South Carolina Code 44-56-750. Prerequisites to and provisions of contract entered into by or on behalf of nonresponsible party
(a) submit a Phase One Environmental Site Assessment conducted in accordance with all appropriate inquiry standards of CERCLA, or other evidence of conducting all appropriate inquiry in accordance with CERCLA;
Terms Used In South Carolina Code 44-56-750
- CERCLA: means the Comprehensive Environmental Response, Compensation and Liability Act and its amendments, 42 U. See South Carolina Code 44-56-720
- Contamination: means impact by a contaminant, petroleum, or petroleum product. See South Carolina Code 44-56-720
- Contract: A legal written agreement that becomes binding when signed.
- Damages: Money paid by defendants to successful plaintiffs in civil cases to compensate the plaintiffs for their injuries.
- Deed: The legal instrument used to transfer title in real property from one person to another.
- 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.
- Equitable: Pertaining to civil suits in "equity" rather than in "law." In English legal history, the courts of "law" could order the payment of damages and could afford no other remedy. See damages. A separate court of "equity" could order someone to do something or to cease to do something. See, e.g., injunction. In American jurisprudence, the federal courts have both legal and equitable power, but the distinction is still an important one. For example, a trial by jury is normally available in "law" cases but not in "equity" cases. Source: U.S. Courts
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- Fraud: Intentional deception resulting in injury to another.
- 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 - Nonresponsible party: means any party which is neither:
(i) a responsible party at the time the voluntary cleanup contract is signed, including lenders, economic development agencies, fiduciaries, trustees, executors, administrators, custodians, subsequent holders of a security interest; nor
(ii) a parent, subsidiary of, or successor to a responsible party. See South Carolina Code 44-56-720 - 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
- Response action: means any assessment, cleanup, inspection, or closure of a site as necessary to remedy actual or potential damage to public health, public welfare, or the environment. 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) identify a contact person, whose name, address, and telephone number must be updated throughout the term of the contract;
(c) provide a legal description of the property; and
(d) describe the plan for the expansion, redevelopment, and return to use of the property.
(2) Before entering into a voluntary cleanup contract, the nonresponsible party must certify to the department that:
(a) it is not a responsible party at the site;
(b) it is not a parent, successor, or subsidiary of a responsible party at the site;
(c) its activities will not aggravate or contribute to existing contamination on the site or pose significant human health or environmental risks; and
(d) it is financially viable to meet the obligations under the contract.
(B)(1) A voluntary cleanup contract entered into by or on behalf of a nonresponsible party shall contain at a minimum:
(a) an agreement to conduct the scope of work provided for in the contract and submission of a work plan prepared in accordance with the scope of work required by the department, health and safety plan, and provisions for written progress reports;
(b) a grant of access to perform and oversee response actions;
(c) a legal description of the property;
(d) a provision for the department to have the opportunity to inspect and to copy any and all documents or records in the nonresponsible party’s custody, possession, or control which identifies or potentially identifies a responsible or potentially responsible party; and
(e) a provision that the department has an irrevocable right of access to the property once the property is acquired by the nonresponsible party. The right of access remains until a complete remediation is accomplished for unrestricted use.
(2) A voluntary cleanup contract shall stipulate that it:
(a) is not a release or covenant not to sue for any claim or cause of action against a party who is not a signatory to the contract;
(b) does not limit the right of the department to undertake future response actions;
(c) is not a release or covenant not to sue for claims against a party for matters not expressly included in the contract;
(d) does not release the nonresponsible party from liability for any contamination that the nonresponsible party causes or contributes to the site; and
(e) becomes null and void if the nonresponsible party submits information that is false or incomplete and that is inconsistent with the intent of the contract.
(3) After signing a voluntary cleanup contract, the nonresponsible party shall prepare and submit the appropriate work plans, health and safety plan, 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 nonresponsible party must, in the department’s sole discretion, provide a measurable benefit to the State, the community, or the department.
(5) After considering existing and future use or uses of the property, the department may approve submitted work plans or reports that do not require removal or remedy of all discharges, releases, and threatened releases at a site as long as the response action:
(a) is consistent and compatible with the proposed future use of the property;
(b) will not contribute to or exacerbate discharges, releases, or threatened releases;
(c) will not interfere with or substantially increase the cost of response actions to address the remaining discharges, releases, or threatened releases; and
(d) requires deed notices or restrictions, or both, determined appropriate by the department, to be placed on the property after completion of the work plan.
