Download This Bill in Microsoft Word format
A237, R318, S487
STATUS INFORMATION
General Bill
Sponsors: Senator Waldrep
Document Path: l:\council\bills\swb\5279cm03.doc
Introduced in the Senate on March 13, 2003
Introduced in the House on April 30, 2003
Last Amended on April 28, 2004
Passed by the General Assembly on May 4, 2004
Governor's Action: May 24, 2004, Signed
Summary: Drycleaning Facility Restoration Trust Fund, administration and enforcement
HISTORY OF LEGISLATIVE ACTIONS
Date Body Action Description with journal page number
-------------------------------------------------------------------------------
3/13/2003 Senate Introduced and read first time SJ-5
3/13/2003 Senate Referred to Committee on Finance SJ-5
3/18/2003 Senate Recalled from Committee on Finance SJ-2
3/18/2003 Senate Committed to Committee on Agriculture and Natural
Resources SJ-2
4/23/2003 Senate Committee report: Favorable with amendment Agriculture
and Natural Resources SJ-21
4/24/2003 Senate Amended SJ-66
4/24/2003 Senate Read second time SJ-66
4/29/2003 Senate Amended SJ-52
4/29/2003 Senate Read third time and sent to House SJ-52
4/30/2003 House Introduced and read first time HJ-14
4/30/2003 House Referred to Committee on Ways and Means HJ-15
4/1/2004 House Committee report: Favorable with amendment Ways and
Means HJ-8
4/5/2004 Scrivener's error corrected
4/14/2004 House Amended HJ-24
4/14/2004 House Read second time HJ-39
4/15/2004 House Read third time and returned to Senate with amendments
HJ-14
4/15/2004 Scrivener's error corrected
4/28/2004 Senate House amendment amended SJ-11
4/28/2004 Senate Returned to House with amendments SJ-11
4/28/2004 Scrivener's error corrected
5/4/2004 House Concurred in Senate amendment and enrolled HJ-16
5/19/2004 Ratified R 318
5/24/2004 Signed By Governor
5/27/2004 Copies available
5/27/2004 Effective date See Act for Effective Date
6/10/2004 Act No. 237
View the latest legislative information at the LPITS web site
VERSIONS OF THIS BILL
3/13/2003
4/23/2003
4/24/2003
4/24/2003-A
4/29/2003
4/29/2003-A
4/1/2004
4/5/2004
4/14/2004
4/15/2004
4/28/2004
4/28/2004-A
(A237, R318, S487)
AN ACT TO AMEND SECTION 12-36-90, AS AMENDED, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO THE SALES AND USE TAX ACT, SO AS TO EXCLUDE THE ENVIRONMENTAL SURCHARGE IMPOSED PURSUANT TO SECTION 44-56-430 FROM THE DEFINITION OF "GROSS PROCEEDS OF SALES"; TO AMEND SECTION 44-56-410, RELATING TO THE DEFINITION OF TERMS CONTAINED IN THE DRYCLEANING FACILITY RESTORATION TRUST FUND PROVISIONS, SO AS TO REVISE THE DEFINITIONS OF SEVERAL TERMS; TO AMEND SECTION 44-56-420, RELATING TO THE ESTABLISHMENT OF THE DRYCLEANING FACILITY RESTORATION TRUST FUND, SO AS TO REVISE THE TYPE OF PROJECTS THAT MAY NOT BE UNDERTAKEN BY THE DRYCLEANING FACILITY RESTORATION TRUST FUND; TO AMEND SECTION 44-56-430, RELATING TO THE DRYCLEANING FACILITY RESTORATION TRUST FUND, SO AS TO DELETE THE PROVISION THAT ALLOWS AN ENVIRONMENTAL SURCHARGE TO BE LEVIED IF THE STATE TREASURER DETERMINES THAT THE FUND IS INSOLVENT, TO PROVIDE THAT ONE PERCENT OF THE GROSS PROCEEDS OF SALES OF A DRYCLEANING FACILITY MUST BE LEVIED AS AN ENVIRONMENTAL SURCHARGE ON CERTAIN OWNERS OR OPERATORS OF DRYCLEANING FACILITIES AND MUST BE SUSPENDED ONCE THE FUND EXCEEDS FIVE MILLION DOLLARS UNTIL THE BALANCE BECOMES LESS THAN ONE MILLION DOLLARS, TO REVISE THE DATES WHEN THE INITIAL AND SUBSEQUENT CHARGES ARE DUE AND PAYABLE, TO PROVIDE THAT THE DEPARTMENT OF REVENUE SHALL RETAIN FUNDS FOR THE COSTS INCURRED TO