1. (A) The Board of the Department of Health and Environmental Control shall establish a moratorium on administrative and judicial actions by the department concerning drycleaning facilities and wholesale supply facilities resulting from the discharge of drycleaning solvents to soil or waters of the State. This moratorium applies only to those facilities deemed eligible as defined in this section. The board may review and determine the appropriateness of the moratorium at least annually. This review must include, but is not limited to, consideration of these factors:

   1. (1) the solvency of the fund as described in Section 44-56-420;
   2. (2) prioritization of the sites;
   3. (3) public health concerns related to the sites;
   4. (4) eligibility of the sites;

   5. (5) corrective action plans submitted to the department.

      After review, the board may suspend all or a portion of the moratorium if necessary.

2. (B) A drycleaning facility or wholesale supply facility that is being operated as a drycleaning facility or wholesale supply facility at the time a request for determination of eligibility is filed and at which there is contamination from drycleaning solvents is eligible under this section regardless of when the contamination was discovered if the drycleaning facility or wholesale supply facility:

   1. (1) has been registered with and has paid all annual fees, surcharges, and solvent fees as required by the Department of Revenue;
   2. (2) is determined by the department to be in compliance with department regulations regulating drycleaning facilities or wholesale supply facilities;
   3. (3) has third-party liability insurance when and if the insurance becomes available at a reasonable cost, as determined by the Department of Insurance, and if the insurance covers liability for contamination that occurred both before and after the effective date of the policy;
   4. (4) has provided documented evidence of contamination by drycleaning solvents or where the department, after conducting a secondary assessment, has documented evidence of contamination by drycleaning solvents;
   5. (5) has not been operated in a grossly negligent manner at any time after November 18, 1980.

3. (C) If a request for determination of eligibility is filed for a former drycleaning facility at which there is contamination from drycleaning solvents, the former drycleaning facility is eligible under this section regardless of when the contamination was discovered; however, the owner or operator of the drycleaning facility or wholesale supply facility shall provide documented evidence of the contamination by drycleaning solvents and the owner or operator has an operating drycleaning facility in the fund and has paid all annual fees, surcharges, and solvent fees on every drycleaning facility registered in the fund and in existence under their control since July 1, 1995, as required by the Department of Revenue. For any former drycleaning facility seeking eligibility under this section after November 24, 2006, the deductible is twenty-five thousand dollars, if the following are met:

   1. (1) the former facility is determined to be eligible; and
   2. (2) the owner or operator, who was in the fund on October 1, 1995, applies for money from the fund within six months of discovering evidence of contamination.
4. (D) A drycleaning facility that has been contaminated as a result of the discharge of drycleaning solvents by a supplier of solvents during the delivery of drycleaning solvents to a drycleaning facility first must utilize the insurance of the supplier to the full extent of the coverage for site rehabilitation before any funds may be expended from the fund for the rehabilitation of that portion of the site which was contaminated by the discharge during delivery.

5. (E) If the facility started operation before November 24, 2004, and an eligible drycleaning or wholesale owner or operator or person applies for monies from the fund:

   1. (1) on or before November 24, 2005, the deductible is one thousand dollars;

   2. (2) after November 24, 2005, the deductible is twenty-five thousand dollars.

      An eligible drycleaning or wholesale supply facility that has applied for monies from the fund before May 24, 2004, shall have a deductible of one thousand dollars regardless of any deductible previously assigned to the facility based on its application date or type of site. Any approved assessment or remedial costs in excess of one thousand dollars previously incurred by the owner, operator, or property owner shall be refunded, without interest, to the party by the department. A facility first starting its operations on or after November 24, 2004, shall have a deductible of twenty-five thousand dollars if it is determined to be eligible and if the owner, operator, or property owner applies for money from the fund within six months of obtaining evidence of contamination.

6. (F)

   1. (1) An owner or operator of a drycleaning facility or wholesale supply facility or property owner seeking eligibility under this subsection shall submit an application for determination of eligibility to the department on forms provided by the department. The department shall review the application and request any additional information within ninety days. The department shall notify the applicant within one hundred eighty days as to whether the facility is eligible.

   2. (2) If the facility is not eligible because contamination has not been found and the department has determined that the facility is a high priority, the department shall notify the owner, operator, or property owner that a secondary assessment must be conducted. If the owner, operator, or property owner can demonstrate, based on criteria developed by the department, that they are unable to afford to hire a contractor to conduct this secondary assessment, the department shall upon payment of one thousand dollars within thirty days, conduct the secondary assessment.

      1. (a) If the payment of one thousand dollars is received within thirty days, the department shall conduct a secondary assessment. If evidence of contamination:

         1. (i) is found, the payment of one thousand dollars in excess of the facility deductible must be refunded, without interest;
         2. (ii) is not found, the facility can become eligible if at any time in the future the facility is found to have documented evidence of contamination by drycleaning solvents, and the owner, operator, or property owner provides that documentation to the department within six months of discovery.
      2. (b) If the owner, operator, or property owner does not pay one thousand dollars to the department within thirty days or does not agree within thirty days to conduct a secondary assessment, the facility is permanently barred from receiving funding from the Drycleaning Restoration Trust Fund and the moratorium provided for in Section 44-56-440(A) does not apply to this facility.
7. (G) Eligibility under this section applies to the site of the drycleaning facilities or wholesale supply facilities. A determination of eligibility or ineligibility is not affected by the subsequent conveyance of the ownership of the drycleaning facilities or wholesale supply facilities.
8. (H) This section does not apply to a site where the department has been denied site access to implement this section or to drycleaning facilities owned or operated by a local government or by the state or federal government.
9. (I) A site owned by an owner or operator of a drycleaning facility or a property owner at any time subsequent to October 1, 1995, who misrepresents the number of employees upon which the registration fee provided for in Section 44-56-460 is based is not eligible for funds under this section.

HISTORY: 1995 Act No. 119, Section 1; 2000 Act No. 317, Section 2; 2004 Act No. 237, Section 5, eff May 24, 2004; 2009 Act No. 14, Section 1, eff May 6, 2009.