ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This
matter came before the Administrative Law Court (Court) pursuant to the appeal
by Dan Daniels, d/b/a Eagle Springs Water Company (Respondent) of Administrative
Order 06-060-DW issued by the South Carolina Department of Health and
Environmental Control (Department) citing Respondent for violations of the
State Primary Drinking Water Regulations. The Department seeks to impose a
fine of $5,000.00 on the Respondent. The Respondent contests both the finding
of the alleged violations and the imposition of the fine.
After proper notice, a contested case hearing was held on July 27, 2006, at the
Administrative Law Court.
ISSUES
PRESENTED
1. Did
Dan Daniels, d/b/a Eagle Springs Water Company violate the provisions of the State
Primary Drinking Water Regulations 24A SC Code Ann. Reg. 61-58.1 (B)(1)
(Supp. 2005) by:
a. By
placing a 40,000 gallon water tank on the site of his spring water supply
without having first obtaining a permit to construct a PWS?
b. By
placing drinking water distribution lines at the spring water supply site without
first obtaining a permit to construct a PWS?
c. By
burying approximately 45 feet of water distribution lines without first
obtaining a permit to construct a PWS?
2. What
sanction(s), if any, is appropriate?
FINDINGS
OF FACT
Having
observed the witnesses and exhibits presented at the hearing and taking into
consideration the burden of persuasion and the credibility of the witnesses, I
make the following findings of fact by a preponderance of the evidence:
Dan
Daniels is the owner and operator of Eagle Springs Water Company (Eagle
Springs), a public water system, located in Pageland, South Carolina. Eagle
Springs is involved in the business of bottling drinking water and operates his
bottling facility in or near the Town of Pageland in Chesterfield County. As the owner and operator of a public water system, the Respondent is subject to all of
the requirements of the State Drinking Water Act and Regulations. In addition
to the bottling facility, Respondent was in the process of establishing a facility
at the intersection of Brock Drive (Spring Water Site), for the collection of
spring water for use in Respondent's bottling operations. The spring water
facility is located several miles from the bottling facility.
On
September 15, 2005, the Department staff made an on-site routine inspection of
the permitted monitoring wells and irrigation wells at the Spring Water Site.
While there, the Department observed that a 40,000 gallon steel water tank had
been installed at the site onto a concrete pad with fence posts around it.
The 53,000 pound tank was placed on the pad to avoid having to again bring in a
crane to the area and because the sheer weight of the tank would have resulted
in it sinking into the ground.
On
September 22, 2005, the Department again inspected the Spring Water Site. The large
steel tank and a concrete pad were still in place. Additionally, several
plastic water lines had been rolled out onto the ground between the tank and
the site where the proposed well was to be located. At that time, Respondent
had not obtained a construction permit from the Department for this property.
Mr.
Daniels arrived shortly after the Department’s staff and discussed the activity
at the site with them. Mr. Daniels was informed that the pouring of the
concrete pad constituted unauthorized construction. During the meeting, a
trenching contractor arrived. Respondent was informed that if he allowed the
contractor to dig the trenches for the waterline, it would be considered construction
and that he did not have a construction permit. Respondent then asked if his
contractor could just dig the trenches since he was there and, as an
accommodation to Mr. Daniels, the Department’s staff approved the digging of a
trench from the proposed well site up to the area adjacent to the storage tank.
He was, nevertheless, expressly told by the Department’s staff that he should
not place any of the piping into the trench nor was he to cover the trench. Prior
to departing, Mr. Daniels was further informed by the DHEC staff that he should
communicate with DHEC if any further activities or changes were to be made on
the site.
Subsequent to the DHEC
September 22, 2005 inspection, the ground around the concrete pad and the road
adjacent thereto began to erode severely, interfering with vehicular traffic
and access to the site. As a result, Mr. Daniels placed an eight (8) inch pipe
into approximately forty-five (45) feet of ground adjacent to the storage tank
and backfilled over this pipe with dirt and gravel. Inside that pipe, he
placed three (3) 1.25 inch plastic water lines, one line as an unpermitted
irrigation line, one line intended to be used in the future as the water
transmission line from the intended spring water well, and one line as a
spare. He then mailed a letter to the Department explaining that he had buried
approximately 45 feet of the 1.25 inch black roll pipe in order to keep it from
being damaged by trucks on the site and in response to soil problems at the
site. He further set fort that it was his intent to “abide by your [DHEC's]
request and …simply notify your department of any changes that may be being
made.” After, Mr. Daniels was informed that the Department objected to his
actions, he promptly pulled the piping out the pipe conduit in which it lay.
