ORDERS:
CONSENT ORDER OF DISMISSAL
Contested Case
WHEREAS, Petitioner South
Carolina Department of Health and Environmental Control (the Department) and
Respondents George Burkett and George Burkett, d/b/a B-Quik (collectively
Burkett) have agreed to resolve the appeal of the Administrative Order 05-0737-UST;
WHEREAS,
the Parties hereby consent to the dismissal of the appeal with prejudice upon
the accomplishment of the terms agreed to herein; and,
WHEREAS, in the interest of
resolving this matter without the delay and expense of litigation, Burkett agrees
to the entry of this Consent Order and agrees that this Consent Order shall be
deemed an admission of Fact and Law.
NOW
THEREFORE, the Department and Burkett hereby agree that the following Findings
of Fact and Conclusions of Law and Order finally resolve all matters regarding
the above-referenced Administrative Order and the subsequent reported petroleum
release.
Findings of Fact
1. Burkett owns and operates underground storage tanks (USTs), UST Permit
Number 09425, as defined in the State Underground Petroleum Environmental
Response Bank Act, S.C. Code Ann. § 44-2-10 et seq. (2002 and Supp. 2005) and the Underground Storage Tank
Control (USTC) Regulations promulgated therefrom. The USTs are located at 460 Spencer Hall Road, Catawba, York County
2. On December 29, 1998, the Department was notified of a petroleum release
from Burkett’s USTs.
3. Subsequent reviews of the Department’s records revealed that Burkett has
failed to conduct a Tier I assessment of the release or submit to the
Department the corresponding report from such an assessment.
CONCLUSIONS
OF LAW
Based upon the
above Findings of Fact, the Department reaches the following Conclusions of
Law:
1. The
Department has authority under the State Underground Storage Petroleum Response
Bank (SUPERB) Act, S. C. Code Ann. § 44-2-10 (2002 & Supp. 2005) to issue
Orders requiring compliance and to assess civil penalties for violations of the
SUPERB Act and the USTC Regulations.
2. The
Department has determined that Burkett has violated the following USTC
Regulations:
a. 25A
S.C. Code Ann. Reg. 61-92.280.65(a) (Supp. 2005), in that Burkett has failed to
determine the extent of the petroleum release in accordance with a schedule
established by the Department;
b. 25A
S.C. Code Ann. Reg. 61-92.280.65(b) (Supp. 2005), in that Burkett failed to submit
information on the extent of the petroleum release in accordance with a
schedule established by the Department.
3. The
SUPERB Act, S. C. Code Ann. § 44-2-140(B) (2002), provides for a civil penalty
not to exceed ten thousand dollars ($10,000.00) per day of violation for any
person violating the Act or any rule, regulation, permit, permit condition,
final determination, or Order of the Department.
NOW,
THEREFORE, IT IS ORDERED, with the consent of the Parties that Burkett:
1. Agrees
to have an assessment of the site performed by a Department certified site
rehabilitation contractor and have an assessment report submitted to the
Department on or before October 10, 2006.
2. Agrees
to pay the SUPERB deductible of Twenty-Five thousand dollars ($25,000.00) to
the Department on or before October 10, 2006. The portion of the deductible
that Burkett shall pay may be reduced by the submission of documentation
acceptable to the Department showing that Burkett paid for the performance of
the following work:
a. Initial
Groundwater Assessment – actual cost up to One Thousand, Three Hundred
Ninety-five dollars ($1,395.00);
b. Tier
I Assessment – actual cost up to Eleven Thousand, Two hundred Thirty dollars
($11,230.00); and
c. Installation
of Granulated Activated Charcoal filter(s) – actual cost(s) up to Four
Thousand, Three hundred Seventy dollars ($4,370.00).
4.
Pursuant to the consent of the Parties, this matter is hereby dismissed
with prejudice subject only to enforcement of the terms hereinabove by the
Department or upon Petition by the Department to the Administrative Law Court.
AND IT IS SO
ORDERED.
______________________________
John
D. McLeod
Administrative
Law Judge
November
7, 2006
WE
CONSENT:
___________________________________
Stephen
P. Hightower, Esq.
Attorney
for Petitioner South Carolina
Department
of Health and Environmental
Control
___________________________________
Daniel
D. D’Agostino, Esq.
Attorney
for Respondents
George
Burkett and George Burkett d/b/a B-Quik |