ADMINISTER, COLLECT, AND ENFORCE THE FUND, TO PROVIDE THAT THE DEPARTMENT OF HEALTH AND ENVIRONMENTAL CONTROL MUST PROVIDE AN ANNUAL REPORT TO THE GENERAL ASSEMBLY THAT CONTAINS THE CURRENT FINANCIAL POSITION OF THE FUND; TO AMEND SECTION 44-56-440, RELATING TO THE MORATORIUM PLACED ON ADMINISTRATIVE AND JUDICIAL ACTIONS CONCERNING DRYCLEANING FACILITIES AND WHOLESALE SUPPLY FACILITIES RESULTING FROM THE DISCHARGE OF DRYCLEANING SOLVENTS, SO AS TO REVISE THE STANDARDS A FACILITY MUST MEET TO BE SUBJECT TO THE PROVISIONS CONTAINED IN THE MORATORIUM AND TO RECEIVE ASSISTANCE FROM THE DRYCLEANING FACILITY RESTORATION FUND; TO AMEND SECTION 44-56-450, RELATING TO THE REPORTING OF DISCHARGED DRYCLEANING SOLVENT THAT CAUSES CONTAMINATION, SO AS TO PROVIDE THAT THE DEPARTMENT OF REVENUE SHALL NOTIFY OWNERS, OPERATORS, AND PERSONS OF DRYCLEANING AND WHOLESALE SUPPLY FACILITIES WITHIN A CERTAIN PERIOD OF TIME OF CERTAIN REGISTRATION REQUIREMENTS; TO AMEND SECTION 44-56-470, RELATING TO THE ANNUAL REGISTRATION AND FEES FOR DRYCLEANING FACILITIES, SO AS TO MAKE TECHNICAL CHANGES, TO DELETE THE PROVISION THAT REQUIRES THE REGISTRATION FEE BE PAID WITHIN THIRTY DAYS AFTER RECEIPT OF BILLING, TO PROVIDE THAT THE PROVISIONS CONTAINED IN TITLE 12 APPLY TO THE COLLECTION AND ENFORCEMENT OF THE FEES, TO DELETE THE PROVISION THAT REQUIRES AN OWNER OR OPERATOR OF A DRYCLEANING FACILITY TO RECEIVE CERTIFICATION THAT HE HAS DEMONSTRATED A LEVEL OF COMPETENCY TO OPERATE A DRYCLEANING FACILITY, TO PROVIDE THAT THE DEPARTMENT OF REVENUE MUST RETAIN FUNDS FOR THE COSTS INCURRED TO COLLECT AND ENFORCE THE DRYCLEANING FACILITY RESTORATION FUND, TO LIMIT THE AMOUNT OF FUNDS THAT MAY BE RETAINED, TO PROVIDE THAT THE AMOUNT THAT EXCEEDS THE COSTS INCURRED BY THE DEPARTMENT OF REVENUE MUST BE REMITTED TO THE STATE TREASURER AND USED PURSUANT TO THE PROVISIONS CONTAINED IN SECTION 44-56-420, TO REVISE THE PERIOD OF TIME WHEN CERTAIN OWNERS OR OPERATORS OF DRYCLEANING FACILITIES SHALL INSTALL CERTAIN CONTAINMENT STRUCTURES; TO AMEND SECTION 44-56-480, RELATING TO THE SURCHARGE ASSESSED AGAINST PERCHLOROETHYLENE AND STODDARD SOLVENT, SO AS TO DELETE THE TERM PERCHLORETHYLENE AND REPLACE IT WITH THE TERM HALOGENATED DRYCLEANING FLUID, TO DELETE THE TERM STODDARD SOLVENT AND REPLACE IT WITH THE TERM NONHALOGENATED CLEANER, TO PROVIDE THAT CERTAIN NONHALOGENATED CLEANERS MUST BE ASSESSED A SURCHARGE OF TWENTY CENTS PER POUND, TO MAKE CERTAIN TECHNICAL CHANGES, TO REVISE THE PERIOD OF TIME WHEN THE SURCHARGE IS DUE AND PAYABLE, TO DELETE THE PROVISION THAT REQUIRES THAT CERTAIN PERSONS MUST DOCUMENT THAT THE SURCHARGE HAS BEEN PAID, TO PROVIDE THAT FINAL RETAIL CUSTOMERS MUST DOCUMENT THAT THE SURCHARGE HAS BEEN PAID, TO PROVIDE THAT A SOLVENT DEALER MAY PASS THE COSTS OF THE SURCHARGE TO CERTAIN PERSONS, TO REVISE THE MANNER IN WHICH THE DEPARTMENT OF REVENUE SHALL ADMINISTER, COLLECT, ENFORCE, AND DISTRIBUTE THE SURCHARGE, AND TO PROVIDE THAT A PERSON WHO SELLS DRYCLEANING SOLVENT THAT IS EXEMPT FROM THE COLLECTION OF THE SURCHARGE MAY APPLY FOR A CREDIT OR REFUND; AND TO AMEND SECTION 44-56-485, RELATING TO DRYCLEANING FACILITIES THAT ARE EXEMPT FROM PROVISIONS CONTAINED IN THE STATUTES RELATING TO THE DRYCLEANING FACILITY RESTORATION TRUST FUND, SO AS TO REVISE THE TYPE OF DRYCLEANING FACILITIES THAT ARE EXEMPT FROM THESE PROVISIONS, AND TO PROVIDE A PROCEDURE FOR AN OWNER OR OPERATOR OF CERTAIN DRYCLEANING FACILITIES TO ELECT TO VOLUNTARILY, OR BE DIRECTED TO PLACE A FACILITY UNDER THESE PROVISIONS.
