STATE OF SOUTH CAROLINA
ADMINISTRATIVE LAW JUDGE DIVISION
Docket No. 95-ALJ-07-0762-CC
Lisa M. Hadstate,
Petitioner,
vs.
S.C. Department of Health and
Environmental Control, Office of Ocean
and Coastal Resource Management,
and Interstate Speedway,
Respondents.
FINAL DECISION
Appearances: Robert Guild for the Petitioner
Mary D. Shahid for the Respondent, OCRM
Eugene C. McCall, Jr. for the Respondent, Interstate Speedway
STATEMENT OF THE CASE
This contested case matter arises from the decision of the South Carolina Department of Health
and Environmental Control - Ocean and Control Resource Management ("Department" or
"OCRM") to grant Stormwater Permit #15-95-10-2 to Respondent Interstate Speedway
("Interstate"). Interstate applied for a permit for approval of a stormwater management plan, in
conjunction with construction of a racetrack located off S.C. Highway 27, near U.S. Interstate 26,
in Berkeley County, South Carolina. The Department approved the permit on November 7, 1995.
Lisa M. Hadstate appealed the issuance of this permit. The Department transmitted the case to
the Division on December 5, 1995. A hearing was conducted on May 6, June 3, June 25 and June
26, 1996.
DISCUSSION
The issuance of a stormwater permit for construction of a facility such as a racetrack is governed by the Stormwater Management and Sediment Control Act of 1991 ("Stormwater Act"), S.C. Code Ann. §§ 48-14-10 et seq. (Supp. 1995), and the regulations promulgated thereunder, S.C. Code Regs. 72-300 et seq. (Supp. 1995). Because the site is in the coastal zone, the Coastal Tidelands and Wetlands Act, S.C. Code Ann. §§48-39-10 et seq. (Supp. 1995), and the S.C. Coastal Council Stormwater Management Guidelines, are also applicable. OCRM's predecessor in this case, the South Carolina Land Resources Conservation Commission, pursuant to its powers under the Stormwater Act, promulgated regulations and developed a State Stormwater Management and Sediment Reduction Program containing appropriate stormwater management and sediment control guidelines and criteria necessary to implement and supervise the issuance of a permit. The South Carolina Coastal Council, also a predecessor to OCRM, developed guidance for stormwater management in the coastal zone. The South Carolina Stormwater Management and Sediment Control Handbook for Land Disturbance Activities ("OCRM Handbook"), published in September 1995, is a compilation of applicable regulations and guidance information used by OCRM in reviewing applications for stormwater permits.
The primary requirements of the Stormwater Act are that post-development peak discharge rates shall not exceed the pre-development peak discharge rates for the two and ten year, 24 hour storm events. Furthermore, a sediment basin or other appropriate design must accommodate the anticipated sediment loading from the land-disturbing activity and meet the lesser requirement of either a removal efficiency of 80 percent suspended solids or 0.5 ML/L peak settleable solids concentration. The regulations restrict both construction and post-construction activity. This requirement insures that water quantity flowing off-site is controlled. The regulations reference certain structures and incorporate design criteria to protect water quality. These structures are part of "Best Management Practices"(1)
which the applicant is required to utilize in its design in order to protect water quality and control water quantity.
In addition to the requirements imposed by statutes and regulations, the applicant must meet the requirements of the Coastal Zone Management Program document. The Coastal Zone Management Program was refined in response to the adoption of the aforementioned statutes and regulations, and sets forth additional restrictions on land disturbing activities in the coastal zone.(2) The most significant additional requirement in the coastal zone is that projects of less than two acres of land disturbance may require a permit.(3)
Petitioner asserts a number of reasons for denial of the permit. She asserts that the Francis Beidler Forest would be harmed, that Four Hole Swamp would be harmed, that a downstream neighbor's property would be harmed, and that the permit was unlawfully issued because the design and construction requirements of the applicable statute and regulations were not met. Additionally, Petitioner contends the permit should be denied because of potential noise from the race track, and because locating a race track in the vicinity of a wildlife sanctuary is improper.
Specifically, Petitioner disagrees with Interstate's assumptions for the purpose of calculation of
pre-development and post-development runoff. Petitioner contends the pre-development peak
discharge rate as calculated by the applicant's engineer, Walter Warren, to be unreasonably large.
