South Carolina Code of Regulations
Chapter 61 - DEPARTMENT OF HEALTH AND ENVIRONMENTAL CONTROL
Subchapter 61-98 - STATE UNDERGROUND PETROLEUM ENVIRONMENTAL RESPONSE BANK (SUPERB) SITE REHABILITATION AND FUND ACCESS REGULATION
Section 61-98.III - SUPERB Fund Requirements
Universal Citation: SC Code Regs 61-98.III
Current through Register Vol. 48, No. 9, September 27, 2024
1. Site Rehabilitation Application.
a. A UST owner or
operator requesting monies from the SUPERB Fund shall submit to the Department
a written application on a form provided by the Department. The written
application shall include certification that:
(1) The chemicals of concern resulted from a
release from a UST, including supporting documentation.
(2) Site rehabilitation is
necessary.
(3) The USTs at the site
have been registered in compliance with applicable UST laws and
regulations.
(4) The UST
registration fees have been paid.
b. The Department shall accept certification
that the site is in need of rehabilitation if the certification is provided
jointly by the UST owner or operator and a South Carolina registered
professional geologist or engineer, and if reasonably supported by geotechnical
data and information documenting the site investigation and assessment
activities performed.
c. The
application shall also include:
(1) a
description of all abatement actions taken in response to the release pursuant
to Regulation 61-92, and
(2) a
notarized statement confirming the existence or absence of environmental
liability insurance for the site that covers site rehabilitation activities in
response to a UST release.
d. For denied applications, the Department
shall provide written notice of its findings to the applicant, including
detailed reasons for denial. The Department shall deny application for reasons
including, but not limited to, the following:
(1) where the application is
incomplete;
(2) where, in the
opinion of the Department, the application is not reasonably supported by
geotechnical data;
(3) where, in
the opinion of the Department, the available information documents that site
rehabilitation is not appropriate.
e. For approved applications, the Department
shall respond in writing confirming the relative priority of the site as
described in this section and provide general directives.
2. The Department shall provide access to the SUPERB Fund shall based on the priority classification system.
3. General Requirements.
a. UST owners or operators or site
rehabilitation contractors may not propose or invoice costs to the SUPERB fund
above reasonable, usual and customary costs.
b. Reimbursement for site rehabilitation
activities shall in no event exceed the actual costs incurred by the UST owner
or operator.
c. The Department
shall not process incomplete invoices or invoices which are not supported by
site rehabilitation reports and/or technical data.
d. The Department may withhold taking action
on an application for monies during pendency of an enforcement action by the
state or federal government related to the UST or a release from the
UST.
e. The Department may deny or
reduce payment for reported costs for failure by the UST owner or operator or
site rehabilitation contractor to substantially comply with applicable
statutory or regulatory requirements, including the provisions of this
regulation, the SUPERB Act, or the Underground Storage Tank Control
Regulations.
f. The Department may
conduct an audit to assure compliance with this regulation. Audits will
include, but not be limited to, determining that:
(1) funds were expended in a manner
consistent with that reported to the Department;
(2) all necessary information needed to
determine that costs represented were actually incurred.
g. Any funds paid to UST owner or operator or
site rehabilitation contractor which are disallowed in accordance with this
regulation shall be considered a debt to the fund. In addition to requiring
repayment, the Department shall have the authority to offset any incorrect
payment against other invoices for that or other releases for the same person.
If no ability to offset exists and a debt is not paid within ninety (90) days
after demand, the State may take other actions permitted by law and this
regulation.
h. Any proceeds gained
from the sale or salvage of site rehabilitation equipment purchased with SUPERB
funds shall be returned to the SUPERB fund.
i. The Department reserves the right to
arrange to have any equipment appraised for determination of fair market or
salvage value. The cost of the appraisal shall be paid from the SUPERB
Account.
j. The Department shall
develop criteria for the following:
(1) the
minimum supporting technical and financial documentation for proposed or
performed site rehabilitation activities;
(2) a maximum frequency of billing;
(3) a minimum invoice amount unless it is the
final invoice for an approved site rehabilitation activity;
(4) retainer amounts;
(5) requirements for processing final
invoices; and
(6) procedures for
processing technical and financial changes associated with administration of
the fund.
k. In
developing and periodically updating the performance standards and criteria,
the department shall make public notice and receive and consider public
comments.
l. A UST owner or
operator or site rehabilitation contractor shall provide proposed costs and
documentation of incurred costs for site rehabilitation activities in
accordance with applicable Department performance standards and criteria and on
forms provided by the Department.