Be it enacted by the General Assembly of the State of South Carolina:
Sales and Use Tax Act
SECTION 1. Section 12-36-90(2) of the 1976 Code, as last amended by Act 89 of 2001, is further amended by adding a new subitem at the end to read:
"(j) the environmental surcharge imposed pursuant to Section 44-56-430."
Drycleaning Facility Restoration Trust Fund
SECTION 2. Section 44-56-410 of the 1976 Code is amended to read:
"Section 44-56-410. As used in this article:
(1) 'Department' means the Department of Health and Environmental Control.
(2) 'Discharge' means leakage, seepage, or other release.
(3) 'Drycleaning facility' means a professional retail commercial establishment located in this State that operates or has at some time in the past operated in whole or in part for the purpose of cleaning clothing and other fabrics from members of the public utilizing a process which involves the use of drycleaning solvents. 'Drycleaning facility' includes laundry facilities that are using or have used drycleaning solvents as part of their cleaning process, but does not include textile mills or uniform rental and linen supply facilities.
(4) 'Drycleaning solvents' means nonaqueous solvents used in the cleaning of clothing and other fabrics and includes halogenated drycleaning fluids and nonhalogenated cleaners, and their breakdown products. 'Drycleaning solvents' includes only solvents originating from use at a drycleaning facility or by a wholesale supply facility.
(5) 'Dry drop-off facility' means a commercial retail store that receives from customers clothing and other fabrics for drycleaning at an off-site drycleaning facility and does not clean the clothing or fabrics at the store utilizing drycleaning solvents.
(6) 'Employee' means a natural person employed and paid by the owner of a drycleaning facility for thirty-five or more hours a week for forty-five or more weeks a year and on whose behalf the owner contributes payments to the South Carolina Employment Security Commission or Department of Revenue as required by law. Excluded from the meaning of the term 'employee' are owners of drycleaning facilities and family members of owners, regardless of the level of consanguinity, if the family members are not employed and compensated pursuant to the definition of the term 'employee' contained in this item. Part-time employees who are employed and paid for fewer than thirty-five hours a week for fewer than forty-five weeks a year must not be deemed to be employees unless their hours and weeks of employment, when combined with the hours and weeks of employment of another or other part-time employee or employees, total thirty-five or more hours a week for forty-five or more weeks a year.
(7) 'Person' means any individual, partnership, corporation, association, or other entity that is vested with ownership, dominion, or legal or rightful title to the real property or which has a ground lease interest in the real property on which a drycleaning or wholesale supply facility is or has ever been located.
(8) 'Wholesale supply facility' means a commercial establishment that supplies drycleaning solvents to drycleaning facilities.
(9) 'Insolvent' means the approved expenses of the Department of Health and Environmental Control and the Department of Revenue as well as the estimated cleanup costs are projected to exceed the fund balance and projected revenues for a five-year period commencing on January fifteenth of each year.
(10) 'Halogenated drycleaning fluid' means any nonaqueous solvent formulated, in whole or in part, with ten percent or more by volume any of the halogenated compounds chlorine, bromine, fluorine, or iodine. Halogenated drycleaning fluids include perchloroethylene (also known as tetrachloroethylent), trichlorethylene, and any breakdown components of them.
(11) 'Nonhalogenated cleaner' means any nonaqueous solvent used in a drycleaning facility that contains less than ten percent by volume of any halogenated compound. Nonhalogenated cleaners include petroleum based drycleaning solvents and any breakdown components of them.
(12) 'Nonaqueous solvent' means any cleaning formulation designed to minimize swelling of fabric fibers and containing less than fifty-one percent of water by volume."
