Current StatusView additional legislative information at the LPITS web site.Bill Number: 2981 Ratification Number: 542 Act Number 486 Introducing Body: House Subject: To enact the State Underground Petroleum Environmental Response Bank Act of 1988
(A486, R542, H2981)
AN ACT TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING CHAPTER 2 TO TITLE 44 SO AS TO ENACT THE STATE UNDERGROUND PETROLEUM ENVIRONMENTAL RESPONSE BANK ACT OF 1988, WHICH PROVIDES FOR THE REHABILITATION OF ANY SITE CONTAMINATED WITH PETROLEUM OR PETROLEUM PRODUCTS RELEASED FROM UNDERGROUND STORAGE TANKS, WHICH PROVIDES FOR THE REGISTRATION AND REGULATION OF UNDERGROUND STORAGE TANKS AND THE FEES FOR REGISTRATION, WHICH REQUIRES OWNERS OF UNDERGROUND STORAGE TANKS CONTAINING PETROLEUM OR PETROLEUM PRODUCTS TO MEET CERTAIN FINANCIAL RESPONSIBILITY REQUIREMENTS, AND WHICH PROVIDES CERTAIN CIVIL AND CRIMINAL PENALTIES FOR VIOLATIONS, AND PROVIDE THAT THE DEPARTMENT OF INSURANCE SHALL STUDY THE AVAILABILITY OF POLLUTION AND OTHER LIABILITY INSURANCE FOR OWNERS OF UNDERGROUND PETROLEUM STORAGE TANKS IN SOUTH CAROLINA AND REPORT ITS FINDINGS TO THE GENERAL ASSEMBLY.
Be it enacted by the General Assembly of the State of South Carolina:
Findings
SECTION 1. (A) The General Assembly finds and declares:
(1) that the preservation of the quality of surface waters and ground waters of the State of South Carolina is of prime public interest and concern of the State in promoting its general welfare, preventing disease, promoting health, and providing for the public safety;
(2) that significant quantities of petroleum and petroleum products are being stored in underground storage systems in the State;
(3) that spills, leaks, and other discharges from underground petroleum storage systems have occurred, are occurring, and will continue to
occur, and these discharges pose a threat to the quality of the ground waters and surface waters of this State;
(4) where contamination of the ground water and surface water has occurred, remedial measures may often be delayed for a long period while determinations as to liability and the extent of liability are made;
(5) that these delays could result in the continuation and intensification of the threat to the public health, safety, and welfare and greater damage to the environment, and in significantly higher cost to contain or remove the contamination; and
(6) that adequate financial resources must be readily available to provide a means for investigation and cleanup of spills, leaks, and other discharges of petroleum and petroleum products from underground storage tanks without delay.
(B) It is the intent of the General Assembly in enacting this legislation to strengthen the regulatory control of underground storage tanks and to establish a separate account to serve as a depository for funds which will enable the Department of Health and Environmental Control to respond without delay to incidents of contamination related to releases from underground tanks which store petroleum and petroleum products in order to protect the public health, safety, welfare, and minimize environmental damages.
State Underground Petroleum Environmental Response Bank Act of 1988
SECTION 2. Title 44 of the 1976 Code is amended by adding:
"CHAPTER 2
State Underground Petroleum
Environmental Response Bank Act
Section 44-2-10. This chapter is known and may be cited as the State Underground Petroleum Environmental Response Bank Act of 1988.
Section 44-2-20. When used in this chapter, the listed terms have the following meanings unless the context clearly requires otherwise:
(1) 'Department' means the Department of Health and Environmental Control.
(2) 'Fund' means the funds provided for under this chapter and deposited in the Superb Account hereinafter created.
(3) 'Operator' means any person operating an underground storage tank whether by lease, contract, or other form of agreement.
(4) 'Owner' means any person owning an underground storage tank.
(5) 'Person' means any individual, partner, corporation organized or united for a business purpose, or a governmental agency.
(6) 'Person in charge' means the person on the scene who is in direct, responsible charge of an underground storage tank.
(7) 'Petroleum' and 'petroleum product' means petroleum, including crude oil or any fraction thereof, which is liquid at standard conditions of temperature and pressure (sixty degrees Fahrenheit and 14.7 pounds per square inch absolute).
(8) 'Regulated substance' means:
(a) any substance defined in Section 101(14) of the Federal Comprehensive Environmental Response, Compensation, and Liability Act of 1980, but not including any substance regulated as a hazardous waste under Subtitle C thereof; and
(b) petroleum and petroleum products.
