South Carolina              
Administrative Law Court
Edgar A. Brown building 1205 Pendleton St., Suite 224 Columbia, SC 29201 Voice: (803) 734-0550

SC Administrative Law Court Decisions

CAPTION:
Rigby Oil Company, Inc. vs. SCDHEC

AGENCY:
South Carolina Department of Health and Environmental Control

PARTIES:
Petitioner:
Rigby Oil Company, Inc.

Respondent:
South Carolina Department of Health and Environmental Control
 
DOCKET NUMBER:
99-ALJ-07-0473-CC

APPEARANCES:
n/a
 

ORDERS:

FINAL ORDER AND DECISION

STATEMENT OF THE CASE

In this case, Petitioner Rigby Oil Company, Inc. (Petitioner) challenges the determination of the South Carolina Department of Health and Environmental Control (DHEC) that the $25,000 deductible under the Petroleum Emergency Response Bank Act, S.C. Code Ann. § 44-2-130(A) (Supp. 1988) (Superb Act), applies to the Jones Sales Company (Jones) and Water's Way Market (Water's Way) sites. The Superb program assists owners and operators of underground storage tanks (UST) containing petroleum with the costs of site rehabilitation when releases occur from such tanks. See S.C. Code Ann. §§ 44-20-40(A) (Supp. 1998). The issue in this case is not whether Petitioner is eligible for reimbursement from the Superb account for site rehabilitation costs at the Jones and Water's Way sites, but whether the $25,000 deductible applies towards such costs.

A hearing was held in this matter on January 13, 2000.

FINDING OF FACTS

Having carefully considered all testimony, exhibits and arguments presented at the hearing of this matter, and taking into account the credibility and accuracy of the evidence, I make the following Findings of Fact by a preponderance of the evidence.

Beginning in 1973, Petitioner owned and serviced USTs at a retail location known as the Jones Sales Company. Beginning in approximately 1987, Petitioner serviced USTs at a second retail location known as the Water's Way Market. The Site Identification for the Jones site is #02448, and the Site Identification for the Water's Way site is #02349.

Petitioner represented to DHEC, both in its Notification of Underground Storage Tank in Operation dated February 18, 1986 and by letter dated December 27, 1989, that Petitioner also owned the USTs at the Water's Way site. At the hearing, Petitioner claimed that it did not own these USTs. There was no evidence, however, of deeds or contracts to prove actual ownership.

In 1989, Petitioner conducted soil testing at both the Jones and Water's Way sites to determine whether there was a release of petroleum from a UST at either site.(1) At the Jones site, the soil samples were taken in the vicinity of the USTs from depths of 4'6" to 6', where groundwater was encountered. At the Water's Way site, the soil samples were taken in the vicinity of the USTs from depths of 6'. The samples were removed by auger, preserved on ice in mason jars, and analyzed by an electronic nose leak detector (used routinely by the fire department). A nose leak detector can detect petroleum hydrocarbons below 50 ppm, as well as non-petroleum constituents. At each site, two soil samples originating near a UST emitted strong petroleum (2) odors that were detected by both nose and the nose leak detector. Consequently, Petitioner concluded that there was a release of petroleum from a UST at each site.

By letter dated December 27, 1989, Petitioner submitted a written report to DHEC with these test results. DHEC received this report on December 29, 1989. In response, by letter dated April 9, 1990, DHEC requested additional testing to determine whether site rehabilitation was necessary and stated that, if site rehabilitation was necessary, DHEC would reimburse all reasonable costs of "this assessment" to Petitioner. DHEC's letter also requested that Petitioner submit an assessment report by June 7, 1991. By letter dated April 20, 1990, DHEC further requested Petitioner to describe the methodology of the 1989 soil testing and to provide a site map, to which Petitioner responded by letter dated May 16, 1990. Petitioner did not submit an assessment report to DHEC by June 7, 1991.