Drycleaning Facility Restoration Trust Fund
SECTION 3. Section 44-56-420(C) of the 1976 Code is amended to read:
"(C) The fund may not be used to:
(1) restore sites which are contaminated by solvents normally used in drycleaning operations if the activities at a site are not related to the operation of a drycleaning facility or wholesale supply facility;
(2) restore sites that are contaminated by drycleaning solvents being transported to or from a drycleaning facility or wholesale supply facility or that are contaminated as a result of the delivery of drycleaning solvents to a drycleaning facility or wholesale supply facility on or after July 1, 1995, if the contamination resulted from gross negligence;
(3) fund any costs related to the restoration of a site that is proposed for listing or is listed on the State Priority List or on the National Priority List pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended by the Superfund Amendments and Reauthorization Act of 1986, or any site that is required to obtain a permit pursuant to the Resource Conservation and Recovery Act, as amended;
(4) pay any costs associated with a fine, penalty, or action brought against the owner or operator of a drycleaning facility or wholesale supply facility or a person under local, state, or federal law;
(5) pay any costs incurred before July 1, 1995, for the remediation of a contaminated site;
(6) pay any costs to landscape or otherwise artificially improve a contaminated site;
(7) pay any contamination assessment or costs restoration before the actual date of the first payment of registration fees for the site pursuant to Section 44-56-470(B);
(8) pay any costs related to contamination assessment where no contamination from drycleaning solvents is discovered;
(9) pay any costs for work not approved by the department in accordance with this article or regulations promulgated pursuant to this article;
(10) restore sites that are uniform rental and linen supply facilities unless the site was operated on or after July 1, 1995, as a professional retail drycleaning facility for garments or fabrics belonging to the public and has participated in the fund;
(11) restore sites that are no longer operated as drycleaning facilities or coin-operated drycleaning facilities where the owner or person has not paid a registration fee for the site pursuant to Section 44-56-470(B) and has not been involved in the drycleaning industry after October 1, 1995."
Environmental surcharge
SECTION 4. Section 44-56-430 of the 1976 Code is amended to read:
"Section 44-56-430. (A)(1) One percent of the gross proceeds of sales of a drycleaning facility must be levied as an environmental surcharge on every owner or operator of a drycleaning facility participating in the drycleaning facility restoration trust fund except for the facilities possessing a valid statement of nonparticipation pursuant to Section 44-56-480(A).
(2) At any time the uncommitted balance of the Drycleaning Facility Restoration Trust Fund Account exceeds five million dollars, the one percent of the gross proceeds of sales of drycleaning surcharge is suspended until that time the uncommitted balance of the trust fund account becomes less than one million dollars. The Department of Health and Environmental Control is responsible for notifying the Department of Revenue when these amounts have been reached. The suspension of the environmental surcharge occurs at the end of the month in which the Department of Revenue is so notified by the Department of Health and Environmental Control. The lifting of the suspension occurs on the first day of the month following the month in which the Department of Revenue is so notified by the Department of Health and Environmental Control.
(B)(1) The initial surcharge imposed by this section is due and payable on the twentieth day of the third month succeeding the month in which the charge is imposed. Subsequent charges are due and payable on or before the twentieth day of each month for the preceding month. The Department of Revenue may authorize the quarterly, semiannual, or annual payment of this surcharge. The surcharge must be reported on forms and in the manner determined by the Department of Revenue.
(2) The Department of Revenue must administer, collect, and enforce the surcharge in the manner that the sales and use taxes are administered, collected, and enforced under Chapter 36 of Title 12, except that no timely payment discount or exemptions or exclusions are allowed. The provisions of Title 12 apply to the collection and enforcement of the surcharge by the Department of Revenue.
(3) The Department of Revenue shall retain funds for the costs incurred to administer, collect, and enforce the fund which may include a part-time employee with the related expenses for audit purposes. The funds withheld shall not exceed the actual costs to administer, collect, and enforce the fund. The proceeds of the surcharge, after deducting the costs incurred by the Department of Revenue in administering, auditing, collecting, distributing, and enforcing the surcharge, must be remitted to the State Treasurer and credited to the fund and must be used as provided in Section 44-56-420. For the purposes of this section, the proceeds of the surcharge include all funds collected and received by the Department of Revenue including interest and penalties on delinquent surcharges.
(C) The Department of Health and Environmental Control is required to report each January fifteenth the current financial position of the Drycleaning Facility Restoration Trust Fund to the General Assembly. In addition, The Department of Health and Environmental Control must include projected information that would enable the General Assembly to determine the solvency of the fund. At a minimum this must include a five-year budget projection. This report must also review and comment on the adequacy of the current program in resolving contamination problems at both operating and closed drycleaning facilities in this State."
