South Carolina Code 44-56-740. Requirements for contracts entered into by or on behalf of responsible parties
(a) submission of a work plan, health and safety plan, and provisions for written progress reports;
Terms Used In South Carolina Code 44-56-740
- CERCLA: means the Comprehensive Environmental Response, Compensation and Liability Act and its amendments, 42 U. See South Carolina Code 44-56-720
- Contract: A legal written agreement that becomes binding when signed.
- Department: means the South Carolina Department of Health and Environmental Control. See South Carolina Code 44-56-720
- Deposition: An oral statement made before an officer authorized by law to administer oaths. Such statements are often taken to examine potential witnesses, to obtain discovery, or to be used later in trial.
- Hazardous waste: means any waste, or combination of wastes, of a solid, liquid, contained gaseous, or semisolid form which because of its quantity, concentration, or physical, chemical, or infectious characteristics may in the judgment of the department:
a. See South Carolina Code 44-56-20 - Oversight: Committee review of the activities of a Federal agency or program.
- Oversight costs: means those costs, both direct and indirect, incurred by the department in implementing the voluntary cleanup program. See South Carolina Code 44-56-720
- Property: means that portion of the site which is subject to the ownership, prospective ownership, or possessory or contractual interest of a responsible party or a nonresponsible party. See South Carolina Code 44-56-720
- Responsible party: means :
(a) the owner and operator of a vessel or a facility, as these terms are defined in CERCLA;
(b) any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of, as these terms are defined in CERCLA;
(c) any person who by contract, settlement, or otherwise arranged for disposal or treatment or arranged with a transporter for transport for disposal or treatment of hazardous substances owned or possessed by such person, by any other party or entity, at any facility or incineration vessel owned or operated by another party or entity and containing such hazardous substances, as these terms are defined in CERCLA; and
(d) any person who accepts or accepted any hazardous substances for transport to disposal or treatment facilities, incineration vessels, or sites selected by such person, from which there is a release or a threatened release which causes the incurrence of response costs of a hazardous substance, as such terms are defined in CERCLA; and
(e) any person who owns or operates or who owned or operated an above ground or underground storage tank from which petroleum or petroleum products have been released or who owns and operates or who owned or operated a property on which a petroleum release has occurred; however, the exemptions of § 44-2-80(B) and (C) apply. See South Carolina Code 44-56-720 - Site: means all areas where a contaminant, petroleum, or petroleum product has been released, deposited, stored, disposed of, or placed or otherwise comes to be located; "site" does not include any consumer product in consumer use or any vessel. See South Carolina Code 44-56-720
- Voluntary cleanup: means a response action taken under and in compliance with this article. See South Carolina Code 44-56-720
- Voluntary cleanup contract: means a contract entered into between the department and a responsible or nonresponsible party to conduct a voluntary cleanup. See South Carolina Code 44-56-720
(b) a grant of access to perform and oversee response actions; and
(c) a legal description of the property.
(2) A voluntary cleanup contract shall stipulate that:
(a) the contract is not a release or covenant not to sue for any claim or cause of action against a responsible party who is not a signatory to the contract;
(b) the contract does not limit the right of the department to undertake future response actions;
(c) the contract becomes null and void if the responsible party submits information that is false or incomplete and that is inconsistent with the intent of the contract;
(d) the contract is not a release or covenant not to sue for claims against a responsible party for matters not expressly included in the contract; and
(e) the contract’s covenant not to sue must be revoked for a responsible party, or its successors, for conducting activities at the site that are inconsistent with the terms and conditions of the voluntary cleanup contract, and these activities constitute cause to terminate the contract.
(3) After signing a voluntary cleanup contract, the responsible party shall prepare and submit the appropriate work plans and reports to the department. The department shall review and evaluate the work plans and reports for accuracy, quality, and completeness. If a work plan or report is not approved, the department shall notify the party concerning additional information or commitments needed to obtain approval.
(4) A voluntary cleanup contract executed on behalf of a responsible party inures to the benefit of the responsible party’s signatories, parents, successors, assigns, and subsidiaries.
(5) A voluntary cleanup contract must give the responsible party the department’s covenant not to sue for the work done in completing the response actions specifically covered in the contract and completed in accordance with the approved work plans and reports. The covenant not to sue must be contingent upon the department’s determination that the responsible party successfully and completely complied with the contract.
(B)(1) Upon completion of the contract, the responsible party must submit a request to the department for a certificate of completion. If the department determines that a responsible party has successfully and completely complied with the contract and has successfully completed the voluntary cleanup approved under this article, the department shall certify that the action has been completed by issuing the party a certificate of completion. The certificate of completion shall:
(a) provide a covenant not to sue for the benefit of the responsible party, its signatories, parents, successors, and subsidiaries;
(b) indicate the proposed future land use and if a restrictive covenant is necessary for protection of health, safety, and welfare of the public, include a copy of the restrictive covenant entered into between the department and the responsible party and filed with the Register of Deeds or Mesne Conveyances in the appropriate county. A restrictive covenant remains in effect until a complete remediation is accomplished for unrestricted use; and
(c) include a legal description of the property and the name of the property’s owner.
(2) If the department determines that the responsible party has not completed the contract satisfactorily, the department shall notify in writing the responsible party and the current owner of the property, if different from the responsible party who signed the contract, that the contract has not been satisfied and shall identify any deficiencies.
(3) The covenant not to sue is revoked for a party or successor who changes the land use from the use specified in the certificate of completion to one which requires a more comprehensive cleanup.
(C) The department shall charge for and retain all monies collected as oversight costs. The South Carolina Hazardous Waste Contingency Fund must be reimbursed for any funds expended from this fund pursuant to § 44-56-200.
(D) Public participation procedures for a voluntary cleanup contract entered into by a responsible party shall follow the same guidelines for public participation as those for the State CERCLA program and not inconsistent with the National Contingency Plan.
(E)(1) The department or the responsible party may terminate a voluntary cleanup contract by giving thirty days advanced written notice to the other. The department may not terminate the contract without cause.
(2) The covenant not to sue must be revoked for a party or its successors, or both, for conducting activities at the site that are inconsistent with the terms and conditions of the voluntary cleanup contract, and these activities constitute cause to terminate the contract.
(3) If, after receiving notice that costs are due and owing, the responsible party does not pay the department oversight costs associated with the voluntary cleanup in a timely manner, the department may bring an action to recover the amount owed and all costs incurred by the department in bringing the action including, but not limited to, attorney’s fees, department personnel costs, witness costs, court costs, and deposition costs.
(4) Termination of the contract does not affect any right the department has under any law to require additional response actions or recover costs.
(F) The department’s decision to enter or not to enter into a contract is final and is not a contested case within the meaning of the South Carolina Administrative Procedures Act, § 1-23-10, et seq.