On behalf of Petitioner, SPATCO Environmental (SPATCO) prepared a January 6, 1995 report concerning its investigation at the Water's Way site. According to this report, the concentrations of petroleum constituents in soil borings at depths of 5' were below detection levels, except that one sample contained 2.1 ppb toluene; this concentration was below the State's risk-based screening levels (RBSL). Contrary to DHEC's assertions, these results indicated that there had been a release at the Water's Way site. Nevertheless, by letter dated March 24, 1995, DHEC informed Petitioner that no further assessment or rehabilitation was necessary at that time.

SPATCO similarly prepared a June 14, 1995 report concerning its investigation at the Jones site. According to this report, the highest concentrations of petroleum constituents at depths of 5' were as follows: below detection levels for benzene, 4.3 ppb toluene, 2.4 ppb ethylbenzene, and 10.0 ppb total xylenes; these concentrations were all below the State's RBSLs. Groundwater was encountered at a depth of 5'. The soil samples that contained these hydrocarbons originated from similar locations as the 1989 samples that revealed petroleum contamination. Based on these 1995 soil tests, DHEC concluded that there had been a release at the Jones site. Furthermore, DHEC conceded at the hearing that the 1995 soil sampling results confirmed the occurrence of the release discovered in 1989. On July 18, 1995, DHEC determined, however, that no further assessment or corrective action was warranted at that time.

Between 1993 and 1998, DHEC conducted compliance inspections of the USTs at the Jones and Water's Way sites. DHEC discovered compliance issues with the USTs at the Water's Way site, including lack of a drop tube,(3) failure to reconcile control records, and failure to measure water levels in the tanks. DHEC similarly discovered compliance issues at the Jones site, including lack of a drop tube, failure to reconcile inventory records, failure to test lines or perform tank gauging, and missing tightness tests for one year. In 1996, DHEC also issued a Notice of Violation at the Jones site for several compliance issues. Despite multiple compliance issues, the compliance inspections failed to reveal any evidence of leaks from the USTs at either site.(4)

In 1998, Petitioner closed the Jones and Water's Way sites by removing the USTs. SC&I Environmental (SC&I) prepared Petitioner's closure reports for these sites. Soil testing revealed increased concentrations of petroleum constituents at the two sites. The 1998 soil tests, however, were taken at different horizontal and vertical locations than the 1995 soil tests; for example, 1995 samples were taken at a depth of 5', and the 1998 samples were taken at a depth of 9'. Also, groundwater was not encountered during the 1998 sampling at the Jones site, as it was in 1995.

During the closure at the Water's Way site, Petitioner discovered that one of the USTs had a hole towards the top of one UST and both USTs were corroded. The closure report dated December 2, 1998 for the Water's Way site documented concentrations of petroleum constituents and other chemicals of concern (CoC) in excess of the RBSLs. The highest concentrations were as follows: 220,000 ppb benzene, 940,000 ppb toluene, 330,000 ppb ethylbenzene, 2,100,000 ppb xylenes and 200,000 ppb naphthalene. In 1998, however, there were only 3 soil samples taken in the vicinity of the pump island and dispenser; in contrast, in 1995, there were 4 soil samples from each end of the USTs. DHEC requested that Petitioner install a monitoring well at the Water's Way site.

During the closure of the Jones site, Petitioner similarly discovered that there was a hole at the top of one UST and both USTs were corroded. The closure report dated November 5, 1998 for the Jones site documented concentrations of petroleum constituents and other CoCs in excess of the RBSLs. The highest concentrations were as follows: less than 100 ppb benzene, 1,240 ppb toluene, 10,500 ppb ethylbenzene, 67,200 ppb total xylenes and 1,104 ppb naphthalene. Again, these soil samples were taken from different locations than the 1995 soil samples.

According to DHEC's witness, Art Shrader, increases of contaminants of 5% to 10% are common, but increases in the thousands indicates that a second release probably occurred. Mr. Shrader concluded that there was a subsequent release at both the Jones and Water's Way sites. Mr. Shrader, however, was not a registered geologist.

