ORDERS:
CONSENT ORDER
On May 5, 1998, the South Carolina Department of Health and Environmental Control,
Bureau of Air Quality ("Department"), found Weaver Construction Company, Conway, South
Carolina ("Weaver"), to be in violation of Department regulations and issued Administrative Order
98-25-A. Weaver disputed the findings and timely requested a Contested Case hearing. Prior to a
hearing, the parties agreed to settle the action and agreed to a settlement on the record before the
undersigned Chief Administrative Law Judge, agreeing to the following Findings of Fact and
Conclusions of Law:
FINDINGS OF FACT
1. Weaver is a land clearing/construction company located in Conway, South Carolina.
2. During the week of June 3, 1996, Weaver informed the Department of its intent to
conduct open burning of land-clearing debris within the next two weeks at Magnolia Place,
48th Avenue North, Myrtle Beach, South Carolina. Weaver was informed about Department
open burning regulations and instructed to comply with the regulations.
3. In response to complaints received on June 11, 1996, during the burning at Magnolia
Place, Department personnel conducted an investigation on that day. The investigation
revealed that Weaver was burning a large pile of land-clearing debris, and the smoke from
the burning pile was being carried over a section of Myrtlewood Golf Course by prevailing
winds. During the investigation, Department personnel instructed Weaver to extinguish the
fire and discontinue open burning. Weaver agreed to extinguish the fire.
4. On July 5, 1996, the Department issued Weaver a Notice of Violation and a Notice
of Enforcement Conference for the observed violation.
5. On July 30, 1996, the Department held an enforcement conference with
representatives of Weaver to discuss the Notice of Violation.
6. On September 6, 1996, the Department sent Weaver a proposed Consent Order via
certified mail.
7. Subsequent revised Consent Orders were sent on September 18, 1996, October 10,
1996, and February 25, 1997.
8. The Department received no response from Weaver regarding the revised proposed
Consent Order sent on February 25, 1997.
9. Subsequent to sending the last revised proposed Consent Order, the Department
received a complaint on February 28, 1997, concerning open burning at a Weaver project site
on Willow Springs Road in Conway, South Carolina.
10. In response to this complaint, Department personnel conducted an investigation of
the site on February 28, 1997. During the investigation, Department personnel observed
evidence that a pile of land-clearing debris had been burned within 1,000 feet of residential
structures. Department personnel advised Weaver that this was a violation of Department
open burning regulations.
11. On April 4, 1997, in response to a second complaint of open burning at the Willow
Springs Road site, Department personnel conducted another investigation. During the
investigation, Department personnel again observed Weaver burning a large pile of land-clearing debris within 1,000 feet of residential structures. Department personnel noted that
the pile was in the same location on the project site as the pile observed during the
investigation conducted on February 28, 1997. Department personnel again advised Weaver
that this was a violation of Department open burning regulations.
12. On July 31, 1997, the Department issued Weaver a Notice of Violation and a Notice
of Enforcement Conference for the violations observed during the investigations conducted
February 28 and April 4, 1997.
13. On August 13, 1997, the Department held an enforcement conference with
representatives of Weaver to discuss the Notice of Violation.
14. A proposed Consent Order was sent to Weaver on December 10, 1997.
15. On January 15, 1998, after not receiving a response from Weaver, the Department
sent Weaver a letter requesting that the Consent Order be signed and returned.
16. Weaver responded with a letter dated January 19, 1998, indicating that the company
disagreed with the proposed Findings of Fact in the Consent Order.
17. The Department responded on March 5, 1998, reiterating its position that the
violations indicated in the proposed Findings of Fact had been observed and well
documented by Department inspectors and that the Department would retain the cited
violations in the Consent Order. The letter also requested that Weaver sign and return the
Consent Order.
18. The Department attempted unsuccessfully to negotiate a resolution of this matter with
Weaver. Additionally, Weaver indicated that it is unwilling to enter into a Consent Order
with the Department.
