ORDERS:
ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before me pursuant to S.C. Code Ann. §§ 1-23-320 and 1-23-600 (Supp.
1995) upon the request of White's Auto Truck Plaza, Inc. (Petitioner) for a contested case hearing
on the Department of Health and Environmental Control's (DHEC) denial of State Underground
Petroleum Environmental Response Bank (SUPERB) funds for the removal and clean up of
underground petroleum storage tanks. After notice to the parties, a hearing was conducted on
March 26, 1996.
Based upon the evidence presented and the law, the application for SUPERB funds is denied.
Any issues raised in the proceedings or hearing of this case but not addressed in this Order are
deemed denied. ALJD Rule 29(B).
FINDINGS OF FACT
1. Petitioner, White's Auto Truck Plaza, is a truck stop, restaurant, and maintenance shop located
at the intersection of U.S. Interstate 20 and Highway 401 near Lamar, South Carolina.
2. Petitioner owned and operated the facility for approximately eleven years.
3. On November 14, 1994, Petitioner sold the business to Mr. James Strode, Handee Auto/Truck
Plaza, Inc.
4. On that same date, DHEC conducted a compliance inspection of the facility.
5. During the inspection, it was revealed that the underground storage tanks had never been
registered with the Department and no registration fees had ever been paid. In addition,
contaminated soil was observed around the waste oil tank.
6. The tanks and lines did not have any release detection devices.
7. On November 17, 1994, Petitioner was informed by letter of the corrective action needed to
bring the facility into compliance.
8. Thereafter, several conferences were held between Petitioner, the new owner and DHEC.
These conferences resulted in the execution of Consent Order 95-018-DWP by and between
Petitioner and the Department on April 4, 1995.
9. The consent order sets forth the facts and responsibilities of Petitioner and the new owner in
order to be considered eligible for SUPERB funds. Pursuant to the Order, it was Petitioner's
responsibility to "address and remediate" the contamination at the site as well as to register the
tanks and pay all outstanding registration fees. The new owner would have the tanks and lines
tested, install line leak detectors and drop lines, and would maintain the appropriate monthly
records.
10. The Order also stated that Petitioner was informed that, "once fees were paid and tanks
registered, it would be considered eligible for SUPERB funds. However, SUPERB qualification
would be granted only if all other applicable requirements were met by the [Petitioner]."
11. The consent order concluded that Petitioner failed to provide leak detection for the
underground storage tanks during its ownership; that it did not register the tanks; and that it did
not pay the annual registration fees in violation of S.C. Code Ann. § 44-2-10, et seq. and 25A
S.C. Code Regs. 61-92. The violations subjected Petitioner to a civil penalty under S.C. Code
Ann. § 44-2-140 which would be waived pending completion of several items in the Consent
Order.
12. Within 30 days of the execution of the consent order, Petitioner was required to submit to the
Department the registration form for the tanks; and submit "an initial assessment report which
addresses the soil and/or groundwater contamination" at the site.
13. In the event of any delay in meeting the requirements of the consent order, Petitioner was
required to request, in writing, an extension. The request would set forth the reasons for the
delay, the anticipated date of completion, and any necessary preventative measures to be taken.
14. The initial assessment report on the contamination was performed by TET Environmental
Services, Inc. in March 1995. The report was completed in April 1995 and sent to Petitioner.
15. Petitioner did not forward the report to DHEC until August 1995. According to Petitioner, it
was not aware that DHEC had not received a copy of the environmental report. DHEC received
the report on August 17, 1995.
16. The report confirmed that a release of petroleum products occurred in that groundwater
contamination existed at specific locations tested at the site. The report also stated, "The full
extent of contamination at the site is currently unknown and would require further investigation
..."
17. Line leak detectors were installed by the new owner in January 1996.
18. Petitioner did not request additional time to complete any of the provisions contained in the
consent order.
19. No evidence was presented regarding any remediation of the contaminated site.
20. DHEC notified Petitioner by letter dated November 9, 1995 that access to SUPERB funds
was being denied.
CONCLUSIONS OF LAW
1. The Administrative Law Judge Division is authorized to hear contested cases pursuant to S.C.
Code Ann. §§ 1-23-320 and 1-23-600 (Supp. 1995).
2. S.C. Code Ann. § 44-2-60 (Supp. 1994)(1) requires the owner or operator of an underground
storage tank which stores petroleum or petroleum products to register the tank with the
department. The registration certificate must be displayed. There is a fee upon initial registration
and for each renewal.
