SC Administrative Law Court Decisions

WHEREAS, Respondent, Timm Creek, LLC owns and is responsible for land-disturbing activities at the Timm Creek Subdivision, located at Tax Map Number 6-40-00-013 (Site) in Spartanburg County, South Carolina and holds and is subject to the requirements of National Pollutant Discharge Elimination System Permit SCR 100000, Certificated SCR106922 authorizing the discharge of storm water at the Site;

WHEREAS, Petitioner, South Carolina Department of Health and Environmental Control (“SCDHEC” or the “Department”), is an agency of the State of South Carolina vested with all the powers, functions, and duties granted it, its officers, and agents by statute. The Department is charged with enforcing the Pollution Control Act, S.C. Code Ann. § 48-1-10 et seq. (2008) and the regulations promulgated thereto, Water Pollution Control Permits, 24 S.C. Code Ann. Regs. 61-9 (Supp. 2007) and Water Classifications and Standards, 25 S.C. Code Ann. Regs. 61-68 (Supp. 2007);

WHEREAS, Respondent acknowledges its liabilities for the violations contained in Administrative Order 07-123-W;

WHEREAS, in the interest of resolving this matter without further delay and expense of litigation, the parties to this action have reached an agreement as outlined below that will dispose of this case without any further proceedings.

NOW THEREFORE IT IS ORDERED AND AGREED, that Timm Creek, LLC agrees to:

1. Henceforth, with respect to the Site, comply with all permitting and operating requirements in accordance with State and Federal regulations.
2. Within forty-five (45) days of the filing of this Order by the Court, submit to the Department, a report, completed and stamped by a S.C. Registered Professional Engineer, certifying that all storm water and sediment control devices are installed and functioning property as specified in the approved erosion and sediment control plans for Phase 1 and Phase 2 of the Site.
3. Immediately, conduct Storm Water Inspections of the Site. Inspections shall be conducted weekly and within twenty-four (24) hours of each one-half (.5) inch rainfall event, by an individual familiar with the Department approved Site SWP3 and the applicable requirements of the NPDES General Storm Warning Permit. Inspection Reports shall be submitted to the Department’s Spartanburg Environmental Quality Control Office each month for a period of twenty-four (24) months, or until this Order is closed, which ever occurs first.
4. Within thirty (30) days of the filing of this Order by the Court, personnel responsible for Site inspections shall attend and successfully complete a Department approved course for Erosion Prevention and Sediment Control Inspectors. Thereafter, an individual that has successfully completed the course shall conduct the inspections for a period of twenty-four (24) months, or until this Order is closed, which ever occurs first.
5. Pay to the Department a civil penalty, as set forth below, in the amount of thirty thousand dollars ($30,000.00), in twenty-three (23) equal month installments of one thousand three hundred sixty-seven dollars and eleven cents ($1,367.11) each and a final payment of one thousand two hundred fifty-four dollars and ninety-two cents ($1,254.92). The total of the payments is thirty-two thousand six hundred ninety-eight dollars and forty-five cents ($32,698.45), which includes interest. The first monthly installment shall be paid to the Department within thirty (30) days of the filing of this Order by the Court, with each successive installment paid to the Department on or before the thirtieth (30) day after the last payment was required to be paid. If at any time the Respondent wishes to pay the penalty in full in advance, a payoff amount will be provided.

IT IS FURTER ORDERED AND AGREED that the Department has assessed a civil penalty in the amount of forty-three thousand one hundred twenty-six dollars ($43,126.00), of which the Department suspends thirteen thousand one hundred twenty-six dollars ($13,126.00) of the civil penalty, provided the Respondent complies with the requirements of this Order. Upon the Department’s determination that the Respondent has failed to comply with the conditions of this Order, this suspension shall be null and void and the remaining suspended sum of thirteen thousand one hundred twenty-six dollars ($13,126.00) and any remaining balance of the thirty thousand dollars ($30,000.00) shall be due an payable within thirty (30) days after Respondent received written notification of such determination from the Department in its sole discretion. The Department’s determination that the Respondent has not complied with the requirements of this Order shall be final.

IT IS FURTHERE ORDERED AND AGREED that the Court shall retain jurisdiction over this matter for purpose of enforcing the provisions of this Order, and the failure to meet the deadlines established herein or any other violation of the provisions of this Order shall be deemed a separate violation of the South Carolina Pollution Control Act.

AND IT IS SO ORDERED.

___________________________________ October 1, 2008

John D. McLeod

Administrative Law Judge

CONSENTED TO BY:

___________________________________ September 16, 2008

Stephen P. Hightower, Esq.

Attorney for Petitioner

South Carolina Department of Health

and Environmental Control

___________________________________ September 15, 2008

Kevin Sturm, Esq.

Attorney for Respondent

Timm Creek, LLC

___________________________________ September 15, 2008

Arthur M. Erwin, Member

Timm Creek, LLC