Fred Lyke of SC&I testified on behalf of Petitioner and was qualified as an expert hydrogeologist and petroleum hydrocarbon expert at the hearing. Mr. Lyke testified that other factors may contribute to the different sampling results. For example, the 1998 sampling implemented a new methodology referred to as the Encore method, and the Encore method yields higher contaminant concentrations due to decreased volatilization of liquids from the former method used in 1995. Mr. Lyke also stated that the 1995 and 1998 soil tests were taken at different depths, which could lead to different test results. Finally, he noted that the tank tightness tests did not reveal the occurrence of a release at either site between 1993 and 1998, suggesting that a pre-1993 release occurred at the sites.

Regarding the Jones site, Mr. Lyke opined that the 1998 contamination "most likely" originated from the older release. The nose leak detector indicated that there was at least some contamination in 1989. Similarly, the 1995 soil samples results revealed detectable levels of toluene, indicating that there had been at least one release as of 1995. Mr. Lyke concluded that the contamination probably originated from the release discovered in 1989. Coincidentally, DHEC's computer records indicate that a release was confirmed at the Jones site on December 29, 1989. Based on the record, there probably was no subsequent release between 1995 and 1998 at the Jones site.

Regarding the Water's Way site, Mr. Lyke testified that the 1989, 1995 and 1998 soil sampling were not inconsistent and that the contaminants discovered in each of these years could have been associated with one release. Although the soil samples were taken in different locations in 1995 and 1998, there was one soil sample taken in a similar area; in this sample, the levels of xylenes increased from below detection levels in 1995 to 110,000 ppb in 1998. Mr. Lyke testified that, although the data may support that there was a subsequent release after 1995, anything was possible, and it was not probable that there was such a subsequent release. The witness for DHEC similarly testified that the contamination documented in 1998 could have come from the old release, a continuing release, or a new release. Based on the record, I find that there was probably no subsequent release between 1995 and 1998 at the Water's Way site.

Although DHEC has determined that these sites qualify for reimbursement from the Superb account, DHEC has also determined that the $25,000 deductible, as required by S.C. Code Ann. § 44-2-130(A) (Supp. 1998), applies at each site. DHEC's determination was based on its theory that there was probably a subsequent release at both sites that were not reported during the "amnesty period," which extended from December 31, 1987 to June 30, 1993. According to DHEC, where there is a question as to whether there was a subsequent release, DHEC gives "the benefit of the doubt" to the owner or operator.



CONCLUSIONS OF LAW AND DISCUSSION

Based upon the foregoing Findings of Fact, I conclude, as a matter of law, the following.

A. Background

Pursuant to S.C. Code Ann. §§ 1-23-310 et seq. (Supp. 1998) and S.C. Code Ann. §§ 44-2-10 et seq. (Supp. 1998), the Administrative Law Judge Division has jurisdiction to hear this matter. DHEC is charged with administering the Superb Act. S.C. Code Ann. § 44-2-40(A) (Supp. 1998). In this case, Petitioner challenges DHEC's determination that a $25,000 deductible under the Superb Act, S.C. Code Ann. § 44-2-130(A) (Supp. 1988), applies to any site rehabilitation necessary at the Jones and Water's Way sites.(5)

The $25,000 deductible does not apply to releases at sites that were reported in writing during a statutory "amnesty period." See S.C. Code Ann. § 44-2-130(A) (Supp. 1988). By letter dated December 27, 1988, Petitioner submitted a written report to DHEC concerning releases from USTs discovered at the Jones and Water's Way sites. The Superb Act that was in effect at that time stated that: "[a]ll sites involving releases from underground storage tanks reported to the department any time from midnight on December 31, 1987 to midnight on December 31, 1989 are qualified sites for the expenditure of funds from the Superb Account, provided that a written report is filed with respect thereto." S.C. Code Ann. § 44-2-110 (Supp. 1988) (emphasis added). Accordingly, the "amnesty period" in effect on December 27, 1989 was December 31, 1987 though December 31, 1989. This statute was subsequently amended to provide for an "amnesty period" through June 30, 1993. See S.C. Code Ann. § 44-2-110 (Supp. 1998). The pivotal issues in this case are: (1) whether there was, in fact, a release prior to submitting the written report on December 27, 1989, which was during the "amnesty period"; and (2) whether there was a subsequent release that was not reported during the "amnesty period" from December 31, 1989 to June 30, 1993.

