SC Administrative Law Court Decisions

The South Carolina Department of Health and Environmental Control (DHEC or Department) issued Administrative Order 97-0079-UST against Petitioner 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 November 12, 1998, in the Administrative Law Judge Division.

The issue before the Court is whether DHEC properly issued Administrative Order 97-0710-UST. Ms. Sass did not appear at the hearing in this matter to contest the validity of Administrative Order 97-0079-UST. DHEC's position is that Administrative Order 97-0079-UST was properly issued and that Ms. Sass has not complied with the Order. Furthermore, DHEC argues that Ms. Sass was properly notified of the hearing and that the evidence supports the sanctions imposed.

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:

1. Petitioner owns two ten thousand gallon underground petroleum storage tanks at a facility called "Short Stop Food Store," in Goose Creek, South Carolina The tanks have been out of use for more than twelve months.

2. Rona Bobey, a field inspector for the Department, inspected the site on April 18, 1996. Mr. Bobey found that the tanks were out of use, that they had not been properly abandoned and that Ms. Sass had not filed the appropriate closure records with the Department. Ms. Bobey issued a Notice of Violation to a representative at the facility informing Ms. Sass 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 storage system after twelve (12) months. The Notice of Violation established June 5, 1996, as the deadline for Ms. Sass to abandon the tanks in accordance to the S.C. Underground Storage Tank Control Regulations. Petitioner did not respond, did not file the requisite documents and did not properly close the tanks.

3. On May 15, 1997, Frank Sass, III, called Mr. Joe Gladney of the Department to discuss the violations. Mr. Sass informed Mr. Gladney that he would send Gladney a schedule for removing the abandoned tanks and a plan for paying the past due registration fees. Neither of those promises was fulfilled.

On July 8, 1997, the Department mailed Petitioner a Notice of Enforcement Conference for a conference to be held on July 17, 1997, regarding the underground storage tank systems. Neither the Petitioner nor a representative appeared at the meeting to discuss the violations at the site.

4. On April 6, 1998, the Department issued an Administrative Order against Petitioner 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 Petitioner to properly and permanently close her UST system, and assessed a fine of Eight Thousand Four Hundred ($8,400.00) Dollars in accordance with the Department's penalty guidelines.

5. Petitioner thereafter requested a contested case hearing. In her letter, the Petitioner stated, "Ms. Maggie Sass is not the legal owner of the underground storage tanks and she did not have the authority to discuss any violations of the tanks with the Department of Health and Environmental Control department [sic], due to the fact that her husband Frank Sass, Jr., died in 1979. He was the legal owner of the underground storage tanks. His estate is still in probate due to some unresolved tax issues. His son Frank Sass, III, is [sic] handling all of the estate affairs since 1979 due to Ms. Maggie Sass' poor mental condition."

6. Frank Sass, III, filed a Prehearing Statement with this Division on June 23, 1998. Both Frank Sass, III, and Petitioner were notified of the hearing via certified mail by my Order dated October 8, 1998. However, after receiving proper notice of the hearing, neither the Petitioner, Frank Sass, III, nor any counsel for Petitioner, appeared at the designated time and place. Furthermore, neither Petitioner nor anyone on her behalf contacted the court to request a continuance or to inform the court that she would not appear at the hearing on this matter. In fact, as of the time of this Order, we have heard nothing from her concerning her failure to appear at the scheduled hearing.

7. 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.

8. 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, the Department added Five Hundred ($500.00) Dollars for Ms. Sass' non-responsiveness and general recalcitrance, bringing the intermediate total to One Thousand Five Hundred ($1,500.00) Dollars.

9. The Department also added the standard penalties for the economic advantage Ms. Sass gained from her 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 ten-thousand gallon tanks costs Three Thousand ($3,000.00) Dollars per tank. Ms. Sass has two (2) ten-thousand gallon tanks at this site. Therefore, the economic advantage calculated by the Department for failing to remove the two tanks at this site was Six Thousand ($6,000.00) Dollars. The intermediate total to this point, including the AO base, recalcitrance, and economic advantage for failing to remove the tanks, is Seven Thousand Five Hundred ($7,500.00) Dollars.

10. 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 Nine Hundred ($900.00) Dollars.

11. 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 Eight Thousand Four Hundred ($8,400.00) Dollars, which is the amount cited in the administrative order.

12. I find that the the evidence supports the penalties imposed by Respondent.

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.

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

ORDERED that a penalty of Eight Thousand Four Hundred ($8,400.00) Dollars is imposed upon the Respondent.

AND IT IS SO ORDERED.

_____________________________

Ralph King Anderson, III

Administrative Law Judge

January 4, 1999

Columbia, South Carolina