4. Site Rehabilitation Payments.
a. The Department shall establish and
periodically update reasonable, usual and customary costs and activities based
on the Department's experience and industry-typical costs after sufficient
public notice and consideration of public comments. These may include, but not
be limited to the following:
(1) costs for
site rehabilitation activities as authorized in this section;
(2) personnel and equipment
categories;
(3) definitions,
payment rates, and duration of activities, where appropriate, for categories
that are commonly used in site rehabilitation activities; and
(4) the requirements for competitive pricing
for site rehabilitation activities and equipment, where necessary;
b. Reasonable, usual and customary
costs, established in paragraph (a), above, are payable from the SUPERB fund
for activities including, but not limited to, the following:
(1) recovery, storage, sampling, treatment,
and proper disposal of released petroleum, petroleum products and/or
petroleum/water mixtures;
(2)
storage, sampling (to determine the method of disposal), and proper disposal of
soils containing chemicals of concern;
(3) boreholes with associated soil sampling
and chemical analysis as required by the Department to assess the extent of
chemicals of concern in the soil;
(4) boreholes with associated ground-water
sampling and chemical analyses, installation and sampling of temporary and
permanent monitoring wells to assess the extent and severity of chemicals of
concern in the ground-water;
(5)
installation and sampling of recovery wells;
(6) hydrogeologic evaluation;
(7) preparation and submittal of assessment
plans, assessment reports, corrective action plans, and mixing zone
applications;
(8) routine
ground-water monitoring and reporting as approved by the Department;
(9) construction, operation, and maintenance
of a treatment system specifically constructed for site rehabilitation,
or;
(10) treatment, associated
sampling, and proper disposal of petroleum or petroleum product contaminated
ground water as required;
(11)
plans for termination of site rehabilitation activities.
c. Activities that are not payable from the
SUPERB fund include, but are not limited to, the following:
(1) UST system replacement, UST system
removal, UST system upgrade, UST system testing, UST closure and other
assessments to determine if a release has occurred;
(2) actions taken to stop the UST from
leaking;
(3) the investigation and
cleanup of any release other than a release of petroleum or petroleum products
from a UST;
(4) loss of
product;
(5) payment of liability
claims against the owners or operators of a UST;
(6) legal fees;
(7) loss of revenue;
(8) loss of trees, shrubs, or
signs;
(9) overnight or express
mail costs for plans, reports, and assorted paper documentation;
(10) costs related to unnecessary
environmental permits;
(11) costs
incurred to prepare and implement plans and reports that are not technically
warranted or do not substantially address the Department's performance
standards;
(12) costs incurred in
general consultation with the Department or the UST owner or operator regarding
plan or cost preparation;
(13)
costs associated with the replacement of capital expense items which have been
lost, stolen, or damaged by acts of vandalism and/or natural
disasters;
(14) handling fees,
markups, commissions, percentages or other similar considerations on any
activity furnished or completed by any entity which has a familial or financial
relationship and/or related interest to the property owner, UST owner or
operator, or site rehabilitation contractor.
(15) costs incurred for unnecessary or
inappropriate site rehabilitation activities.
5. SUPERB Eligibility Appeals. A UST owner or operator shall be granted a hearing by an independent hearing officer to appeal a denial of SUPERB eligibility, if requested in writing within 15 days of receipt of the letter denying SUPERB eligibility.
6. Invoice Review.
a. A UST owner or operator or a site
rehabilitation contractor may seek a review of a staff decision by the UST
Program Director regarding an invoice for which the Department denies payment.
Requests for review shall be submitted to the Department within thirty (30)
days of the date of receipt of Department correspondence that denies the
invoice. Requests for reviews shall be in accordance with a Department
established format.
b. The UST
Program Director shall review all requests for review described in (a) above
and provide a written determination thereto within forty-five (45)
days.
7. Cost Recovery.
a. When the Department is required to perform
site rehabilitation through its own personnel or contractors, the Department
shall diligently seek cost recovery of any cost incurred as authorized by the
SUPERB Act.
b. For sites that do
not qualify for SUPERB eligibility,but for which SUPERB funds have been
expended by the Department, the Department shall recover all expenditures from
the owner or operator, as appropriate. This may include, but not be limited to:
(1) all materials and labor;
(2) all contractual costs; and
(3) all actual administrative costs incurred
by the Department to conduct site rehabilitation activities and to secure cost
recovery.
c. For sites
that qualify for SUPERB monies but where the owner or operator is unable or
unwilling to perform site rehabilitation, the Department may recover from the
SUPERB Account. For site rehabilitation activities or costs not covered by the
SUPERB Act, the Department may recover, as appropriate, from the owner or
operator:
(1) all materials and
labor;
(2) all contractual costs;
and
(3) all actual administrative
costs incurred by the Department to conduct site rehabilitation activities and
to secure cost recovery.
d. Cost recovery shall be in addition to any
fines imposed by the Department pursuant to the SUPERB Act.
Disclaimer: These regulations may not be the most recent version. South Carolina may have more current or accurate information. We make no warranties or guarantees about the accuracy, completeness, or adequacy of the information contained on this site or the information linked to on the state site. Please check official sources.
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