This conclusion was based on actual measurements from clear and forested watersheds taken by
Petitioner's expert, Tom Williams, and on the fact that Petitioner believes that the Hewlett
equation, and not the rational equation, more accurately measures runoff for this type of land
cover. Petitioner also contends Interstate's post-development runoff calculations are unreasonably
small, based in part on Petitioner's assumption that the grassed parking lot and infield would
behave like an impervious surface after frequent use. Finally, Petitioner contends Interstate used
incorrect soil types in reaching its conclusions.
FINDINGS OF FACT
Having observed the witnesses and exhibits presented at the hearing and closely passed upon their credibility, taking into consideration the burden of persuasion by the Parties, I make the following Findings of Fact by a preponderance of evidence:
Background
1. On October 4, 1995, Interstate filed with OCRM an application for a Stormwater Management and Sediment Reduction permit. The stated purpose of the project was to construct a racetrack consisting of a half-mile concrete oval track and grassed infield and parking areas. Interstate expects the track to operate one day a week (Saturday) from March through September with 4000 to 4500 spectators for each event. The track infield will only be used for spectators, not the parking of vehicles.
2. Interstate's application included information regarding the soils located on the site, the elevations, the locations of any freshwater wetlands on site, and the location of the nearest receiving water body. *In addition, Interstate, through a registered Professional Engineer (P.E.), provided its design criteria for the structural controls it intended to construct on the site. The applicant provided calculations of pre-development and post-development flow rates, which were certified by its P.E.
3. The property was previously used for agricultural purposes, producing soy beans, corn and wheat. The property was very difficult to drain. The previous owner, Ben N. Hill, consulted with the Soil Conservation Service, and installed culverts to connect two drainage canals on either side of the property to a "borrow pit" off-site. According to Mr. Hill, these canals and culverts were adequate for maintaining the flow of storm water after a significant rain event.
4. The receiving water body for storm water runoff in this area is the Four Hole Swamp. Four Hole Swamp is an approximately 60 mile long system with a one-and-a-half mile wide flood plain from swamp edge-to-edge which drains into the Edisto River. Four Hole Swamp is classified as Freshwater for purposes of DHEC classifications of Water Quality Standards and Uses which allows for industrial and agricultural uses. See S.C. Code Regs. 61-68 (G)(3) (Supp. 1995). There are currently several industrial discharges that run directly into tributaries of Four Hole Swamp.
5. The Francis Beidler Forest is part of the Four Hole Swamp system, and is located in a six mile stretch of the swamp upstream of the proposed racetrack. The Beidler Forest includes the largest remaining stand of virgin cypress tupelo, and other rare plants. The forest is characterized as an "ancient forest" based on the age of some of the trees and the fact that the forest has looked the same way for centuries. The forest provides a habitat for numerous species of songbirds and two rare bats. However, portions of the Forest, with the permission of National Audubon Society, are currently being logged for commercial purposes.
6. OCRM staff and Interstate's engineer met with concerned citizens in the OCRM office, at the citizens' homes, and at a nearby hunt club, to address their concerns. OCRM determined that the application met the requirements of the Stormwater Management and Sediment Reduction Act of 1992 and issued a stormwater permit on November 7, 1995.
BMPs
7. BMPs incorporated in the approved plan include: grassed swales, silt fencing, and rock check dams. Additionally, the final project will include an oil/water separator to be located in a small, intermediate pond before the run-off flows into the storm water management pond. The function of the oil/water separator is to filter out the petroleum contaminants associated with the use of the racetrack before the storm water flows offsite. Walter Warren, a licensed P.E. and an expert in stormwater management and sediment reduction control system design and management, also designed a two-acre stormwater detention pond. Warren designed a weir structure to regulate the outflow from the detention pond. Once the discharge is routed through the stormwater management pond, the maximum outflow is 59.2 cubic feet per second. Warren further incorporated hay bales and stone in his design to filter out sediment before storm water leaves the site. These BMPs meet the regulatory requirement for sediment control during construction, and post construction water quality and quantity control for stormwater management.
