A bill

 

TO AMEND THE SOUTH CAROLINA CODE OF LAWS BY AMENDING SECTIONS 44-2-20, 44-2-40, 44-2-60, 44-2-130, AND 44-2-150, ALL RELATING TO THE STATE UNDERGROUND PETROLEUM ENVIRONMENTAL RESPONSE BANK ACT, SO AS TO CHANGE CERTAIN DEFINITIONS, TO INCREASE THE FUNDS AVAILABLE FOR REHABILITATION OF CONTAMINATED SITES, TO REVISE AN ANNUAL RENEWAL FEE SCHEDULE, TO CHANGE THE COMPOSITION OF THE SUPERB ADVISORY COMMITTEE, AND FOR OTHER PURPOSES.

 

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

 

SECTION 1.  Section 44-2-20(3), (5), (20), and (24) of the S.C. Code are amended to read:

 

    (3) "Committed funds" means that portion of the Superb Account reserved as a result of action by the Department of Health and Environmental ControlEnvironmental Services to approve costs for planned site rehabilitation activities.

 

    (5) "Department" means the Department of Health and Environmental ControlEnvironmental Services.

 

    (20) "Site rehabilitation" means cleanup actions taken in response to a release from an underground, storage tank which includes, but is not limited to, investigation, evaluation, planning, design, engineering, construction, or other services put forth to investigate or clean up affected subsurface soils, groundwater, or surface water.

 

    (24) "Underground storage tank" or "UST" means any one or combination of tanks, including underground pipes connected to itthereto, which is used to contain an accumulation of regulated substancesubstances, and the volume of which is ten percent or more beneath the surface of the ground. The term does not include any:

       (a) farm or residential tank of one thousand one hundred gallons or less capacity used for storing motor fuel for noncommercial purposes;

       (b) tank used for storing heating oil for consumptive use on the premises where stored;

       (c) septic tank;

       (d) pipeline facility, including gathering line, regulated under the Federal Natural Gas Pipeline Safety Act of 1968 or the Federal Hazardous Liquid Pipeline Safety Act of 1979, or any pipeline facility regulated under state laws comparable to the provisions of these federal provisions of law which:

           (i) is regulated under 49 U.S.C. Chapter 601; or

           (ii) is an intrastate pipeline facility regulated under state laws provided in 49 U.S.C. Chapter 601 and which is determined by the Secretary of Transportation to be connected to a pipeline, or to be operated or intended to be capable of operating at a pipeline pressure or as an integral part of a pipeline;

       (e) surface impoundment, pit, pond or lagoon;

       (f) storm water or wastewater collection system;

       (g) flow-through process tank;

       (h) liquid trap or associated gathering lines directly related to oil or gas production and gathering operations;

       (i) storage tank situated in an underground area, such as a basement, cellar, mineworking, drift, shaft, or tunnel, if the petroleum storage tank is situated upon or above the surface of the floor;

       (j) hydraulic lift reservoirs, such as for automobile hoists and elevators, containing hydraulic oil; or

       (k) any pipes connected to any tank which is described in subitems (a) through (j).

 

SECTION 2.  Section 44-2-40(B) and (D) of the S.C. Code are amended to read:

 

