South Carolina General Assembly
112th Session, 1997-1998

Bill 4618


Indicates Matter Stricken
Indicates New Matter


                    Current Status

Bill Number:                    4618
Type of Legislation:            General Bill GB
Introducing Body:               House
Introduced Date:                19980211
Primary Sponsor:                Sharpe 
All Sponsors:                   Sharpe, McLeod 
Drafted Document Number:        psd\7176ac.98
Companion Bill Number:          1062
Residing Body:                  Senate
Subject:                        Voluntary Cleanup Program
                                established in regard to hazardous
                                waste, Health and Environmental
                                Control

History

Body    Date      Action Description                       Com     Leg Involved
______  ________  _______________________________________  _______ ____________

Senate  19980528  Read second time, notice of
                  general amendments
Senate  19980527  Committee report: Favorable              13 SMA
Senate  19980324  Introduced, read first time,             13 SMA
                  referred to Committee
House   19980320  Read third time, sent to Senate
House   19980319  Read second time, unanimous
                  consent for third reading on
                  Friday, 19980320
House   19980319  Co-Sponsor added (Rule 5.2) by Rep.              McLeod
House   19980318  Committee report: Favorable              20 HANR
House   19980211  Introduced, read first time,             20 HANR
                  referred to Committee


View additional legislative information at the LPITS web site.


(Text matches printed bills. Document has been reformatted to meet World Wide Web specifications.)

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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