SC Administrative Law Court Decisions

In the above-captioned matter, Petitioner Crenshaw Oil Company, Inc. (Crenshaw Oil), as the owner of underground storage tanks (USTs) located at the H&R In & Out gas station in Great Falls, South Carolina, UST Permit # 02108, seeks review of the South Carolina Department of Health and Environmental Control’s (DHEC or Department) decision to deny State Underground Petroleum Environmental Response Bank (SUPERB) Account coverage for the site under the SUPERB Act. The site in question requires rehabilitation as a result of a release of petroleum or petroleum products that occurred at some time prior to 2001 and that has contaminated the groundwater under the site. This release was discovered as a result of site testing that was conducted in response to a violation at the site–specifically, the temporary removal of a line leak detector from one of the USTs–that was observed by a DHEC inspector on January 30, 2001. However, because of this violation, DHEC determined that Petitioner Crenshaw Oil had not demonstrated substantial compliance with the SUPERB regulations and, on that basis, denied Petitioner SUPERB Account coverage for the rehabilitation of the site by letter dated May 24, 2002. Petitioner contends that, despite the January 30, 2001 violation, it has been in substantial compliance with the SUPERB regulations at the H&R site and that the site should therefore be eligible for funding from the SUPERB Account.

After timely notice to the parties, a hearing of this matter was held at the Administrative Law Judge Division in Columbia, South Carolina, on February 20, 2003. Based upon the evidence presented at the hearing and upon the applicable law, I find that DHEC’s decision to deny SUPERB coverage to Petitioner for the H&R site cannot be sustained and that the site should, therefore, be eligible for such coverage.

FINDINGS OF FACT

Having carefully considered all testimony, exhibits, and arguments presented at the hearing of this matter, and taking into account the credibility and accuracy of the evidence, I make the following Findings of Fact by a preponderance of the evidence:

1. Crenshaw Oil is a family-owned fuel oil distribution business based in Lancaster, South Carolina, that also owns underground storage tank systems at several gas stations. Although Crenshaw Oil does own the property associated with some of these stations, its typical involvement in the gas station business is limited to the ownership and/or operation of the equipment associated with the gas stations, including the ownership and operation of USTs.

2. Crenshaw Oil was founded in the mid-1970s by Mr. Harold Crenshaw, Sr., who served as president of Crenshaw Oil until his retirement from the company in October 2000. Upon his retirement, Mr. Harold Crenshaw, Sr., left the operations of the company in the hands of certain family members, including Harold Crenshaw, Jr., as president, Debbie Crenshaw as vice president, and Jodie Crenshaw Elliott as secretary and treasurer.

3. Prior to his retirement, Mr. Crenshaw, Sr., was responsible for ensuring that the USTs owned and operated by Crenshaw Oil were in compliance with the SUPERB Act and its implementing regulations, and he personally interacted with DHEC regarding those matters. No evidence was presented to suggest that Crenshaw Oil failed to comply with SUPERB requirements for the USTs at the H&R site prior to the retirement of Mr. Crenshaw.

4. Upon Mr. Crenshaw’s retirement, Ms. Elliott and Harold Crenshaw, Jr., undertook the responsibility of ensuring that Crenshaw Oil remained in compliance with the applicable UST laws and regulations. Ms. Elliott organized the company’s SUPERB compliance files and records for each gas station, and met with DHEC personnel on several occasions to discuss what Crenshaw Oil needed to do to comply with SUPERB requirements for the USTs it owned and operated.

