ORDERS:
ORDER
STATEMENT OF THE CASE
This matter came before the Administrative Law Court (“Court”) on Wednesday, June 6, 2007, pursuant to the request of Larry and Ginny Biddle, Hobart Kraner (“Kraner”), and George and Judy Marshall (collectively referred to as “Petitioners”) for a contested case hearing. The Petitioners’ request challenged the South Carolina Department of Health and Environmental Control, Office of Ocean and Coastal Resource Management’s (“DHEC”) issuance of coverage under a National Pollutant Discharge Elimination System Permit (“NPDES Permit”) for Stormwater discharges from Large and Small Construction Activities and a Coastal Zone Consistency Certification (“Certification”) to Charles Cox for the project known as the Pinnacle at South Inlet (“Project”), located in Georgetown County at 4298 Highway 17 Business in Murrells Inlet.
DISCUSSION
Respondent, Charles Cox, Jr., submitted a Stormwater Prevention plan to DHEC in order to obtain coverage of the Project under an NPDES Permit and a Certification. Cox chose a plan that utilizes a pervious concrete system. The system is designed to accept stormwater runoff and route the water into pervious concrete. The runoff then flows into a gravel bed below the pervious concrete. The plan also incorporated the use of an Aqua Drain backup system that allows water to travel into the gravel bed if the concrete becomes clogged. Additionally, the system is designed to allow runoff from other impervious surfaces, such as roofs, to be directed into the gravel bed.
On November 13, 2006, Petitioners filed a Request for Final Review with DHEC. On December 14, 2006, DHEC denied Petitioners’ request.
Petitioners filed a Notice of Request for a Contested Case hearing on January 12, 2007, contesting DHEC’s issuance of the Certification and the NPDES Permit on the following grounds: (1) that DHEC erred in its application of statutory, regulatory, and Coastal Zone Management Program policy provisions in issuing the NPDES Permit and Coastal Zone Consistency Certification to Cox; (2) that DHEC failed to provide Petitioners with final revised drainage plans and calculations for the project as requested pursuant to the Freedom of Information Act (“FOIA”); (3) that DHEC failed to notify Petitioners of its intent to issue a permit for the project; and (4) that DHEC erred in issuing the NPDES Permit due to miscalculations in the data, standards, and criteria upon which that permit was issued.
A contested case hearing was held on June 6, 2007 wherein Respondents made a motion for involuntary non-suit on all four grounds upon which Petitioners brought this action. This motion was initially denied. At the conclusion of all the evidence, the Respondents again made a motion for involuntary non-suit, which the Court granted with respect to issues numbers (2) and (3).
This court determined that under Rule 41(b) of the South Carolina Rules of Civil Procedure, Petitioners have no right to relief with respect to issues numbers (2) and (3) regarding DHEC’s responses to FOIA Requests and giving Petitioners notice of its intent to issue the permit and certification. There was no evidence presented at trial which suggested that DHEC failed to comply with any Legislative policies regarding the FOIA request. In fact, Petitioner Hobart Kraner and Petitioner’s expert, Robert Castles, testified that they were notified and informed of two out of the three plans that were submitted by Cox. They also admitted that they took an active role in shaping those plans through correspondence with DHEC. Second, Respondents had notice that the permit had been issued because they live in close proximity to the project and could readily see construction taking place.
As to the two remaining issues (1) and (4), concerning DHEC’s compliance with regulatory and statutory law when issuing the Permit and Certification, I find that DHEC’s decision must be upheld because Petitioners failed to meet their burden of proof. DHEC is charged with the statutory and regulatory authority to approve Permits and issue Certifications and is given broad discretion in doing so. Therefore, this court would have to find that DHEC’s decision to issue the certification and permit was clearly erroneous. For the reasons set forth below, I find that Petitioners case is devoid of any evidence to prove that DHEC’s decision was clearly erroneous.