(9) 'Release' means any spilling, leaking, emitting, discharging, escaping, leaching, or disposing from an underground storage tank into ground water, surface water, or subsurface soils.
(10) 'Response action' means activity, including the evaluation, planning, design, engineering, construction, or other services which are carried out in response to any
discharge, release, or threatened release of petroleum or petroleum products from an underground storage tank.
(11) 'Response action contractor' means any person who is carrying out a response action, including a person retained or hired by these persons to provide services relating to a response action.
(12) 'Underground storage tank' means any one or combination of tanks, including underground pipes connected thereto, which is used to contain an accumulation of regulated substances, and the volume of which, including the volume of the underground pipes connected thereto, 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. A pipeline facility which is an intrastate pipeline facility regulated under state laws comparable to the above provisions of law referred to in this subitem is also not included within the definition of an underground storage tank;
(e) surface impoundment, pit, pond, or lagoon;
(f) storm water or waste water 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 44-2-40. (A) There is created within the state treasury a separate and distinct account to be called the 'Superb Account' to be administered by the department and expended by the department for purposes of this chapter.
(B) This fund must be used to carry out the provisions of this chapter and for the rehabilitation of any site contaminated with petroleum or petroleum products released from an underground storage tank. The rehabilitation consists of cleanup of affected soil, ground water, and surface waters. 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 only be used for the purpose of cleaning up releases from the tank or the rehabilitation of any contaminated site.
(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 only be made in accordance with the provisions of this chapter. In no event shall any more than ten dollars of the sixty dollars registration fee be used by the department for the administration of the underground petroleum storage tank regulatory program herein established.
(D) The provisions of this chapter and any regulations promulgated hereunder supersede and
take precedence over any regulations of a governmental agency or department to the contrary.
Section 44-2-50. (A) The department shall promulgate regulations relating to permitting, release detection, prevention, and correction applicable to all owners and operators of underground storage tanks as may be necessary to protect human health and the environment. The department in these regulations may distinguish between types and classes of underground storage tanks. The regulations promulgated pursuant to this section shall include the following requirements for underground storage tanks:
(1) requirements for submitting a permit application and obtaining permits prior to the installation and operation of an underground storage tank;
(2) requirements for maintaining a leak detection system, an inventory control system together with tank testing, or a comparable system or method designed to identify releases in a manner consistent with the protection of human health and the environment;
(3) requirements for maintaining records of any monitoring or leak detection system or inventory control system or tank testing or comparable system;
(4) requirements for reporting of releases and corrective action taken in response to a release from an underground storage tank;
(5) requirements for taking corrective action in response to a release from an underground storage tank; and
(6) requirements for the closure of tanks to prevent future releases of regulated substances into the environment.
(B) The department shall keep an accurate record of costs and expenses incurred under the provisions of this chapter for the rehabilitation of sites contaminated with petroleum or petroleum products released from underground storage tanks and to make this record public on a quarterly basis, and, except
as otherwise provided in Section 44-2-110, the department thereafter shall diligently pursue the recovery of any sum so incurred from the person 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 department shall also establish criteria for the rehabilitation of any site contaminated with petroleum or petroleum products released from an underground storage tank, the criteria and documentation necessary for an application for direct billing of site rehabilitation costs to the Superb Account, and general procedures that response action contractors must follow during cleanup.
(C) For purposes of enforcing this chapter and any regulations promulgated pursuant thereto, any representative or employee of the department is authorized:
(1) to enter at reasonable times any establishment or other place where an underground storage tank is located;
(2) to inspect and obtain samples of any regulated substance contained in the tank; and
(3) to copy any records, reports, information, or test results relating to the purpose of this chapter.
Section 44-2-60. (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 sticker issued by the department in plain view upon the tank or the dispensing or measuring device connected therewith or, where appropriate, a registration certificate listing all registered tanks at a facility in plain view in the office or the kiosk of facility where the tanks are registered.
(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 sixty dollars per tank and an annual renewal fee of sixty dollars per tank per year.
Section 44-2-70. (A) No later than January 1, 1990, or twelve months after the federal government mandates financial responsibility for underground storage tank owners, whichever date is latest, any 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 one hundred thousand dollars for corrective action or cleanup of releases and three hundred thousand dollars for third party property damage per occurrence with an annual aggregate of three hundred 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.
The owner must demonstrate evidence of financial responsibility to the department.