Furthermore, neither the storage tank located on the Spring Water Site nor any
of the three water lines placed into the ground by Mr. Daniels were ever
connected to each other or any potable water source.
The Department does not
consider the staging of materials on-site prior to the issuance of a permit to
be construction. Nevertheless, rather than simply seek to rectify the concerns
it had about the placement of a potential water transmission line, the
Department instituted an enforcement proceeding in which it found that Respondent
violated the State Safe Drinking Water Act by:
a. Placing of a 40,000
gallon water tank onto a concrete pad at the site prior to obtaining a
construction permit; and
b. Placing a potential drinking water line into a trench and placing cover over the line, which was
construction without a permit.
The Department
thus ordered Respondent to remove the drinking water line and pay a civil
penalty in the amount of five thousand dollars ($5,000.00). The Department
also ordered Respondent to file an application for a construction permit.[4]
DISCUSSION
AND CONCLUSIONS OF LAW
Based upon the
foregoing Findings of Fact, I conclude the following as a matter of law:
General
Conclusions
1. The Administrative Law Court has jurisdiction over this contested case matter pursuant to S.C.
Code Ann. § 1-23-600(B) (Supp. 2005) and 25 S.C. Code Ann. Regs. 61-72, (2005).
In contested case hearings, the Administrative Law Judge is the fact finder. Brown
v. S.C. Dep’t of Health and Envtl. Control, 348 S.C. 507, 560 S.E.2d 410
(2002). In weighing the evidence and deciding the merits of the case, the
Administrative Law Judge must make findings of fact by a preponderance of the
evidence. Anonymous (M-156-90) v. State Bd. of Medical Examiners, 329 S.C.
371, 496 S.E.2d 17 (1998). Furthermore, the Department as an agency seeking to
enforce an administrative order and the assessment of a civil penalty bears the
burden of proof. ALC Rule 29(b); see also Nat’l Health Corp.
v. S.C. Dep’t of Health and Envtl. Control, 298 S.C. 373, 380 S.E.2d 841
(Ct. App. 1989).
2. The
facility contemplated by the Respondent to be constructed at the Spring Water
Site would be a “public water system” pursuant to S.C. Code Ann. § 44-55-20
(13) (2002). The State Safe Drinking Water Act (Drinking Water Act) § 44-55-10 et seq. (2002 & Supp. 2005) sets forth the general criteria for the
design and construction of any public water system in South Carolina. In
addition, the State Primary Drinking Water regulation was also promulgated
pursuant to the Drinking Water Act. That Regulation establishes the procedures for obtaining a construction and
operational permit under the Act. See 24A S.C. Code Ann. Reg. 61-58 et
seq. (Supp. 2005). The Department is charged with the administration of
the Drinking Water Act and is further authorized to administer penalties for
violations of the Act and its regulations. S.C. Code Ann. §§ 44-55-80 and
44-55-90 (2002).
The
Department contends that the Respondent violated 24A S.C. Code Ann. Reg. 61-58.1(B)(1)
(Supp. 20005) by 1) placing a 40,000 gallon water tank on a concrete pad in its
permanent location and 2) by burying approximately 45 feet of drinking
waterline without having first applied for and obtained a construction permit
from the Department. It seeks a civil penalty of five thousand dollars
($5,000.00) for those violations.
3. Inherent
in and fundamental to the powers of an Administrative Law Judge, as the trier
of fact in contested cases under the Administrative Procedures Act, is the
authority to decide the appropriate sanction when such is disputed. Walker
v. S.C. ABC Comm’n, 305 S.C. 209, 407 S.E. 2d 633 (1991). The
Administrative Law Judge, as fact-finder, must impose a penalty based on the
facts presented at the contested case hearing. To that end, an Administrative
Law Judge must consider relevant evidence presented in mitigation. Mitigation
is defined as a lessening to any extent, great or small. It may be anything
between the limits of complete remission on one hand and a denial of any relief
on the other. In a legal sense, it necessarily implies the exercise of the
judgment of the court as to what is proper under the facts of the particular
case. 58 C.J.S. Mitigation p. 834, 835 (1948).