Administrative and judicial actions moratorium
SECTION 5. Section 44-56-440 of the 1976 Code is amended to read:
"Section 44-56-440. (A) The Board of the Department of Health and Environmental Control shall establish a moratorium on administrative and judicial actions by the department concerning drycleaning facilities and wholesale supply facilities resulting from the discharge of drycleaning solvents to soil or waters of the State. This moratorium applies only to those facilities deemed eligible as defined in this section. The board may review and determine the appropriateness of the moratorium at least annually. This review shall include, but is not limited to, consideration of these factors:
(1) the solvency of the fund as described in Section 44-56-420;
(2) prioritization of the sites;
(3) public health concerns related to the sites;
(4) eligibility of the sites;
(5) corrective action plans submitted to the department.
After review, the board may suspend all or a portion of the moratorium if necessary.
(B) A drycleaning facility or wholesale supply facility that is being operated as a drycleaning facility or wholesale supply facility at the time a request for determination of eligibility is filed and at which there is contamination from drycleaning solvents is eligible under this section regardless of when the contamination was discovered if the drycleaning facility or wholesale supply facility:
(1) has been registered with and has paid all annual fees, surcharges, and solvent fees as required by the Department of Revenue;
(2) is determined by the department to be in compliance with department regulations regulating drycleaning facilities or wholesale supply facilities;
(3) has third-party liability insurance when and if the insurance becomes available at a reasonable cost, as determined by the Department of Insurance and if the insurance covers liability for contamination that occurred both before and after the effective date of the policy;
(4) has provided documented evidence of contamination by drycleaning solvents;
(5) has not been operated in a grossly negligent manner at any time after November 18, 1980.
(C) A drycleaning facility or wholesale supply facility that ceases to be operated as a drycleaning facility or wholesale supply facility before July 1, 1995, and before the time a request for determination of eligibility is filed at which there is contamination from drycleaning solvents is eligible under this section regardless of when the contamination was discovered provided the owner or operator of the drycleaning facility or wholesale supply facility or person provides documented evidence of the contamination by drycleaning solvents and the owner, operator, or person has paid all annual fees, surcharges, and solvent fees on every drycleaning facility in existence under their control since July 1, 1995, as required by the Department of Revenue.
(D) A drycleaning facility that has been contaminated as a result of the discharge of drycleaning solvents by a supplier of solvents during the delivery of drycleaning solvents to a drycleaning facility first must utilize the insurance of the supplier to the full extent of the coverage for site rehabilitation before any funds may be expended from the fund for the rehabilitation of that portion of the site which was contaminated by the discharge during delivery.
(E) If the facility started operation before six months after the effective date of this act and an eligible drycleaning or wholesale owner or operator or person applies for monies from the fund on or before:
(1) eighteen months after the effective date of this act, the deductible is one thousand dollars;
(2) thirty months after the effective date of this act, the deductible is twenty-five thousand dollars.
An eligible drycleaning facility that has applied for monies from the fund prior to the effective date of this paragraph shall have a deductible of one thousand dollars regardless of any deductible previously assigned to the facility based on its application date or type of site. Any approved assessment or remedial costs in excess of one thousand dollars previously incurred by the owner, operator, or person shall be refunded, without interest, to such party by the department.
A facility first starting its operations on or after six months after the effective date of this act shall have a deductible of twenty-five thousand dollars if it is determined to be eligible if the operator or person applies for money from the fund within six months of obtaining evidence of contamination.
(F) An owner of a drycleaning facility or wholesale supply facility or person seeking eligibility under this subsection shall submit an application for determination of eligibility to the department on forms provided by the department. The department shall review the application and request any additional information within ninety days. The department shall notify the applicant within one hundred eighty days as to whether the facility is eligible.
(G) Eligibility under this subsection applies to the site of the drycleaning facilities or wholesale supply facilities. A determination of eligibility or ineligibility is not affected by the subsequent conveyance of the ownership of the drycleaning facilities or wholesale supply facilities.
(H) This section does not apply to a site where the department has been denied site access to implement this section or to drycleaning facilities owned or operated by a local government or by the state or federal government.
(I) A site owned by an owner of a drycleaning facility or a person at any time subsequent to October 1, 1995, who misrepresents the number of employees upon which the registration fee provided for in Section 44-56-460 is based is not eligible for funds under this section."
