SC Administrative Law Court Decisions

South Carolina Department of Health and Environmental Control (DHEC) directed Samuel Robinson (Robinson) to cease dumping material at an unpermitted disposal site, properly cover material previously dumped, and pay a fine of $4,490. Robinson protested and sought a contested case hearing. Jurisdiction vests in the Administrative Law Judge Division (ALJD) by S.C. Code Ann. § 1-23-360, with this matter heard on January 15, 1998. Under the facts and law, Robinson must cover the waste currently at the disposal site and pay a fine of $1000.

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

2 Is Robinson liable for a fine of $4,490 for disposing of material at an unpermitted site?

1. Positions of Parties

DHEC asserts the site used by Robinson is an unpermitted site improperly employed for disposal of solid waste. Robinson admits that some dumping occurred but that he took reasonable measures to halt the dumping and should not be liable.

2. Findings of Fact

Based on the preponderance of the evidence, the following findings of fact are entered:

1. Robinson owns low-lying land located at the end of Kershaw Street near the intersection of Charlotte Street in Florence, South Carolina (Site).
2. At some point during early 1995, Robinson agreed to allow a contractor named Talbot to dump debris at the Site.
3. In return for the right to dump, Talbot agreed to level the dumped material and cover the area with required fill dirt.
4. The debris would be used as structural fill to increase the elevation of the lot and thus benefit Robinson.
5. The debris dumped by Talbot was construction and demolition waste produced from Talbot's trade or business of demolishing real property.
6. Robinson held no permit allowing dumping at the Site.
7. On June 30, 1995, DHEC determined that dumping was occurring at the Site and that the Site was an unpermitted location.
8. DHEC provided Robinson with an application for a Short-term Construction, Demolition and Land-Clearing Debris Landfill application.
9. DHEC directed Robinson to stop dumping until the application was approved.
10. Robinson received the application on July 25, 1995.
11. Robinson neither completed nor filed the application.
12. After no application was received, DHEC directed Robinson to close the Site and cover the dumping that had already taken place.
13. Subsequent visits to the Site prior to February 26, 1996 demonstrated dumping was continuing on the property.
14. Photographs on March 19, 1996 show the presence of still further dumping.
15. Additional visits up to August 23, 1996 revealed no new dumping at the site.
16. A visit on January 23, 1997 found no new dumping.
17. A visit on January 14, 1998 established that dumping is no longer occurring on the property.
18. From June of 1995 until the present, no significant efforts have been made by Robinson to cover the existing dumping with appropriate means of cover.

3. Discussion

a. Permit Requirements

Under the Pollution Control Act, in general terms, 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) (Rev. 1987). Industrial waste includes the waste resulting from a process of industry, manufacturing, trade or business. See S.C. Code Ann. § 48-1-10(5)(Rev. 1987).

More specifically, for solid waste disposal purposes, the more general requirements of the Pollution Control Act are further developed by the Solid Waste Policy and Management Act of 1991. See § 44-96-10 et seq. For example, no person is allowed to dispose of solid waste by operating a solid waste management facility without a permit from DHEC. § 44-96-290(A). Such a facility includes any solid waste disposal area that serves the purpose of disposing of solid waste. § 44-96-40(49) (Supp. 1997). Again, for solid waste management purposes, solid waste includes discarded material resulting from commercial activities. § 44-96-40(46) (Supp. 1997).

In deciding whether and what type permit is required, the nature of the disposal activity is important. See S.C. Code Ann. Reg. 61-107.11 (A)(1) (Supp. 1997). General permits for structural fill, permits for dedicated landfills for a utility or manufacturer, and permits for "all other" landfills are available. Id. Depending upon the time period of the activity, limited permits may be available for short-term structural fill. Where the dumping involves a short-term project which will receive construction, demolition and land-clearing debris, a landfill application for a short-term project is authorized. S.C. Code Ann. Reg. 61-107.11, Part I (B)(1) (Supp. 1997).

b. Short-Term Permits

In a short-term project, the construction and demolition debris received must be in the form of discarded solid wastes resulting from construction, remodeling, repair and demolition of structures, road building, and land-clearing. S.C. Code Ann. Reg. 61-107.11 (B)(3) (Supp. 1997). The fact that the dumping is to occur for only a short time frame does not avoid the requirement for a permit. Rather, even for short-term dumping, open dumping of construction, demolition and land-clearing debris is prohibited. S.C. Code Ann. Reg. 61-107.11, Part I, (A)(4) (Supp. 1997). Open dumping occurs when any solid waste disposal activity is carried out without a permit. S.C. Code Ann. Reg. 61-107.11 (B)(16) (Supp. 1997). One carries out a solid waste disposal activity by dumping solid waste on any land in a manner that allows the substance to enter the environment. S.C. Code Ann. Reg. 61-107.11 (B)(8) (Supp. 1997).