5. Specifically, shortly after Mr. Crenshaw, Sr., retired in October 2000, Ms. Elliott met with Sherell Stevens, the DHEC compliance inspector responsible for inspecting the USTs at the H&R site and many of Crenshaw Oil’s other USTs. In this meeting, Ms. Elliott sought to identify the standards and reporting requirements applicable to Crenshaw Oil’s USTs. Accordingly, Ms. Elliott and Ms. Stevens discussed the SUPERB requirements for each site at which Crenshaw Oil owned or operated USTs. At that meeting, or shortly thereafter, Ms. Stevens prepared a typewritten document entitled “Compliance Plans,” which set forth, for each of Crenshaw Oil’s stations, the testing that needed to be conducted on the UST systems, the deadlines for those tests, and the record retention policies associated with such tests. (Pet’r Ex. #12.) The evidence submitted in this case indicates that Crenshaw Oil has fully complied with the “compliance plans” developed by Ms. Stevens for the H&R site.

6. The site at issue in this matter, the H&R In & Out gas station, is located at 3265 Ridgeway Road in Great Falls, South Carolina. Although it does not run the retail operations or own the property associated with the station, Crenshaw Oil does own and operate the fuel storage and dispensing equipment used by the station.

7. In annual inspections of the H&R station between 1997 and 1999, DHEC noted that Crenshaw Oil was in compliance with all applicable SUPERB requirements. (Pet’r Ex. #3, 10, 11.) 8. The USTs at the H&R site employ pressurized lines, as opposed to suction lines. Approximately eight years ago, Crenshaw Oil installed automatic line leak detectors on the pressurized lines, as required by the SUPERB regulations.

9. Since the installation of the line leak detectors, Crenshaw Oil has submitted to the Department documents showing that the lines were pressurized, that they had been equipped with automatic leak detectors, and that line leak detection tests had been conducted and the lines were found not to be leaking. (Pet’r Ex. #2, 6, 14.) No evidence was presented at the hearing to suggest that Crenshaw Oil has failed to maintain these leak detectors on the USTs and in working order, other than for a few days prior to the January 30, 2001 inspection, as discussed further below.

10. Prior to January 30, 2001, Ms. Stevens, the DHEC field representative responsible for inspecting the USTs at the H&R site, was under the mistaken belief that the lines at the station were suction lines and had advised Ms. Elliott accordingly. In particular, Ms. Stevens stated in the “Compliance Plans” prepared for the H&R station that the piping for the USTs at the station was suction piping. (Pet’r Ex. #12.) Consequently, Ms. Stevens did not indicate on that document that automatic line leak detectors were required or that annual line tightness tests were required. At the time she and Ms. Stevens discussed the “Compliance Plans” document, Ms. Elliott was unaware of the distinction between suction lines and pressurized lines. While Ms. Stevens was aware of the distinction between the two types of lines, she was operating under the mistaken assumption that the H&R lines were suction lines. However, the Department’s records contain ample documentation indicating that the lines at the H&R station were pressurized, not suction, lines, and that these lines had previously been inspected and had passed as such.

11. On January 30, 2001, Ms. Stevens conducted a routine annual inspection of the H&R station. Ms. Elliott accompanied Ms. Stevens for the inspection. During the inspection, Ms. Stevens opened an access tunnel to the USTs and discovered that the automatic line leak detector was disconnected from the submersible pump on one of the USTs. Further, when the pump was activated by a customer using the system, Ms. Stevens observed some fuel escaping from the point at which the leak detector should have been connected.

12. As a result of this inspection, Ms. Stevens issued a UST Compliance Inspection Notice of Violation to Crenshaw Oil on January 30, 2001. This Notice specified the following violations: failure to equip a pressurized line with an automatic line leak detector, failure to provide the Department with records regarding the lines, failure to conduct an annual line tightness test on the pressurized lines or to have monthly monitoring of the lines, failure to conduct annual tests of the automatic line leak detectors, and the failure to report a suspected release in the lines and leak detectors. (Pet’r Ex. #13, at 1-2.) The Notice of Violation further stated that Ms. Stevens “observed gas coming out where the leak detector is supposed to be.” (Pet’r Ex. #13, at 3.) All of these violations arose from the disconnection of the leak detector on one of the USTs as observed by Ms. Stevens.^[1]

13. The Notice of Violation also required Crenshaw Oil to install line leak detectors on each pressurized line, conduct a line leak detector function check, conduct a piping tightness test, and to perform a site assessment alongside each tank near the submersible pumps. (Pet’r Ex. #13, at 3.)