(B) The department shall promulgate regulations specifying requirements for maintaining evidence of financial responsibility for taking corrective
action and compensating third parties for property damage caused by sudden and nonsudden accidental releases arising from operating an underground storage tank which shall become effective five years from the date of enactment of this chapter.
(C) Any class of owners who are unable to meet the financial responsibility requirements of subsection (A) of this section by the date required in subsection (A) because insurance coverage therefor is not available may request the department to extend for a period of one hundred eighty days the date by which they are required to meet these requirements. A group of owners as a class may petition the department for this extension and the department may grant extensions to petitioning classes but no individual owners may be granted extensions.
For an extension to be granted, the class must show that it is taking steps to form a 'risk retention' group to provide insurance coverage for members of the group, or that it has formed an insurance pool pursuant to Section 44-2-75 and steps are being taken to the satisfaction of the department to secure the excess insurance coverage required by Section 44-2-75 which is not available as of the required date in Section 44-2-70(A).
Section 44-2-75. (A) Any person who owns an underground storage tank containing petroleum or petroleum products who is unable to demonstrate financial responsibility in the minimum amounts specified in Section 44-2-70(A) may establish an insurance pool in order to demonstrate this financial responsibility. The pool may purchase insurance or reinsurance on a group or individual basis, self-insure its members, or form, or join a purchasing group as defined in Section 38-87-20(10). Any contract establishing an insurance pool shall provide for:
(1) the election by pool members of a governing authority for the pool, which may be a board of directors, a majority of whom must be elected or appointed officials of pool members;
(2) a financial plan setting forth in general terms:
(a) the insurance coverages to be offered by the insurance pool, applicable deductible levels, and the maximum levels of claims which the pool will self-insure;
(b) the amount of cash reserves to be set aside for the payment of claims;
(c) the amount of insurance to be purchased by the pool to provide coverage over and above the claims which are not to be satisfied directly from the pool's resources; and
(d) the amount, if any, of aggregate excess insurance coverage to be purchased and maintained in the event that the insurance pool's resources are exhausted in a given fiscal period;
(3) a plan of management which provides for the following:
(a) the means of establishing the governing authority of the pool;
(b) the responsibility of the governing authority for fixing contributions to the pool, maintaining reserves, levying and collecting assessments for deficiencies, disposing of surpluses, and administration of the pool in the event of termination or insolvency;
(c) the basis upon which new members may be admitted to, and existing members may leave, the pool;
(d) the identification of funds and reserves by exposure areas; and
(e) those other provisions as are necessary or desirable for the operation of the pool.
(B) The formation and operation of an insurance pool under this section is subject to approval by the Chief Insurance Commissioner who may, after notice and hearing, establish reasonable requirements by regulation for the approval and monitoring of these pools, including prior approval of pool administrators and provisions for periodic examinations of financial condition.
(C) The Chief Insurance Commissioner may disapprove an application for the formation of an insurance pool and may suspend or withdraw approval whenever he finds that the applicant or pool:
(1) has refused to submit its books, papers, accounts, or affairs to the reasonable inspection of the commissioner or his representative;
(2) has refused, or its officers or agents have refused, to furnish satisfactory evidence of its financial and business standing or solvency;
(3) is solvent or is in such condition that its further transaction of business in this State is hazardous to its members and creditors in this State, and to the public;
(4) has refused or neglected to pay a valid final judgment against it within sixty days after its rendition;
(5) has violated any law of this State or has violated or exceeded the powers granted by its members;
(6) has failed to pay any fees, taxes, or charges imposed in this State within sixty days after they are due and payable, or within sixty days after final disposition or any legal contest with respect to liability therefor; or
(7) has been found insolvent by a court of any other state, or by the insurance commissioner or other proper officer or agency of any other state, and has been prohibited from doing business in that state.
Section 44-2-80. Any person who releases a regulated substance from an underground storage tank shall immediately undertake to contain, remove, and abate the release to the satisfaction of the department. However, the undertaking to contain, remove, or abate a release must not be considered an admission of responsibility for the release by the person taking the action. Notwithstanding this requirement, the department may undertake the removal of the release and may contract and retain agents who shall operate under the discretion of the department if a responsible party is unwilling or unable to conduct the cleanup.
Section 44-2-90. (A) Any interest accruing on the Superb Account must be credited only to the Superb Account.
(B) The registration fee as described in Section 44-2-60(B) must be paid by the owner of the underground petroleum tank to the department for a period of five years from the date of enactment of this chapter. Any funds remaining in the Superb Account after this five-year period 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) At the end of the five-year period referred to in subsection (B), the registration fee is reduced to ten dollars per year per tank and must be used by the department for the administration of the underground petroleum tank regulatory program herein established.
