SC Administrative Law Court Decisions

This case arises from a Request for Contested Case Hearing filed by Carmichael Enterprises, Inc. (hereinafter "Carmichael"), as a result of the issuance by the South Carolina Department of Health and Environmental Control (hereinafter "the Department") of Administrative Order 01-006-W against Carmichael. The parties have agreed to settle the matters that were disputed in this case as follows:

• "The Site" as used in this Consent Order shall mean the property located at 700 Liberty Street in Marion, South Carolina.
• Carmichael, or its predecessor(s), has owned and utilized the Site for petroleum sales and distribution for approximately twenty (20) years.
• Both Underground Storage Tanks (USTs) and Above-Ground Storage Tanks (ASTs) are located on the Site. Groundwater at the site has been impacted by a release from the USTs. The existing UST release qualifies for cleanup funds from the State Underground Petroleum Environmental Response Bank (SUPERB) Account for remediation of the release from the USTs, with no deductible.
• The Department asserts that groundwater at the site has also been impacted by a release from the ASTs. The Department further asserts that the plume of contamination originating from the USTs has co-mingled with a plume of contamination originating from the ASTs. The Department made these determinations based on, among other things, a November 24, 1997, Rapid Assessment Report submitted to the Department by Carmichael's consultant.
• For reasons of technical practicability and cost, the entire site will be remediated as a single site, rather than as a UST site and an AST site.
• Carmichael will contract with a UST-certified contractor to prepare and submit for the Department's approval a Final Site Assessment Plan, with a schedule to fully define the horizontal and vertical extent of hydrocarbon contamination across the entire Site, including areas potentially impacted by off-site migration. The Plan shall also delineate the free product plume across the Site. The Plan shall provide for submission of a Final Assessment Report (the Report) within 90 days of the Department's approval of the Plan. All work shall be conducted by a UST-certified contractor and all groundwater analyses shall be conducted by a Department-certified laboratory. The Department shall approve the total amount estimated to perform the Plan and will issue a Cost Proposal (CP) to pay 70% of the approved amount from the SUPERB Account. Upon approval from the Department, the Plan and schedule shall be incorporated and become an enforceable part of this Order.
• The contractor shall forward to Carmichael a copy of its invoice for preparing the Final Assessment Plan, performing the Assessment, and preparing the Report. Within 30 days of receipt of the invoice, Carmichael shall submit to the Department proof that it has paid the contractor thirty percent (30%) of the amount of the invoice. Upon proof of payment by Carmichael and submittal of an invoice signed by the contractor, the Department will pay the contractor the remaining 70% of the approved costs from the SUPERB Account in accordance with the approved CP.
• Following the Department's approval of the Report, the Department's Underground Storage Tank Program shall utilize its usual bid procedures to solicit bids and determine a contract amount for remediation of hydrocarbon contamination at the Site, including removal of free product and remediation of dissolved phase contamination, as required.
• 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, will be the responsibility of Carmichael. The Department shall notify Carmichael of its determination of these costs and how the determination was calculated. This determination shall indicate what contract amount would not have been included in the contract amount approved by the UST Program but for the AST release.
• Within 30 days after the notification described in paragraph 9, Carmichael shall submit to the Department written notification that it has paid the UST-certified contractor the amount of the cleanup cost that would not have been incurred but for a release from the ASTs or make payment on the same schedule as the SUPERB Account for performance milestones. In the event Carmichael chooses to make payment for performance milestones for the AST portion of the cleanup as agreed upon in Paragraph 9, the UST Program will require proof of each payment before it will make a payment from the SUPERB Account.
• If the parties cannot agree on the appropriate amount of the costs to be paid by Carmichael, the Department may take such further administrative or judicial action as it deems appropriate. Nothing in this Consent Order is intended to or does prohibit the Department from taking such action, which may include, but is not limited to, issuance of an Administrative Order requiring Carmichael to remediate (as described in paragraph 12) the release from the AST at the Site or to repay any and all payments from the SUPERB Account, other than those payments Carmichael is entitled to under the conditions of the SUPERB Act.
• Cleanup of the entire site as contemplated in this Order, including removal of free product and remediation of dissolved phase contamination, if required, shall be conducted as directed by the Department's Underground Storage Tank Program and shall utilize such Site Specific Target Levels and Risk-Based Corrective Action levels outlined in Risk Based Corrective Action for Petroleum Releases.
• Compliance with the terms of this Consent Order, including but not limited to payment of the costs in the notification referred to in Paragraph 9 of this Order, shall relieve Carmichael Enterprises of any and all liability for assessment, remediation, or civil penalties for alleged petroleum-related releases from the ASTs up to and including the date of this Consent Order and specifically addressed herein.
• Nothing in this Order shall prohibit the Department from requiring Carmichael or other responsible parties to investigate and clean up any future contamination or releases at the site as well as those not known by the Department on the date of this Order and not specifically addressed herein.
• Before any activities are initiated pursuant to this Order to determine the extent of petroleum contamination and within 90 days of the execution date of this Order, Carmichael shall 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. Results of these tests shall be provided to the UST Program.
• Administrative Order 01-006-W is hereby vacated.

IT IS THEREFORE ORDERED AND AGREED that the issues underlying Administrative Order 01-006-W are resolved and this contested proceeding is hereby dismissed with prejudice.

__________________________________________________________

Carolyn C. Matthews

Administrative Law Judge

Columbia, South Carolina

December 3, 2001