ORDERS:
CONSENT ORDER OF DISMISSAL
WHEREAS, Petitioner, South Carolina Department of Health and Environmental Control (“DHEC” or “the Department”), is an agency of the state of South Carolina, vested with all the powers, functions, and duties granted to the Department and its officers and agents by statute, and has regulatory authority over management of the State Underground Petroleum Environmental Response Bank (SUPERB) Act, S.C. Code Ann. §44-2-10 et seq. (2002), and the Regulations promulgated pursuant thereto, 25A S.C. Code Ann. Regs. 61-92 (Supp. 2004); and
WHEREAS, Respondent Carmichael Enterprises, Inc. (“Carmichael”), owned and operated underground storage tanks (USTs) as defined in the State Underground Petroleum Environmental Response Bank (SUPERB) Act, Title 44, Chapter 2 of the South Carolina Code of Laws as amended, at 700 Liberty Street, Marion, Marion County, South Carolina (Site), UST Permit # 14279; and
WHEREAS, Respondent Carmichael also owns and operates above-ground storage tanks (ASTs) at 700 Liberty Street, Marion, Marion County, South Carolina; and
WHEREAS, Respondent Carmichael and Petitioner DHEC entered into a Consent Order of Dismissal, which was signed and filed by Carolyn C. Matthews, Administrative Law Court Judge, on December 3, 2001; and
WHEREAS, pursuant to Page 3, # 9 of the referenced Consent Order of Dismissal, Respondent Carmichael is responsible for all costs that would not have been incurred but for a release from the ASTs, including if applicable the cost of free product removal and remediation of dissolved phase contamination; and
WHEREAS, pursuant to Page 5, # 15 of the referenced Consent Order of Dismissal, Respondent Carmichael agreed that before any activities are initiated to this Order to determine the extent of petroleum contamination and within 90 days of the execution date of this Order, to cause tank and line testing to be performed on the existing AST system to assure to the Department that no ongoing or new releases are occurring and any problems are immediately corrected; and
WHEREAS, Petitioner DHEC issued, on December 14, 2004, Administrative Order 02-0126-UST, against Respondent Carmichael; and
WHEREAS, Administrative Order 03-0126-UST was appealed, on January 19, 2005, to the Administrative Law Court, as prescribed by S.C. Code Ann. Regs. 61-72 and
the Rules of Procedure for the Administrative Law Court; and
WHEREAS, both parties have agreed to settle this matter in full.
NOW THEREFORE IT IS ORDERED, CONSENTED, TO AND AGREED that Respondent Carmichael shall submit:
(A) within thirty (30) days after the execution of this Order, a certified check payable to SC DHEC in the amount of Eight Thousand, Five Hundred Dollars ($8,500.00), and sent to:
SC DHEC
Etta R. Williams, Esquire
Office of General Counsel
2600 Bull Street
Columbia, South Carolina 29201-1708
The check should include Site I.D. # 14279; and
(B) documentation to Petitioner DHEC, within 90 days after the execution of this Order, demonstrating: 1) that tank and line testing has been performed on the existing AST system that is owned and operated by Respondent and located at 700 Liberty Street, Marion, Marion County, South Carolina; and 2) that if leaks were found during the tank and line testing that those leaks have been corrected.
IT IS FURTHER ORDERED, CONSENTED TO, AND AGREED that with
the execution of this Consent Order for Dismissal, the issues underlying Administrative Order 03-0126-UST are resolved and that Petitioner DHEC vows that it shall make no claim against Carmichael, its shareholders, managers, employees, successors, or assigns for response, removal, or remediation, or the cost thereof, pertaining to petroleum contamination at 700 Liberty Street, Marion, Marion County, South Carolina, as documented in the Tier II Addendum Report dated July 30, 2002, and received by Petitioner on August 1, 2002.
IT IS ALSO ORDERED, CONSENTED TO, AND AGREED that if Respondent Carmichael does not comply specifically and precisely with the pertinent provisions of this Order, that Petitioner DHEC reserves the right to seek enforcement against Respondent for non-compliance with this Order.
FURTHERMORE IT IS ORDERED, CONSENTED TO, AND AGREED that Administrative Order 03-0126-UST is hereby vacated.
AND IT IS SO ORDERED.
October 26, 2005
________________________________________ ________________________
Marvin Kittrell, Administrative Law Court Judge Date
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