Section 44-2-40 - Superb Account and Superb Financial Responsibility Fund created; purposes and uses(A) There is created within the state treasury two separate and distinct accounts which are to be administered by the Department of Health and Environmental Control. The "Superb Account" and the "Superb Financial Responsibility Fund" are created to assist owners and operators of underground storage tanks containing petroleum and petroleum products to the extent provided for in this chapter but not to relieve the owner or operator of any liability that cannot be satisfied by the provisions of this chapter. The Superb Account must be used for payment of usual, customary, and reasonable costs for site rehabilitation of releases from underground storage tanks containing petroleum or petroleum products.
The Superb Financial Responsibility Fund must be used for compensating third parties for actual costs for bodily injury and property damage caused by accidental releases from underground storage tanks containing petroleum or petroleum products. The Superb Financial Responsibility Fund must not be used for reimbursing claims for punitive damages.
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, and no third party claims resulting from that release may be paid from the Superb Financial Responsibility Fund.
(B) The Superb Account is 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 established in this chapter. The department shall use the fund to pay the usual, customary, and reasonable costs of site rehabilitation up to a maximum of one million dollars per occurrence as a result of a release from an underground storage tank containing petroleum or petroleum products for releases that were reported to the department before July 1, 1993, and in excess of twenty-five thousand dollars and up to a maximum of one million dollars per occurrence for site rehabilitation for releases reported to the department on or after July 1, 1993. The department shall use the fund to pay these costs of site rehabilitation by owners or operators who qualify for compensation. The department may use the fund to clean up a release at a site where the underground storage tank owner or operator does not qualify for compensation or a site which does qualify but the owner or operator is unwilling or unable to undertake site rehabilitation, and the department shall diligently pursue the recovery of any sum so incurred from the owner or operator responsible or from the United States government under any applicable federal law, unless the department finds the amount involved too small or the likelihood of success too uncertain. The fund must be further used for the payment of costs incurred by the department in providing field and laboratory services and other assistance by the department in the investigation of alleged contamination. This fund must not be used for the cleanup of any other pollutant. Funds in the Superb Account also may not be used to pay any liability claims against the owners or operators of underground storage tanks. The Superb Account must be credited with all fees, charges, commitments, and judgments allowable under this chapter. Charges against the Superb Account only may be made in accordance with the provisions of this chapter. Beginning November 1, 1994, the department shall transfer on a monthly basis one hundred thousand dollars of the funds generated by the environmental impact fee from the Superb Account to the Superb Financial Responsibility Fund until the balance of the Superb Financial Responsibility Fund reaches two million dollars. Subsequently, monthly transfers of one hundred thousand dollars from the Superb Account to the Superb Financial Responsibility Fund shall only occur when the balance of the Superb Financial Responsibility Fund becomes less than one million dollars, and the monthly transfers shall continue until the balance of the Superb Financial Responsibility Fund reaches two million dollars. Committed funds for site rehabilitation activity revert to uncommitted status after four months of initiation of commitment if no invoices for that commitment have been received by the department.(C) The Superb Financial Responsibility Fund must be used to reimburse owners or operators who compensate third parties or compensate third parties directly, only for bodily injury and property damages caused by releases from underground storage tanks containing petroleum or petroleum products, exclusive of any legal costs of the parties, and only when there are judgments, settlements, alternative dispute resolution outcomes, or consent orders for damages for bodily injury or property damage, or both, that are approved by a court of competent jurisdiction within the State of South Carolina. To seek payment from the Superb Financial Responsibility Fund, the owner or operator must notify the department in writing by registered mail within sixty days of receipt of the third party claim or suit and must defend in good faith against the claim or suit. At its discretion, the department may intervene in the claim or suit to protect the Superb Financial Responsibility Fund. Intervention includes, but is not limited to, defending the claim, approving the claim, or participating in the settlement of the claim. The costs of claim or suit intervention by the department must be recoverable from the Superb Financial Responsibility Fund. These intervention costs must not affect the per occurrence assurance amounts provided by the Superb Account or the Superb Financial Responsibility Fund.
The Superb Financial Responsibility Fund is not liable for any claims where no owner or operator exists.
The amount of money in the Superb Financial Responsibility Fund, the method of collection, or information regarding the administration of the fund is not admissible as evidence in a trial for damages potentially payable by the Superb Financial Responsibility Fund.
(D) The Superb Account and the Superb Financial Responsibility Fund shall provide combined coverage for site rehabilitation and third party claims, respectively, not to exceed one million dollars per occurrence. The estimated cost of site rehabilitation must be reserved from the combined coverage before payment of third party claims. The underground storage tank owner or operator must be responsible for the first twenty-five thousand dollars per occurrence for releases of petroleum and petroleum products from underground storage tanks reported to the department subsequent to July 1, 1993.
Nothing in this chapter establishes or creates any liability or responsibility on the part of the department or the State as administrators of the Superb Account and the Superb Financial Responsibility Fund to pay any costs for site rehabilitation or third party claims from any source other than the Superb Account and the Superb Financial Responsibility Fund created by this chapter, and the department and the State as administrators of the Superb Account and the Superb Financial Responsibility Fund have no liability or responsibility to make payments for cleanup costs or third party claims if the funds are insufficient. If the funds are insufficient to make the payments at the time the claim is filed, these claims must be paid in the order of filing at such time as monies accrue in each account, respectively.
The one hundred dollar underground storage tank registration and annual renewal fee may be used by the department for the administration of the underground storage tank program established by this chapter and its activities as trustees of the Superb Account and the Superb Financial Responsibility Fund, exclusive of legal costs outlined in subsection (C).
1997 Act No. 88, Section 1; 1995 Act No. 145, Part II, Section 2B; 1994 Act No. 497, Part II, Section 80D; 1993 Act No. 164, Part II, Section 36B; 1992 Act No. 501, Part II Section 43B; 1991 Act No. 171, Part II, Section 18A; 1990 Act No. 473, Section 1; 1988 Act No. 486, Section 2.