B. Burden of Proof

In civil cases, generally, the burden of proof rests upon the party who asserts the affirmative of an issue. 29 AM. JUR.2d Evidence § 127 (1994); 2 AM JUR.2d Administrative Law § 360 (1994); Alex Sanders, ET AL., South Carolina Trial Handbook § 9:3 Party with Burden, Civil Cases (1994). In the present case, Petitioner claims that the releases at issue at the Jones and Water's Way sites were reported during the "amnesty period" and that the $25,000 deductible, under S.C. Code Ann. § 44-2-130(A), should not apply. Therefore, Petitioner asserts the affirmative of the issue. Accordingly, Petitioner must prove, by a preponderance of the evidence, that the "amnesty period" applies to the releases reported at each site. See Anonymous v. State Board of Medical Examiners, 329 S.C. 371, 769 S.E.2d 17 (1998) (setting forth standard of proof as a preponderance of the evidence).(6)

The weight and credibility assigned to evidence presented at the hearing of a matter is within the province of the trier of fact. See S.C. Cable Television Ass'n v. Southern Bell Telephone and Telegraph Co., 308 S.C. 216, 417 S.E.2d 586 (1992). Furthermore, a trial judge, who observes a witness, is in the better position to judge the witness's demeanor and veracity and evaluate his or her testimony. See Mann v. Walker, 285 S.C. 194, 328 S.E.2d 659 (Ct. App. 1985); Marshall v. Marshall, 282 S.C. 534, 320 S.E.2d 44 (Ct. App. 1984); McAlister v. Patterson, 278 S.C. 481, 299 S.E.2d 322 (1982); Peay v. Peay, 260 S.C. 108, 194 S.E.2d 392 (1973).

"The qualification of a witness as an expert in a particular field is within the sound discretion of the trial judge." Smoak v. Liebherr-Am., Inc., 281 S.C. 420, 422, 315 S.E.2d 116, 118 (1984); S.C. Dep't of Highways and Pub. Transp. v. Manning, 283 S.C. 394, 323 S.E.2d 775 (1984). Where the expert's testimony is based upon facts sufficient to form the basis for an opinion, the trier of fact determines its probative weight. Berkeley Electric Coop. v. S.C. Pub. Service Comm'n, 304 S.C. 15, 402 S.E.2d 674 (1991); Smoak, supra. Further, a trier of fact is not compelled to accept an expert's testimony, but may give it the weight and credibility he determines it deserves. Florence County Dep't of Social Services v. Ward, 310 S.C. 69, 425 S.E.2d 61 (1992); Greyhound Lines v. S.C. Pub. Service Comm'n, 274 S.C. 161, 262 S.E.2d 18 (1980). He also may accept one expert's testimony over that of another. S.C. Cable Television Ass'n, supra.

C. Petitioner Reported Releases at the Jones and Water's Way Sites during an "Amnesty Period"

Given the plain language of S.C. Code Ann. § 44-2-110 (Supp. 1988), there were four requirements for an owner/operator to qualify under the Superb Act during the "amnesty period": (1) there had to be a UST, (2) there had to be a release from the UST, (3) the release had to be reported in a written report, and (4) the written report had to be submitted to DHEC during the time provided by statute (in this case, between December 31, 1987 and December 31, 1989). See S.C. Code Ann. § 44-2-110 (1988). In the present case, three of these requirements were squarely met. There were USTs at the Jones and Water's Way sites (requirement 1); Petitioner submitted a written report dated December 27, 1989 of releases at these sites (requirement 3); and Petitioner submitted this written report to DHEC during the "amnesty period" (requirement 4). The parties dispute, however, whether there was, in fact, a release at the Jones and Water's Way sites on or before December 27, 1989 that qualified during the "amnesty period."

