South Carolina              
Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
Trico Se Petroleum, Inc. vs. SCDHEC

AGENCY:
South Carolina Department of Health and Environmental Control

PARTIES:
Petitioner:
Trico Se Petroleum, Inc., d/b/a USA Grocers

Respondent:
South Carolina Department of Health and Environmental Control
 
DOCKET NUMBER:
00-ALJ-07-0452-CC

APPEARANCES:
For the Petitioner: Paul L. Reeves, Esquire

For the Respondent: Mary D. Shahid, Esquire
 

ORDERS:

FINAL ORDER AND DECISION

STATEMENT OF THE CASE

This matter comes before the Administrative Law Judge Division (ALJD) pursuant to S.C. Code Ann. § 1-23-310 et seq. (1986 & Supp. 2000) and S.C. Code Ann. § 1-23-600(B) (Supp. 2000). The Petitioner, Trico Se Petroleum, Inc. (Trico), requested a contested case hearing to protest the determination by the Respondent, the South Carolina Department of Health and Environmental Control (DHEC), that Petitioner is ineligible to receive funds from the State Underground Petroleum Environmental Response Bank (SUPERB) for the removal and cleanup of underground petroleum storage tanks. After timely notice to all parties, a hearing was conducted on January 9, 2001 at the ALJD in Columbia, South Carolina.

FINDINGS OF FACT

Having carefully considered the testimony and the arguments of both sides, and taking into account the credibility of the evidence and witnesses, I find the following by a preponderance of the evidence:

1. Notice of the time, date, place and subject matter of the hearing was given to all parties in a timely manner.

2. Trico is the owner of twelve (12) gas stations and convenience stores in South Carolina. The site at issue in this case is USA Grocers, site #412, located at 725 Saluda Street, Rock Hill, York County, South Carolina.

3. In June of 1999, William Baugh, of Customs Solutions International, was serving as an environmental consultant for Trico, who was considering purchasing site #412 from Amerada Hess Corporation. Mr. Baugh conducted a pre-purchase assessment of site #412. During this assessment, levels of contamination were detected, indicating that a release had occurred. Custom Solutions notified Amerada Hess and Petitioner of the detection of contamination at site #412. Neither Amerada Hess nor Petitioner reported the release to DHEC.

4. On July 15, 1999, Trico purchased site #412 from Amerada Hess Corporation.

5. On January 10, 2000, DHEC received a report of a release at this facility from Mr. Baugh.

6. After the release was reported, DHEC conducted an inspection on March 23, 2000. At the inspection, DHEC left a Notice of Violation (NOV) at the site. DHEC made the following requests from Trico:

      • perform a tank tightness test;
      • perform a line tightness test;
      • perform a line leak detection function check;
      • produce monthly leak detection records for the twelve months prior to the reporting of the release.
    • DHEC gave Trico until April 13, 2000 to submit the leak detection records.

8. On April 20, 2000, DHEC sent another NOV to Trico. This NOV required Trico to conduct certain tests to determine if a leak currently exists, and to report these test results, along with the leak detection records, to DHEC no later than May 5, 2000. The letter also informed Trico that unless the leak detection records were received, DHEC would make a substantial compliance determination without the records.

9. Neither the test results nor the leak detection records were submitted by the May 5, 2000 deadline.

10. On May 18, 2000, DHEC became aware that the consulting firm, NESCO, was assisting Trico in bringing all of its sites into compliance. A tank tightness test was conducted at site #412 on May 27, 2000, but copies of the test results were not provided to DHEC at that time.

11. On June 29, 2000, DHEC issued a third NOV which informed Trico that the matter was being referred to the enforcement division. The NOV set a deadline of July 7, 2000 for Trico to produce the requested records.

12. On July 6, 2000, DHEC received a copy of the line test results, but the leak detection records were not submitted by Trico to DHEC.

13. On July 10, 2000, DHEC received a copy of the test results from the May 27, 2000 test, but the leak detection records were not submitted to DHEC.

14. On July 18, 2000, DHEC made a determination that Trico was "not in substantial compliance" and denied Trico coverage under the SUPERB Act.

CONCLUSIONS OF LAW1. The Administrative Law Judge Division is authorized to hear contested cases pursuant to S.C. Code Ann. § 1-23-310 et seq. (1986 & Supp. 2000) and S.C. Code Ann. § 1-23-600(B) (Supp. 2000).

2. Pursuant to the State Underground Petroleum Environmental Response Bank Act, the SUPERB Fund was established 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 and for administration of the underground storage tank regulatory program." S.C. Code Ann. § 44-2-40 (B) (Supp. 2000). Currently, there are approximately 12,657 regulated tanks in South Carolina.

3. The SUPERB funds are to be used by DHEC to "pay the usual, customary, and reasonable costs of the site rehabilitation" in excess of $25,000. Id. DHEC must use the fund to "pay these costs of site rehabilitation by owners or operators who qualify for compensation." Id.

4. According to S.C. Code Ann. § 44-2-40(A) (Supp. 2000), "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 . . . ."

5. "Substantial compliance" is defined as "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. 2000).

6. 25A S.C. Code Ann. Regs. 61-92 § 280.34 (Supp. 2000) states that "owners and operators of UST systems must cooperate fully with inspections, monitoring and testing conducted by the Department . . . ."

7. 25A S.C. Code Ann. Regs. 61-92 § 280.40 (Supp. 2000) requires that owners and operators of UST systems provide a method of release detection, and that it is installed, operated and maintained properly.

8. According to 25A S.C. Code Ann. Regs. 61-92 § 280.45 (Supp. 2000), all UST owners and operators must maintain records for at least one year.

9. Pursuant to 25A S.C. Code Ann. Regs. 61-92 § 280.50 (Supp. 2000), owners and operators of UST systems must report a release to the Department within 72 hours and perform a tightness test within seven days.

10. I conclude that Trico was not in "substantial compliance" with the UST regulations at the time of reporting the release to the Department. The evidence in the record reflects that even though the prior owner of the property did not comply with the reporting requirements at the time it became aware of the release, Trico was also aware of the release and did not report the release for at least five months after becoming owner of the site. Furthermore, Trico did not timely comply with the three Notices of Violations that were issued by DHEC.

11. Upon acquiring this site, Trico has not complied with the statutes and regulations governing UST's. It did not report the release when it became aware of it in June 1999 or when it purchased the site in July 1999. When Trico did report the release in January 2000, it did not perform a tightness test within seven days as required by 25A S.C. Code Ann. Regs. 61-92 § 280.52 (Supp. 2000). Also, Trico did not submit the leak detection records to DHEC for the 12 months prior to the report of the release or even for the 5 months prior to the report of the release during which Trico was the owner of the site.

12. Therefore, I conclude that Trico did not make a good faith effort to comply with DHEC's regulations and is not entitled to financial assistance from the SUPERB fund because it was not in "substantial compliance."





ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law,

IT IS HEREBY ORDERED that Petitioner's application for SUPERB funds is DENIED. AND IT IS SO ORDERED.

___________________________________

C. Dukes Scott

Administrative Law Judge

April 12, 2001

Columbia, South Carolina


Brown Bldg.

 

 

 

 

 

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