ORDERS:
ORDER OF DISMISSAL
In the above-captioned matter, the parties have entered into a Settlement Agreement,
attached and incorporated herein by reference, resolving all issues in this dispute. Therefore, this
matter is hereby dismissed.
IT IS THEREFORE ORDERED that the above-captioned case is dismissed with
prejudice.
AND IT IS SO ORDERED.
JOHN D. GEATHERS
Administrative Law Judge
Post Office Box 11667
Columbia, South Carolina 29211-1667
July 31, 1998
Columbia, South Carolina
THE STATE OF SOUTH CAROLINA
BEFORE THE DEPARTMENT OF HEALTH AND ENVIRONMENTAL CONTROL
IN RE: BENNY SHIRLEY
KERSHAW COUNTY
ADMINISTRATIVE CONSENT ORDER
98-ALJ-07-0062-CC
Mrs. Irene Shirley is the owner of property on Lovett Road in Kershaw County, SC (the "Site").
The Site has been used for the unpermitted disposal of construction and demolition debris
("C&D debris"). The Site has also been used for unpermitted mining activities. Through the
Order the Department is requiring closure of the Site.
FINDINGS OF FACT
1. On March 12, 1996, the Department received a complaint alleging that illegal land filling
and mining activities were being conducted at the Site.
2. Department personnel investigated the complaint on March 12, 1996 and confirmed that
solid waste had been improperly dumped at the Site in an area approximately six (6) to
eight (8) acres in size. The solid waste observed by the Department included
construction and demolition debris ("C&D debris"), land-clearing debris, used tires, fuel
storage tanks, white goods (used appliances), cardboard, and pallets. The C&D debris
consisted of hardened concrete, bricks, lumber, and scrap metal.
3. In a March 18, 1996 letter, the Department notified Ms. Shirley that the Site land filling
activities violated South Carolina Solid Waste Regulation (R. 61-107.11) and the
Pollution Control Act (Section 48-1-90). The letter also indicated that unpermitted
mining activities were occurring at the Site. The letter advised Ms. Shirley to
immediately cease all operations at the Site for which a permit had not been obtained
through the Department.
4. On May 2, 1996, the Department sent Ms. Shirley a letter that reiterated the
requirements of the March 18, 1996 letter. Ms. Shirley was instructed to immediately
cease dumping at the Site, push and cover the waste material with at least two (2) feet
of soil cover, and to remove the fuel storage tanks. The deadline for the completion of
these tasks was August 1, 1996. The letter also instructed Ms. Shirley to cease mining
activities at the Site, and to contact the Department for a mining permit application. A
mining permit application was never submitted by Ms. Shirley, and therefore mining
activities at the Site were in violation of the South Carolina Mining Act (Section 48-20-60).
5. A Site inspection conducted by the Department on June 18, 1996 revealed that except
for the removal of the fuel tanks, no cleanup activities had been initiated. The
Department also noted that additional dumping had occurred since the previous
inspection. Accordingly, the Department notified Ms. Shirley by letter on June 18, 1996
that no extension to the August 1, 1996 cleanup deadline would be granted. Ms. Shirley
was further notified that failure to meet the deadline would result in a referral to the
Department's Enforcement Section.
6. The Site was reinspected by the Department on July 11, 1996. Clean up activities had
not been started and additional waste had been dumped at the Site. Department
personnel erected a "No Dumping" sign and the Site was photographed.
7. A subsequent Site visit was conducted on January 31, 1997 and Department personnel
observed that approximately 50% of the waste noted during the previous inspections
had been covered with soil. Additional solid waste (concrete, lumber, demolition debris,
and plumbing wastes) had recently been dumped on the cover soil.
8. On February 20, 1997, the Department issued a Notice of Violation and Enforcement
Conference to Ms. Irene Shirley. On March 13, 1997, the Department met with Mr.
Benny Shirley (Mr. Shirley) in the enforcement conference to discuss the cited
violations. The conference was not attended by Ms. Shirley. Mr. Shirley signed the
conference register as representative for Ms. Shirley. Mr. Shirley, Ms. Shirley's son, is
the owner and operator of Shirley Construction Company, 713 Jefferson Davis
Highway, Camden, SC. During the conference, Mr. Shirley stated that Shirley
Construction Company was directly responsible for a portion of the solid waste dumped
at the Site. Mr. Shirley also stated that Ms. Shirley had no involvement with the
unpermitted disposal and mining activities at the Site.
9. On August 27, 1997, by certified mail, the Department submitted to Mr. Shirley a
proposed Consent Order regarding the issues that were discussed in and subsequent to
the enforcement conference. However, although negotiations were attempted over a
period of time, the parties were unable to resolve the matter and on December 23, 1997
this Administrative Order was issued.
CONCLUSIONS OF LAW
Based on the foregoing facts, Mr. Benny Shirley has conducted unlawful solid waste disposal
activities and unpermitted mining activities at the Site, thus violating the following:
1. South Carolina Code Ann. Section 48-1-90 (A) (1976) of the Pollution Control Act in that
"It shall be unlawful for any person, directly or indirectly to throw, drain, run, allow to
seep or otherwise 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."