14. After becoming aware of the violation, Ms. Elliott immediately telephoned Johnnie West, the Crenshaw Oil service technician responsible for the maintenance of the USTs at the H&R site, and arranged for him to re-connect the line leak detector. Following these instructions, Crenshaw Oil’s service technician re-connected and checked the line leak detector within twenty-four hours of the Department’s inspection. Further, three days after the inspection, on February 2, 2001, the lines at the H&R site passed line tightness tests conducted by U.S. Envirotech of America. Documentation of these actions was submitted to DHEC, along with an explanation that Crenshaw Oil’s service technician had disconnected the leak detector while troubleshooting a possible problem with the check valve. (Pet’r Ex. #14, 15.)

15. From the evidence presented at the hearing, the leak detector appears to have been disconnected for less than a week, and most likely for only a few days.^[2] Mr. Harold Crenshaw, Jr., testified that he understood that the leak detector had been disconnected for only about three days while Johnnie West was troubleshooting a potential problem with the check valve.

16. The leak detector, however, was not the only means employed by Crenshaw Oil for detecting leaks in the UST lines at the H&R site. As required under the SUPERB Act, Crenshaw Oil also maintained daily inventory records for the H&R station that were reconciled monthly. Mr. Crenshaw, Jr., described this procedure: daily gasoline levels in the tanks, as determined by lowering a measuring stick into the tanks, were entered in Crenshaw Oil’s computerized inventory system and compared to the amount of fuel dispensed from the gas pumps. A decrease in the amount of fuel in a tank that exceeded the amount of fuel dispensed from the gas pump connected to the tank would indicate a leak in the UST system.

17. Crenshaw Oil’s inventory records for the H&R site for the months preceding and including the January 30, 2001 inspection do not reveal a discrepancy between the tank levels and the amount of fuel dispensed that indicates the presence of a leak in the USTs at the site.

18. As required by the Notice of Violation, Crenshaw Oil performed a site assessment of the H&R site. As part of this assessment, soil samples were collected from the vicinity of the submersible pumps on the USTs at the H&R station and submitted to Prism Laboratories, Inc. for analysis on March 28, 2001. Prism Laboratories mailed the results of this analysis to Crenshaw Oil on April 13, 2001. The tests failed to detect any organic substances associated with either diesel fuel or gasoline in any of the samples. (Pet’r Ex. #18.) Ms. Elliott faxed a copy of these test results to DHEC on April 16, 2001.

19. On May 22, 2001, Joe Gladney, an Enforcement Project Manager for the Enforcement Section of the Department’s UST Program, sent a proposed consent order to Crenshaw Oil to resolve the violation for the disconnected line leak detector and other related violations listed in the Notice of Violation. Ms. Elliott promptly discussed the proposed consent order with Mr. Gladney and submitted payment for an agreed-upon reduced civil penalty to DHEC on June 6, 2001.

20. On May 30, 2001, Crenshaw Oil received its first letter concerning SUPERB funding for the H&R site. In this letter, Dale Stoudemire, compliance coordinator for DHEC’s UST Program, requested certain information on the owner of the USTs at the time of installation, the reasons the pumps were originally uncovered, and the date on which the old leak detectors were removed. As with earlier DHEC requests, Ms. Elliott responded to the request in a timely fashion.

21. In June 2001, Mr. Gladney asked Ms. Elliott to send another copy of the site assessment results that Crenshaw Oil had sent him in April. Ms. Elliott faxed those copies to Mr. Gladney on June 6, 2001.

22. By a letter dated June 29, 2001, Mr. Gladney informed Crenshaw Oil that the Department had received the site assessment results, the results of the line tightness and line leak detector function tests, and the $500 civil penalty payment related to the January 30, 2001 violation and that the enforcement action for that violation had been resolved.

