SC Administrative Law Court Decisions

The South Carolina Department of Health and Environmental Control (DHEC) directed Willie K. Burns (Burns) to cease dumping material at an unpermitted disposal site, remove material previously dumped, and pay a fine of $5,600. Burns protested and sought a contested case. Jurisdiction vests in the Administrative Law Judge Division (ALJD) by § 1-23-360 with this matter heard on July 31, 1997. Under the facts and law, Burns must properly dispose of the materials previously dumped at the unpermitted site and pay a fine of $5,600.

1. Has Burns improperly disposed of material by dumping waste at an unpermitted site?

2. Is Burns liable for a fine of $5,600 for disposing of material at an unpermitted site?

1. Positions of Parties:

DHEC asserts the site used by Burns is an unpermitted site not properly employed for disposal of the solid waste generated by Burns' business or that of his household.

2. Findings of Fact:

I find, by a preponderance of the evidence, the following facts:

A tract of property at Smith Drive, approximately four hundred (400) feet northeast of Timms Mill Road noted on the Anderson County tax map as numbers 142-00-02-009 and 142-00-02-010 in Williamston, South Carolina (Site) has been used by Burns for the disposal of solid waste.

Burns had no permits from DHEC allowing the disposal of wastes on the Site.

On December 20, 1995, the Department received a complaint that Burns was using the Site for the dumping of household waste and material from construction and demolition activities.

At the time of the dumping, Burns owned and operated a landscaping business and performed the clean-up of building construction sites for a developer and home builder.

DHEC inspected the Site on December 27, 1995 and viewed dumped construction and demolition material and household waste in three (3) separate sections of the Site.

The first section contained wood and masonry debris.

The second section contained various types of construction and demolition debris, including shingles, fiberglass insulation, drywall, sheetrock, plywood, boards, blocks, brick, wire, aluminum, scrap metal, and wood paneling.

The third section contained multiple waste piles scattered over an area approximately one (1) acre in size with waste material comparable to the first two sections but also holding household and office trash, wooden pallets, and empty 5-gallon containers that presumably contained a drywall compound and joint sealant and discarded mail documents listing Burns as the addressee.

On February 7, 1996, DHEC reinspected the Site and met with Burns.

Burns acknowledged he was responsible for the dumping of the solid waste and that he had transported the material to the Site with his trucks.

Burns agreed to remove and properly dispose of the waste material at a permitted solid waste disposal facility.

Burns' business equipment used lead-acid batteries.

DHEC found two lead-acid batteries at the Site on May 8, 1996.

On May 8, 1996, DHEC notified Burns in writing that the batteries must be removed by June 10, 1996.

Burns did not remove the batteries.

3. Discussion

In general, DHEC has overall responsibility for permitting the disposal of waste. A person may not "directly or indirectly . . . discharge into the environment of the State organic or inorganic matter, including sewage, industrial wastes and other wastes, except as in compliance with a permit issued by the Department." S. C. Code Ann. § 48-1-90 (A) (1976). One discharges industrial waste if the waste results from a business (i.e., the clean-up of building sites) and one discharges "other wastes" if, among other categories, the waste includes garbage (i.e., household wastes such as letters, food containers, etc.). See § 48-1-10(5) and (6) (Revised 1987). Accordingly, Burns, at a minimum, was subject to DHEC regulation for any wastes disposed on the site involved in this matter.

More particularly, as applied to Burns' disposal methods, no person is allowed to operate a solid waste management facility without a permit from DHEC. § 44-96-290(A). A solid waste management facility includes any solid waste disposal area that serves the purpose of disposing of solid waste. § 44-96-40(49) (Supp. 1996). Again, for solid waste management purposes, solid waste includes both garbage and discarded material resulting from commercial activities. § 44-96-40(46) (Supp. 1996).

Here, Burns identified a specific area, the Site, and used the Site for disposal of solid waste including both garbage and discarded waste from his commercial activity of clean-up at building sites and landscaping. Burns needed a permit from DHEC before he could carry out his disposal plans. Burns had no such permit. Accordingly, Burns engaged in open dumping contrary to the requirements of Regs. 61-107.11, Part IV.A.8. and thus violated the law by disposing of wastes without a permit.

No person shall knowingly dispose of a lead-acid battery except by delivery to a lead-acid battery retailer or wholesaler; a registered collection, recycling, or recovered material processing facility; or a permitted secondary lead smelter. Regs. 61-107.8. C.1.b (Supp. 1996). The Site is not a permitted location for the disposal of lead-acid batteries.

