Bill 4807

                    Current Status

Bill Number:               4807
Ratification Number:       566
Act Number                 473
Introducing Body:          House
Subject:                   Superb account established, uses

(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.