Based on the evidence adduced at the hearing, I conclude that Petitioner demonstrated, by a preponderance of the evidence, that releases from USTs occurred at both the Jones and Water's Way sites on or before December 27, 1989. At both the Jones and Water's Way sites, the nose leak detector discovered at least some level of contamination in 1989. Petitioner's expert Fred Lyke, who was qualified at the hearing as a expert hydrogeologist and an expert in petroleum hydrocarbons, testified that it is unlikely that the contaminants detected at depths of 4'6" to 6' were non-petroleum contaminants, which could also be detected by the nose leak detector. The petroleum hydrocarbons in the 1989 samples at these sites were also detected by nose. Finally, as far as the Jones site, DHEC's witness, Art Shrader,(7) testified that the 1995 SPATCO report confirmed the 1989 release, and a DHEC computer record(8) reflected that the 1989 release was confirmed on December 29, 1989 (when DHEC received Petitioner's written report of releases). Thus, the weight of the evidence supports that there was a release of at least some contamination at each site on or before December 27, 1989.

DHEC argues that the releases at the Jones and Water's Way sites were not confirmed during the "amnesty period" and that Petitioner did not conduct additional testing to confirm the releases, as requested by DHEC in 1990, until 1995. By 1995, the "amnesty period" had expired, and DHEC claims that the $25,000 deductible must apply at both sites. DHEC's argument fails for two reasons: (1) there is no statutory language to support this argument; and (2) the 1989 soil sampling confirmed that a release of at least some contamination occurred at the Jones and Water's Way sites, regardless of whether site rehabilitation was necessary.

Instead, I conclude that it is the filing of the written report of the release that determines whether the "amnesty period" applies. In support, § 44-2-110 provides that: "[a]ll sites involving releases from [USTs] reported to [DHEC] any time from midnight on December 31, 1987 to midnight on December 31, 1989 are qualified sites for the expenditure of funds from the Superb Account, provided that a written report is filed with respect to it." S.C. Code Ann. § 44-2-110 (Supp. 1998) (emphasis added). The emphasis of the statute is clearly placed on the filing of the written report and whether a release occurred.

As stated above, Petitioner submitted a "written report" to DHEC of confirmed releases at both the Jones and Water's Way sites on December 27, 1989, which was during the "amnesty period." The fact that DHEC did not require site rehabilitation in 1989 (or 1995) does not negate the fact that a release occurred. Therefore, the $25,000 deductible does not apply to the releases discovered in 1989 at either site.

D. The "Amnesty Period" Does Not Apply to Subsequent Releases

At the hearing, DHEC argued that, even if there were releases at the sites on or before December 27, 1989, there were subsequent releases at the sites that were not reported during an "amnesty period" and would be subject to the $25,000 deductible. See S.C. Code Ann. §§ 44-2-110 & 130(A) (Supp. 1988 & Supp. 1998). In response, Petitioner argued that once a "site" qualifies under the Superb Act, it remains qualified in perpetuity, irrespective of subsequent releases at the site.

As indicated above, the Superb Act that was in effect in 1989 stated that: "[a]ll sites involving releases from underground storage tanks reported to the department any time from midnight on December 31, 1987 to midnight on December 31, 1989 are qualified sites for the expenditure of funds from the Superb Account . . . ." S.C. Code Ann. § 44-2-110 (Supp. 1988) (emphasis added). A 1994 amendment to the Superb Act stated as follows: "[o]nce [DHEC] determines that a site qualifies for compensation from the Superb Account, the site remains qualified, notwithstanding the issuance of a no action letter, until corrective action is undertaken and the owner or operator is compensated by the Superb Account." S.C. Code Ann. § 44-2-115 (Supp. 1995) (emphasis added). In 1995, § 44-2-115 was amended to read: "[o]nce the department determines that a release at a site qualifies for compensation from the Superb Account, coverage for that release shall continue to be provided, notwithstanding the issuance of a no action letter, until corrective action is undertaken and the owner or operator is compensated by the Superb Account." S.C. Code Ann. § 44-2-115 (Supp. 1996) (emphasis added). Based on a literal reading of this provision alone, prior to 1995, "sites" qualified under the Superb Act, whereas, beginning in 1995, "releases" qualified under the Superb Act.