c. Application To Facts

In this case, Robinson owns low-lying land. At some point during early 1995, Robinson agreed to allow a contractor named Talbot to dump construction and demolition debris on Robinson's land. In return for the right to dump, Talbot agreed to level the dumped material and cover the area with required fill dirt. Under the agreement the debris would be used as structural fill to increase the elevation of the lot and thus benefit Robinson.

1. Permit Required

Under such a plan, Robinson (at least indirectly if not directly) discharged waste into the environment and as a result needed a permit for that activity so long as the waste discharged was the type of waste covered by the Pollution Control Act. See S. C. Code Ann. § 48-1-90 (A) (1976). Here the waste is within the Pollution Control Act since the waste, having been produced from a trade or business (i.e. Talbot's demolition of real property) is industrial waste covered by the Pollution Control Act. See S.C. Code Ann. § 48-1-10(5)(Rev. 1987). More particularly the waste is specifically addressed by the Solid Waste Policy and Management Act of 1991 as construction and demolition debris. Such debris is defined as discarded solid wastes resulting from construction, remodeling, repair and demolition of structures, road building, and land-clearing. S.C. Code Ann. Reg. 61-107.11 (B)(3) (Supp. 1997).

Accordingly, Robinson was operating a short-term project to receive construction, demolition and land-clearing debris for which a landfill application for a short-term project was required. S.C. Code Ann. Reg. 61-107.11, Part I (B)(1) (Supp. 1997). It is undisputed that Robinson had no permit. As a result, DHEC directed Robinson to stop the dumping and provided him with an application for a Short-term Construction, Demolition and Land-Clearing Debris Landfill application. Robinson received the application on July 25, 1995, but did not complete nor file the application with DHEC.

2. Evidence of Violation

Here, unpermitted dumping was evident on the DHEC visit to the site on June 30, 1995. Subsequent visits until February 26, 1996 demonstrated dumping was continuing on the property. Photographs on March 19, 1996 show the presence of still further dumping. However, several additional visits up to August 23, 1996 revealed no new dumping had occurred. Likewise, a visit on January 23, 1997 found no new dumping. Finally, a visit on January 14, 1998 established that dumping is no longer occurring on the property. At all times, no significant efforts had been made to cover the existing dumping with appropriate means of cover.

Accordingly, Robinson has disposed of solid waste in the form of industrial waste by placing that waste into the environment at a site not permitted by DHEC. Therefore, Robinson violated the Pollution Control Act and the Solid Waste Management Act.

4. Conclusions of Law

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

1. 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) (Rev. 1987).

2. Industrial waste includes the waste resulting from a process of industry, manufacturing, trade or business. See S.C. Code Ann. § 48-1-10(5)(Rev. 1987).

3. For solid waste disposal purposes, the more general requirements of the Pollution Control Act are further developed by the Solid Waste Policy and Management Act of 1991. See S.C. Code Ann § 44-96-10 et. seq.

4. No person is allowed to dispose of solid waste by operating a solid waste management facility without a permit from DHEC. S.C. Code Ann. § 44-96-290(A) (Supp. 1997).

5. A solid waste management facility includes any solid waste disposal area that serves the purpose of disposing of solid waste. S. C. Code Ann. § 44-96-40(49) (Supp. 1997).

6. For solid waste management purposes, solid waste includes discarded material resulting from commercial activities. S.C. Code Ann. § 44-96-40(46) (Supp. 1996).

7. In deciding whether and what type permit is required, the nature of the disposal activity is important. See S.C. Code Reg. 61-107.11 (A)(1) (Supp. 1997).

8. General permits for structural fill, permits for dedicated landfills for a utility or manufacturer, and permits for "all other" landfills are available. S.C. Code Ann. Regs. 61-107.11 (A)(1) (Supp. 1997).

9. Depending upon the time period of the activity, limited permits may be available for short-term structural fill. S.C. Code Ann. Regs. 61-107.11 (A)(1) (Supp.1997).