Reporting of discharged drycleaning solvents
SECTION 6. Section 44-56-450 of the 1976 Code is amended to read:
"Section 44-56-450. (A) In order to identify drycleaning facilities and wholesale suppliers which have experienced contamination resulting from the discharge of drycleaning solvents and to assure the most expedient rehabilitation of these sites, the owners and operators of drycleaning facilities and wholesale suppliers and persons are encouraged to detect and report contamination from drycleaning solvents related to the operation of drycleaning facilities or wholesale supply facilities. Forms must be distributed to owners and operators of drycleaning and wholesale supply facilities and to persons. The Department of Revenue shall use reasonable efforts to identify and notify owners, operators, and persons of drycleaning and wholesale supply facilities within six months after the effective date of this act of the registration requirements by certified mail, return receipt requested. The Department of Revenue shall provide to the Department of Health and Environmental Control a copy of each applicant's registration materials within thirty working days of the receipt of the materials.
(B) A report of drycleaning solvent contamination at a drycleaning facility made to the department by a person in accordance with this article or regulations promulgated under this article may not be used directly as evidence of liability for the discharge in a civil or criminal trial arising out of the discharge."
Annual registration and fees for drycleaning facilities
SECTION 7. Section 44-56-470 of the 1976 Code is amended to read:
"Section 44-56-470. (A) For each drycleaning facility owned and in operation, the owner or operator of the facility or person shall register with and pay initial registration fees to the Department of Revenue by October 1, 1995, and pay annual or quarterly renewal registration fees as established by the Department of Revenue. The fee must be accompanied by a notarized certification from the owner, on a form provided by the Department of Revenue, certifying the number of employees employed by the owner, or operator, for the twelve-month period preceding payment of the fee.
(B) An initial and annual registration fee for each drycleaning facility with:
(1) up to four employees is seven hundred fifty dollars;
(2) five to ten employees is one thousand five hundred dollars;
(3) eleven or more employees is two thousand two hundred fifty dollars.
(C) The provisions of Title 12 apply to the collection and enforcement of the fees by the Department of Revenue.
(D) The Department of Revenue must retain funds for the costs incurred to collect and enforce the fund which may include a part-time employee with the related expenses for audit purposes. The funds withheld shall not exceed the actual costs to administer, collect, and enforce the fund. The proceeds of the registration fee, after deducting the costs incurred by the Department of Revenue in auditing, collecting, distributing, and enforcing the registration fee, must be remitted to the State Treasurer and credited to the fund and must be used as provided in Section 44-56-420. For the purposes of this section, the proceeds of the registration fee include all funds collected and received by the Department of Revenue including interest and penalties on delinquent fees.
(E) Revenue derived from the registration fees must be submitted to the State Treasurer and credited to the Drycleaning Facility Restoration Trust Fund.
(F) Before a year after the effective date of this act, an owner or operator of a drycleaning facility in operation before six months after the effective date of this act, shall install dikes or other containment structures around each machine or item of equipment in which drycleaning solvents are used and around an area in which solvents or waste containing solvents are stored. The containment must meet the following criteria:
(1) the dikes or containment structures must be capable of containing one-third of the capacity of the total tank capacity of each machine;
(2) dikes or containment structures around areas used for storage of solvents or waste containing solvents must be capable of containing one hundred percent of the volume of the largest container stored or retained in the containment structure;
(3) all diked containment areas must be sealed or otherwise made impervious to the drycleaning solvents in use at the facility, including floor surfaces, floor drains, floor joints, and inner dike walls;
(4) to the extent practicable, an owner of a drycleaning facility or person shall seal or otherwise render impervious those portions of all floor surfaces upon which any drycleaning solvents may leak, spill, or otherwise be released;
(5) containment devices must provide for the temporary containment of accidental spills or leaks until appropriate response actions are taken by the owner/operator to abate the source of the spill and remove the product from all areas on which the product has accumulated; and
(6) materials used in constructing the containment structure or sealing the floors must be capable of withstanding permeation by drycleaning solvents in use at the facility for not less than seventy-two hours.
(G) For drycleaning facilities that commence operating on or after six months after the effective date of this act, the owners or operators of these facilities or persons, before the commencement of operations, shall install beneath each machine or item of equipment in which drycleaning solvents are used a rigid and impermeable containment vessel capable of containing one hundred percent of the volume of the largest single tank in the machine or piece of equipment or one-third of the total tank capacity of each machine, whichever is greater. Dikes or containment structures must be installed before delivery of any drycleaning solvents to the facility. All dikes or containment structures shall meet all criteria of Section 44-56-470(F).
(H) A person or the owner or operator of a drycleaning facility or wholesale supply facility at which there is a spill of more than the federally mandated reportable quantity of drycleaning solvent outside of a containment structure, after July 1, 1995, shall report the spill to the department immediately upon the discovery of the spill and comply with existing emergency response regulations.
(I) Failure to comply with the requirements of this section constitutes gross negligence with regard to determining site eligibility."
