Could a South Carolina drycleaning facility leave the restoration trust fund after the 1995 election deadline?

Plain-English summary

Senator Fair asked the Attorney General to reconsider an earlier opinion on leaving the Drycleaning Facility Restoration Trust Fund. The AG maintained that both the original 1995 legislation and the 2004 amendment tied an election out of the fund to an October 1, 1995 deadline. It rejected the idea that the original act left a continuing option to withdraw after that date.

The opinion also said the 2004 act amended Section 44-56-485 and that the more recent, specific provision would control if the acts conflicted. Its discussion addressed the statutory text as it stood in 2006.

Currency note

This opinion was issued in 2006. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

What election deadline did the opinion identify?
It identified October 1, 1995 for the election described in Section 44-56-485.

Did the AG find a later withdrawal right for a facility that had joined?
No. It said the cited acts did not supply a basis for electing out after the stated deadline.

Which act controlled if the 1995 and 2004 provisions conflicted?
The AG said the 2004 amendment was the more recent, specific legislation.

Background and statutory framework

The letter compared Section 44-56-485 as enacted in Act No. 119 of 1995 and amended by Act No. 237 of 2004. It also cited Section 44-56-480's reference to a prior election and S.C. Code Ann. § 44-56-410(10)'s definition of halogenated drycleaning fluids. Hodges v. Rainey was among the authorities cited for the more recent and specific statute rule.

Citations and references

• Section 44-56-485: election out of the trust fund as discussed in the opinion.
• Section 44-56-480 and S.C. Code Ann. § 44-56-410(10): related provisions.
• Hodges v. Rainey, 341 S.C. 79, 533 S.E.2d 578 (2000): statutory priority principle.

Official title

Reviewing a prior opinion relating to the Drycleaning Facility Restoration Trust Fund.

Requester

The Honorable Mike Fair, Member, SC Senate

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/february-14-2006/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/03/feb14-06-Fair.pdf

Original opinion text

HENRY McMAsTER
ArroRNEY GENERAL

February 14, 2006

The Honorable Mike Fair
Senator, District No. 6
P. 0 . Box 142
Columbia, South Carolina 29202

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Dear Senator Fair:

In a letter to this office you asked that we review a prior opinion of this office relating to the Drycleaning Facility Restoration Trust Fund. That opinion concluded in part that a dry cleaning establishment may discontinue participation in the trust fund if the election to do so was made by October 1, 1995. The opinion further stated that we were unaware of any basis by which an owner or operator ofa drycleaning facility could elect not to participate in the trust fund after the referenced 1995 date as there were no provisions for opting out of participation after such date. In your letter reference was made to the 1995 act which originally established the trust fund, Act No. 119of1995. Contrary to the statement in your letter that there was no provision in the original legislation which specifically prohibited a participant from leaving the fund after joining, by the provision codified as Section 44-56-485, in subsection (B) it was stated that "(a) drycleaning facility in existence on July 1, 1995 that uses perchloroethylene and Stoddard solvent or their breakdown products may elect to remove the facility from the requirements of this article if the election is made before October 1. 1995." (emphasis added). Such language was repeated in a provision in the most recent legislation, Act No. 237of2004, also codified as Section 44-56-485, which similarly states that "(a) drycleaning establishment in existence on July 1, 1995, that uses halogenated fluids and nonhalogenated cleaners may elect to remove the facility from the requirements of this articJe ifthe election is made before October 1. 1995." (emphasis added). Both provisions further stated that "(f)ailure to pay the required annual fee by October 1, 1995, constitutes electing to remove a facility from the requirements of this article." As to the use of the terms "halogenated fluids" and "nonhalogenated cleaners" in the 2004 legislation, by that same act it was stated that "(h)alogenated drycleaning fluids include perchloroethylene (also known as tetrachloroethylent), trichloroethylene, and any breakdown components of them." See: S.C. Code Ann. § 44-56-410(10). Therefore, both statutes appear to refer to the use of the same fluids. Reference in the 2004 legislation to a facility removing itself from the trust fund is also set forth in Section 44-56-480 where it is stated that "(a) drycleaning establishment that has made an election

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The Honorable Mike Fair
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February 14, 2006

not to be under the provisions of this article pursuant to Section 44-56-485(A) or (B) .... " While subsection (B) provides for the removal of a facility from the requirements of the article, as set forth above, subsection (A) allows for the election of not placing a facility under the trust fund provisions if such election took place before October 1, 1995.

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As to the claims that the earlier Act No. 119 of 1995 still controls, in my opinion, such legislation, and particularly Section 44-56-485 has been amended by Act No. 237 of 2004. The general rule is that the more recent and specific legislation controls if there is a conflict between two statutes. See Hodges v. Rainey, 341 S.C. 79, 533 S.E.2d 578 (2000); Unisys Corp. v. South Carolina Budget and Control Bd. Div. of General Services Information Technology Management Office, 346 S.C. 158, 167, 551S.E.2d263, 268 (2001); Ops. Atty. Gen. dated April 6, 1993 and June 11, 1985. Therefore, those provisions enacted by Act No. 237of2004, codified as S.C. Code Ann. §§ 44-56410 would control. If there is anything further, please advise.

Sincerely,

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Charles H. Richardson
Senior Assistant Attorney General

REVIEWED AND APPROVED BY:

Robert D. Cook
Assistant Deputy Attorney General