19. In addition to Notices of Violation issued on July 5, 1996, and July 31, 1997, Notices
of Violation were also issued on May 23, 1991, March 7, 1994, and February 3, 1995, for
previous violations of Department open burning regulations. As a result of the Notice of
Violation issued February 3, 1995, Weaver entered into Consent Order #95-92-A, in which
Weaver agreed to comply with Department open burning regulations.
20. On May 5, 1998, the Department issued Administrative Order 98-25-A, citing
Weaver for three violations of S.C. Reg. 61-62.2 and assessing a civil penalty of $7,500.00.
21. On May 21, 1998, Weaver timely filed its request for a Contested Case Hearing and
the present action followed.
22. Subsequent to its request for a Contested Case Hearing, Weaver was again cited for
an open burning violation, in that on July 30, 1998, the Department received an anonymous
complaint of land cleared debris being open burned too close to Holmestown Road. The
complainant explained that the project could easily be seen on the left side of the road as one
would proceeded from Highway 17 Bypass to Highway 707.
23. Upon responding to the referenced site on Holmestown Road a DHEC
representative discovered an open burning project as described by the complainant. A visual
estimation of one open burning pile of land cleared debris (approximately 15 feet tall by 25
feet wide) at this site easily appeared to be less than 1,000 feet from a public roadway
(Holmestown Road). Using a hand held laser ranging system the distance from the road to
the open burning pile was determined to be approximately 218 yards or 654 feet.
24. Weaver Construction Company was informed of the open burning violation and a
citation was be forwarded to the Bureau of Air Quality Enforcement Section for possible
enforcement proceedings. As of the date of the scheduled Contested Case Hearing, formal
enforcement action had not yet been taken.
25. A Contested Case Hearing was scheduled for August 17, 1998, and the parties were
present before the undersigned. Prior to commencement of the hearing, the parties reached
a settlement of this matter, and the terms of the settlement were entered into the record.
Having found the agreement to be fair and reasonable and freely and voluntarily entered into,
the Court accepted the agreement and made it the Order of the Court. As a consequence, no
Contested Case Hearing was held.
CONCLUSIONS OF LAW
WHEREAS based upon the aforementioned Findings of Fact, the parties have agreed to
the following Conclusions of Law:
1. Weaver violated South Carolina Pollution Control Act, S.C. Code Ann. § 48-1-50
(Supp. 1997) and the terms of Consent Order #95-92-A, issued on November 6, 1995, by
conducting open burning in violation of Department open burning regulations.
2. The following constitute three separate violations of South Carolina Air Pollution
Control Regulation 61-62.2, Prohibition of Open Burning:
A. The open burning of land-clearing debris near the Myrtlewood Golf
Course on June 6, 1996 when the ambient air was significantly affected by
the smoke from the open burning when the site contained a commercial site.
B. The open burning of land-clearing debris within 1,000 feet of
residential structures on February 28, 1997 and April 3, 1997, at 3760
Willow Springs Road.
C. The open burning of land-clearing debris within 1,000 feet of
residential structures on July 30, 1998 at Holmestown Road.
Pursuant to S.C. Code Ann. § 48-1-330 (1987), civil penalties in an amount up to Ten
Thousand dollars ($10,000.00) per violation per day of violation may be assessed.
IT IS THEREFORE ORDERED pursuant to the authority of S.C. Code Ann. §§ 48-1-10, et seq. (1976, as amended) and with the consent of the parties that Weaver shall:
1. Immediately and henceforth ensure that open burning is conducted in accordance with South
Carolina Air Pollution Control Regulation 61-62.2, Prohibition of Open Burning.
2. Pay to the Department within thirty (30) days of the execution date of this Order a civil
penalty in the amount of five thousand dollars ($5000.00).
3. Jurisdiction is retained by the undersigned to enforce the provisions of this Order.
I SO MOVE: I CONSENT:
_______________________________ _________________________________
Thomas G. Eppink Joseph F. Singleton
Staff Counsel Attorney for Weaver Construction Company
2600 Bull Street P.O. Drawer 1244
Columbia, SC 29201 Conway, SC 29528
IT IS SO ORDERED.
________________________________
Marvin F. Kittrell
Chief Judge
September 28, 1998
Columbia, South Carolina |
