ORDERS:
Final ORDER as to south island dredging association, inc.
COME NOW counsel for Petitioner South Carolina
Department of Health and Environmental Control (“Department”) and Respondent
South Island Dredging Association, Inc. (“SIDA”), and report to the Court that this
matter has been resolved to the satisfaction of these parties on the terms set
forth herein. In settling this matter, the parties have agreed to the
following:
1. This is a settlement of a disputed claim for which SIDA admits no
liability for matters contained in the Findings of Fact and Conclusions of Law
set forth in Administrative Order 04-065-W (Administrative Order) issued by the
Department, for which SIDA agrees to pay to the Department the amount of fifty
thousand dollars ($50,000.00).
2. The payment of the amount herein and agreement to the other terms
herein are a full and final disposition of any and all requirements sought to
be imposed on SIDA by the Administrative Order.
3. The settlement proceeds shall be due and payable within one
hundred eighty (180) days after this order is filed.
4. The Critical Area/Water Quality Certification Permit No.
2000-1P-424-P (“Permit”) was issued on June 28, 2001 with an expiration date of
June 28, 2006. SIDA and Safe Harbor were ordered to cease dredging and
disposal activities under the Permit on January 5, 2005 pursuant to an Order
Granting Stay, issued by Chief Judge Marvin F. Kittrell and may only resume
such action with the permission of the Administrative Law Court. Accordingly,
the running of the permit has been tolled since January 5, 2005 and has
approximately eighteen (18) months remaining.
After full payment of the settlement proceeds is made to DHEC OCRM, the parties
will jointly file a notification to the Court that such obligation has been
fully satisfied. Upon filing of such notification, the Stay of the Permit
shall be lifted and the Permit shall expire eighteen (18) months
thereafter.
5. All provisions of the Permit shall remain in effect. In
addition, SIDA agrees to undertake the following additional actions in
performing work under the Permit:
a) Monitoring and Reporting:
In
light of the fact that overflow is reasonably necessary in order to accomplish
hydraulic dredging, the scow loading area will be monitored for sediment
accumulation with bathymetric surveys to ensure that such overflow does not
result in an unreasonable accumulation of sediment. A similar monitoring
approach was outlined in the Inspection Operation Plan for the project
developed in 2002. The monitoring program will be revised as follows to
provide a higher degree of accuracy.
A
bathymetric survey will be conducted at each location where the scows are
loaded approximately one (1) month before dredging starts, the day before the
dredging starts, and every two weeks thereafter. Line spacing will be no
greater than 50 feet. The survey will cover a box approximately 2000 ft by
1500 ft. Within two days of data collection, surveys will be compared to
determine if sediment is accumulating in the vicinity of the scow loading operation,
and the survey data and comparison results will be reported to the designated
dredge operation inspector and regulatory agency personnel. Surveys will be
conducted under the direction of a Professional Land Surveyor not associated
with the dredger operators. The accuracy of the survey will be no less than
+/- 0.5 ft or better which will be sufficient to detect any mounding related to
the scow loading operation. In the event such surveys indicate sediment
accumulation in excess of the baseline (defined as an accumulation measured in
excess of 6”) within the survey area, SIDA and its contractors will
immediately consult with DHEC representatives regarding any additional measures
which might be appropriate to further minimize overflow and accumulation of
sediment. DHEC agrees to make appropriate personnel available within 48 hours
to consult with SIDA representatives. In the event such surveys indicate
sediment accumulation of 12” or more above the baseline in the vicinity of the
scow loading operation, SIDA and its contractors will immediately discontinue
dredging operations until appropriate measures can be agreed upon to further
minimize overflow and accumulation of sediment.
b) Best Management Practices (BMPs):
SIDA will engage a
competent dredging contractor, approved by the Department. Any such agreements
with the dredging contractor shall include provisions acknowledging the
conditions of the Permit and the obligations of the dredging contractor to
comply with such Permit.
6. SIDA agrees to move the Beaufort County Court of Common Pleas for
the dismissal with prejudice of civil action 03-CP-07-1666, a suit related to
this contested case.
7. SIDA and the Department agree that each party shall bear its own
costs and fees associated with this contested case and the above referenced
civil action.
8. The parties agree that the terms of this Order constitute the
full agreement between them in settlement of this matter.
9. Either party to
this settlement may move to enforce the terms of this Order by seeking an order
from the Administrative Law Court for contempt of court, injunctive relief,
and/or such other remedial writs or relief provided by law.
IT IS HEREBY ORDERED this 12th day of February,
2008.
_____________________________
Marvin
F. Kittrell
Chief
Administrative Law Judge
WE SO
MOVE AND CONSENT:
___________________________________________
Elizabeth
Applegate Dieck, Chief Counsel OCRM
1326 McMillan Avenue, Suite 400
Charleston, SC 29405
(843) 953-0213
Attorneys for the Defendant South Carolina Department of
Health and Environmental Control, Office of Ocean and Coastal Resource
Management
__________________________________________
Smith Bundy Bybee
and Barnett, PC
Ellison D. Smith,
IV
Stanley E. Barnett
P.O. Box 1542
Mt. Pleasant,
SC 29465
Attorneys
for Respondent South Island Dredging Association, Inc.
STATE OF SOUTH CAROLINA
ADMINISTRATIVE LAW COURT
South Carolina Department of
Health and Environmental Control,
Petitioner,
vs.
South Island Dredging
Association, Inc., and Safe Harbor Sediment Recovery,
Respondents. |
Docket No.:
04-ALJ-07-0135-CC
Final ORDER
as tO SAFE HARBOR SEDIMENT RECOVERY |
COME NOW counsel for
Petitioner South Carolina Department of Health and Environmental Control
(“Department”) and Respondent Safe Harbor Sediment Recovery (“Safe Harbor”), and report to the Court that this matter has been resolved to the satisfaction
of these parties on the terms set forth in the Consent Order of Settlement
attached hereto as Exhibit A. Safe Harbor and the Department agree that each
party shall bear its own costs and fees associated with this contested case and
the above referenced civil action. The parties further agree that the terms of
this Order constitute the full agreement between them in settlement of this
matter. IT IS HEREBY ORDERED this 12th day of February,
2008.
_____________________________
Marvin
F. Kittrell Chief Administrative
Law Judge
WE SO MOVE AND
CONSENT:
________________________________________
Elizabeth Applegate Dieck, Chief Counsel OCRM
1326 McMillan Avenue, Suite 400
Charleston, SC 29405
(843) 953-0213
Attorneys for the Defendant South Carolina
Department of Health and Environmental
Control, Office of Ocean and Coastal Resource
Management
__________________________________________
Sean D. Houseal
Buist Moore Smythe & McGee
P.O. Box 999
Charleston, SC 29402
Attorneys
for Respondent Safe Harbor Sediment Recovery
|
