ORDERS:
CONSENT ORDER
WHEREAS, Respondent Richland County Broad River Heights Sanitary Sewer
Extension (“Richland County”) is responsible for the construction of the Broad River Heights
Sanitary Sewer Extension (Site) located
in the Broad River Heights Community, in Richland
County, South Carolina;
WHEREAS, the parties have agreed to settle the claims and disputes
between them at issue in
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this suit, without the admission of liability, and solely for the
purpose of settling and
compromising disputed claims and avoiding continued litigation.
FINDINGS OF FACT
1. Richland County owns and is responsible for the construction of the Broad River Heights
Sanitary Sewer Extension (Site) located in the Broad River Heights Community,
in Richland County, South Carolina.
2. On April
22, 2002, SCDHEC issued Construction Permit 27,609-WW to the Respondent,
authorizing the construction of a sanitary sewer line consisting of
approximately eight thousand (8000) feet of eight (8) inch gravity sewer line,
forty (40) manholes and ninety (90) service connections at the Site.
3. On
September 20, 2004, Mr. Russell Wilson, the SCHDEC Central Midlands EQC -Sediment and
Erosion Control Inspector visited the site in response to a citizen complaint.
During his inspection the following was noted:
a) Discoloration of the pond.
b) A small amount of land disturbance
activity had taken place along the dam.
c) A newer silt fence and other
sediment and erosion control measures installed in this area.
d) Evidence of some older silt fence
along an open area alongside the pond.
In a follow-up memorandum
dated November 30, 2004 from Mr. Wilson to Mr. Mathew Krofchick, it was later
learned that the project was begun before June 1, 2003 and was less than 2
acres in size. On June 1, 2003, the regulation for land disturbance activity
was changed. Prior to this date the, land disturbance activities of less than 2
acres did not require permitting.
4. On
October 24, 2004, in response to a citizen’s complaint, SCDHEC staff inspected
the Site, noting the following violations:
a) A permit for the land-disturbing activity had not been obtained.
b) A Stormwater Pollution Prevention
Plan had not been implemented at the Site and minimal measures were in place to
prevent migration of sediment from the Site.
c) Sediment had migrated from the Site
into an un-named tributary to the Broad River.
5. In a
letter dated January 5, 2005, SCDHEC staff notified Richland County of the violations noted during the October 24, 2004 inspection. Richland County was requested to respond in writing within fifteen (15) days of receipt of the
letter, stating the actions taken to address the alleged violations.
6. In a
letter dated January 25, 2005, Mr. Andy Metts, agent for Richland
County, indicated that the Richland County Public Works Department — Engineering
Division had determined that the land-disturbing activity permit was not
required because the project disturbed less than five (5) acres. Additionally,
regulation did not require National Pollutant Discharge Elimination System
(“NPDES”) Permit coverage for a Site involving less than five (5) acres
prior to March 10, 2003.
7. In a
letter dated February 1, 2005, SCDHEC staff notified Mr. Metts that based upon
a SCDHEC review, the Site was exempt from NPDES Permit coverage, but not from
state permitting requirements as outlined in 26 S.C. Code Ann. Regs.
72-305.B.1. The letter also stated that no further action was warranted.
8. On May
31, 2005, SCDHEC staff inspected the Site noting the following:
a) The Site had not been permanently
stabilized.
b) Erosion was continuing, resulting in
the migration of sediment from the Site to a pond on the property that the
sewer line was constructed.
c) The size of the disturbed area
exceeded that reported to SCDHEC.
9. In a
letter dated January 27, 2006, SCDHEC staff notified Mr. Metts of the results
of the May31, 2005 inspection. The letter also notified Mr. Metts that the Site
was not exempt from NPDES permit coverage since the plans provided to SCDHEC
indicated a construction easement of fifty (50) feet for the sewer line,
which should have been used to determine the disturbed area for the sewer line
project.
10. On
February 17, 2006, a letter was sent from Mr. Metts to Mr. Krofchick in
response to the January 27, 2006 letter. This letter included the design
engineer’s comments on the use of the 50-foot construction easement. It also
included the engineer’s calculation of maximum disturbed area of 4.22 acres if
the entire construction and permanent easement was cleared. It also stated that
it was practically impossible to use the entire constriction easement because
of existing structures and other obstacles. Further it referred to Mr. Creel’s
memorandum dated October 13, 2003 and the previously calculated disturbed area
of 1.55 acres.
11. During a
Site visit on April 18, 2006, SCDHEC staff noted that the previously disturbed
areas of the Site were stabilized with sparse natural vegetation.
12. On April
20, 2006, SCDHEC staff conducted an enforcement conference with agents for Richland County to discuss the above-cited violations. The issuance of a consent order
containing a civil penalty was discussed.
CONCLUSIONS OF LAW
Based upon the above
Findings of Fact, SCDHEC reaches the following Conclusions of Law:
1. Richland County violated the Standards for Stormwater Management and Sediment Reduction.
26 S.C. Code Ann. Regs. 72-305 (B)(4) and (5)(b) and 26 S.C. Code Ann. Regs.
72-3 05 (C) (Supp. 2006), in that it failed to submit a storm water management
and sediment control plan or an application for a waiver, prior to initiating
land disturbing activities.
2. The Standards
for Stormwater Management and Sediment Reduction 26 S.C. Code Ann. Regs.
72-3 15.A (Supp. 2006), provides for a civil penalty not to exceed one thousand
dollars ($1,000.00) per day of violation for any person violating any provision
of this chapter or any ordinance or regulation promulgated, enacted, adopted,
or issued pursuant to this Chapter by the Commission or other implementing
agency.
NOW, THEREFORE, the
parties consent and agree to the following:
1. Richland County shall, henceforth, comply with all permitting and operating requirements in
accordance with State and Federal regulations;
Richland County shall within thirty (30) days of the execution date of this Consent Order pay to SCDHEC
a civil penalty in the amount of two thousand dollars ($2,000.00). Payment
shall be made by check or money order made payable to the South Carolina
Department of Health and Environmental Control and shall be sent to the
attention of counsel for SCDHEC at the following address:
Stephen P. Hightower, Esq.
Staff Attorney
Office of General Counsel
South Carolina Department of Health and
Environmental Control
2600 Bull Street
Columbia, South Carolina 29201
2. That this contested case proceeding shall be dismissed with prejudice.
IT IS FURTHER ORDERED, CONSENTED TO,
AND AGREED that the Administrative Law Court shall retain jurisdiction over
this matter to the extent necessary to ensure compliance and, that in the event
that Richland County fails to pay the agreed to civil penalty as set forth
above, the parties agree that SCDHEC may seek, in addition to enforcement of
the terms of this Consent Order, an additional civil penalty pursuant to the Pollution
Control Act, S.C. Code Ann. § 48-1-330 (1987).
AND IT IS SO ORDERED:
_____________________ July 16, 2007
Ralph King Anderson, III Date
Administrative Law Judge
CONSENTED TO BY:
______________________ July 13, 2007
Stephen P. Hightower, Esq. Date
Attorney for Petitioner
South Department of Health
And Environmental Control
Larry C. Smith by Ameila R. Linder, Esq.
July 13, 2007
Attorney for
Respondent
Date
Richland County, Broad River Heights Sanitary
Sewer Extension
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