ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
The South Carolina Department of Health and Environmental Control (DHEC or
Department) issued Administrative Order 97-0710-UST against Petitioner Doyle L. Gallman, Jr.,
alleging violations of the Underground Storage Tank Control (UST) Regulations and the State
Underground Petroleum Environmental Response Bank Act (SUPERB) and assessing a penalty for
the violation. Petitioner objected to issuance of the order and sought a contested case hearing on the
matter. The contested case was heard on June 30, 1998, in the Administrative Law Judge Division.
ISSUES
The issue before the Court is whether DHEC properly issued Administrative Order 97-0710-UST. Mr. Gallman does not contest the validity of Administrative Order 97-0710-UST; rather,
Petitioner asserts that the penalty assessed for the violations cited is excessive. DHEC's position is
that Administrative Order 97-0710-UST was properly issued and that Mr. Gallman has not complied
with the Order.
FINDINGS OF FACT
Having observed the witnesses and exhibits presented at the hearing and closely passed upon
their credibility, taking into consideration the relative burdens of the parties, I make the following
Findings of Fact by a preponderance of evidence:
General Findings
1. Petitioner is an individual who owns four underground petroleum storage tanks at a facility
called "Sonny's," Route 1, Newberry, S.C. Petitioner purchased the underground storage tanks from
Kunkle Oil Co., Inc., in 1988 or 1989. The tanks have not been in use since the time of purchase.
2. On September 24, 1994, the Department met with Respondent regarding the violations of the
SUPERB Act and the regulations addressing underground storage tank systems. At this meeting,
the Department instructed Petitioner of the necessity to remove his underground storage tanks within
60 days, and to submit an assessment report promptly. Petitioner failed to conduct this closure and
did not contact the Department.
3. Ray Shannon, a field inspector for the Department, inspected the site on July 22, 1997. Mr.
Shannon found that the tanks were out of use, that they had not been properly abandoned and that
Mr. Gallman had not filed the appropriate closure records with the Department.
4. On July 22, 1997, the Department mailed a Notice of Violation to Respondent informing him
of violations of S.C. Code Ann. § 44-2-10 and S.C. Code Ann. Regs. 61-92, Part 280.70(c), for
failure to properly abandon a temporarily closed system after twelve (12) months. By copy of the
notice, the Department required Petitioner to submit permanent closure records to the Department
by September 20, 1997. Petitioner failed to timely respond.
5. Petitioner contacted Mr. Joe Gladney of the Department on December 4, 1997. Petitioner
placed this call in response to correspondence from Mr. Gladney informing Petitioner that he was
subject to fines for violation of the UST Regulations. During the conversation, Petitioner stated that
he had not understood that he was to remove the tanks when he attended the meeting on September
24, 1994. Petitioner also expressed an interest in seeking a waiver of the penalty.
6. On March 9, 1998, the Department issued an Administrative Order against Respondent
alleging a violation of S.C. Code Ann. Regs. 61-92, Part 280.70(c), for failure to properly abandon
a temporarily closed system after twelve (12) months. The Administrative Order required Mr.
Gallman to properly and permanently close his UST system, and assessed a fine of Seven Thousand
Five Hundred ($7,500.00) Dollars in accordance with the Department's penalty guidelines.
7. Petitioner filed this petition on April 6, 1998. In his appeal letter the Petitioner stated,
"[a]rrangements have been made and closing of this site is forthcoming upon availability of the
contractor and agreement of the present proprietors upon an appropriate time as not to disturb their
business hours."
8. In Petitioner's Prehearing Statement filed on May 4, 1998 he set forth that the facts
supporting his position were that the "tanks have been removed by [the] hearing date." However,
the Petitioner did not contact a contractor concerning removing the tanks until three days before the
hearing. The tanks still have not been removed or properly filled.
Penalty
9. The Department employs a standard penalty schedule for violations of the Underground
Storage Tank Control Regulations. This schedule establishes the penalty applicable to a given
violation, and serves as the initial base amount. If the parties are unable to reach a settlement, one
of the enforcement officers will draft an administrative order with a final penalty amount. The
administrative order penalty is based on a doubling of the initial base amount (commonly called the
"AO base"). Additional penalties are added to the AO base for (1) recalcitrance and (2) the
economic advantage of not complying with the regulations.
10. In this case, the initial base amount was Five Hundred ($500.00) Dollars. This is the standard
penalty for failing to properly abandon a tank system within twelve months of being taken out of
service. Therefore, pursuant to the Department's policy, the AO base in this case was One Thousand
($1,000.00) Dollars. To this AO base, Mr. Gladney added Five Hundred ($500.00) Dollars for Mr.
Gallman's non-responsiveness and general recalcitrance, bringing the intermediate total to One
Thousand Five Hundred ($1,500.00) Dollars.
11. Mr. Gladney added the standard penalties for the economic advantage Mr. Gallman enjoyed
from his failure to comply with the regulations. The economic advantage may be broken into two
components at this site. The first component of economic advantage is for failure to remove
underground storage tanks. This amount is calculated according to the size of the tank. The
economic advantage corresponds to the cost of removing the tank. Removal of tanks between one
thousand gallons and four thousand gallons in size costs One Thouand Five Hundred ($1,500.00)
Dollars per tank. Removal of larger tanks becomes increasingly more expensive, and removal of
tanks smaller than 1,000 gallons is generally not included in the penalty calculations at a multiple-tank site. Mr. Gallman has four tanks at this site: two (2) one-thousand gallon tanks, one (1) two-thousand gallon tank, and one (1) five-hundred fifty gallon tank. Therefore, the economic advantage
calculated by the Department for failing to remove the three larger tanks at this site was One
Thousand Five Hundred ($1,500.00) Dollars per tank. The intermediate total to this point, including
the AO base, recalcitrance, and economic advantage for failing to remove the tanks, is Six Thousand
($6,000.00) Dollars.