“Construction"
of a PWS
4. S.C. Code
Ann. § 44-55-40(A) (2002) provides that “[b]efore the construction, expansion,
or modification of any public water system, application for a permit to
construct must be made to, and a permit to construct obtained from, the
department.” See also 24A S.C. Code Ann Reg. 61-58.1(B)(1)
(Supp. 2005). S.C. Code Ann. § 44-55-20 (4) defines a “construction permit” as
“a permit issued by the department authorizing the construction of a new public
water system or the expansion or modification of an existing public water
system.” “Failure to obtain a permit to construct is a violation of the Act
(Code Section 44-55-40) and is subject to an enforcement action by the
Department.” 24A S.C. Code Ann Reg. 61-58.1(B)(12) (Supp. 2005)
However, neither
Article 1, Chapter 55 of Title 44 nor Regulation 61-58 et. seq. define
what construction is or when it is deemed to have commenced.
The cardinal rule of statutory construction is to ascertain and effectuate the
intent of the legislature. Charleston County Sch. Dist. v.
State Budget and Control Bd., 313 S.C. 1, 437 S.E.2d 6 (1993). The text of
the statute is the best evidence of the legislative intent of the statute. Knotts
v. S.C. Dep’t of Natural Res’s, 348 S.C. 1, 558 S.E.2d 511 (2002).
However, when the meaning of a statute is ambiguous, the court may construe its
terms in accordance with the rules of statutory construction. Wigfall v.
Tideland Utilities, Inc., 354 S.C. 100, 580 S.E.2d 100 (2003). Furthermore,
“[w]here a word is not defined in a statute, our appellate courts have looked
to the usual dictionary meaning to supply its meaning.” Lee v. Thermal
Engineering Corp., 352 S.C. 81, 91-92, 572 S.E.2d 298, 303 (Ct. App. 2002).
“Construction”
is defined, in relevant part, as the “process, art, or manner of constructing
something.” Merriam-Webster Online Dictionary (2006). “Construct” is also
defined, in part, as “make(ing) or form(ing) by combining or arranging parts or
elements.” Merriam-Webster id. These definitions, however, are
of little assistance in this matter. In other words, under these definitions any activity directed toward the ultimate end (the construction of a PWS) might
well be construed as “construction.” Nevertheless, DHEC staff has reasonably
concluded that certain activities are not “construction” within the meaning of
the regulation and statute. For instance, erecting a fence or “pre-staging” of
materials on the potential site of a PWS is rightfully not construed as
“construction.” Furthermore, the Department does not consider the off-site
assembly, preparation, or repair of a component for use in a PWS as
“construction” of a PWS.
Staging
of Water Tank and Pouring Pad
5. I find that
the placing of the water tank on the site was clearly simply staging the
material.
The purchase and delivery of water tank in and of itself is not prohibited by
any statute or regulation. Accordingly, Respondent could have purchased and
placed the tank anywhere but the proposed site without being cited for
constructing a PWS. He could have also performed preparatory work on the tank
anywhere but the proposed site without being cited for constructing a PWS.
Therefore, I do not find that the delivery of the tank or any work upon the
tank constituted construction of a PWS.
In addition, the simple
pouring of a concrete pad in general is certainly a lawful activity. Though
the pouring of a pad is construction in the general sense, the question remains
as to whether it was “construction” of a PWS in this case. The Department did
not argue that the installation of a concrete pad alone was a violation of the
Drinking Water Act or regulations. Rather, the Department contends that, the
placement of a water tank upon the concrete pad with the intention that it
would be used in a water system constitutes a violation because the tank was placed
in a permanent location. In other words, the placement of a water tank in an
intended permanent location as a part of a future water system is construction
of a PWS.
On the other hand, Mr.
Daniels explained that the pad was necessary to keep the 53,000 pound tank from
sinking into the ground. Thus, it was necessary to insure that a properly
staged item was not damaged. Moreover, there was no evidence that the pad,
itself, was improperly constructed in accordance with Regulation 61-58 et seq. or that the simple pouring of a concrete pad could create any potential
for harm to the public. In fact, if the integrity of the pad is unacceptable
or the Department can not suitably determine if the pad was properly
constructed, it should just require that a new pad be constructed in the same
or a different location. Thus, I find the pouring of a concrete pad and the
placement of the water tank upon it to be an action that warrants only remedial
consideration rather than the imposition of a civil penalty.