23. Six months later, on December 19, 2001, Chuck Hightower, a project manager with the Department’s UST Program, notified Crenshaw Oil by letter that the April 13, 2001 site assessment was unacceptable because it did not comply with DHEC’s assessment guidelines. In response to this letter, Ms. Elliott immediately contacted Mr. Hightower to determine the correct testing that needed to be done at the site.

24. On January 14, 2002, pursuant to DHEC’s instructions, Crenshaw Oil collected new soil samples from inside the manholes above the USTs at the H&R station at a depth of approximately two feet. Ms. Stevens, a DHEC representative, was present during the collection of the samples.

25. The new soil samples from the manholes were analyzed by Prism Laboratories using the methods indicated by DHEC. These tests indicated the presence of petroleum constituents in the soil. Upon receiving these results, Crenshaw Oil sent a copy of the soil analysis to the project manager at DHEC.

26. Based upon this assessment report, the Department required Crenshaw Oil to conduct further site testing and assessment to determine the extent of any contamination at the H&R site. The required testing included an Initial Groundwater Assessment (IGWA) and a Tier II Assessment of the site. Accordingly, Crenshaw Oil retained Katawba Environmental, Inc., an environmental consulting firm, to conduct the assessments and submit the results to DHEC as required. In addition to its private environmental consulting work, Katawba Environmental is a SUPERB-approved contractor that has performed SUPERB-related work for DHEC at other sites. (Hr’g Tr. at 166.)

27. The Initial Groundwater Assessment and a Tier I Assessment Report for the H&R site were subsequently conducted by Katawba and the results were timely submitted to the Department on behalf of Crenshaw Oil. To complete these assessments, four monitoring wells were installed at the H&R site. In addition, a plan for the Tier II Assessment of the site has been submitted to DHEC for approval.

28. At the hearing, John Keene Fleck, a licensed professional geologist with Katawba, testified regarding the site assessments and testing conducted for the H&R site. While Mr. Fleck did testify that the results of the IGWA and the Tier I Assessment revealed the presence of petroleum constituents in the groundwater beneath the H&R site and indicated that the groundwater had been contaminated by a release of petroleum, he further explained that this contamination could not have been caused by the release observed by Ms. Stevens on January 30, 2001. (Hr’g Tr. at 173-74.) Mr. Fleck clearly and specifically explained how any fuel released into the soil on January 30, 2001, could not have reached the monitoring wells by the time of the testing, and thus could not have caused the contamination at those wells. In detail, he described how the fuel released on January 30, 2001, could not have migrated down through thirty feet of soil within a year and a half so as to reach the groundwater at the monitoring well nearest the current USTs, how that fuel could not have, under a groundwater flow of eight feet per year, traveled to a monitoring well located approximately fifty feet downgradient from the USTs within a year and a half, and how that fuel could not have traveled in the groundwater to the monitoring well located at a point hydraulically upgradient and nearly one hundred feet away from the USTs. Mr. Fleck further testified that, for a soil boring taken adjacent to the USTs in question at the H&R site, laboratory testing did not reveal the presence of gasoline constituents in any of the samples, which were taken at five-foot intervals up to a depth of twenty-five feet. (Hr’g Tr. at 184-85; Pet’r Ex. #42, at 6.) In sum, Mr. Fleck concluded, in his expert opinion, that “the impact to groundwater . . . found in monitoring [wells] one, two, three, and four is not associated with the release in January of 2001.” (Hr’g Tr. at 175.) Rather, he determined, the contamination at the H&R site derived from a prior release of petroleum. (Hr’g Tr. at 181.)

29. Based upon this uncontradicted expert testimony, it is apparent that the gasoline constituents discovered in the groundwater beneath the H&R site originated from a release prior to, and at a different location than, the January 30, 2001 release caused by the removal of the line leak detector and observed by Ms. Stevens during her inspection of the H&R USTs.

