S.C. Code Regs. § § 61-98.III

Current through Register Vol. 48, No. 10, October 25, 2024

Section 61-98.III - SUPERB Fund Requirements

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.

S.C. Code Regs. § 61-98.III