Placing
& Burying Water Distribution Lines
6. The
analysis in regard to this alleged violation is parallel to the reasoning in
regard to the delivery and placement of the water tank at the potential PWS
site. It is clear that at the time of the inspection on September 22, 2005,
the water lines had been placed upon the ground of a potential PWS between the
Respondent’s well and the storage tank. As noted above, the Department does
not object to the staging of materials and, in particular, to the delivery of
water lines to a PWS site prior to obtaining a construction permit. Here, the
coiled water lines were delivered and laid out on the ground along a potential
path in which they would be placed. I do not find that by simply laying the
lines along a potential path in which they may be placed constitutes the
construction of a PWS, especially in light of the fact that Respondent, who is
familiar with this process, knew that the wells at the site may never be
approved. Furthermore, I discern no real distinction between the water lines
remaining coiled in rolls rather than being laid out on the ground. There was
also no evidence that laying out the line rather than leaving them coiled could
create any potential for harm to the public.
Nevertheless,
Respondent's burial[9] of approximately 40 to 45 feet of water line does constitute
“construction" within the meaning of the regulatory laws. Respondent
intended that one of the three water pipes which he inserted into the buried
eight inch pipe would eventually be used as a potable water distribution line.
In other words, even though Respondent was reasonably seeking to protect his
property and prevent erosion, his actions were no longer in the realm of
staging for a PWS, but rather began the process of actually building a PWS.
This
violation is nonetheless quite minor. The purpose of the standards regulating
the Respondent's conduct is to “protect the health of the public and to ensure
proper operation and function of public water systems.” See 44-55-30. Here,
Respondent placed the pipe into the conduit after the Department's agents
specifically instructed him that placing water lines into the trenches would be
a violation of the regulations. On the other hand, the only implicated regulatory
concern set forth by the Department as a result of Respondent’s actions is the
need to verify that the water lines meet the appropriate specifications and standards under Regulation 61-58.4 (D)(11) (Supp. 2005) for the
construction and installation of mains that must be followed in burying water
lines. Those concerns were rectified by Respondent’s removal of the water line
from the conduit. Furthermore, Regulation 61-58.4 sets forth specific disinfection
procedures for all new water lines or mains before operation of a PWS can
begin. In fact, in accordance with those procedures, 24A S.C. Code Ann Reg.
61-58.4 (D)(2) (Supp. 2005) provides that:
Water mains which have been used previously for conveying potable water may be reused provided they meet the
above standards and have been thoroughly cleaned and restored practically to
their original condition.
(emphasis
added).
Therefore, under these circumstances I can discern no
palpable danger to anyone as a result of Respondent's actions. None of the buried
lines were ever connected to any potable water source. Moreover, the
requirements of existing regulations clearly prevent the potential for harm to
the public. In addition, the violation was not discovered by the Department
but based upon Mr. Daniels’ notification to the Department that he had placed
the water line in the conduit. Afterwards, upon learning of the Department's
objection to his actions, Mr. Daniels immediately removed the water line by
simply pulling it out of the conduit. It is also clear that the Respondent’s actions
were not undertaken with any desire to avoid the Department’s supervision and
regulation. As set forth above, the very reason the Department initially went
to Respondent’s property was because he was seeking a construction permit for a
PWS. Mr. Daniels also believed his actions in staging the water tank and
burying the lines was justified based upon the results of an enforcement action
against Hickory Springs Water Company in 2004. In the Hickory Springs
enforcement action, the Department found that the company violated the State
Primary Drinking Water regulations because it connected a drinking waterline to
a water tank on a concrete pad without a construction permit. Mr. Daniels thus
believed that staging the water tank and burying the lines was acceptable since
he did not connect the drinking water line to the water tank at the Spring
Water Site.
Therefore, I find that a fine of only $150 is warranted for this violation.
ORDER
Based
upon the foregoing Findings of Fact and Conclusions of Law,
IT
IS HEREBY ORDERED that a penalty of One Hundred Fifty (150.00) Dollars is
imposed against the Respondent.
AND IT IS SO
ORDERED.
__________________________________
Ralph
King Anderson, III
Administrative
Law Judge
October 10, 2006
Columbia, South Carolina
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