Surcharge on drycleaning solvents
SECTION 8. Section 44-56-480 of the 1976 Code is amended to read:
"Section 44-56-480. (A) Beginning July 1, 1995, an environmental surcharge is assessed on the privilege of producing in, importing into, or causing to be imported into the State drycleaning solvent. A surcharge of ten dollars per gallon on halogenated drycleaning fluid and two dollars per gallon on nonhalogenated cleaner is levied on each gallon to be used for drycleaning purposes when first imported into or produced in the State. Nonhalogenated cleaners purchased, produced, or transported in a nonliquid physical state must be assessed a surcharge of twenty cents per pound. A drycleaning facility that has made an election not to be under the provisions of this article pursuant to Section 44-56-485(A) or (B) may request a statement of nonparticipation from the Department of Revenue so as to demonstrate its status under this article and its exemption from the surcharge provided for in this subsection.
(B) A person producing in, importing into, or causing to be imported into this State drycleaning solvent for sale, use, or otherwise must register with the Department of Revenue and become licensed for the purposes of remitting the surcharge pursuant to this section. The person must register as a producer or importer of drycleaning solvent. Persons operating at more than one location only are required to have a single registration. The fee for registration is thirty dollars. Failure to register before importing or producing drycleaning solvent into this State is a misdemeanor and, upon conviction, the person must be fined up to twenty-five thousand dollars or imprisoned up to thirty days.
(C) The surcharge imposed by this section is due and payable on or before the twentieth day of the month succeeding the month of production, importation, or removal from a storage facility. The surcharge must be reported on forms and in the manner determined by the Department of Revenue.
(D) All drycleaning solvent to be used for drycleaning purposes which are imported, produced, or sold in this State are presumed to be subject to the surcharge imposed by this section. An owner, operator, or person, who has purchased drycleaning solvent for sale, use, consumption, or distribution in this State must document that the surcharge imposed by this section has been paid or must pay the surcharge directly to the Department of Revenue in accordance with subsection (C). The solvent dealer may pass the costs of the surcharge to owners, operators, or persons of drycleaning facilities except the surcharge imposed by this section must not be charged to a facility possessing a statement of nonparticipation pursuant to Section 44-56-480(A).
(E) The surcharge imposed by this section must be remitted to the Department of Revenue. The payment must be accompanied by the forms as the Department of Revenue prescribes. The proceeds of the surcharge, after deducting the administrative costs incurred by the Department of Revenue in administering, auditing, collecting, distributing, and enforcing the surcharge, must be remitted by the Department of Revenue to the State Treasurer to be credited to the Drycleaning Facility Restoration Trust Fund and must be used as provided in Section 44-56-420. For the purposes of this section, the proceeds of the surcharge include all funds collected and received by the Department of Revenue, including interest and penalties on delinquent surcharges.
(F) The Department of Revenue shall administer, collect, and enforce the surcharge authorized under this section in the manner that sales and use taxes are administered, collected, and enforced under Chapter 36 of Title 12, except no timely payment discount or exemptions or exclusions are allowed. Provisions of Title 12 regarding the Department of Revenue's authority to audit and make assessments, the keeping of books and records, and interest and penalties on delinquent taxes apply.
(G) The Department of Revenue must retain funds for the costs incurred to administer, collect, and enforce the program. The proceeds of the surcharge, after deducting the costs incurred by the Department of Revenue in administering, auditing, collecting, distributing, and enforcing the surcharge, must be remitted to the State Treasurer and credited to the fund and must be used as provided in Section 44-56-420. For the purposes of this section, the proceeds of the surcharge include interest and penalties collected by the Department of Revenue.
(H) The Department of Revenue may establish audit procedures and assess delinquent surcharges.
(I) Drycleaning solvent used for drycleaning exported from the first storage facility at which it is held in this State by the producer or importer is exempt from the surcharge pursuant to this section. Anyone exporting drycleaning solvent on which the surcharge has been paid may apply for a refund or credit. A person who sells drycleaning solvent that is exempt from the collection of the surcharge pursuant to subsection (D) may apply for a credit or refund. The Department of Revenue may require information as it considers necessary in order to approve the refund or credit.
(J) The Department of Revenue may authorize:
(1) a quarterly return and payment when the surcharge remitted by the licensee for the preceding quarter did not exceed one hundred dollars;
(2) a semiannual return and payment when the surcharge remitted by the licensee for the preceding six months did not exceed two hundred dollars;
(3) an annual return and payment when the surcharge remitted by the licensee for the preceding twelve months did not exceed four hundred dollars."
