SC Administrative Law Court Decisions

This matter is before this tribunal for a contested case hearing pursuant to S.C. Code Ann. § 1-23-600 (Supp. 1996). Petitioner challenges the revocation of its Radioactive Materials Transporter Permit. The Department alleges that Petitioner failed to maintain insurance as required by the permit, and thus revocation of Petitioner's permit was proper.

The hearing of this matter was held on December 9, 1997. The issues before this tribunal are: (1) whether Petitioner failed to maintain liability insurance as required by S.C. Code Ann. § 13-7-140 (Supp. 1996) and, (2) if so, what is the proper penalty.

Based upon the following Findings of Fact and Conclusions of Law, this tribunal concludes that Petitioner failed to maintain liability insurance as required by § 13-7-140. Consequently, Petitioner's permit to transport radioactive waste to or within South Carolina is subject to revocation.

Having carefully considered all testimony and arguments presented at the hearing of this matter, and taking into account the credibility and accuracy of the evidence, I make the following Findings of Fact by a preponderance of the evidence:

1. Applied Health Physics, Inc. is a Pennsylvania Corporation founded in 1962 by Robert Gallaghar, its President. The primary business of Applied Health Physics, Inc. is transporting or arranging for the transportation of radioactive wastes.
2. Applied Health, Inc. was a Pennsylvania corporation founded in 1997. Applied Health, Inc. was owned and operated by Daniel Haber and was primarily involved in the licensing and training of personnel for the handling and disposal of radioactive wastes.
3. Applied Health, Inc. was a separate and distinct entity from Applied Health Physics, Inc.
4. In addition to owning and operating Applied Health, Inc., Daniel Haber was employed by Applied Health Physics, Inc. as Assistant to the President and was in charge of the day-to-day operations of Applied Health Physics, Inc.
5. On approximately January 8, 1997, Applied Health Physics, Inc. was issued Renewal Permit No. 0963-37-96 for the 1997 calendar year to transport waste or cause waste to be transported into South Carolina.
6. As evidence of its satisfaction of the regulatory requirement for maintaining liability insurance, Applied Health Physics, Inc. submitted a certificate of liability insurance in its own name, which would expire on January 30, 1997.
7. On or around March 10, 1997, in satisfaction of the insurance requirement, Allied Health Physics, Inc. submitted a certificate of liability insurance which listed Applied Health, Inc. as the insured.
8. On March 3, 1997, Mr. Haber canceled the liability insurance which was issued in the name of Applied Health, Inc., and submitted to the Department by Applied Health Physics, Inc.
9. Between March 15 and March 21, 1997, Mr. Haber resigned from Applied Health Physics, Inc., and dissolved Applied Health, Inc.
10. Predicated on the expectation that Applied Health, Inc. would act as parent company to Applied Health Physics, Inc., Mr. Gallaghar mistakenly believed that the insurance certificate submitted to the Department on March 10, 1997 would cover both companies.
11. Petitioner did not present any documentation to substantiate a parent-subsidiary corporate structure between it and Mr. Haber's company. Nevertheless, this tribunal does not find any evidence indicating an intent to deceive the Department by the March 10, 1997 submission of the certificate of insurance.
12. Petitioner's liability insurance coverage for the transportation of radioactive waste within South Carolina, pursuant to Permit No. 0963-37-96, expired on January 30, 1997. Since this time, Petitioner has not transported or caused radioactive waste to be transported into South Carolina.

1. Pursuant to S.C. Code Ann. § 1-23-600 (Supp. 1996), the Administrative Law Judge Division has jurisdiction to hear this case.
2. The South Carolina Department of Health and Environmental Control is the agency designated with the responsibility for controlling and regulating the transportation of radioactive waste materials in South Carolina. See Title 13, Article 2, Chapter 7.
3. The Department is authorized to assess civil penalties when violations of the laws and regulations governing the transportation of radioactive waste occur. S.C. Code Ann. § 13-7-180 (Supp. 1996).
4. All shippers must maintain liability insurance before any radioactive wastes are transported into or within South Carolina. S.C. Code Ann. § 13-7-140 (Supp. 1996).
5. S.C. Code Ann. Regs. 61-83 (1976) pertains to the transportation of radioactive wastes into or within South Carolina. It establishes permit conditions and penalties for violations of provisions pertaining thereto.
6. Before a permit shall be issued, the shipper must deposit and maintain with the Department a cash or surety bond in the amount of $500,000 or provide to the Department satisfactory evidence of liability insurance. S.C. Code Ann. Regs. 61-83(3.2) (1976).
7. Petitioner is a shipper of radioactive waste as the term is defined in S.C. Code Ann. § 13-7-120(k) (Supp. 1996) and S.C. Code Ann. Regs. 61-83(2.11) (1976).
8. "Notwithstanding any other provisions of law, any person violating the provisions of this article, except as provided below for radiological violations, shall be assessed a civil penalty of up to one thousand dollars for each such violation; provided, that should the Department determine that a series of such violations has occurred , the Department shall suspend or revoke such person's permit for any time period determined to be proper, such period to be in the discretion of the Department, but in any event not to exceed twelve months." S.C. Code Ann. § 13-7-180(A) (Supp. 1996).

"Any person who commits a non-radiological violation of the provisions of this regulation shall be fined not more than one-thousand dollars for each violation . . . ." S.C. Code Ann. Regs. 61-83(7.3). By implication, Petitioner's acts of omission and commission in this matter, not maintaining liability coverage and submitting misleading documentation to the Department, constitute non-radiological violations. See S.C. Code Ann. Regs. 61-83(2.10) (1976).

1. The Department properly revoked Petitioner's permit in this matter, as Petitioner failed to maintain liability insurance as required by S.C. Code Ann. § 13-7-140 (Supp. 1996) and S.C. Code Ann. Regs. 61-83 (1976). Further, the imposition of the $2,000 penalty against Petitioner is also proper under § 13-7-180 and Regs. 61-83, as Petitioner failed to maintain the required insurance coverage and submitted inaccurate documentation of such coverage.

ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, IT IS HEREBY ORDERED that the Department's revocation of Petitioner's permit (number 0963-37-96) to transport radioactive waste within South Carolina is sustained.

IT IS FURTHER ORDERED that the Department shall impose a fine of $2,000 against Petitioner.

AND IT IS SO ORDERED.

______________________________

JOHN D. GEATHERS

Administrative Law Judge

Post Office Box 11667

Columbia, South Carolina 29211-1667

January 21, 1998

Columbia, South Carolina