ORDERS:
FINAL ORDER AND DECISION
Statement of the Case
This is an appeal of Administrative Order 04-113-W issued by the South Carolina
Department of Health and Environmental Control (Department) on June 16, 2004. Respondent
requested a hearing by letter dated August 2, 2004. The Department alleges that Respondent has
operated Crum Farms without a permit in violation of State regulations and has also not provided
a lagoon at Crum Farms constructed in compliance with applicable regulations. After notice to
all of the parties, a hearing was conducted on November 2, 2004, at the offices of the
Administrative Law Court (Court or ALC) in Columbia, South Carolina.
ISSUES
The issues for determination are: (a) Whether the Department properly required
Respondent to permanently install a one (1) inch well and take regular samples to determine if
groundwater has been impacted by Respondent’s unlined waste storage lagoon; and (b) Whether
the imposition of a civil penalty of $6,000.00 was proper.
BURDEN OF PROOF
Basic principles of administrative law establish that an agency bears the burden of proof
in establishing that the penalty amount is justified. See Peabody Coal Co. v. Ralston, 578 N.E.2d
751 (Ind. Ct. App. 1991); Shipley, South Carolina Administrative Law § 5-79, 5-80 (1989).
Because the Department is seeking enforcement of its Administrative Order, this is an
enforcement action requiring that the Department bear the burden of proof in establishing that
Respondent committed any alleged violations. The caption, therefore, is amended to reflect the
correct allocation of the burden of proof in this matter.
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 the evidence:
1.Respondent operates a swine facility in Orangeburg County, South Carolina
known as “Crum Farms.” Crum Farms is an Agricultural Animal Facility which currently
averages about five hundred (500) hogs in production. Respondent maintains a waste storage
pond at this site which was constructed sometime before 1993 and for which no permit has ever
been issued by the Department. The storage pond is unusually small and located next to
Carolina Bay.
2.On or about March 2, 1993, Respondent was advised by the Department’s staff
that a permit was required for his facility. At Respondent's direction, a Waste Management Plan
was then prepared by the United States Department of Agriculture Soil Conservation Service.
Upon its completion, the Waste Management Plan was submitted by Respondent to the
Department for the purposes of receiving a permit to repair and construct the required waste
management facilities. The plan called for, in part, the construction of a new lagoon.
On September 24, 1993, the Department issued a permit to Respondent authorizing the
repairs and construction of a waste management facility as set forth in the Waste Management
Plan within one (1) year. On September 24, 1994, that permit expired without Respondent
completing the repairs and construction of the approved waste management facility.
Accordingly, Respondent was informed again on March 24, 1995 that the facility was operating
without a permit and that Respondent should take the necessary actions to get the facility
permitted. Respondent was also informed that the facility was operating without a permit and
that Respondent should take the necessary actions to get the facility permitted on:
a.October 3, 1995;
b.September 19, 1996;
c.January 23, 1997; and
d.June 27, 2002.
All of these notices were disregarded. Ultimately, an enforcement conference was held in May
of 2003 between Respondent and the Department.
Following the enforcement conference, hydrogeologists on the Department’s staff visited
Crum Farms on September 23, 2003 to determine what action could be taken to bring
Respondent into compliance with the State’s laws. The hydrogeologists determined that the
minimum action needed was the installation of a one (1) inch diameter well for the purpose of
taking samples to verify whether groundwater has been impacted by seepage from Respondent's
waste lagoon operated in connection with the swine facility. As long as those samples did not
reveal any groundwater impact, the Department agreed to approve Respondent’s facility based
upon its current limited production level. I find that the Department’s proposed resolution of
this case was appropriate under the Standards for the Permitting of Agricultural Animal
Facilities. See 24A S.C. Code Ann. Regs. 61-43 §§ 50 et seq. (Supp. 2003).
However, the Department’s resolution was also unheeded and it issued Administrative
Order 04-113-W on June16, 2004. The Administrative Order required Respondent to: (a)
Comply with all State and federal permitting and operating requirements; and (b) Submit to the
Department a plan for the construction of a one (1) inch diameter monitoring well for the
purpose of taking samples to determine whether groundwater has been impacted by seepage
from Respondent's waste lagoon operated in connection with the swine facility.
Conclusions of Law
Based on the foregoing Findings of Fact, I conclude the following as a matter of law:
1.The Administrative Law Court has subject matter jurisdiction of this contested
case pursuant to the South Carolina Administrative Procedures Act, S.C. Code Ann. §§ 1-23-310, et seq. (1986 & Supp. 2003). In weighing the evidence and deciding a contested case on the
merits, the Administrative Law Court Judge must make findings of fact and conclusions of law
by a preponderance of the evidence. Anonymous (M-156-90) v. State Board of Medical
Examiners, 329 S.C. 371, 496 S.E.2d 17 (1998). Furthermore, the burden of proof rests upon the
Petitioner in this case. Id.
2.Respondent's facility is an “animal facility” as defined by 24A S.C. Code Ann.
Regs. 61-43§ 50 (F) (Supp. 2003). Accordingly, since Respondent’s facility has never been
permitted, it is regulated by the Standards for the Permitting of Agricultural Animal Facilities.
See 24A S.C. Code Ann. Regs. 61-43 § 100.10 (D)(3) (Supp. 2003). Section 100.10 (D)(3) sets
forth that:
All existing swine facilities that were constructed and placed into operation
prior to July 1, 1996, but have never received an agricultural permit from
the Department, shall apply for a permit from the Department. These
facilities shall meet all the requirements of this regulation as the
Department determines appropriate. The Department shall review the site
and make a determination on a case-by-case basis on which requirements
are applicable.
Respondent violated those standards by failing to even attempt to appropriately meet the
requirements of the Standards for the Permitting of Agricultural Animal Facilities.
3.The Department seeks the imposition of a civil penalty in the amount of six
thousand dollars ($6,000.00) and enforcement of the terms of its Administrative Order.
ORDER
Based upon the above Findings of Fact and Conclusions of Law:
IT IS HEREBY ORDERED that within ten (10) days from the date of this Order,
Respondent will notify the Department in writing of his election to undertake one (1) of the
following two (2) options:
1.Within sixty (60) days from the issuance of this Order, Respondent will
immediately shut down the Crum Farms swine facility (meaning that the waste management
pond will no longer service any swine) and pay a penalty of one thousand dollars ($1,000.00) to
the Department no later than sixty (60) days after the issuance of this Order; or
2.Within sixty (60) days from the issuance of this Order, Respondent will obtain a
Waste Management Plan, have a monitoring well constructed, obtain a permit for Crum Farms
(or be substantially into the permitting process to the satisfaction of the Court and the
Department), and pay a penalty of one thousand dollars ($1,000.00) to the Department no later
than sixty (60) days after the issuance of this Order.
IT IS FURTHER ORDERED that if Respondent fails to comply with one of the above
options, Respondent shall pay a six thousand dollar ($6,000.00) penalty to the Department no
later than sixty (65) days after the issuance of this Order. Furthermore, Respondent will
nonetheless be required to fully comply with the Standards for the Permitting of Agricultural
Animal Facilities.
IT IS FURTHER ORDERED that if Respondent fails to comply with the provisions of
this Order, an Order for Civil Contempt may be issued against Respondent for his
non-compliance.
AND IT IS SO ORDERED.
_____________________________________________
Ralph King Anderson, III
Administrative Law Court Judge
February 3, 2005
Columbia, South Carolina |