ORDERS:
FINAL ORDER AND DECISION
I. Statement of the Case
Niemitalo, Inc. (Niemitalo) owns and is responsible for the development and construction
activities at a site known as the Country Club Crossing Subdivision (subdivision) in Greenville
County, South Carolina. Inspections by the South Carolina Department of Health and
Environmental Control (DHEC) of the subdivision resulted in allegations that Niemitalo had
improperly discharged sediment into waters of the State and had failed to comply with all of the
conditions of applicable storm water discharge permits. As a result, DHEC seeks to impose a
penalty of $17,000 for the violations.
Niemitalo argues that proper sediment controls were in place at the start of the development.
However, a section of those controls had to be dismantled to install utility lines and a sewer line.
Accordingly, Niemitalo argues that any violation caused by the circumstances was not willful
and, in all events, was only minor in nature.
II. Issue
Did Niemitalo violate the Pollution Control Act, S.C. Code Ann. § 48-1-90(a) (1987) by
discharging sediment into waters of South Carolina and violate the Water Pollution Control
Permits, 24 S.C. Code Ann. Regs 61-9.122.41(a) & (e) (Supp. 2004) by failing to comply with
the conditions set in Part VI section N of NPDES Permit No. SCR100000 and, if so, what
penalty is proper?
III. Analysis
A. Findings of Fact
Based on the preponderance of the evidence, the following findings of fact are entered:
Niemitalo has engaged in development activities at a subdivision in Greenville County, South
Carolina involving the land disturbance of over five acres. Because of that activity, storm water
permits were obtained from DHEC in the form of NPDES General Permit SCR100000 as well as
the specific permit of SCR106746 for Niemitalo's activities during construction.
On May 30, 2003, DHEC inspected the subdivision activities and found several concerns. For
example, the approved plans had not been followed since the mud mat at the subdivision
entrance needed to be re-installed, silt fencing had not been maintained and the detention pond
lacked a riser. In addition, portions of the subdivision needed to be grassed and minor amounts
of sediment from the subdivision had been discharged to a stream. An inspection report was
completed noting these deficiencies with the report both mailed and faxed to Niemitalo.
On July 24, 2003, DHEC made a second inspection. That inspection found a continuing lack of
compliance with the permits. A significant quantity of sediment had been discharged from the
subdivision into the South Tyger River. The cause of that discharge was a lack of maintenance
of the storm water and sediment erosion controls at the subdivision. For example, a break
existed in the detention pond, silt fences were not maintained, rip rap had not been installed at
outlet points, areas were not stabilized with grass, and a general lack of self-inspection was
evident.
From late spring through the early summer of 2004, rainfall was plentiful. Thus, construction
was hampered by wet conditions at the subdivision until the last of July 2004. In addition,
relying upon the advice of engineers, Niemitalo did not aggressively seek to control storm water
run-off while waiting on the installation of utilities such as natural gas, electricity, and water and
sewer lines. In fact, the installation of a sewer line created a breach in the detention pond with
that breach not being repaired in a timely manner.
On November 19, 2003, DHEC made a third inspection. The overall evaluation concluded
Niemitalo was in substantial compliance with the permit requirements.
B. Conclusions of Law
Based upon the above Findings of Fact, I conclude as a matter of law, the following:
1. Introduction
The issue here is whether Niemitalo violated the Pollution Control Act, S.C. Code Ann. §
48-1-90(a) (1987) by discharging sediment into waters of South Carolina and violated 24 S.C.
Code Ann. Regs 61-9.122.41(a) & (e) (Supp. 2004) by failing to comply with the conditions set
in Part VI section N of NPDES Permit No. SCR100000. If so, the issue becomes what penalty is
proper. The evidence here establishes that violations occurred and that a penalty is warranted.
2. Violations and Penalties
South Carolina Code section 48-1-90(a) (Supp. 2004) forbids the discharge of pollutants such as
run-off sediments from construction sites into the environment of the State except in accordance
with a permit issued by DHEC. Here, a significant quantity of construction site sediment left the
site from at least May 2004 to July 2004 and found its way into the South Tyger River. Further,
not only is such a discharge not allowed by the permits issued by DHEC but an inspection by
DHEC in May 2004 identified to Niemitalo specific deficiencies that were causing the unlawful
discharge such as a break in the detention pond, silt fences not maintained, rip rap not installed at
outlet points, and areas not stabilized with grass. Further, corrective actions sufficient to halt the
discharge were still not complete by late July 2004.
