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.V - Suspension, Decertification, and Appeals

Universal Citation: SC Code Regs 61-98.V

Current through Register Vol. 48, No. 9, September 27, 2024

A. Suspension and Decertification.

1. Effect of Action. Contractors who are suspended or decertified shall be excluded from performing site rehabilitation throughout the state for the period of their suspension or decertification. No UST owner or operator shall knowingly have any suspended or decertified contractors, including affiliates, perform site rehabilitation during such period or enter any agreement that would stipulate the suspended or decertified contractor perform site rehabilitation during such periods.

2. Suspension. Summary shall be for a temporary period pending the completion of an investigation or ensuing decertification or legal proceedings. The Department may impose summary suspension in egregious cases posing imminent harm to the environment or the public.

3. Decertification
a. The Department may decertify a contractor performing or seeking to perform site rehabilitation in South Carolina when:
(1) the contractor fails to maintain qualification pursuant to Section IV.A.4;

(2) the contractor has had administrative or civil enforcement action under the provisions of this chapter taken against him within the last three years;

(3) the contractor has demonstrated repeated noncompliance with financial criteria established by the Department, to include, but not be limited to:
(a) submitting bills to the Department that are inconsistent with regulations, established criteria and/or general accounting principles;

(b) submitting duplicate or fraudulent bills to the Department;

(c) submitting bills to the Department for work not yet performed or equipment and materials not yet delivered or received; and

(d) failure to pay cost recovery requests from the Department (including disallowed costs and overpayment), provided the debt is uncontested by the debtor or if contested provided that the debtor's legal and administrative remedies have been exhausted.

(4) where a person has demonstrated repeated inability to perform site rehabilitation in accordance with performance standards and criteria developed by the Department and accepted industry standards to include, but not be limited to:
(a) deliberate failure to perform according to the specifications or within the schedule approved by the Department;

(b) a record of failure to perform or of unsatisfactory performance according to the terms of one or more site rehabilitation work plans; provided that failure to perform or unsatisfactory performance caused by acts beyond the control of the person shall not be considered a basis for decertification;

(5) any other cause that the Department determines to be so serious and compelling as to affect the ability of a contractor or subcontractor to perform site rehabilitation activities in a satisfactory manner, including decertification or similar action by another governmental entity.

4. Investigation. Information of a cause for decertification from any source shall be promptly reported to the Department by UST owners, operators, site rehabilitation contractors, or other persons. The Department will promptly investigate, and may issue a notice of proposed decertification.

5. Notice of Proposed Decertification. A decertification notice shall be issued to the contractor advising:
a. That decertification is being considered;

b. Of the reasons for the proposed decertification in terms sufficient to put the respondent on notice of the conduct or site rehabilitation activity upon which it is based;

c. Of the potential effect of decertification.

6. Opportunity For Review of Proposed Decertification. Within fifteen (15) days after receipt of the notice of proposed decertification, the contractor may submit in writing information and argument in opposition to the proposed decertification and notify the Department if a conference is desired. If such request is made, the contractor shall be afforded an opportunity to appear with a representative, and submit documentary evidence and other appropriate information.

7. Notice of Decertification.
a. The decision shall be made within forty-five (45) days after receipt of any information and argument submitted by the respondent, unless the Department extends the period for good cause.

b. The notice of the Department's decision shall specify the reason(s) for decertification; state the period of decertification; and advise that the decertification is effective for all UST site rehabilitation activities in the State except as provided for by this section.

c. If the Department decides not to impose decertification, the contractor shall be given prompt notice of that decision. A decision not to impose decertification shall be without prejudice to a subsequent imposition of decertification by the Department.

d. When in the best interest of the State or the Department, the Department may, at any time, settle a decertification or suspension action.

8. Period of Decertification.
a. Decertification shall be for a period commensurate with the seriousness of the cause(s). If a suspension precedes a decertification, the suspension period shall be considered in determining the decertification period.

b. Decertification should generally not exceed three (3) years. Where circumstances warrant, a longer period of decertification may be imposed.

c. The Department may extend an existing decertification for an additional period, if the Department determines that an extension is necessary to protect the public interest. However, a decertification may not be extended solely on the basis of the facts and circumstances upon which the initial decertification action was based.

9. Reversal of Decertification. The Department may reverse a decertification decision for reasons including, but not limited to:
a. newly discovered material evidence;

b. reversal of the conviction or civil judgement upon which the decertification was based;

c. bona fide change in ownership or management;

d. elimination of other causes for which the decertification was imposed; or

e. other reasons the Department deems appropriate.

10. Exceptions
a. The Department may grant an exception permitting a decertified or suspended contractor to participate in a particular site rehabilitation activity upon prior notice and subsequent to a written determination by the Department stating the reason(s) for deviating from the requirements of this regulation. Exceptions shall be granted on a case by case basis.

b. UST owners or operators shall not renew or extend agreements to allow decertified or suspended contractors from continuing with site rehabilitation, except as provided in (a) above.

11. Failure to Adhere to Restrictions. Except as permitted by this regulation, a UST owner or operator shall not knowingly allow the initiation, implementation or completion of site rehabilitation with a decertified or suspended contractor. A UST owner or operator may rely upon the certification of a contractor that it or its affiliates are not decertified or suspended from site rehabilitation, unless it knows that the certification is erroneous.

B. Appeals.

1. Any person that has been suspended or decertified shall have the right to appeal in accordance with the Administrative Procedures Act. Appeals shall be heard by an independent hearing officer.

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.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.