8. Interstate modeled the efficiency of the BMPs, specifically the storm water management pond, to insure that 80% of suspended solids were removed from the discharge flowing off site. The model used by Interstate was recognized by OCRM staff as an acceptable model for this purpose. Based on Interstate's model, a sediment removal rate of 86% was predicted.
9. Numerous site visits were made by OCRM personnel to the Interstate site. Many of these site visits occurred after citizens made complaints that off-site impacts had occurred. Barbara Neale, an expert in stormwater hydrology and the stormwater permitting program administered by the Department, inspected the Hills' property at their request following any significant rainfall. The site visits by OCRM personnel revealed no off-site impacts in violation of the standards set forth in the regulations. Furthermore, the sediment accumulation in the sediment basin indicates that the BMPs were functioning as predicted. Therefore, the BMPs on site were observed functioning properly as designed.
10. The 80% removal efficiency provided in Regs. 72-307 contemplates that certain suspended solids will not be captured and may be discharged off site. These solids are referred to as "fines." The pictures provided by Petitioner and her witnesses appear to depict such "fines." Moreover, the racetrack is not the only site which discharges storm water through the "borrow pit" area into Four Hole Swamp.
11. This tribunal finds that there has been no demonstration of significant off-site impacts as a result of this project. In addition, this tribunal finds that there is no reliable, probative evidence upon which to conclude that all impacts to off-site properties are exclusively and directly attributable to the racetrack.
Stormwater Runoff Calculations
12. Interstate provided information regarding pre-development run off rates at the site. Using the rational method, and classifying the site as pasture, Interstate calculated that the pre-development run off rate was 66 cubic feet per second. The variables used in Interstate's calculations are acceptable in the field of civil engineering given the previous uses of the site, the existing drainage structures on the site prior to development, the predominant soils on site, topographic conditions, and the pre-development land cover on the site.
13. Interstate also provided information predicting post-development run off rates at the site. Using the rational method, and looking at each developed portion separately - the track, the infield, and the parking area - Interstate calculated the peak post-development runoff to be 95 cubic feet per second. Interstate utilized variables in its application of the rational method which took into account the soils on site, topographic conditions, and predicted uses (parking, racetrack, etc.).
14. Interstate designed and incorporated BMPs to reduce and control this peak development discharge and achieved a reduction to 59 cubic feet per second.
15. The inputs used by Interstate were reviewed by OCRM staff for their accuracy in accordance with the stormwater management and sediment reduction plan. These inputs include peak inflow, peak outflow, soil particle diameter, pond area, and settling velocity. Interstate used published "C" factors in its rational equation. The published "C" factors have been used in numerous other applications and are accepted as reliable in the field of civil engineering.
16. In order to comply with the regulations, Interstate is required to utilize acceptable methods of predicting outcomes such as mathematical equations and computer models. Interstate provided calculations using the rational method for the two and ten year storm event.
17. The models utilized in this application were derived from methods developed by Haan, Hayes, and Barfield (4) and are recognized in the field of Civil Engineering, and the specialty of Hydrology and Stormwater Management, as reliable. The rational equation is also recognized as reliable in the field of Civil Engineering, Hydrology and Stormwater Management, for designing storm drainage systems in excess of 20 acres. In fact, Joe Fersner, a civil engineer specializing in storm water management and sediment for OCRM, has reviewed approximately 3,000 projects. Fifty percent of those projects used the rational method. He has never heard of the Hewlett method or of its application in pre-development and post-development discharge calculations. Furthermore, sampling is not a recognized method for determining the efficiency of stormwater controls.
18. The Hewlett method for calculating runoff, suggested by Petitioner's experts, is not a recognized method for stormwater permitting. The Hewlett method is utilized for forested sites and is not applicable to this site.
19. The evidence establishes that Interstate's stormwater management plan and sediment control
provisions meet the lesser requirement of either a removal efficiency of 80 percent suspended
solids or 0.5 ML/L peak settleable solids concentration. The evidence establishes that the soil
coefficients used by Interstate are accepted as reliable in the field of civil engineering.
CONCLUSIONS OF LAW
Based on the foregoing Findings of Fact and Discussion, I conclude the following as a matter of law:
1. The Division has jurisdiction over this matter pursuant to S.C. Code Ann. §1-23-600 (Supp. 1995).
2. The standard of proof in weighing the evidence and making a decision on the merits at a contested case hearing is a preponderance of the evidence. Nat'l Health Corp. v. S.C. Department of Health and Environmental Control, 298 S.C. 373, 380 S.E.2d 841 (Ct. App. 1989).