3. Pursuant to S.C. Code Ann. § 44-2-40 (Supp. 1994) the Superb Account was established to
ensure the availability of funds for the rehabilitation of sites contaminated with petroleum or
petroleum products released from an underground storage tank and for the administration of the
underground storage tank regulatory program.
4. The funds are to be used by the Department of Health and Environmental Control to pay the
usual, customary and reasonable cost in excess of $25,000 of site rehabilitation by owners or
operators who qualify for compensation. S.C. Code Ann. § 44-2-40(B) (Supp. 1994).
5. Except for releases reported before July 1, 1994, the fund may not be used to pay the costs of
site rehabilitation of a release at a site where the underground storage tank, at the time of the
release, is not in "substantial compliance" with regulations promulgated by the Department
pursuant
to Section 44-2-50(A). (emphasis added) S.C. Code Ann. § 44-2-40(B) (Supp. 1994).
6. "Substantial compliance" means that an "underground storage tank owner or operator has
demonstrated a good faith effort to comply with regulations necessary and essential in preventing
releases, in facilitating their early detection, and in mitigating their impact on public health and the
environment." S.C. Code Ann. § 44-2-20(14) (Supp. 1994).
7. S.C. Code Ann. § 44-2-50(A) (Supp. 1994) provides that the department shall promulgate
regulations relating to permitting, release detection, prevention, and correction applicable to all
owners and operators of underground storage tanks. These regulations were promulgated by the
Department in 1985 and substantially revised in 1990. 25A S.C. Code Regs. 61-92. Regulation
61-92 applies to all owners and operators of underground storage tank systems.
8. Pursuant to Section 280.40 of Regulation 61-92, owners and operators of existing underground
storage tanks systems must provide a method, or combination of methods, of release detection
specified in the regulation. The release detection method must meet the performance
requirements of Section 280.43 or 280.44. The regulation provides a schedule to phase in release
detection. At the latest, release detection for all pressurized piping should have begun in 1990
and in 1993 for tanks and suction piping. Reg. 61-92, § 280.40(c).
9. Under Section 280.41, release detection for tanks and piping were required to be monitored at
least every 30 days.
10. The regulation also provides in detail for the reporting of any release as well as the need for a
corrective action plan and abatement and cleanup of any spill.
11. Petitioner admits that the tanks were not registered as required by law and that no leak
detection devices were installed on the pipes and tanks as required by the regulation. In addition,
Petitioner did not monitor the lines or pipes for any leakage and did not report any leakage or spill
to DHEC. Petitioner states that it was not aware of the requirements of the statute or the
regulation. Ignorance of the law, especially in an industry that is closely regulated to protect the
environment, provides no safehaven from imposition of the statutory and regulatory requirements. See S.C. Wildlife and Marine Resources Dep't. v. Kunkle, 287 S.C. 177, 336 S.E.2d 486 (1985).
12. Petitioner also argues that the Consent Order was negotiated so that it would be able to
receive SUPERB funds. The language of the Consent Order does not support Petitioner's
allegations. Petitioner, represented by counsel, negotiated the consent order whose terms clearly
indicate that the tanks had to be registered before any discussion could occur on eligibility of
funding. Further, the specific language of the consent order states that "SUPERB qualification
would be granted only if all other applicable requirements were met" by the Petitioner. These
requirements, whether contained in the statutes, the regulation, or the terms of the consent order,
were not met. The consent order simply provided a mechanism to come into compliance with the
statutes and regulation. The tanks could be registered, Petitioner could avoid the payment of a
penalty for failure to register the tanks, leak detection devices could be installed on the lines and
the Petitioner (or its successor) would fulfill its obligations under the law.
13. In addition, under the statute, for releases reported after June 30, 1994, SUPERB funds may
not be used to pay the costs of site rehabilitation where the underground storage tanks were not in
substantial compliance with DHEC regulations at the time of the release. S.C. Code Ann. §
44-2-40(A) (Supp. 1994). The facts are undisputed, the underground storage tanks were not in
substantial compliance at the time of the release because no effort had been made to comply with
the regulations to prevent releases or detect any leaks early.
ORDER
Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby
ORDERED, that the Petitioner's application of SUPERB funds is DENIED.
AND IT IS SO ORDERED.
____________________________
ALISON RENEE LEE
Administrative Law Judge
January _____, 1997
Columbia, South Carolina.
________________
Fn.1. Although the SUPERB Act was amended effective July 1, 1995, the 1994 law is applicable
because the site inspection occurred in 1994 and the Consent Order was executed in April 1995,
prior to amendment. |
