South Carolina Code of Regulations › Chapter 61 - DEPARTMENT OF HEALTH AND ENVIRONMENTAL CONTROL › Subchapter 61-98 - STATE UNDERGROUND PETROLEUM ENVIRONMENTAL RESPONSE BANK (SUPERB) SITE REHABILITATION AND FUND ACCESS REGULATION › Section 61-98.V - Suspension, Decertification, and Appeals

Current through Register Vol. 48, No. 6, June 28, 2024
A. Suspension and Decertification.
1. Effect of Action. Contractors who are
			 suspended or decertified shall be excluded from performing site rehabilitation
			 throughout the state for the period of their suspension or decertification. No
			 UST owner or operator shall knowingly have any suspended or decertified
			 contractors, including affiliates, perform site rehabilitation during such
			 period or enter any agreement that would stipulate the suspended or decertified
			 contractor perform site rehabilitation during such periods.
2. Suspension. Summary shall be for a
			 temporary period pending the completion of an investigation or ensuing
			 decertification or legal proceedings. The Department may impose summary
			 suspension in egregious cases posing imminent harm to the environment or the
			 public.
3. Decertification
a. The Department may decertify a contractor
			 performing or seeking to perform site rehabilitation in South Carolina when:
(1) the contractor fails to maintain
			 qualification pursuant to Section IV.A.4;
(2) the contractor has had administrative or
			 civil enforcement action under the provisions of this chapter taken against him
			 within the last three years;
(3)
			 the contractor has demonstrated repeated noncompliance with financial criteria
			 established by the Department, to include, but not be limited to:
(a) submitting bills to the Department that
			 are inconsistent with regulations, established criteria and/or general
			 accounting principles;
(b)
			 submitting duplicate or fraudulent bills to the Department;
(c) submitting bills to the Department for
			 work not yet performed or equipment and materials not yet delivered or
			 received; and
(d) failure to pay
			 cost recovery requests from the Department (including disallowed costs and
			 overpayment), provided the debt is uncontested by the debtor or if contested
			 provided that the debtor's legal and administrative remedies have been
			 exhausted.
(4) where a
			 person has demonstrated repeated inability to perform site rehabilitation in
			 accordance with performance standards and criteria developed by the Department
			 and accepted industry standards to include, but not be limited to:
(a) deliberate failure to perform according
			 to the specifications or within the schedule approved by the
			 Department;
(b) a record of failure
			 to perform or of unsatisfactory performance according to the terms of one or
			 more site rehabilitation work plans; provided that failure to perform or
			 unsatisfactory performance caused by acts beyond the control of the person
			 shall not be considered a basis for decertification;
(5) any other cause that the Department
			 determines to be so serious and compelling as to affect the ability of a
			 contractor or subcontractor to perform site rehabilitation activities in a
			 satisfactory manner, including decertification or similar action by another
			 governmental entity.
4. Investigation. Information of a cause for
			 decertification from any source shall be promptly reported to the Department by
			 UST owners, operators, site rehabilitation contractors, or other persons. The
			 Department will promptly investigate, and may issue a notice of proposed
			 decertification.
5. Notice of
			 Proposed Decertification. A decertification notice shall be issued to the
			 contractor advising:
a. That decertification
			 is being considered;
b. Of the
			 reasons for the proposed decertification in terms sufficient to put the
			 respondent on notice of the conduct or site rehabilitation activity upon which
			 it is based;
c. Of the potential
			 effect of decertification.
6. Opportunity For Review of Proposed
			 Decertification. Within fifteen (15) days after receipt of the notice of
			 proposed decertification, the contractor may submit in writing information and
			 argument in opposition to the proposed decertification and notify the
			 Department if a conference is desired. If such request is made, the contractor
			 shall be afforded an opportunity to appear with a representative, and submit
			 documentary evidence and other appropriate information.
7. Notice of Decertification.
a. The decision shall be made within
			 forty-five (45) days after receipt of any information and argument submitted by
			 the respondent, unless the Department extends the period for good
			 cause.
b. The notice of the
			 Department's decision shall specify the reason(s) for decertification; state
			 the period of decertification; and advise that the decertification is effective
			 for all UST site rehabilitation activities in the State except as provided for
			 by this section.
c. If the
			 Department decides not to impose decertification, the contractor shall be given
			 prompt notice of that decision. A decision not to impose decertification shall
			 be without prejudice to a subsequent imposition of decertification by the
			 Department.
d. When in the best
			 interest of the State or the Department, the Department may, at any time,
			 settle a decertification or suspension action.
8. Period of Decertification.
a. Decertification shall be for a period
			 commensurate with the seriousness of the cause(s). If a suspension precedes a
			 decertification, the suspension period shall be considered in determining the
			 decertification period.
b.
			 Decertification should generally not exceed three (3) years. Where
			 circumstances warrant, a longer period of decertification may be
			 imposed.
c. The Department may
			 extend an existing decertification for an additional period, if the Department
			 determines that an extension is necessary to protect the public interest.
			 However, a decertification may not be extended solely on the basis of the facts
			 and circumstances upon which the initial decertification action was
			 based.
9. Reversal of
			 Decertification. The Department may reverse a decertification decision for
			 reasons including, but not limited to:
a.
			 newly discovered material evidence;
b. reversal of the conviction or civil
			 judgement upon which the decertification was based;
c. bona fide change in ownership or
			 management;
d. elimination of other
			 causes for which the decertification was imposed; or
e. other reasons the Department deems
			 appropriate.
10.
			 Exceptions
a. The Department may grant an
			 exception permitting a decertified or suspended contractor to participate in a
			 particular site rehabilitation activity upon prior notice and subsequent to a
			 written determination by the Department stating the reason(s) for deviating
			 from the requirements of this regulation. Exceptions shall be granted on a case
			 by case basis.
b. UST owners or
			 operators shall not renew or extend agreements to allow decertified or
			 suspended contractors from continuing with site rehabilitation, except as
			 provided in (a) above.
11. Failure to Adhere to Restrictions. Except
			 as permitted by this regulation, a UST owner or operator shall not knowingly
			 allow the initiation, implementation or completion of site rehabilitation with
			 a decertified or suspended contractor. A UST owner or operator may rely upon
			 the certification of a contractor that it or its affiliates are not decertified
			 or suspended from site rehabilitation, unless it knows that the certification
			 is erroneous.