30. By letter dated May 24, 2002, almost sixteen months after the Notice of Violation had been issued and twelve months after the resolution of the enforcement action, Mr. Robert Hutchinson, the Director of the Regulatory Compliance Division of DHEC’s UST Program, notified Crenshaw Oil that the Department had determined that Crenshaw Oil had failed to demonstrate a good-faith effort to comply with SUPERB requirements and that, on that basis, SUPERB account funding for the rehabilitation of the H&R site would be denied.^[3] (Pet’r Ex. #35.) Crenshaw Oil petitioned for administrative review of this decision on June 18, 2002.

CONCLUSIONS OF LAW

Based upon the foregoing Findings of Fact, I conclude the following as a matter of law:

1. This tribunal has jurisdiction over this case pursuant to S.C. Code Ann. § 44-2-115 (2002) and S.C. Code Ann. §§ 1-23-310 et seq. (1986 & Supp. 2002).

2. In the instant case, Petitioner Crenshaw Oil affirmatively asserts the eligibility of the H&R site for SUPERB Account coverage, and, as the moving party, it bears the burden of proof in this contested case. See Leventis v. S.C. Dep’t of Health & Envtl. Control, 340 S.C. 118, 132-33, 530 S.E.2d 643, 651 (Ct. App. 2000) (holding that the burden of proof in administrative proceedings generally rests upon the party asserting the affirmative of an issue); see also 2 Am. Jur. 2d Administrative Law § 360 (1994) (same). Therefore, Crenshaw Oil must demonstrate, by a preponderance of the evidence, that the rehabilitation of the H&R site is eligible for funding from the SUPERB Account. See Anonymous v. State Bd. of Med. Exam’rs, 329 S.C. 371, 375, 496 S.E.2d 17, 19 (1998) (holding that the standard of proof in an administrative proceeding is generally the preponderance of the evidence).

3. The weight and credibility assigned to evidence presented at the hearing of a matter is within the province of the trier of fact. See S.C. Cable Television Ass’n v. S. Bell Tel. & Tel. Co., 308 S.C. 216, 222, 417 S.E.2d 586, 589 (1992). Furthermore, a trial judge who observes a witness is in the best position to judge the witness’s demeanor and veracity and to evaluate the credibility of his testimony. See, e.g., Woodall v. Woodall, 322 S.C. 7, 10, 471 S.E.2d 154, 157 (1996); Wallace v. Milliken & Co., 300 S.C. 553, 556, 389 S.E.2d 448, 450 (Ct. App. 1990).

4. “[E]xpert testimony is essential in cases which involve a subject of special technical science, skill, or occupation of which the members of the jury or the trial court are not presumed to be specially informed.” 32A C.J.S. Evidence § 729, at 85 (1996). For example, the South Carolina Supreme Court has held that, in medical malpractice cases, “the plaintiff must use expert testimony . . . unless the subject matter lies within the ambit of common knowledge and experience, so that no special learning is needed to evaluate the conduct of the defendant.” Pederson v. Gould, 288 S.C. 141, 143, 341 S.E.2d 633, 634 (1986).

5. In general, “expert opinion evidence is to be considered or weighed by the triers of the facts like any other testimony or evidence . . .[;] the triers of fact cannot, and are not required to, arbitrarily or lightly disregard, or capriciously reject, the testimony of experts or skilled witnesses, and make an unsupported finding to the contrary of the opinion.” 32A C.J.S. Evidence § 727, at 82-83 (1996). Consequently, where an expert’s testimony is based upon facts sufficient to form an opinion, the trier of fact must weigh its probative value. Small v. Pioneer Machinery, Inc., 329 S.C. 448, 470, 494 S.E.2d 835, 846 (Ct. App. 1997). However, the trier of fact need only give an expert’s testimony the weight he or she determines it deserves. Florence County Dep’t of Soc. Servs. v. Ward, 310 S.C. 69, 72-73, 425 S.E.2d 61, 63 (Ct. App. 1992). Further, the trier of fact may accept the testimony of one expert over that of another. See S.C. Cable Television Ass’n v. S. Bell Tel. & Tel. Co., 308 S.C. 216, 417 S.E.2d 586 (1992).