FINDINGS OF FACT
1. The Respondent, Charles Cox, is a developer who was issued coverage under an NPDES Permit as well as a Coastal Zone Consistency Certification for a project known as The Pinnacle at South Inlet. The project is to be built on a 7.03 acre parcel of land. The parcel is south of Morse Avenue where US Highway 17 Business and Bypass connect in south Murrells Inlet. The parcel is split into a residential section consisting of 1.92 acres of land and a commercial section consisting of a 3.66 acre parcel.
2. The Petitioners are homeowners who live in close proximity to the project. Petitioners contest the issuance of the NPDES Permit and Certification on the grounds that DHEC erred in its application of statutory, regulatory, and Coastal Zone Management Program policy provisions. They also contend that DHEC erred in issuing the NPDES Permit due to miscalculations in the data, standards, and criteria under which the permit was issued.
3. Petitioners by their own expert’s admissions produced no evidence of any statute or regulation that DHEC violated in granting the above referenced permit. Neither Petitioners nor their expert produced any plans or calculations which disputed the figures and opinions submitted by Cox and approved by DHEC. Petitioners performed no percolation tests on the property. In addition, no evidence was produced by the Petitioners of any miscalculations done by Cox in preparing and submitting the approved plan to DHEC.
4. Cox has taken all of the necessary steps to ensure that the percolation system set forth in the plan performs in a manner that is more than commercially reasonable to protect Murrells Inlet, including inserting in the plan a set of requirements for the Homeowner’s Association which requires long term maintenance to ensure performance of the system. The requirements include: putting gutters on the buildings; sweeping parking lots, roads and other pervious areas every two weeks during construction and every quarter thereafter, disposing of pet waste pursuant to restrictive covenants, and putting in place an Aqua Drain system as a safety factor to ensure that the porous pavement will not become clogged and allow runoff into Murrells Inlet.
5. DHEC engineer, Shannon Hicks, who is an expert in Stormwater and Sediment Management Control, testified that the system will work if installed and maintained properly. Although Respondents contend that this particular system is not appropriate for this project, projects such as the one proposed are analyzed on a case by case basis and there is no specific type of percolation system that is required or favored.
6. WPC Inc., a registered geo-technical engineering firm, used the SCS Soil Survey of Georgetown County to determine that the site has a combination of Lackland and Chipley soil. On December 16, 2004, WPC Inc. performed a permeability and water table test on the site utilizing the information concerning the soil types. The firm determined that if the proposed plan is implemented, the residential section will handle stormwater runoff in the amount of forty seven point nine (47.9) cubic feet per second. The commercial section of the property is able to handle stormwater runoff up to sixty five point six (65.6) cubic feet per second. On a visit in May of 2006, the firm performed a water table test and found that the seasonal groundwater level is between 3.0’ to 4.0’ below the ground surface. Further, the firm determined that the permeability rate for this system is 4.5 inches per minute
CONCLUSIONS OF LAW
1. This Court has jurisdiction over this matter pursuant to South Carolina Administrative Procedures Act, S.C. Code Ann. 1-23-310 et seq. (Supp. 2006).
2. In weighing the evidence and deciding this contested case on the merits, the Court finds in favor of Respondents by the preponderance of the evidence. Anonymous (M-156-90) v. State Board of Medical Examiners, 329 S.C. 371, 496 S.E.2d 17 (1998). “Findings of fact based upon a ‘preponderance’ of the evidence are those supported by the greatest ‘weight, amount, credibility, or truth’ as reflected by the whole of the evidence before the court, or evidence which convinces as to its truth.” Janasik v. Fairway Oaks Villas Horizontal Property, 307 S.C. 339, 415 S.E.2d 384 (1992) citing Frazier v. Frazier, 228 S.C. 149, 89 S.E.2d 225 (1955).