    (B) The Superb Account is established to ensure the availability of funds for the rehabilitation of releases at sites contaminated with petroleum or petroleum products released from an underground storage tank and for administration of the underground storage tank regulatory program established in this chapter. The department shall use the fund to pay the usual, customary, and reasonable costs of site rehabilitation up to a maximum of onetwo million dollars per occurrence as a result of a release from an underground storage tank containing petroleum or petroleum products for releases that were reported to the department before July 1, 1993, and in excess of twenty-five thousand dollars and up to a maximum of onetwo million dollars per occurrence for site rehabilitation for releases reported to the department on or after July 1, 1993. The department shall use the fund to pay these costs of site rehabilitation by owners or operators who qualify for compensation. The department may use the fund to clean up a release at a site where the underground storage tank owner or operator does not qualify for compensation or a 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 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. Funds in the Superb Account also may not be used to pay any liability claims against the owners or operators of underground storage tanks. The Superb Account must be credited with all fees, charges, commitments, and judgments allowable under this chapter. Charges against the Superb Account only may be made in accordance with the provisions of this chapter. Beginning November 1, 1994, the department shall transfer on a monthly basis one hundred thousand dollars of the funds generated by the environmental impact fee from the Superb Account to the Superb Financial Responsibility Fund until the balance of the Superb Financial Responsibility Fund reaches twoone million dollars. Subsequently, monthly transfers of one hundred thousand dollars from the Superb Account to the Superb Financial Responsibility Fund shall only occur when the balance of the Superb Financial Responsibility Fund becomes less than one millionfive hundred thousand dollars, and the monthly transfers shall continue until the balance of the Superb Financial Responsibility Fund reaches twoone million dollars. Additionally, prior to the end of each calendar year, the department shall transfer from the Superb Financial Responsibility Fund to the Superb Fund the total amount of funds exceeding one million dollars. Committed funds for site rehabilitation activity revert to uncommitted status after four months of initiation of commitment if no invoices for that commitment have been received by the department.

 

    (D) The Superb Account and the Superb Financial Responsibility Fund shall provide combined coverage for site rehabilitation and third party claims, respectively, not to exceed onetwo million dollars per occurrence. The estimated cost of site rehabilitation must be reserved from the combined coverage before payment of third party claims.

    The underground storage tank owner or operator must be responsible for the first twenty-five thousand dollars per occurrence for releases of petroleum and petroleum products from underground storage tanks reported to the department subsequent to July 1, 1993.

    Nothing in this chapter establishes or creates any liability or responsibility on the part of the department or the State as administrators of the Superb Account and the Superb Financial Responsibility Fund to pay any costs for site rehabilitation or third party claims from any source other than the Superb Account and the Superb Financial Responsibility Fund created by this chapter, and the department and the State as administrators of the Superb Account and the Superb Financial Responsibility Fund have no liability or responsibility to make payments for cleanup costs or third party claims if the funds are insufficient. If the funds are insufficient to make the payments at the time the claim is filed, these claims must be paid in the order of filing at such time as monies accrue in each account, respectively.

    The one hundred dollar underground storage tank registration fee and annual renewal fee may be used by the department for the administration of the underground storage tank program established by this chapter and its activities as trustees of the Superb Account and the Superb Financial Responsibility Fund, exclusive of legal costs outlined in subsection (C).

 

SECTION 3.  Section 44-2-60 of the S.C. Code is amended to read:

 

    Section 44-2-60. (A) The owner or operator of an underground storage tank which stores or is intended to store a regulated substance 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. Upon application for a registration certificate, the owner or operator shall pay to the department an initial registration fee of one hundred dollars afor each tank; however, the department may prorate the initial registration fees on a daily basis for underground storage tanks installed on or after July 1, 1997. The owner or operator shall pay to the department an annual renewal fee of one hundred dollars a tank aeach year. Beginning January 1, 2012August 1, 2029, the annual renewal fee for each tank will be as follows:

       (1) 20122029-two hundred dollars;

       (2) 2013-three hundred dollars;2034-two hundred fifty dollars; and

       (3) 2014-four hundred dollars;  and2039-three hundred dollars.

       (4) 2015-five hundred dollars.

    The additional revenue generated from the tank fee increases listed above must be deposited into the Superb Account. No portion of the increases may be used by the department for administration of the program or for orphan sites as defined in Section 44-2-20(11).

    When the Superb Account is credited with an additional thirty-six million dollars from the increase in tank fees, general appropriations, settlements, or other sources of funds including federal funds designated for cleanup, or declared insolvent, the tank registration fee shall revert to one hundred dollars annually for each tank beginning January first of the next year.