6. The SUPERB Account was created “to ensure the availability of funds for the rehabilitation of releases at sites contaminated with petroleum or petroleum products released from an underground storage tank.” S.C. Code Ann. § 44-2-40(B) (Supp. 2002). For releases reported after July 1, 1993, these funds are to be used “to pay the usual, customary, and reasonable costs of site rehabilitation . . . in excess of twenty-five thousand dollars and up to a maximum of one million dollars per occurrence.” Id.

7. However, except for releases reported before July 1, 1994, “sites where the underground storage tank, at the time of discovery and reporting of the release to the department, is not in substantial compliance with regulations promulgated pursuant to Section 44-2-50(A), are not eligible for compensation from the SUPERB Account[.]” S.C. Code Ann. § 44-2-40(A) (Supp. 2002) (emphasis added). The SUPERB Act defines this “substantial compliance” to mean “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(22) (Supp. 2002) (emphasis added).

8. Further, in evaluating whether a site is eligible for SUPERB Account coverage, DHEC is required to apply the provisions of the SUPERB Act and its regulations in favor of coverage. S.C. Code Ann. § 44-2-115 (Supp. 2002) (“The department shall apply the eligibility requirements set forth in this chapter in a manner favoring eligibility.”).

9. Based upon the credible evidence and applicable law, I find that, at all relevant times, Crenshaw Oil has been in substantial compliance with the SUPERB Act and regulations at the H&R site such that the necessary rehabilitation of the site should be eligible for funding from the SUPERB Account.

10. In May 2002, at the time of the discovery of the release that caused the contamination at the H&R site, i.e., the release prior to January 30, 2001,^[4] Crenshaw Oil was unquestionably in substantial compliance with the SUPERB Act and regulations at the site. Records of DHEC’s annual inspections of the H&R site in 1997, 1998, and 1999 indicate that the UST systems at the site were in compliance with the applicable requirements and Crenshaw Oil was not cited for any violations of the SUPERB requirements as a result of those inspections. Further, after being cited for the January 30, 2001 violation, Crenshaw Oil promptly took the actions necessary to bring its USTs at the H&R site back into compliance with the regulations. And, beyond this record of actual compliance with the SUPERB regulations both prior to, and at the time of, the May 2002 discovery of the large release, Crenshaw Oil has also consistently demonstrated good-faith efforts to ensure its compliance with the regulations. These good-faith efforts included working closely with DHEC following the change in management at Crenshaw Oil in 2000 to maintain Crenshaw’s long record of compliance and working diligently following the January 30, 2001 notice of violation to correct the cited violation and to otherwise bring the H&R site into full compliance with the SUPERB regulations. In short, Crenshaw Oil has demonstrated a good-faith effort to comply, and, but for one violation, has complied, with the SUPERB regulations related to preventing releases, facilitating their early detection, and mitigating their impact on public health and the environment. Given this record of not only good-faith efforts to comply with the SUPERB regulations, but actual compliance with those regulations, Crenshaw Oil must be considered to have been in substantial compliance with the SUPERB laws at the time of the discovery of the pre-2001 release in May 2002. Therefore, the rehabilitation of the H&R site necessitated by that release is eligible for funding from the SUPERB Account.