3. The issuance of stormwater permits for construction of facilities is governed by the South Carolina Stormwater Management and Sediment Control Act (the Act), S.C. Code Ann. §48-14-10 et. seq. (Supp. 1995), and in the coastal zone also by the S.C. Coastal Council (OCRM) Stormwater Management Guidelines.
4. S.C. Code Ann. §48-14-30 (Supp. 1995) provides:
Unless exempted, no person may engage in a land disturbing activity without first submitting a stormwater management and sediment control plan to the appropriate implementing agency and obtaining a permit to proceed . . . Each person responsible for the land disturbing activity shall certify, on the stormwater management and sediment control plan submitted, that all land disturbing activities will be done according to the approved plan.
A "'[l]and disturbing activity'" means any use of the land by any person that results in a change in the natural cover or topography that may cause erosion and contribute to sediment and alter the quality and quantity of stormwater runoff." S.C. Code Ann. §48-14-20(8) (Supp. 1995).
5. The Stormwater Management and Sediment Reduction Act directed the Department to promulgate regulations to restrict land-disturbing activities. S.C. Code Ann. §48-14-50. Accordingly, OCRM promulgated regulations in OCRM's Handbook, which provides for the application and permitting procedures, criteria, and standards for a state Stormwater Permit.
6. Pursuant to regulatory requirements, "[p]ost-development peak discharge rates shall not exceed pre-development discharge rates for the 2- and 10- year frequency 24-hour duration storm event." S.C. Code Regs. 72-307(C)(4)(a) (Supp. 1995).
7. A "'Two-Year Frequency Storm'" means a storm that is capable of producing rainfall expected to be equaled or exceeded on the average of once in two years. It may also be expressed as an exceedence probability with a 50 percent chance of being equaled or exceeded in any given year." S.C. Code Regs. 72-301 (48) (Supp. 1995). Additionally, "'Ten-Year Frequency Storm'" means a storm that is capable of producing rainfall expected to be equaled or exceeded on the average of once in 10 years. It may also be expressed as an exceedence probability with a 10 percent chance of being equaled or exceeded in any given year." S.C. Code Regs. 72-301 (46).
8. S.C. Code Regs. 72-307(C)(5)(b) and (c) provide:
(b) Stormwater runoff and drain to a single outlet from land disturbing activities which disturb ten acres or more shall be controlled during the land disturbing activity by a sediment basin where sufficient space and other factors allow these controls to be used until the final inspection. The sediment basin shall be designed and constructed to accommodate the anticipated sediment loading from the land-disturbing activity and meet a removal efficiency of 80 percent suspended solids or 0.5 ML/L peak settable solids concentration, whichever is less. The outfall device or system design shall take into account the total drainage area flowing through the disturbed area to be served by the basin.
(c) Other practices may be acceptable to the appropriate plan approval agency if they achieve an equivalent removal efficiency of 80 percent for suspended solids or 0.5 ML/L peak settable solids concentration, whichever is less. The efficiency shall be calculated for disturbed conditions for the 10-year 24-hour design event.
9. The regulations and statutes which govern review of this application and issuance of this permit do not allow the agency to consider the appropriateness of this land use, or the amount of noise that this use will create. Land use decisions are primarily the responsibility of zoning authorities who exercise wide discretion in decision making. See Bear Enterprises v. County of Greenville, ___ S.C. ___, 459 S.E.2d 883 (Ct. App. 1995); Rushing v. City of Greenville, 265 S.C. 285, 217 S.E.2d 797 (1975).
10. Interstate has complied with S.C. Code Ann. §§48-14-10 et seq. and S.C. Regs. 72-300 et
seq. (Supp. 1995) in its application to construct a racetrack in Berkeley County, South Carolina.
ORDER
It is, therefore, ORDERED, that Stormwater Permit #15-95-10-2 is granted.
IT IS SO ORDERED.
______________________________________
Ralph King Anderson, III
Administrative Law Judge
December 3, 1996
Columbia, South Carolina
_______________
Fn.1. Fn.2. Fn.3. Fn.4.