Under Petitioner's interpretation, an owner/operator of a UST or the site would be immune from responsibility for the $25,000 deductible regardless of the number of subsequent releases at the site. In contrast, DHEC argued that the General Assembly's intent was never to qualify a piece of property for Superb eligibility in perpetuity, and that such a position would contradict all existing environmental law and authorize the tank or land owner to pollute the environment indiscriminately and endanger public health.

I find DHEC's reasoning persuasive. It is unlikely that the General Assembly intended that a UST or site owner could pollute the site after the site qualifies under the Superb Act and obtain full reimbursement for site rehabilitation costs regardless of future multiple releases. The 1995 amendment simply clarifies that reimbursement of site rehabilitation costs is limited to a particular release. "However clear the language of a statute may be, the court will reject that meaning when it leads to an absurd result not possibly intended by the legislature." Hamm v. S.C. Pub. Service Comm'n, 287 S.C. 180, 336 S.E.2d 470 (1985). To allow a site to qualify for reimbursement of site rehabilitation costs regardless of future releases is an absurd result. Consequently, the $25,000 deductible may apply for subsequent releases at the Jones and Water's Way sites that were not reported during an "amnesty period."

1. The $25,000 Deductible Does Not Apply at the Jones Site

DHEC contends that the increase in concentrations of petroleum constituents in soil samples between 1995 and 1998 establishes that a subsequent release probably occurred between 1995 and 1998. Mr. Lyke, an expert hydrogeologist and petroleum hydrocarbon expert, disagreed. Mr. Lyke testified that, in his opinion, the contamination that was reported in the 1998 closure report for the Jones site "most likely" originated from the release reported in 1989. Mr. Lyke relied on the facts that soils samples were taken at different horizontal and vertical locations in 1995 and 1998, different sampling methodologies were implemented in 1995 and 1998, and the USTs passed the tank tightness tests between 1993 and 1998. Based on the record before me, I conclude that the weight of the evidence supports that only one UST-related release occurred at the Jones site, and this release was reported to DHEC by letter dated December 27, 1989 during an "amnesty period." Consequently, the $25,000 deductible, under S.C. Code Ann. § 44-2-130(A) (Supp. 1988 & Supp. 1998), does not apply at the Jones site.

2. $25,000 Deductible Does Not Apply at the Water's Way Site

As with the Jones site, the weight of the evidence supports that only one UST-related release occurred at the Water's Way site, and this release was reported to DHEC by letter dated December 27, 1989. Mr. Lyke testified that the 1989, 1995 and 1998 soil samplings were not inconsistent and that the contaminants discovered in each of these years could have been associated with one release. Although the soil samples were taken in different locations in 1995 and 1998, there was one soil sample taken in a similar area; in this sample, the levels of xylenes increased from below detection levels in 1995 to 110,000 ppb in 1998. Mr. Lyke testified that, although the data may support that there was a subsequent release between 1995 and 1998, anything was possible, and it was not probable that there was a subsequent release. The witness for DHEC, who was not a qualified expert, similarly testified that, although he believed that there was a subsequent release, it could have come from the old release, a continuing release, or a new release. Given the expert testimony of Mr. Lyke and the uncertainty of DHEC's witness, I find that there was probably no subsequent release between 1995 and 1998 at the Water's Way site.

E. The Expert Testimony Presented by Petitioner Was Credible

This tribunal is cognizant of the dramatic increase in certain concentrations of petroleum constituents. For example, one soil sample at the Water's Way site contained non-detectable levels of xylene in 1995, while a soil sample in a similar area at that site contained 110,000 ppb xylene in 1998. The great disparity between these concentrations gives this tribunal pause to question the conclusions of Petitioner's expert that there was probably no second release at these sites. Nevertheless, this tribunal finds no basis to discredit the expert. Given the differences in soil sample locations, the different groundwater levels during the various soil samplings, and the passing of tank tightness tests between 1995 and 1998, there is reasonable support for the expert's conclusions that there was no subsequent release at either site.