Section 44-2-110. To encourage early detection, reporting, and cleanup of releases from leaking 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 costs expended prior to December 31, 1987.
Section 44-2-120. Nothing in this chapter may be construed to prohibit a person from conducting site rehabilitation or cleanup through contractors, subcontractors, or qualified personnel employed by the person.
Section 44-2-130. (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. Prior to or 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. 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 in excess of one hundred thousand dollars or in excess of the amount recoverable from the financial responsibility mechanism provided for this purpose, whichever is less.
(B) Notwithstanding subsection (A), no person is entitled to directly bill more than one million dollars to the Superb Account or be reimbursed more than one million dollars from the Superb Account for costs incurred in connection with site rehabilitation.
(C) No person is entitled to directly bill or be reimbursed from the Superb Account for rehabilitation of any site excluded from participation in the early detection incentive program as established herein.
(D)(1) No person is entitled to direct billing to or reimbursement from the Superb Account for site rehabilitation unless rehabilitation has been completed in accordance with cleanup criteria established by the department and the procedural requirements of this section have been met.
(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.
(E)(1) The provisions of this section do not apply to any site where the owner or operator cannot produce daily records of inventory control as required by law or regulation.
(2) The provisions of this section do not apply to any site where the underground storage tanks have not been registered in compliance with provisions of applicable law or regulation.
(3) The provisions of this section do not apply to any site where the owner of the underground petroleum tank has not paid the sixty dollars per tank per year registration fee.
(F) Direct billing to or reimbursement from the Superb Account by a person conducting site rehabilitation either through his own personnel or through response action contractors or subcontractors is not considered a state contract or subject to state bid requirements.
(G)(1) At least sixty days before initiating site rehabilitation, written notice of this intention must be submitted to the department together with sufficient demonstration of sites and conditions prior to the 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) Within thirty days of receipt of notice of intent to initiate site rehabilitation, the department shall make a determination and provide written notice as to whether the person responsible for site rehabilitation is eligible or ineligible for participation in the early detection incentive program as provided for herein. Should the department determine the applicant is ineligible, it shall include in its written notice an explanation setting forth in detail the reasons for the determination.
(H)(1) Upon cessation of site rehabilitation, the person responsible for conducting the site rehabilitation shall submit to the department within thirty days of the cessation a written notice that site rehabilitation has been completed.
(2) No later than thirty days after submission of the notice of completion of site rehabilitation, the person responsible for conducting site rehabilitation shall submit to the department evidence of proper site rehabilitation. Costs for the site rehabilitation may be directly billed to the Superb Account or may be reimbursed from the Superb Account in the manner the department shall provide, except that prior approval for direct billing or reimbursement must be obtained from the department before any direct billing or reimbursement may be done.
(I) Upon receipt of a complete application for direct billing to or reimbursement from the Superb Account for site rehabilitation, 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.
(J) The provisions of this section do not apply to rehabilitation of any site owned or operated by the federal government.
Section 44-2-140. (A) Whenever the department finds that any person is in violation of any provision of this chapter or any regulation promulgated hereunder, the department may issue an order requiring the person to comply with the provision or regulation or the department may bring civil action for injunctive relief in an appropriate court of competent jurisdiction.
(B) Any person who violates any provision of this chapter, any regulation promulgated hereunder, or any order of the department issued under subsection (A) is subject to a civil penalty not to exceed ten thousand dollars for each tank for each day of violation.
(C) Any person who wilfully violates any provision of this chapter, any regulation promulgated hereunder, or any order of the department issued under subsection (A) is guilty of a misdemeanor and, upon conviction, must be fined not more than twenty-five thousand dollars per day of violation or imprisoned for not more than one year or both."
Department of Insurance study and report
SECTION 3. The South Carolina Department of Insurance shall study:
(a) the availability of pollution and other liability insurance for owners of underground petroleum storage tanks in South Carolina;
(b) the development and availability of pollution and other liability insurance in states that currently require owners of
underground petroleum storage tanks to maintain financial responsibility; and
(c) alternative mechanisms for owners of underground petroleum storage tanks to maintain financial responsibility.
The department shall report its findings to the General Assembly by January 1, 1989. Findings contained in the study, and new developments relating to pollution and other liability insurance must be updated and reported to the General Assembly by the department by January 1, 1990.
Time effective
SECTION 4. This act takes effect upon approval by the Governor.