3. The South Carolina Administrative Procedures Act governs judicial review of a decision of an administrative agency.” Clark v. Aiken County Gov’t, 366 S.C. 102, 107, 620 S.E.2d 99, 101 (Ct. app. 2005). Section 1-23-380(A)(5) of the South Carolina Code (Supp. 2006) establishes the substantial evidence rule as the standard of review. Under this standard, a reviewing court may reverse or modify an agency decision based on errors of law, but may only reverse or modify an agency’s findings of fact if they are clearly erroneous. See 1-23-380(A)(5)(d) and (e). “Substantial evidence is not a mere scintilla of evidence nor the evidence viewed blindly from one side of the case, but is evidence which, considering the record as a whole, would allow reasonable minds to reach the conclusion that the administrative agency reached or must have reached in order to justify its action.” Lark v. Bi-Lo, Inc., 276 S.C. 130, 135, 276 S.E.2d, 304, 306 (1981).
4. Under Leventis v. S.C. Dep’t of Health and Evtl. Control, 340 S.C. 118, 132-33, 530 S.E.2d 643 (Ct. App. 2000), findings of the Department of Health and Environmental Control Board are presumptively correct and, therefore, the challenging party bears the burden of proving the DHEC Board's order is clearly erroneous in view of the substantial evidence on the whole record. Petitioners have not met this burden because they failed to demonstrate that any applicable statute, regulation or NPDES Permit provision has been violated by the DHEC decision. Similarly, Petitioners have not revealed any conflicts with the policies of the Coastal Zone Management Program that would render the certificate inappropriate. The tests and studies that were performed on this property were completed by Respondent Cox. No evidence showed any of the calculations were incorrectly computed. No evidence was presented by the Petitioners that DHEC violated any statute or regulation in granting the NPDES Permit that is the subject of this action.
5. This appeal involves the interpretation and application of the Department’s NPDES Permit which DHEC issued pursuant to the S.C. Pollution Control Act, S.C. Code Ann §48-1-10 et seq. (1987), and (Supp. 2006), and the Clean Water Act, 33 USC 1251 et seq. The Permit incorporates by reference the standards and criteria of Regulations 72-300 et seq., which are promulgated under the S.C. Stormwater Management and Sediment Reduction Act of 1991 and S.C. Code Ann. Section 48-14-10. Additionally, the project was evaluated for consistency with the Coastal Management Program which was developed pursuant to the Coastal Tidelands and Wetlands Act, S.C. Code Ann. §48-39-10 et seq.
6. Under the South Carolina Stormwater Management and Sediment Reduction Act, S.C. Code Ann. §48-14-10 (2000), a permit must be obtained for most land disturbing activities within the state. The Act gives DHEC authority to promulgate regulations and to develop a State Stormwater Management and Sediment Reduction program. See S.C. Code Ann. §48-14-50 (Supp. 2006). 26 S.C. Code Ann. Regs. §72-304(F) (Supp. 2006). Those standards are codified in S.C. Code Ann. Regs. 72-300.
7. Because this project consists of 7.03 acres of land, it falls under S.C. Code Ann. Regs. §72-305(B)(3) which states that R. 72-305 and R. 72-307 apply to land disturbing activities disturbing more than five (5) acres of land. Petitioners specifically challenge the Permit and Certificate under R. 72-307(c)(4)(a) and (c)(11)(d).
8. Petitioners assert that Respondents have not met the requirement of S.C. Code Ann. Regs. §72-307(c)(4)(a) which states that:
(a) Post-development peak discharge rates shall not exceed pre-development discharge rates for the 2-and 10-year frequency 24-hour duration storm event. Implementing agencies may utilize a less frequent storm event (e.g. 25-year, 24-hour) to address existing or future stormwater quantity or quality problems.
The amount of runoff retention for a two and ten year storm event as required by DHEC is 7.92 cubic feet per second for a ten year storm and 2.38 cubic feet per second for a two year storm. The proposed plan divided the site into two areas; one residential; the other, commercial. Implementing the proposed plan, the residential section could handle runoff in the amount of forty seven point nine (47.9) cubic feet per second. The commercial section of the property is able to handle runoff up to sixty five point six (65.6) cubic feet per second. It is clear from these calculations that DHEC was correct in determining that Respondents’ proposed drainage system met the requirements set forth in R. 72-307(c)(4)(a).