In addition, Regs. 61-9.122.41.(a) explains that a permit holder "must comply with all conditions
of the permit [and a failure to do so] constitutes a violation of the Clean Water Act and the
Pollution Control Act and is grounds for enforcement action." In the same vein Regs. 61-9.122.41.(e)(1) explains that the "permittee shall at all times properly operate and maintain in
good working order and operate as efficiently as possible all facilities and systems of treatment
and control (and related appurtenances) which are installed or used by the permittee to achieve
compliance with the terms and conditions of this permit." Here, Niemitalo failed to comply with
the terms of permit and failed to properly maintain the storm water controls at the subdivision.
Accordingly, the violations are established.
Given that violations have occurred, the issue becomes one of imposing a proper sanction "based
on the facts presented." Walker v. S.C. ABC Comm'n, 305 S.C. 209, 211 S.E.2d 633, 634
(1991). Those facts must be determined by the ALJ (Brown v. S.C. Dept. of Health and Envtl.
Control, 348 S.C. 507, 560 S.E.2d 410 (2002)) and can only be made by weighing and passing
upon the credibility of the evidence presented. See S.C. Cable Television Ass'n v. Southern Bell
Tel. and Tel. Co., 308 S.C. 216, 417 S.E.2d 586 (1992). In seeking to impose the proper
penalty, the fine must be analyzed individually to determine if it is appropriate under the
circumstances. Midlands Utility, Inc. v. S.C. Dept. of Health and Envtl. Control, 313 S.C. 210,
437 S.E.2d 120 (1993). Further, in assigning a penalty, the fact finder must give effect to the
purposes for which fines are assessed; i.e., to deter such conduct in the future. Id.
Here, due to mitigating circumstances, a fine of $17,000 is not warranted. The evidence
establishes that in large part Niemitalo's failure to properly comply with the permits was due to
extenuating circumstances. For example, the installation of electric lines, water lines, gas lines,
and a sewer line caused disruptions to existing storm water control features. In other words,
initial proper steps were underway but delay due to rain and utility company activity at the site
played a major role in the lack of compliance with storm water requirements.
I recognize the argument which asserts that no reduction in the penalty should be granted for the
utility company's involvement since it is no defense to an enforcement action to assert that
stopping the permitted activity would be required to maintain permit compliance. See General
Permit SCR100000, Part VI, C. However, while not a basis for defeating an enforcement action,
such a circumstance is a factor to be weighed in deciding the extent of the penalty to impose.
Further, mitigation is present here since the evidence shows that at least some advice from
engineers on the job site recommended waiting until all utilities were in place. While such
advice was unwise given the environmental impact caused by the sediment leaving the site,
nonetheless, the advice is a mitigating factor in deciding the amount of the penalty.
Finally, considering all of the evidence here, one cannot dismiss the fact that Niemitalo failed to
take a more aggressive position in handling the disruption presented by the utility companies.
For example, more diligence was needed in repairing the silt fences and a more timely response
to the breach in the detention pond was required. Indeed, Niemitalo was told specifically in May
2004 what needed to be done and still had not complied by July 2004. However, virtually total
compliance was achieved by November 2004.
Thus, considering and balancing all of the evidence in light of the mitigating circumstances, and
in light of the available sanction of civil penalties of up to $10,000 per day for violations of the
Pollution Control Act (see S.C. Code Ann. § 48-1-330 ), a sanction of $8,500 is proper in this
case.
IV. Order
Based upon the Findings of Fact and Conclusions of Law, it is hereby ordered:
Niemitalo, Inc shall pay to the South Carolina Department of Health and Environmental
Control a fine of $8,500 for the violations established in this decision.
AND IT IS SO ORDERED.
____________________________
RAY N. STEVENS
Administrative Law Judge
Dated: April 21, 2005
Laurens, South Carolina |
