibility,
consistent with the provisions of this chapter, for taking corrective
action and compensating third parties for bodily injury and property
damage caused by sudden and nonsudden accidental releases arising from
operating an underground storage tank. The Superb Account, for purposes
of these regulations, is an acceptable mechanism for maintaining this
financial responsibility by owners and operators of underground storage
tanks.
(C) The fund established in Section 44-2-40(A), combined with the
financial responsibility required by this chapter, may be used by owners
of underground storage tanks to demonstrate their compliance with any
financial responsibility requirements promulgated under federal
regulations."
Registration fees
SECTION 4. Section 44-2-90 of the 1976 Code is amended to read:
"Section 44-2-90. (A) Any interest accruing on the Superb
Account must be credited only to the Superb Account.
(B) The fees described in Section 44-2-60(B) must be paid by the
owner of the underground petroleum tank until December 31, 1998. Any
funds remaining in the Superb Account after this date must be dedicated
to a fund to be administered by the department for the purpose of
cleaning up 'orphan' sites, defined as those sites which demand a cleanup
but where liability has not been or cannot be clearly established.
(C) After December 31, 1998, the registration fee is reduced to
twenty-five dollars a year a tank and must be used by the department for
the administration of the underground petroleum tank regulatory program
established in this chapter. The environmental impact fee of one-half
cent per gallon on December 31, 1998, is abolished, provided that the
environmental impact fees due for the month of December, 1998, must be
paid by the end of January, 1999."
Limitation on direct billing on reimbursements deleted
SECTION 5. Section 44-2-130(C) of the 1976 Code is deleted.
Detection of releases
SECTION 6. Section 44-2-110 of the 1976 Code, as added by Act 486
of 1988, is amended to read:
"Section 44-2-110. To encourage early detection, reporting,
and cleanup of releases from leaking underground petroleum storage tanks,
the department, within the guidelines established in this section, shall
conduct an early detection incentive program which provides for a
twenty-four month general grace period beginning on January 1, 1988, and
ending on December 31, 1989. Pursuant thereto, the department shall
establish reasonable requirements for the written reporting of petroleum
releases and distribute the forms to all persons registering tanks under
this chapter and to all other interested parties upon request to be used
for the purpose of reporting petroleum releases. Until the forms are
available for distribution, the department shall take reports of these
releases however made but shall notify any person making a report that
a written report of the release will be required by the department at a
later time, the form for which will be provided by the department. All
sites involving releases from underground storage tanks reported to the
department any time from midnight on December 31, 1987, to midnight on
December 31, 1989, regardless of whether the release occurred before or
after January 1, 1988, are qualified sites for the expenditure of funds
from the Superb Account, provided that a written report is filed with
respect thereto. Any funds so expended must be absorbed at the expense
of the Superb Account, as available, without recourse to reimbursement
or recovery, subject to the following exceptions:
(1) The provisions of this section do not apply to any site where
the department has initiated an administrative or civil enforcement
action prior to December 31, 1987.
(2) The provisions of this section do not apply to any site where
the department has been denied site access to implement the provisions
of this chapter.
(3) The provisions of this section must not be construed to
authorize or require direct billing to or reimbursement from the Superb
Account for any costs expended at a site which was either reported to the
department or where rehabilitation commenced prior to December 31,
1987."
Site rehabilitation
SECTION 7. Section 44-2-130(A) of the 1976 Code is amended to read:
"(A) To encourage voluntary rehabilitation, a person
conducting site rehabilitation under Section 44-2-110, which defines the
early detection incentive program, either through his own personnel or
through response action contractors or subcontractors, is entitled to
directly bill the Superb Account or be reimbursed from the Superb Account
for reasonable costs incurred in connection with the site rehabilitation
if prior approval therefor is obtained from the department. For sites
reported during the grace period established under the early detection
incentive program, the person is eligible to directly bill or be
reimbursed for all reasonable costs incurred in connection with site
rehabilitation. For sites reported subsequent to the grace period and so
long as funds are available in the Superb Account, the person is eligible
to directly bill or be reimbursed for reasonable costs incurred for
corrective action or cleanup in excess of twenty-five thousand dollars
or in excess of the amount recoverable from the financial responsibility
mechanism provided for this purpose, whichever is less. If a liability
insurance policy or any other financial responsibility mechanism which
provides coverage for sudden or nonsudden release of petroleum or
petroleum products from an underground storage tank has been executed for
a site at which reimbursement or direct billing from the Superb Account
is sought, no funds may be expended from the Superb Account until the
funds provided by the financial responsibility mechanism have been
exhausted."
Section not applicable
SECTION 8. Section 44-2-130(E)(3) of the 1976 Code is amended to
read:
"(3) The provisions of this section do not apply to any site
where the owner of the underground petroleum tank has not paid the
registration fee required by Section 44-2-60(B)."
Cleanup requirements
SECTION 9. Section 44-2-130(D) of the 1976 Code is amended to read:
"(D)(1) No person is entitled to direct billing to or
reimbursement from the Superb Account for site rehabilitation unless
rehabilitation is conducted in accordance with cleanup criteria
established by the department.
(2) No person is entitled to direct billing to or
reimbursement from the Superb Account for the costs of repair or
replacement of any tank or equipment."
Direct billing or reimbursement from Superb Account
SECTION 10. Section 44-2-130(G) of the 1976 Code is amended to read:
"(G)(1) Any owner or operator of an underground petroleum
storage tank seeking direct billing to or reimbursement from the Superb
Account must submit a written application to the department together with
sufficient demonstration of site conditions prior to initiation of
cleanup.
(2) The person responsible for conducting the site rehabilitation
or his agents shall keep and preserve suitable records of hydrological
and other site assessments, site plans, contracts, accounts, invoices,
or other transactions related to the cleanup and rehabilitation and the
records must be accessible to the department during regular business
hours.
(3) Upon receipt of a complete application for direct billing or
reimbursement from the Superb Account for site rehabilitation costs, the
department shall make those investigations and inquiries as are necessary
to enable the department to approve or deny the application. Upon final
determination the department shall provide written notice to the
applicant of its findings setting forth in detail the reason for the
approval or denial and the amount approved for direct billing or
reimbursement. The department shall make payments from the Superb
Account for any approved billing or reimbursement as funds are
available."
Time effective
SECTION 11. This act takes effect upon approval by the Governor,
except that the environmental impact fee imposed by Section 44-2-60(B)
of this act is effective on the first day of the first month following
approval of this act by the Governor.
Approved the 9th day of May, 1990.
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