9. Regulation 72-307(c)(11)(d) requires that soils have adequate permeability to allow water to infiltrate. Moreover, it states that infiltration practices are limited to soils having an infiltration rate of at least 0.30 inches per hour. Using a Derivation of Darcy’s Law, which is the universally accepted formula for calculating infiltration rates in soils and taking into consideration the two different soil types, the firm determined that the permeability rate for this system is 4.5 inches per minute. This is well above the regulatory requirement of 0.30 inches per hour.
10. Petitioners also contend that the ground water table figure as determined by the firm was either incorrectly calculated or does not meet regulatory guidelines. The firm determined that the seasonal groundwater level is between 3.0 feet to 4.0 feet below the ground surface. As a result, the firm used an average of 3.75 feet in its calculations which is clearly in compliance with the recommendation that the level be between 3.0 feet and 4.0 feet. See California Stormwater BMP handbook SD-20 and NCSU Water Quality Group Newsletter no. 101, May 2001.
11. Because this project is located near a critical area, it must meet the requirements of S.C. Code Ann. §48-39-10 for a Coastal Zone Consistency Certification. S.C. Code Ann. §48-39-150 establishes the guidelines that DHEC should follow in determining whether a certification is approved or denied. That regulation states that DHEC shall base its determination on the individual merits of each application, the policies specified in 48-39-20 and 48-39-30, and be guided by certain general environmental considerations.
DHEC has adequately assessed the impacts of this proposed project on the environment as required by S.C. Code §48-39-150. When viewing the merits of Respondents’ application, it is clear that they implemented several safeguards to insure that the environment would not be harmed by this project. They inserted into the plan a set of requirements for the Homeowner’s Association which directly relate to long term maintenance and performance of the system. The requirements include: putting gutters on the buildings; sweeping parking lots, roads and other pervious areas every two weeks during construction and every quarter thereafter, disposing of pet waste pursuant to restrictive covenants, and putting in place an Aqua Drain system as a safety factor to ensure that the porous pavement will not become clogged and allow runoff into Murrells Inlet. Because the aforementioned safeguards are adequate to address the environmental concerns of the Petitioners, DHEC’s decision to issue the Certification was not in error.
12. DHEC determined that Cox was in compliance with the statutory and regulatory requirements. In a recent decision of the South Carolina Court of Appeals, the Court stated that “courts generally defer to the relevant administrative agency’s decisions with respect to its own regulations unless there is a compelling reason to differ.” Neal v. Brown, --- S.E.2d ---,2006 WL4662604 S.C. App., 2007. Petitioners have presented no compelling reason to differ from DHEC’s decision. While it is true that Petitioners’ expert participated in a similar project in which the percolation system failed, neither the expert nor the Petitioners in this matter presented any reason why this project, as approved by DHEC, will fail or that the Project is not in accordance with the appropriate statutes and regulations. Because Petitioners have not met their burden of proof and have not shown a compelling reason for this Court to enter a judgment differing from the DHEC decision, the Department’s decision is upheld.
ORDER
Based on the foregoing findings of fact and conclusions of law, IT IS HEREBY ORDERED that judgment is entered in favor of Respondents and DHEC’s decisions to issue Cox coverage under NPDES General Permit for Stormwater Discharges from Large and Small Construction Activities and to issue a Coastal Zone Consistency Certification for the project known as The Pinnacle at South Inlet is Affirmed.
AND IT IS SO ORDERED.
____________________________________
Carolyn C. Matthews
Administrative Law Judge
The gravel bed is the actual infiltration system.
Although Robert L. Castles was originally listed as a Petitioner in this action, he is actually the Petitioner’s expert and the caption to this action has been amended to reflect this fact, which was brought to the Court’s attention for the first time at trial.
“Land disturbing activity means any use of the land by any person that results in a change in the natural cover or topography that may cause erosion and contribute to sediment and alter the quality and quantity of stormwater runoff.” S.C. Code Ann. 48-14-20(8).
OCRM, formerly the South Carolina Coastal Council, is the subdivision within DHEC responsible for implementing the Program and the stormwater management regulations in the coastal zone for those jurisdictions of local governments which do not seek delegation of program elements. |
