§ 44-2-130 — Compensation from Superb Account; other insurance or financial responsibility mechanism; deadline for submission; site rehabilitation not a state contract; criteria and restrictions; application, certification, approval, denial, appeal; records; rehabilitation plan; payments; federal government sites exempt.

(A) For releases reported subsequent to June 30, 1993, and so long as funds are available in the Superb Account and except as otherwise provided in Sections 44-2-40 and 44-2-110, an owner or operator or his agent is eligible for compensation for usual, customary, and reasonable costs incurred for site rehabilitation 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 financial responsibility coverage for sudden or nonsudden release of petroleum or petroleum products from an underground storage tank has been executed for a site at which compensation 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. (B) For all releases reported after June 30, 1993, all site rehabilitation costs must be submitted to the department on or before September 30, 1994, to be considered for payment. After September 30, 1994, no costs will be allowed unless prior approval is obtained from the department. Requests for cost approvals must be in accordance with regulations promulgated pursuant to this chapter and criteria established by the department as authorized by this chapter. (C)(1) No owner or operator or his agent is entitled to compensation from the Superb Account for site rehabilitation unless rehabilitation is conducted in accordance with criteria established by the department and regulations promulgated by the department pursuant to Section 44-2-50(B). (2) No owner or operator or his agent is entitled to compensation from the Superb Account for the costs of repair or replacement of any tank or equipment. (D) Compensation from the Superb Account by an owner or operator or his agent conducting site rehabilitation through his own personnel or through contractors or subcontractors is not considered a state contract for purposes of procurement or subject to state bid requirements. (E)(1) An owner or operator of an underground storage tank or his agent seeking to qualify for compensation from the Superb Account for site rehabilitation shall submit a written application to the department. The written application must be on a form specified by the department and include certification that site rehabilitation is necessary, the tanks at the site have been registered in compliance with applicable law and regulations, and all registration fees have been paid. The department shall accept certification that the release at the site is in need of rehabilitation if the certification is provided jointly by the owner or operator and a South Carolina registered professional geologist or engineer, and if the certification is supported with geotechnical data which reasonably justifies the claim. Upon final determination the department shall provide written notice to the applicant of its findings including detailed reasons for any denial. Any denial of an application must be appealable to the Board of Health and Environmental Control. The department is exempt from this time frame for applications which are received within three months of the close of the grace period allowed in Section 44-2-110. (2) The owner or operator 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. (F) An owner or operator of an underground storage tank or his agent seeking compensation from the Superb Account must submit to the department a written request consisting of a plan for site rehabilitation and an associated cost proposal in accordance with regulations established by the department. The department shall make payments as expeditiously as possible for invoices submitted in accordance with regulations. However, payment for any properly justified invoice after ninety days of receipt shall include interest compounded daily for the amount of approved costs at the same legal interest rate provided by Section 34-31-20(A). For invoices submitted to the department after July 1, 1994, no interest may be paid pursuant to this paragraph. Interest continues to accrue and must be paid for invoices submitted to the department before July 1, 1994, which meet the requirements of this paragraph. (G) The provisions of this section do not apply to rehabilitation of a release at a site owned or operated by the federal government.

Legislative History

HISTORY: 1988 Act No. 486, SECTION 2; 1990 Act No. 473, SECTIONS 5, 7-10; 1991 Act No. 171, Part II, SECTION 18D; 1992 Act No. 501, Part II, SECTION 43H; 1995 Act No. 145, Part II, SECTIONS 2G, 2H, 2I.