Further, the evidence considered as a whole shows Burns knowingly made the disposal. An act is committed "knowingly" if the information surrounding the disposal would lead a prudent man to form a belief the material disposed of contained a lead-acid battery, and if followed by inquiry, would have disclosed the presence of the battery in the disposed of material. See Feldman v. South Carolina Tax Commission, 203 S.C. 49, 56, 26 S.E.2d 22 (1943) and Daley v. Ward, 303 S.C. 81, 399 S.E.2d 13 (Ct. App. 1990). Here, no evidence shows the batteries were placed on the Site by anyone other than Burns. In addition, Burns routinely disposed of waste at the site and his business used equipment requiring lead-acid batteries. Further, DHEC found two lead-acid batteries at the Site on May 8, 1996 and on that same date notified Burns in writing that the batteries must be removed by June 10, 1996. Burns did not remove the batteries even after having specific knowledge that his Site was the disposal point for lead-acid batteries. From all the evidence, a reasonable inference is that the batteries were disposed of by Burns and the disposal was made knowingly. Accordingly, Burns violated the law by knowingly disposing of lead-acid batteries at an unpermitted site violating Regs 61-107.8.C.1.b.

4. Conclusions of Law

Based on the Findings of Fact and Discussion, I conclude the following as a matter of law:

1. DHEC has overall responsibility for permitting the disposal of waste since a person may not "directly or indirectly . . . discharge into the environment of the State organic or inorganic matter, including sewage, industrial wastes and other wastes, except as in compliance with a permit issued by the Department." S. C. Code Ann. § 48-1-90 (A) (1976).

2. One discharges industrial waste if the waste results from a business (i.e., the clean-up of building sites), and one discharges "other wastes" if, among other categories, the waste includes garbage (i.e., household wastes such as letters, food containers, etc.). See § 48-1-10(5) and (6) (Revised 1987).

3. Burns was subject to DHEC regulation for any wastes disposed on the site involved in this matter.

4. No person is allowed to operate a solid waste management facility without a permit from DHEC. § 44-96-290(A).

5. A solid waste management facility includes any solid waste disposal area that serves the purpose of disposing of solid waste. § 44-96-40(49) (Supp. 1996).

6. For solid waste management purposes, solid waste includes both garbage and discarded material resulting from commercial activities. § 44-96-40(46) (Supp. 1996).

7. Burns engaged in open dumping contrary to the requirements of Regs. 61-107.11, Part IV.A.8. and thus violated the law by disposing of wastes without a permit.

8. No person shall knowingly dispose of a lead-acid battery except by delivery to a lead-acid battery retailer or wholesaler; a registered collection, recycling, or recovered material processing facility; or a permitted secondary lead smelter. Regs. 61-107.8. C.1.b (Supp. 1996).

9. The Site is not a permitted location for the disposal of lead-acid batteries.

10. A disposal of a lead-acid battery is committed "knowingly" if the information surrounding the disposal would lead a prudent man to form a belief the material disposed of contained a lead-acid battery, and if followed by inquiry, would have disclosed the presence of the battery in the disposed of material. See Feldman v. South Carolina Tax Commission, 203 S.C. 49, 56, 26 S.E.2d 22 (1943) and Daley v. Ward, 303 S.C. 81, 399 S.E.2d 13 (Ct. App. 1990).

11. Burns knowingly disposed of two lead-acid batteries.

12. Burns violated the law by knowingly disposing of two lead-acid batteries at an unpermitted site violating Regs 61-107.8.C.1.

1. Positions of Parties:

Burns asserts he has stopped the dumping at the unpermitted site, has removed what is offensive, and should not be fined $5,600. DHEC, on the other hand, asserts that some offensive material is still visible and that much of the material allegedly removed was done so by improperly burning or burying the material. Accordingly, DHEC asserts the magnitude and nature of the violations warrants a fine of $5,600.

2. Findings of Fact:

I find, by a preponderance of the evidence, the following facts:

1. After the February 7, 1996, inspection and meeting with Burns in which Burns agreed to remove the material, DHEC reinspected the site on March 27, 1996, and found no clean up activities initiated.

2. On May 8, 1996, DHEC reinspected the Site and still found improperly disposed waste at the Site and asked Burns to remove the material by June 10, 1996.

3. On July 1, 1996, DHEC inspected the Site again and found that not only had no clean up activities been initiated but that open burning of solid waste had taken place since the previous inspection.

4. A subsequent Site inspection by DHEC on July 30, 1996, found no change in the status of the Site.

5. On July 31, 1996, DHEC sent Burns a certified letter directing the clean up and disposal of the improper material on the Site, but Burns never claimed the letter.