10. Where the dumping involves a short-term project which will receive construction, demolition and land-clearing debris, a landfill application for a short-term project is authorized. S.C. Code Ann. Regs. 61-107.11, Part I (B)(1) (Supp. 1997).

11. In a short-term project, the construction and demolition debris received must be in the form of discarded solid wastes resulting from construction, remodeling, repair and demolition of structures, road building, and land-clearing. S.C. Code Ann. Regs. 61-107.11 (B)(3) (Supp. 1997).

12. The fact that the dumping is to occur for only a short time frame does not avoid the requirement for a permit since even short-term open dumping of construction, demolition and land-clearing debris is prohibited. S.C. Code Ann. Regs. 61-107.11, Part I, (A)(4) (Supp. 1997).

13. Open dumping occurs when any solid waste disposal activity is carried out without a permit. S.C. Code Ann. Regs. 61-107.11 (B)(16) (Supp. 1997).

14. One carries out a solid waste disposal activity by dumping solid waste on any land in a manner that allows the substance to enter the environment. S.C. Code Ann. Regs. 61-107.11 (B)(8) (Supp. 1997).

15. Robinson's agreement to allow others to dump solid waste at the Site in return for a promise to have the site leveled so as to increase the elevation of the land results in Robinson having at least indirectly discharged waste into the environment and thus required Robinson to obtain a permit. See S.C. Code Ann. § 48-1-90 (A) (Rev. 1987).

16. Here the waste is encompassed by the Pollution Control Act since the waste was produced from a trade or business of demolishing real property and is thus industrial waste covered by the Pollution Control Act. See S.C. Code Ann. § 48-1-10(5)(Rev. 1987).

17. The waste is specifically addressed by the Solid Waste Policy and Management Act of 1991 and regulations as construction and demolition debris which is defined as discarded solid wastes resulting from construction, remodeling, repair and demolition of structures, road building, and land-clearing. S.C. Code Ann. Regs. 61-107.11 (B)(3) (Supp. 1997).

18. Robinson has operated a short-term landfill project to receive construction, demolition and land-clearing debris for which a landfill permit was required. S.C. Code Ann. Regs. 61-107.11, Part I (B)(1) (Supp. 1997).

19. Having operated without a permit, Robinson has violated the Pollution Control Act and the Solid Waste Management Act. S.C. Code Ann. § 48-1-90 (A) (1976) and S.C. Code Ann.§ 44-96-290(A) (Supp. 1997).

1. Positions of Parties

DHEC asserts the violations require a penalty of $4,490. Robinson argues such a penalty is excessive given his efforts to stop the dumping and given the significant medical difficulties which kept him from attending to his business affairs.

2. Findings of Fact

Based on the preponderance of the evidence, the following findings of fact are entered:

1. From March of 1995 until the late 1997, Robinson faced medical difficulties that were both catastrophic and devastating.

2. In March of 1995, Robinson's wife was diagnosed with breast cancer.

3 Her medical care required numerous and frequent trips of extended duration from Florence to Charleston.

4. Robinson's wife died in August 1995.

5. Soon after his wife's death, Robinson's son was diagnosed with a terminal illness.

6. Treatment for the son again required frequent and extended trips for medical care in Charleston.

7. Robinson's son died in the summer of 1996.

8. Due to the death of his wife and son within a relatively short time span, Robinson admits that for several months following the son's death, Robinson did not attend to normal business affairs.

9. On April 17, 1997, Robinson suffered a heart attack.

10. After a hospitalization of four days, a recuperation period required a reduced work schedule until December of 1997.

11. Despite the extended period of medical difficulties, Robinson took steps to prohibit dumping of solid waste on his property.

12. After being told by DHEC that no dumping was allowed, Robinson directed Talbot to cease dumping.

13. Talbot, however, continued dumping.

14 Robinson erected a fence and placed a locked gate at the entrance to his property.

15 Talbot cut the lock and continued dumping.

16. Finally, Robinson took initial steps to contact a magistrate to assist in preventing Talbot from using the Robinson property.

17. Currently, no dumping is occurring on the property.

18. Neither Robinson nor Talbot have properly covered the solid waste still on the property.

19. DHEC found the violations to be minor in terms of a threat to the community but major in that both the Pollution Control Act and the Solid Waste Management Act were violated.

20. In assessing the penalty, DHEC gave no consideration to Robinson's efforts to prevent Talbot from dumping.

21. In assessing the penalty, DHEC gave no consideration to Robinson's medical dilemmas which prevented him from properly attending to his business affairs.