12. The second component of the economic advantage is for failure to sample the soils during
closure of the tanks. The process required for soil sampling includes removal of soil from the site
in the appropriate places and transport to a laboratory, where tests are performed on the sample to
indicate the presence of certain volatile hydrocarbons such as benzene, ethylbenzene, toluene, and
xylene. The number of soil samples is equal to the number of tanks on-site plus one: one sample
from below each tank on the site, and one sample down-gradient from the basin as a likely place to
discover any present contamination. The standard cost for these tests is Three Hundred ($300.00)
Dollars. Therefore, the economic advantage for failure to sample the soils during closure of the
tanks was One Thousand Five Hundred ($1,500.00) Dollars.
13. All of these penalties combined, including the AO base, recalcitrance, economic advantage
for failing to remove the tanks, and economic advantage for failing to perform soil sampling, equal
Seven Thousand Five Hundred ($7,500.00) Dollars, which is the amount cited in the administrative
order.
14. Petitioner testified that he was willing to close the underground storage tanks at the site in
accordance with the regulations, but that his current financial condition precluded him from both
closing the tanks and paying the civil penalty imposed by the Department.
15. Petitioner's underground storage tanks have been out of use for more than twelve months,
and, despite repeated instructions from the Department, Petitioner has neglected to properly close
the tanks either by removal or backfilling with appropriate inert material. I find that the Petitioner's
recalcitrance warrants a fine of One Thousand ($1,000.00) Dollars. Therefore, I impose a fine of
One Thousand ($1,000.00) Dollars representing the Department's AO base and an additional fine
of One Thousand ($1,000.00) Dollars for Petitioner's recalcitrance. However, the Petitioner assures
this Court that he will remove or properly fill the four tanks located upon his property and that he
will also conduct required soil sampling. In light of those assurances I suspend a Six Thousand
($6,000.00) Dollar civil penalty assessed for economic advantage gained from failure to properly
close his underground storage tanks pending Petitioner's proper closure of the underground storage
tanks within sixty (60) days of the date of this Order.
CONCLUSIONS OF LAW
Based on the foregoing Findings of Fact, I conclude the following as a matter of Law:
1. Pursuant to S.C. Code Ann. § 1-23-310 et seq. ( Supp. 1997), and S.C. Code Ann. § 44-2-10 et seq. (Supp. 1997), the Administrative Law Judge Division has jurisdiction to hear this matter.
2. DHEC has regulatory authority over underground storage tank systems pursuant to the State
Underground Petroleum Response Bank Act , S.C. Code Ann. §44-2-10 et seq. (Supp. 1997).
3. DHEC may issue an Administrative Order to enforce the provisions of the SUPERB Act and
regulations promulgated pursuant thereto and include civil penalties in the Order pursuant to the Act.
S.C. Code Ann. §44-2-140 (Supp. 1997).
4. DHEC has promulgated regulations addressing underground storage tank control, including
their proper closure. Underground Storage Tank Control Regulations, S.C. Code Regs. 61-92, Part
280 (Supp. 1997).
5. Section 280.70(c) of the Underground Storage Tank Control Regulations provides, in
pertinent part, as follows: "When an UST system is temporarily closed for more than 12 months,
owners and operators must permanently close the UST system . . . ." Underground Storage Tank
Control Regulations, S.C. Code Regs. 61-92, 280.70(c) (Supp. 1997).
6. The weight and credibility assigned to evidence presented at a hearing of a matter is within
the province of the trier of fact. See South Carolina Cable Television Ass'n v. Southern Bell Tel. and
Tel. Co., 308 S.C. 216, 417 S.E.2d 586 (1992). Furthermore, a trial judge, who observes a witness,
is in the better position to judge the witness's demeanor and veracity and evaluate their testimony. See Mann v. Walker, 285 S.C. 194, 328 S.E.2d 659 (Ct. App. 1985); Marshall v. Marshall, 282 S.C.
534, 320 S.E.2d 44 (Ct. App. 1984); McAlister v. Patterson, 278 S.C. 481, 299 S.E.2d 322 (1982); Peay v. Peay, 260 S.C. 108, 194 S.E.2d 392 (1973).
7. I conclude that Petitioner is in violation of the Underground Storage Tank Control
Regulations, S.C. Code Regs. 61-92, 280.70(c) (Supp. 1997), for failure to permanently close a
temporarily closed system after twelve (12) months.
ORDER
Based upon the Findings of Fact and Conclusions of Law, It is hereby:
ORDERED that Petitioner must, within sixty (60) days of the date of this Order, pay a One
Thousand ($1,000.00) Dollar civil penalty for failure to properly abandon a tank system within
twelve months plus a One Thousand ($1,000.00) Dollar penalty for non-responsiveness and
recalcitrance. The Six Thousand ($6,000.00) Dollar civil penalty assessed for economic advantage
gained from failure to properly close his underground storage tanks is hereby suspended pending
Petitioner's proper closure of the underground storage tanks within sixty (60) days of the date of this
Order. Petitioner's failure to properly close the underground storage tanks within sixty (60) days will
result in a lifting of this suspension, and Petitioner shall immediately pay the full suspended amount.
AND IT IS SO ORDERED.
_____________________________
Ralph King Anderson, III
Administrative Law Judge
July 29, 1998
Columbia, South Carolina
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