In general, "expert opinion evidence is to be considered or weighed by the triers of the facts like any other testimony or evidence; the triers of facts cannot, and are not required to, arbitrarily or lightly disregard, or capriciously reject, the testimony of skilled witnesses, and make an unsupported finding contrary to the opinion." 32A C.J.S. Evidence § 727 (1955). Furthermore, "expert testimony is essential in cases which involve a subject of special technical science, skill, or occupation of which the members of the jury or the trial court are not presumed to be specially informed." 32A C.J.S. Evidence § 729 (1955). For example, the Supreme Court of South Carolina has addressed medical malpractice cases and stated that "the plaintiff must use expert testimony . . . unless the subject matter lies within the ambit of common knowledge and experience, so that no special learning is needed to evaluate the conduct of the defendant." Pederson v. Gould, 288 S.C. 141, 341 S.E.2d 633 (1986).

In the present case, the environmental issues are clearly complex and technical in nature. The conclusions of Petitioner's expert, Mr. Lyke, cannot be lightly disregarded or capriciously rejected. Given the reasonableness of Mr. Lyke's conclusions and the lack of contrary expert evidence, I find no reason to disregard or reject such conclusions based on the record before me. Therefore, I conclude that there was probably no subsequent release at either the Jones or the Water's Way sites.

F. Petitioner also May Not Be a Responsible Owner/Operator at the Water's Way Site

Neither Petitioner nor DHEC presented sufficient evidence to establish who is the owner or operator of the USTs at the Water's Way site. Under S.C. Code Ann. § 44-2-130(A) (Supp. 1998) (emphasis added), for releases reported after June 30, 1993, only " . . . an owner or operator or his agent is eligible for compensation for usual, customary, and reasonable costs incurred for site rehabilitation in excess of twenty-five thousand dollars . . . ."(9) Similarly, under 25 S.C. Code Ann. Regs. 61-92, § 280.60 et seq., only owners and operators of UST systems are responsible for responding to confirmed releases. At the hearing, Petitioner denied that it owned or operated the USTs at the Water's Way site. In response, DHEC argued that Petitioner must have owned the USTs because Petitioner represented to DHEC, both in a February 18, 1986 Notification of Underground Storage Tank in Operation and a December 27, 1989 letter, that Petitioner owned them. Copies of deeds, contracts or similar evidence, however, were not introduced into evidence at the hearing. Consequently, I cannot determine who is, in fact, the owner or operator at the Water's Way site.

The issue before this tribunal, however, is not whether Petitioner is the owner, operator or agent eligible for reimbursement of site rehabilitation costs under S.C. Code Ann. § 44-2-115 (Supp. 1998) or whether Petitioner is responsible to pay the $25,000 deductible under S.C. Code Ann. § 44-2-130(A) (Supp. 1988). Instead, the issue is whether the $25,000 deductible under S.C. Code Ann. § 44-2-130(A) (Supp. 1988) applies at the Water's Way site, irrespective of any responsibility or liability on the part of Petitioner. As to this issue, I have concluded above that there probably was no second release at the Water's Way site and that the $25,000 deductible does not apply at this site. Therefore, if it is determined that Petitioner qualifies as the owner or operator of the Water's Way site, then Petitioner would be eligible for reimbursement from the Superb Act of site rehabilitation costs but would not be responsible to pay the $25,000 deductible.

F. Conclusion

In sum, I find that the $25,000 deductible does not apply at either the Jones site or the Water's Way site. The weight of the evidence supports that there was only one release at each site, and each of these releases was reported to DHEC during the "amnesty period." Also, DHEC's policy is to give the "benefit of the doubt" to the owner or operator where there is a question as to whether there was a subsequent release. In this case, the owner or operator should be given the benefit of any doubt. If it is determined that Petitioner qualifies as the owner or operator of the Water's Way site, then Petitioner would not be responsible to pay the $25,000 deductible.