Drycleaning Facility Restoration Trust Fund
SECTION 9. Section 44-56-485 of the 1976 Code is amended to read:
"Section 44-56-485. (A) Notwithstanding any other provision of this article, this article does not apply to a drycleaning facility that was in existence on July 1, 1995, that drycleans with nonhalogenated cleaners only, nor to dry drop-off facilities whose clothing and other fabrics are cleaned only by such a drycleaning facility. However, an owner or operator of a facility or person may elect to place the facility under the provisions of this article by paying the required annual fee for the facility before October 1, 1995. If an owner or operator of a facility or person does not elect to place a facility under this article before October 1, 1995, the current or a future owner or operator of the site or person is prohibited from receiving any funds or assistance under this article. Failure to pay the required annual fee by October 1, 1995, constitutes electing not to place a facility under this article. Additionally, an owner, operator, or person who does not elect to place a facility under this article is prohibited from receiving any funds or assistance under this article for any site the owner, operator, or person currently or previously operated or abandoned.
(B) A drycleaning facility in existence on July 1, 1995, that uses halogenated fluids and nonhalogenated cleaners may elect to remove the facility from the requirements of this article if the election is made before October 1, 1995. Failure to pay the required annual fee by October 1, 1995, constitutes electing to remove a facility from the requirements of this article. An owner, operator, or person of a facility using halogenated and nonhalogenated cleaners may not elect to remove a facility from the requirements of this article for one solvent and not the other.
(C) Notwithstanding subsections (A) and (B) of this section, if a person or an owner or operator of a drycleaning facility in existence on July 1, 1995, has made an election not to place a facility under the provisions of this article as allowed in subsection (A) or (B) above, then the person, owner, or operator may affirmatively and irrevocably elect to place the drycleaning facility under the provisions of this article. This election must be made by registering with the Department of Revenue on or before July 1, 2005, and paying the fees and taxes provided under this article. An electing drycleaning facility is liable for payment of all taxes and fees from the later of July 1, 1995, or the date the drycleaning facility began operating, but is not liable for any penalties or interest. An electing drycleaning facility may pay the back taxes and fees that the facility is required to pay under this subsection by making monthly installments toward full payment of all back taxes and fees. The monthly installments must commence no later than July 1, 2004, and all back taxes and fees must be fully paid on or before July 1, 2006.
(D) Notwithstanding any other provision of this article, any person or owner or operator of a drycleaning facility that has not registered with the Department of Revenue and complied with the provisions of this article may voluntarily register with the Department of Revenue on or before July 1, 2005, without incurring any penalties or interest. Payment of all taxes and fees due pursuant to this article is required to be made from the later of July 1, 1995, or the date the drycleaning facility began operating. Any person or owner or operator of a drycleaning facility that does not voluntarily register under this provision is subject to interest, penalties, and payment of all taxes and fees from the later of July 1, 1995, or the date the drycleaning facility began operating. No fees will be prorated or refunded for a business in operation for less than twelve months.
(E) Notwithstanding any other provisions in this article, the department may direct the Department of Revenue to allow a person or owner or operator of a drycleaning facility, who elected not to place the facility under this article pursuant to subsection (A) or (B) of this section to register, provided the department finds that the person or owner or operator of the drycleaning facility requesting to register did not have notice of this article for more than ninety days prior to requesting registration. The person or owner or operator of a drycleaning facility registering pursuant to this subsection is liable for payment of all taxes or fees, including interest, from the later of July 1, 1995, or the date the drycleaning facility began operating; however, the registering person, owner, or operator is not liable for penalties. No fees will be prorated or refunded for a business in operation for less than twelve months."
Savings clause
SECTION 10. The repeal or amendment by this act of any law, whether temporary or permanent or civil or criminal, does not affect pending actions, rights, duties, or liabilities founded thereon, or alter, discharge, release or extinguish any penalty, forfeiture, or liability incurred under the repealed or amended law, unless the repealed or amended provision shall so expressly provide. After the effective date of this act, all laws repealed or amended by this act must be taken and treated as remaining in full force and effect for the purpose of sustaining any pending or vested right, civil action, special proceeding, criminal prosecution, or appeal existing as of the effective date of this act, and for the enforcement of rights, duties, penalties, forfeitures, and liabilities as they stood under the repealed or amended laws.
Time effective
SECTION 11. This act takes effect upon approval by the Governor. The repeal or amendment of a code section by this act does not release or extinguish any tax, fee, interest, penalty, forfeiture, or liability for any period prior to the repeal or amendment. The repealed or amended code section or act must be treated as remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of the tax, fee, interest, penalty, forfeiture, or liability.
Ratified the 19th day of May, 2004.
Approved the 24th day of May, 2004.
This web page was last updated on Monday, December 7, 2009 at 10:17 A.M.