11. Moreover, at the time of the January 30, 2001 violation, Crenshaw Oil was in substantial compliance with the SUPERB Act and regulations. As noted above, prior to the inspection that revealed the January 30, 2001 violation, Crenshaw Oil had not been cited for any violations of the SUPERB regulations at the H&R site and, during that time, had been working closely with DHEC to ensure future compliance with those regulations. Further, while the removal of the line leak detector was an obvious violation of the SUPERB regulations, this violation, standing alone, does not preclude Crenshaw Oil from demonstrating substantial compliance with the SUPERB Act and regulations. Here, the credible evidence in record indicates that the leak detector was only removed for a few days as part of maintenance work, that, during that time, Crenshaw Oil continued to use daily inventory control records as a secondary method of leak detection, and that, at the time of the violation, Crenshaw Oil was otherwise in compliance with the SUPERB regulations. The removal of the line leak detector was not an act of bad faith, or an indication of a disregard for the SUPERB regulations, but rather was an ill-advised temporary action taken during remedial maintenance. Therefore, despite the removal of the line leak detector, Crenshaw Oil’s compliance with the SUPERB regulations prior to the violation and its good-faith effort to comply with the regulations at the time of the violation compel a finding that Crenshaw Oil was in substantial compliance with the SUPERB Act and regulations on January 30, 2001. Accordingly, while the evidence in the record does not indicate that the release of fuel observed on January 30, 2001, was significant, any rehabilitation of the H&R site necessitated by that release would be eligible for funding from the SUPERB Account.^[5]

12. In reaching a contrary conclusion on this point, the Director of the Regulatory Compliance Division of the Department’s UST Program applied what he described as a “snapshot” approach to determining substantial compliance under Section 44-2-40(A). (Hr’g Tr. at 233.) Rather than considering Crenshaw Oil’s violation in the context of its record of compliance and its ongoing efforts to maintain that compliance, the Director looked only at Crenshaw Oil’s actions at the moment of the violation and only at those actions related to the violation in determining that Crenshaw Oil had not demonstrated a good-faith effort to comply with the SUPERB regulations at the time of the January 30, 2001 violation.^[6] However, this approach is based on a crabbed reading of Sections 44-2-40(A) and 44-2-20(22).

While Section 44-2-40(A) does preclude sites not in substantial compliance with the SUPERB regulations at the time of the discovery of a release from obtaining SUPERB Account funds, the related definition of “substantial compliance” in Section 44-2-20(22) plainly indicates that this inquiry into whether a party was in substantial compliance at the time of the release is not a narrow one. Instead of focusing on absolute compliance at any particular instant, this Section looks more broadly at a whether a UST owner or operator has put forth a “good faith effort to comply with regulations” and whether he “has demonstrated” that good-faith effort over time. S.C. Code Ann. § 44-2-20(22). This evaluation of good faith requires an examination of all of the actions of the UST owner or operator related to all of the regulations that make up the SUPERB regulatory program, not just compliance with a single regulation at a single moment. Yet, even under this broad inquiry, it remains possible that a single violation of the regulations could so strongly indicate a lack of good faith as to preclude a finding of substantial compliance. However, such is not the case here. In the case at hand, Crenshaw Oil’s long record of actual compliance with the SUPERB regulations and consistent demonstration of a good-faith effort to comply with the regulations, even at the time of the January 30, 2001 violation, when weighed against that single violation, clearly establish that Crenshaw Oil was in substantial compliance with the SUPERB regulations on January 30, 2001.

13. Therefore, as Crenshaw Oil was in substantial compliance with the SUPERB regulations at the H&R site, not only in May 2002, but also on January 30, 2001, the usual, customary, and reasonable costs of site rehabilitation necessitated because of releases discovered on those dates are eligible to be funded from the SUPERB Account.

ORDER

Based upon the Findings of Fact and Conclusions of Law stated above,

IT IS ORDERED that, as the decision to deny Petitioner eligibility for SUPERB Account funding for the H&R site cannot be sustained, DHEC must extend SUPERB Account coverage to Petitioner for the rehabilitation of the contamination at the H&R site, UST Permit # 02108.

AND IT IS SO ORDERED.

______________________________

JOHN D. GEATHERS

Administrative Law Judge

Post Office Box 11667

Columbia, South Carolina 29211-1667

May 29, 2003

Columbia, South Carolina