    (B) No person may place a regulated substance and no owner or operator may cause a regulated substance to be placed into an underground storage tank for which the owner or operator does not hold a currently valid registration. The department may not issue a registration certificate until all past and present fees and penalties owed on a tank are paid. The department may not issue a registration certificate to any owner or operator who has not complied with all terms of a consent or final administrative order issued under Section 44-2-140.

       (1) All fees are due to the department within thirty days of billing. The department shall issue a late notice, with no penalty due, to an underground storage tank owner or operator who has unpaid fees thirty days after billing. An owner or operator who fails to pay the fees within sixty days of the initial billing must pay a ten percent penalty in addition to the ten percent penalty for any fees remaining unpaid ninety days after the initial billing. An owner or operator with unpaid fees ninety days after the initial billing is subject to additional enforcement action as provided for in Section 44-2-140.

       (2) The department may not disburse Superb Account or Superb Financial Fund monies to any person or persons for the rehabilitation of a petroleum or petroleum product release from any underground storage tank or underground storage tank system where all past and present fees and penalties owed on the applicable tank have not been paid.

       (3) The funds generated by the registration and late penalty fees on annual tank renewals may be used by the department for administration of the provisions of this chapter and for administration of the underground storage tank regulatory program established by this chapter. The amount used for administration may not exceed the amount collected from funds received from federal grants specifically designated for administrative use, interest, the first one hundred dollars forannual tank registration fees, annual renewal fees, and late penalty fees on annual tank renewals.

    (C) 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 used by the department for the purposes of carrying out the provisions of this chapter. 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 Environmental Services which shall deposit the fees as provided for in Section 44-2-40.

 

SECTION 4.  Section 44-2-130(E) of the S.C. Code is amended to read:

 

    (E)(1) An owner or operator of an underground storage tank or his agent seeking to qualify for compensation from the Superb Account for site rehabilitation shall submit a written application to the department. The written application must be on a form specified by the department and include certification that site rehabilitation is necessary, the tanks at the site have been registered in compliance with applicable law and regulations, and all registration fees have been paid. The department shall accept certification that the release at the site is in need of rehabilitation if the certification is provided jointly by the owner or operator and a South Carolina registered professional geologist or engineer, and if the certification is supported with geotechnical data which reasonably justifies the claim. Upon final determination the department shall provide written notice to the applicant of its findings including detailed reasons for any denial.  Any denial of an application must be appealable to the Board of Health and Environmental Control.  The department is exempt from this time frame for applications which are received within three months of the close of the grace period allowed in Section 44-2-110.

       (2) The owner or operator 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.

 

SECTION 5.  Section 44-2-150(C) of the S.C. Code is amended to read:

 

    (C) The committee shall consist of fourteenfifteen members, appointed by the commissioner of the department as follows:

       (1) one member representing the general public;

       (2) two members representing environmental organizations;

       (3) one member representing the South Carolina Petroleum Council;

       (4) one membertwo members representing the South Carolina Convenience and Petroleum Marketers Association, one of whom must be an underground storage tank owner as defined in Section 44-2-20;

       (5) one member representing the South Carolina Service Station Dealers Association a business that specializes in the sale or service of petroleum equipment;

       (6) one member representing the South Carolina Chamber ofManufacturers and Commerce;

       (7) one member representing the South Carolina Bankers Association;

       (8) one member representing a business that specializes in the assessment or remediation, or both, of contamination resulting from leaking underground storage tanks;

       (9) one member representing the South Carolina Department of Insurance;

       (10) one member representing the Department of Health and Environmental ControlEnvironmental Services;

       (11) one member representing the State Department of Administration, Division of General Services;

       (12) one member representing the Municipal Association of South Carolina; and

       (13) one member representing the South Carolina Association of Counties.

 

SECTION 6.  This act takes effect upon approval by the Governor.

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