6. On October 18, 1996, DHEC issued to Burns, by certified mail, a Notice of Violation and Enforcement Conference but Burns did not claim the certified letter and did not attend the Enforcement Conference scheduled for November 6, 1996.

7. On November 12, 1996, DHEC reissued the Notice of Violation and Enforcement Conference.

8. This second notice was hand-delivered to Burns on November 20, 1996.

9. The second notice reflected a new conference date of December 3, 1996.

10. On November 21, 1996, Burns asked that the conference be postponed until after the beginning of the year (1997).

11. DHEC changed the conference date to January 7, 1997 and notified Burns of the change by telephone and letter.

12. Burns failed to attend the January 7, 1997 enforcement conference.

13. Burns had notice of the July 31, 1997 hearing before the ALJD.

14. Burns failed to attend the July 31, 1997 hearing.

15. Burns failed to remove improperly disposed of waste after numerous extensions.

3. Discussion

A violation of Regs. 61-107.11, Part IV allows DHEC to impose a reasonable civil penalty not to exceed ten thousand dollars ($10,000.00) for each day of violation. Regs. 61-107, Part IV, H. Here, Burns engaged in open dumping contrary to the requirements of Regs. 61-107.11, Part IV.A.8. and thus violated the law by disposing of wastes without a permit. Further, any person violating the lead-acid disposal provisions of Regs. 61-107.8.C. 1. or 2. is subject to a fine not to exceed two hundred dollars ($200.00) with each lead-acid battery improperly disposed of constituting a separate violation. Regs. 61-107.8.F. Here, Burns knowingly disposed of two lead-acid batteries at an unpermitted site violating Regs 61-107.8.C.1.b. Under 61-107.11, DHEC seeks a $5,200 fine and under 61-107.8 seeks a $400 fine for a total of $5,600.

The fines are proper and are consistent with the circumstances of the violations. Here, the evidence shows a repeated failure to remove improperly disposed of waste after numerous extensions. On February 7, 1996, DHEC met with Burns who agreed to remove the material. A DHEC reinspection, however, on March 27, 1996, found no clean-up activities initiated. Again on May 8, 1996, DHEC reinspected the Site and still found improperly disposed waste and asked Burns to remove the material by June 10, 1996. By July 1, 1996, DHEC found that not only had no clean up activities been initiated but that open burning of solid waste had taken place since the previous inspection. A subsequent Site inspection on July 30, 1996, found no change in the status of the Site. Further by July 31, 1996, DHEC sent Burns a certified letter directing the clean up, but Burns never claimed the letter.

Trying to establish a conference to discuss the violations, DHEC, on October 18, 1996, issued to Burns, by certified mail, a Notice of Violation and Enforcement Conference. Again Burns did not claim this certified letter and did not attend the Enforcement Conference scheduled for November 6, 1996. To assure notice, DHEC hand-delivered to Burns on November 20, 1996 a re-issued Notice of Violation and Enforcement Conference establishing a conference on December 3, 1996. At Burns' request DHEC changed the conference to January 7, 1997, with Burns receiving notice of the change by telephone and letter. Burns failed to attend the January 7, 1997 enforcement conference.

Considering all the factors of this case, the fine of $5,600 is proper.

4. Conclusions of Law

Based on the Findings of Fact and Discussion, I conclude the following as a matter of law:

1. A violation of Regs. 61-107.11, Part IV allows DHEC to impose a civil penalty not to exceed ten thousand dollars ($10,000.00) for each day of violation. Regs. 61-107, Part IV, H.

2. Burns engaged in open dumping in violation of the requirements of Regs. 61-107.11, Part IV.A.8. and thus violated the law by disposing of wastes without a permit.

3. Any person violating the lead-acid disposal provisions of Regs. 61-107.8.C. 1. or 2. is subject to a fine not to exceed two hundred dollars ($200.00) with each lead-acid battery improperly disposed of constituting a separate violation. Regs. 61-107.8.F.

4. Burns knowingly disposed of two lead-acid batteries at an unpermitted site violating Regs 61-107.8.C.1.

5. A fine of $ 5,200 for violating Regs. 61-107.11 and a fine of $ 400 for violating Regs. 61-107.8 is proper.

Based on the Findings of Fact and Conclusions of Law, the following ORDER is issued:

To the extent deemed warranted by DHEC personnel operating under a reasonable application of pertinent DHEC standards, Burns is ordered to dispose of the remaining waste at the Site. Further, Burns is ordered to pay a fine of $ 5,600 for prior improper disposal of waste at the Site.

IT IS SO ORDERED.

___________________________

RAY N. STEVENS

Administrative Law Judge

This 19th day of August, 1997