In reaching a decision in this matter, I am constrained by the record of evidence as developed by the opposing parties and by the applicable law. S.C. Code Ann. § 1-23-320(i) (Supp. 1998). This decision was rendered impartially, as a judge "ought to live, an eagle's flight beyond the reach of fear or favor, praise or blame, profit or loss." WILLIAM S. McFEELEY, FREDERICK DOUGLASS 318 (1991); Rule 501, S.C. App. Ct. R, Canon 3.

The final decision of an Administrative Law Judge in cases involving an agency that is governed by a board or commission authorized to exercise the sovereignty of the state is initially appealed back to the board or commission of the agency from which the case arose. S.C. Code Ann. § 1-23-610(A) (Supp. 1998). Hence, a party wishing to file an appeal must do so with the agency from which the case originated. On appeal, the scope of review is limited as follows.

[t]he scope of review of final ALJ decisions is essentially identical to the scope of review established in section 1-23-380. This scope of review applies to the circuit court or the applicable board or commission. Under S.C. Code Ann. § 1-23-610(D), the reviewing tribunal may affirm the decision or remand the case for further proceedings, or it may reverse or modify the decision if the substantive rights of the petitioner have been prejudiced because the finding, conclusion, or decision is:



a. in violation of constitutional or statutory provisions;

b. in excess of the statutory authority of the agency;

c. made upon unlawful procedure;

d. affected by other error of law;

e. clearly erroneous in view of the reliable, probative and substantial evidence

on the whole record; or

f. arbitrary or capricious or characterized by abuse of discretion or clearly

unwarranted exercise of discretion.



JEAN H. TOAL, SHAHIN VAFAI & ROBERT A. MUCKENFUSS, APPELLATE PRACTICE IN SOUTH CAROLINA 56-57 (1999), citing, S.C. Code Ann. § 1-23-610(D) (Supp. 1998) (emphasis added).

ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, IT IS HEREBY ORDERED that, pursuant to § 44-2-130(A), the $25,000 deductible shall not apply at either the Jones site (ID #02448) or the Water's Way site (ID #02349).

AND IT IS SO ORDERED.



JOHN D. GEATHERS

Administrative Law Judge



March 23, 2000

Columbia, South Carolina

1. At the hearing, Mr. Coffey, on behalf of Petitioner, claimed that he took responsibility for the testing and reporting of sites for other owners of USTs because he was more knowledgeable and capable of doing so than the owners. Mr. Coffey claimed that Water's Way was one of the sites where he took such responsibility.

2. Expert testimony indicated that it was unlikely that the electronic nose detector picked up contaminants other than petroleum at the depths sampled in 1989.

3. A drop tube is an aluminum or metal tube that extends from the fill pipe to almost the bottom of the UST. It stabilizes the liquid in the UST and provides for more accurate measurements of the liquids in the UST.

4. According to DHEC, despite the compliance issues, these sites were in "substantial compliance" with statutory and regulatory requirements and qualified for reimbursement under the Superfund Act. See S.C. Code Ann. § 44-2-115 (Supp. 1998).

5. According to DHEC, these sites were in "substantial compliance" with statutory and regulatory requirements and qualified for reimbursement of site rehabilitation costs (in excess of $25,000). See S.C. Code Ann. § 44-2-115 (Supp. 1998) (favoring eligibility under the Superb Act).

6. The preponderance of the evidence means "[t]he greater weight of the evidence" or "superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other." BLACK'S LAW DICTIONARY 1201 (7th ed. 1999). "The preponderance of the evidence means such evidence as, when considered and compared with that opposed to it, has more convincing force and produces in the mind the belief that what is sought to be proved is more likely true than not true." Sanders, supra, § 9:5 Quantum of Evidence in Civil Cases (1994), citing Frazier v. Frazier, 228 S.C. 149, 89 S.E.2d 225 (1955).

7. Mr. Shrader was not qualified as an expert at the hearing and was not a registered geologist.

8. The same DHEC document for the Water's Way site was not proffered at the hearing.

9. Neither party argued or presented evidence that Petitioner was an agent of the owner/operator.


Brown Bldg.

 

 

 

 

 

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