2. South Carolina Code Ann. Section 48-20-60 (1976) of the South Carolina Mining Act, in
that "No operator may engage in mining without having first obtained from the
Department an operating permit which covers the affected land . . . "
3. South Carolina Code Ann. Section 44-96-290 (A) of the South Carolina Solid Waste
Policy and Management Act of 1991, in that "No person shall operate a solid waste
management facility without a permit from the Department" and Section 44-96-440 (C)
in that "It shall be unlawful for any person to fail to comply with this article and any
regulations promulgated pursuant to this article."
4. South Carolina Code Ann. Section 44-96-170 (G)(2) of the South Carolina Solid Waste
Policy and Management Act, in that "No person shall knowingly dispose of waste tires in
this State, unless the waste tires are disposed of at a permitted solid waste disposal
facility for treatment, or at a permitted waste tire treatment facility, or permitted waste
tire collection center."
5. Construction, Demolition, and Land Clearing Debris Landfills, South Carolina Code Reg.
61-107.11 (1976), effective July 28, 1995, Part IV (A)(8), in that "Open dumping of
construction, demolition, and/or land-clearing debris is prohibited," and Part IV (B)(1), in
that "A permit must be obtained from the Department prior to the construction,
operation, expansion, or modification of a C&D debris landfill."
NOW, THEREFORE IT IS ORDERED pursuant to the South Carolina Solid Waste Policy and
Management Act of 1991, Sections 44-96-260 and 44-96-450, and the South Carolina Mining
Act Section 48-20-220, that Mr. Shirley shall perform the following:
1. Immediately cease and restrict all open dumping of solid waste and mining at the Site.
2. Prior to any future disposal of solid waste in South Carolina, obtain a permit from the
Department to operate a waste disposal facility, or dispose of such solid waste in an off
site, permitted landfill, designed for such disposal. Prior to any future mining in South
Carolina, obtain a mining permit from the Department. Furthermore, Mr. Shirley shall, in
the future, ensure that illegal disposal activities do not occur on property under his
ownership or control.
3. (A) Within fifteen (15) days of the effective date of this fully executed order, undertake measures to prevent unpermitted dumping at the Site by erecting a gate, berm or another effective barrier to deter entry onto the Site and post signs prohibiting open dumping.
(B) Within sixty (60) days of the effective date of this fully executed order, place a
two (2) foot thick final cover over the unburied solid waste at the Site, with at
least a 1% but not greater than 4% surface slope, graded to promote positive
drainage. The side slope cover shall not exceed three (3) horizontal feet to one
(1) vertical foot (not to exceed a 33% slope). Alternately, Mr. Shirley may
remove and properly dispose of the unburied waste in a manner consistent with
state law and regulations.
(C) Within thirty (30) days upon completion of Item 3. (B) above, establish on a
continuing basis the vegetative cover and soil stability appropriate to the area.
Best management practices for controlling both on-site and off-site erosion and
sedimentation must be established. Areas reclaimed to woodlands must be
planted or seeded with respect to species selection, spacing, and ground
preparation according to the recommendation of the South Carolina Forestry
Commission or a registered forester. Survival meeting the recommendations of
the South Carolina Forestry Commission or a registered forester with no
substantial bare spots must be achieved through one growing season. Ground
cover shall be required in areas where erosion will be active until trees are
established. Ground cover may be annual or perennial vegetation, or mulching.
4. Within thirty (30) days upon receipt of a copy of this fully executed order, begin paying
to the Department a civil penalty in the amount of six thousand dollars ($6,000.00). The
six thousand dollar penalty will be paid off in twelve monthly installments of $500.00.
Checks should be made payable to the South Carolina Department of Health and
Environmental Control and submitted to the Solid Waste Enforcement Section. A
portion of this penalty, one thousand dollars ($1,000.00), is assessed for violations of
the South Carolina Mining Act. The remaining portion of this penalty, five thousand
dollars ($5,000.00), is assessed for violations of the South Carolina Solid Waste Policy
and Management Act.
5. Mr. Shirley agrees that by entering into this Consent Order he would not be treated as a
prevailing party for the purposes of obtaining attorney's fees. Each party agrees to bear
their own costs of litigating this matter.
6. This Consent Order supersedes AO 97-38-SW and AO 97-03-MSWP.
IT IS FURTHER ORDERED, CONSENTED TO AND AGREED that failure to comply
with any provision of this Order shall be grounds for sanctions under the South Carolina Solid
Waste Policy and Management Act and/or the South Carolina Mining Act, to include the
assessment of additional penalties and enforcement of said order in the appropriate court.
IT IS SO ORDERED.
THE SOUTH CAROLINA DEPARTMENT OF HEALTH AND ENVIRONMENTAL CONTROL
WE CONSENT:
DATE:_________________________ BY:______________________________
Columbia, South Carolina Benny Shirley,
Shirley Construction Company
DATE:_________________________ BY:______________________________
Columbia, South Carolina Douglas E. Bryant,
Commissioner
DATE:_________________________ BY:_______________________________
Hartsill W. Truesdale, P.E., Chief
Bureau of Land & Waste Management
DATE:_________________________ BY:____________________________
Approved by: Alex Shissias
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