(6) A voluntary cleanup contract executed on behalf of a nonresponsible party inures to the benefit of the nonresponsible party’s lenders, signatories, parents, subsidiaries, and successors. A voluntary cleanup contract executed on behalf of a nonresponsible party does not inure to the benefit of a responsible party.
(7) The voluntary cleanup contract may provide the nonresponsible party protection from claims for contribution under CERCLA Section 113, 42 U.S.C. § 9613 and § 44-56-200, et seq. of the 1976 Code regarding environmental conditions at the site before the signing of the contract. This protection may be granted at the conclusion of the period allowed for comment from the site’s potentially responsible parties as identified through a reasonable search.
(C)(1) Upon completion of the contract, the nonresponsible party must submit a request to the department for a certificate of completion. If the department determines that a nonresponsible party has successfully and completely complied with the contract and has 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 the department’s covenant not to sue the nonresponsible party for liability for existing contamination, except for releases and consequences that the nonresponsible party causes. This liability protection must not be granted or must be revoked if a contract or letter of completion is acquired by fraud, misrepresentation, knowing failure to disclose material information, or failure to satisfactorily complete the approved work plan;
(b) indicate the proposed future land use and if a restrictive covenant is required, include a copy of the restrictive covenant to be entered into between the department and the nonresponsible party and record the restrictive covenant 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 nonresponsible party has not completed the contract satisfactorily, the department shall notify in writing the nonresponsible party and the current owner of the property, if different from the nonresponsible party who signed the contract, that the contract has not been satisfied and shall identify any deficiencies.
(3) The covenant not to sue, liability protection, and contribution protection provided in this section shall be revoked, after reasonable notice and opportunity to cure as provided for by subsections (C)(2) and (F)(1) of this section, 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.
(4) The covenant not to sue, liability protection, and contribution protection provided in this section may be revoked, after reasonable notice and opportunity to cure as provided for by subsections (C)(2) and (F)(1) of this section, for a party who fails to make material progress toward the expansion, redevelopment, or reuse of the property as provided for in the contract. These activities shall constitute cause to terminate the contract.
(D) 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 the fund pursuant to § 44-56-200.
(E)(1) Upon signature of a voluntary cleanup contract by a nonresponsible party, the department shall provide notice and opportunity for public participation. Notification of the proposed contract must be placed in a newspaper in general circulation within the affected community. A comment period must be provided for thirty days from the date of newspaper publication. The public notice period must precede the department’s scheduled date for execution of the contract. A public meeting must be conducted upon request to the department’s Bureau of Land and Waste Management by twelve residents of South Carolina or an organization representing twelve or more residents of South Carolina. Under any other circumstances, a public meeting may be conducted at the department’s discretion.
(2) Beginning with the thirty-day notice period and continuing through completion of the terms of the contract, the nonresponsible party must post a sign, in clear view from the main entrance to the property, stating the name, address, and telephone number of a contact person for information describing the property’s response actions and reuse.
(F)(1) The department or nonresponsible party may terminate a voluntary cleanup contract by giving thirty days’ advance written notice to the other. The department may not terminate the contract without cause.
(2) The covenant not to sue, liability protection, and contribution protection must be revoked for a party, or its successors, for conducting activities at the property 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 nonresponsible party does not pay to the department oversight costs associated with the voluntary cleanup contract 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.
(G) 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.
(H)(1) A nonresponsible party is not liable to any third party for contribution, equitable relief, or claims for damages arising from a release of contaminants, petroleum, or petroleum products that is the subject of a response action included in the nonresponsible party voluntary cleanup contract provided for in this section.
(2) This limitation of liability commences on the date of execution of the nonresponsible party voluntary cleanup contract by the department; however, this limitation must be withdrawn automatically if the nonresponsible party voluntary cleanup contract is lawfully terminated by any party. This limitation of liability applies only to:
(a) the parties to the nonresponsible party voluntary cleanup contract and to the nonresponsible party’s lenders, signatories, parents, subsidiaries, and successors; and
(b) "existing contamination", as defined in the nonresponsible party voluntary cleanup contract.
This limitation of liability does not apply to any release caused by or attributable to the nonresponsible party or its lenders, signatories, parents, subsidiaries, or successors.