3. Discussion

a. Penalty Requirements

A violation of the solid waste regulations governing short-term disposal landfills subjects the violator to an order directing the party to comply with the regulation. S.C. Code Ann. Regs. 61-107.11, Part I, (F)(2) (Supp. 1997). Additionally, for violations of article 2 of Chapter 96, Title 44 or of regulations, DHEC may impose reasonable civil penalties established by regulation (not to exceed $10,000 for each day of violation). S.C. Code Ann. § 44-96-450 (Supp. 1997).

Here, Robinson violated the regulations governing solid waste disposal. Accordingly, Robinson is directed to comply with that portion of the regulations requiring that closed sites be properly covered. See S.C. Code Ann. Regs. 61-107.11, Part I, (E)(2) (Supp. 1997).

Finally, DHEC seeks a penalty of $ 4,490 for Robinson's violations. The penalty must be reasonable. S.C. Code Ann. § 44-96-450 (Supp. 1997). Reasonable, while difficult to define, means at least that which is just, fair, and suitable in the circumstances. 75 C.J.S. Reasonable (1952). The evidence shows that DHEC found the violations to be minor in terms of a threat to the community but major in that both the Pollution Control Act and the Solid Waste Management Act were violated. Further, DHEC asserts that no efforts have been made to cover the waste on the site. Finally, DHEC notes that the potential penalty is $ 10,000 a day. On these factors, DHEC argues $4,490 is reasonable. I must disagree.

DHEC acknowledges that no consideration was given to Robinson's efforts to prevent Talbot from dumping. In that regard, it is significant that existing regulations governing short term landfills require that the operator control access to the landfill by the use of fences, gates, berms, natural barriers, or other means to prevent unauthorized dumping. S.C. Code Ann. Regs. 61-107.11, Part I, (C)(1)(c) (Supp. 1997).

Here, the evidence shows that Robinson exercised the control required by the regulation. He placed a gate and a lock at the only entrance to the site. Further, he directed Talbot to stop dumping. After Talbot cut the lock at the gate and continued dumping, Robinson began steps to seek the assistance of a magistrate.

Finally, the evidence shows no consideration was given to the devastating medical problems that prevented Robinson from more closely attending to his business concerns. The death of his wife, the death of his son, and the subsequent heart attack (all occurring during the period from March of 1995 until late 1997) are entitled to consideration in deciding what penalty to impose. Such events tend to explain Robinson's failure to police his property and to cover existing waste. Thus, considering all of the factors from the perspective of the unique facts of this case, a reasonable penalty is $1,000.

4. Conclusions of Law

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

1. A violation of the solid waste regulations governing short-term disposal landfills subjects the violator to an order directing the party to comply with the regulation. S.C. Code Ann. Regs. 61-107.11, Part I, (F)(2) (Supp. 1997).

2. Robinson violated the regulations governing solid waste disposal.

3. A party violating the regulations may be directed to comply with that portion of the regulations requiring that closed sites be properly covered. See S.C. Code Ann. Regs. 61-107.11, Part I, (E)(2) (Supp. 1997).

4. Additionally, for violations of article 2 of Chapter 96, Title 44 or of regulations, DHEC may impose reasonable civil penalties established by regulation (not to exceed $10,000 for each day of violation). S.C. Code Ann. § 44-96-450 (Supp. 1997).

5. The penalty must be reasonable. S.C. Code Ann. § 44-96-450 (Supp. 1997).

6. Reasonable, while difficult to define, means at least that which is just, fair, and suitable in the circumstances. 75 C.J.S. Reasonable (1952).

7. The regulations governing short term landfills require that the operator control access to the landfill by the use of fences, gates, berms, natural barriers, or other means to prevent unauthorized dumping. S.C. Code Ann. Regs. 61-107.11, Part I, (C)(1)(c) (Supp. 1997).

8. Robinson exercised the control required by the regulation as to access to the site.

9. Devastating medical conditions are entitled to consideration in deciding what penalty to impose.

10. A reasonable penalty for the unique facts of this case is $1,000.

Based upon the Findings of Fact and Conclusions of Law, it is hereby ordered:

Samuel Robinson is ordered to properly cover the existing waste at the unpermitted site and must pay a fine of $1000. Both acts must be accomplished within 30 days from the date of this order.

AND IT IS SO ORDERED.

RAY N. STEVENS

Administrative Law Judge

Dated: January 21st, 1998

Columbia, South Carolina