ORDERS:
ORDER
This matter came before me on a Motion for Temporary Injunction filed by Exide Corporation (Exide). In its Motion,
Exide seeks to have this court enjoin the South Carolina Department of Health and Environmental Control (DHEC or
Department) from performing a removal action at the Westgate Trailer Park (the Site) alleging that such action would be in
violation of Administrative Consent Order 99-32-HW. A hearing was held on this matter on August 25, 1999, where both
parties were given an opportunity to be heard. On August 26, 1999, after a conference call was held during which the
parties presented further arguments, I issued a verbal order finding that the Administrative Law Judge Division did not have
jurisdiction to enforce the Consent Order between the parties. This Order memorializes that Decision to deny the Motion for
Temporary Injunction.
On August 5, 1999, Exide and DHEC entered into Consent Order 99-32-HW addressing removal of allegedly contaminated
soil at the Westgate Trailer Park in Greer, South Carolina. Before the Consent Order was negotiated, DHEC, at its own
expense, planned to perform the soil removal and to seek recovery of its costs from potentially responsible parties, including
Exide. The Consent Order provided that Exide must: (1) submit an approved work plan to DHEC by August 10, 1999, and
(2) begin implementation of the approved Work Plan by August 16, 1999. If Exide failed to meet these deadlines, the
Consent Order would be void ab initio. Exide met both of these deadlines.
On August 11, 1999, however, Exide's contractor learned that DHEC's contractor had not prepared the Stormwater
Management/Sediment Control (SMSC) Plan for the site, which is required under state law before certain soil disturbing
activities may be performed. Furthermore, on August 16, 1999, DHEC notified Exide that DHEC would also require an
NPDES permit for stormwater associated with industrial activity before soil removal could be performed. This permit
requirement had not been discussed or suggested by DHEC prior to that date, and DHEC's contractor had not prepared the
Stormwater Pollution Prevention Plan necessary to obtain the permit.
Exide's contractor finished its site characterization work on August 17, and informed the DHEC project manager that
because of the unavailability of the SMSC Plan and the newly-identified requirement for an NPDES permit, the start of
actual excavation would be delayed by one week, or until August 30, 1999. On August 19, 1999, the contractor notified
DHEC in writing that soil removal would begin on August 30, 1999. The letter further noted that the projected completion
date was still within the approved schedule.
On August 23, 1999, the Department notified the Petitioner that it would grant an extension only until August 26, 1999, for
the implementation of land disturbing activities. The Petitioner responded on August 23, 1999, that it could not be on-site to
perform these activities until August 30, 1999, even if it had the necessary permits, because it could not mobilize the
necessary equipment until August 30, 1999. The Department responded by verbally notifying the Petitioner on August 23,
1999, and by letter the next day, that it would begin the removal action on or before August 26, 1999. On August 25, Exide
filed a Request for a Contested Case Hearing with the DHEC Board and this Motion for Temporary Injunction in the ALJ
Division.
DHEC argues that it seeks to protect the residents of the Trailer Park, who are low-income, transient persons, from the
effects of elevated lead levels in the soil. However, both parties acknowledge that the controversy over the appropriate soil
cleanup level has gone on for almost three years, including a three-month period of time during which DHEC referred the
case to EPA and then took it back after EPA informed DHEC it had reached an agreement with Exide for the remediation of
the Site. As DHEC emphasized in the hearing in this case, it has the authority under the South Carolina Hazardous Waste
Management Act (SCHWMA) and the Comprehensive Environmental Response, Compensation, and Liability Act
(CERCLA) to conduct a removal action where there has been a release or threatened release of a hazardous substance into
the environment and thereafter seek recovery of its response costs in Federal or State Court once the work is complete. See
S.C. Code Ann. Section 44-56-200 (Supp. 1998). However, given the length of time already spent without any action taken
by DHEC to clean up the soil at this site, there does not appear to be a valid concern on DHEC's part for taking immediate
action at the site. Therefore, under these circumstances, DHEC's abrupt decision that it will not allow a delay of one week
is certainly questionable.
Nevertheless, it appears to this court that this action is essentially one based on the consent agreement between the parties,
which is in the nature of a contract. The appropriate remedy, therefore, is to seek enforcement of the consent order in circuit
court. The Motion for Temporary Injunction is therefore denied.
________________________________
Ralph King Anderson, III
Administrative Law Judge
September 10, 1999
Columbia, South Carolina |
