ORDERS:
FINAL ORDER AND DECISION
This matter is before this tribunal for a contested case hearing pursuant to S.C. Code Ann. §§ 1-23-310 et seq. (Supp. 1999)
and 25 S.C. Code Ann. Regs. 61-72.201 (Supp. 1999) on alleged administrative violations. The South Carolina Department
of Health and Environmental Control (Department) alleges that Respondent operated a solid waste management facility
without a permit from the Department, in violation of S.C. Code Ann. §§ 44-96-290(A) & -440(C) (Supp. 1999) and 25A
S.C. Code Ann. Regs. 61-107.11, Pt. IV(B)(1) (Supp. 1999). The Department also alleges that Respondent conducted
open dumping of construction, demolition and land clearing debris, in violation of 25A S.C. Code Ann. Regs. 61-107.11, Pt.
IV(A)(8).
For the alleged violations, the Department seeks a total penalty of $14,600 against Respondent. Respondent disputes the
Department's allegation of violations and asserts that the penalty is excessive. After notice to the parties, a hearing of this
matter was conducted on May 22, 2000 at the Administrative Law Judge Division.
Based upon the following Findings of Facts and Conclusions of Law, this tribunal concludes that Respondent operated a
solid waste management facility without a permit from the Department, in violation of S.C. Code Ann. §§ 44-96-290(A) & -440(C) (Supp. 1999) and 25A S.C. Code Ann. Regs. 61-107.11, Pt. IV(B)(1) (Supp. 1999), and that Respondent conducted
open dumping of construction, demolition and land clearing debris, in violation of 25A S.C. Code Ann. Regs. 61-107.11, Pt.
IV(A)(8). This tribunal further concludes that the amount of the penalty sought by the Department is reasonable and
supported by the evidence. Therefore, the Department shall impose a penalty of $14,600 on Respondent.
FINDINGS OF FACT
Having carefully considered all testimony, exhibits(1), 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:
1. At all times relevant to this matter, Respondent Jim Miller was the owner of certain property off of Five Notch Road in
Edgefield, South Carolina (site). The site is adjacent to property of Mr. Jim Purcell. Respondent was using the site for
disposal of construction and demolition debris (C & D debris) and land-clearing debris (LC debris). Respondent also
allowed other waste haulers to have access to the site for disposal of debris.
2. The site was never permitted by the Department for the disposal of C & D debris or LC debris.
3. On February 22, 1996, the Department received a complaint regarding unpermitted dumping on the site. A compliance
inspector with the Department inspected the site on the same date and subsequently notified Respondent by letter dated
February 23, 1996 that the unpermitted disposal activities at the site were in violation of the Pollution Control Act and the
South Carolina Solid Waste Policy and Management Act of 1991.
4. On March 4, 1996, the Department sent to Respondent a form to be completed by him (1) to indicate his notice of intent
to operate a land-clearing and yard trash landfill; and (2) to comply with applicable regulatory standards. Respondent never
returned a completed Notice of Intent form to the Department.
5. On April 15, 1998, the Department received a complaint concerning improper solid waste disposal activities at the site. A
compliance inspector with the Department inspected the site on April 16, 1998 and confirmed that unpermitted C & D debris
disposal activities were being conducted at the site.
6. On May 1, 1998, the Department sent to Respondent a letter requesting him to take immediate steps to remove the debris
and to contact the Department within the following ten days.
7. On May 8, 1998, Department personnel met with the adjacent property owner, Mr. Jim Purcell, at the site. Department
personnel observed land clearing and yard trash debris which had been placed on the side of a very steep slope. The debris
had spread up to Mr. Purcell's property line and had spilled onto Mr. Purcell's property.
8. On May 13, 1998, Respondent contacted compliance inspector Donna Sightler and advised her that he had removed the
land clearing and yard trash debris, as requested. Ms. Sightler later learned that the debris had not been removed.
Therefore, on May 26, 1998, Ms. Sightler sent a letter to Respondent advising him that he had until July 2, 1998 to submit a
landfill closure plan to the Department.
9. On July 16, 1998, Department personnel met with Respondent and Respondent's neighbors, Mr. Jim Purcell and Ms.
Susan Kasten, to determine if anything could be done to bring the site into compliance with applicable regulations short of
removal and off-site disposal of the material. At this meeting, Department personnel observed the site and noticed that
Respondent had continued to dump debris on the site. Respondent acknowledged responsibility for dumping at the site and
indicated that other haulers continued to have access to the site after he received instructions from the Department to cease
disposal and to secure the site from further dumping (Respondent had the entrance to the property secured with a locked
cable, as earlier requested by the Department, but he had given keys to the lock to other haulers for access to the site).
10. At the July 16, 1998 meeting, no agreement could be reached between those present on an appropriate disposition.
Therefore, on August 3, 1998, Ms. Sightler referred the case to the Department's Solid Waste Compliance section and
requested that the matter be referred to the Solid Waste Enforcement section.
11. Upon receiving the referral from Ms. Sightler, Environmental Health Manager, Cathy Montgomery, reviewed the
documentation prepared by the compliance inspectors and verified that Respondent had been properly notified of the
violations and had been given ample opportunity to correct the violations. Ms. Montgomery then referred the matter to the
Enforcement section on August 5, 1998.
12. After receiving and reviewing the Enforcement Referral, Environmental Health Manager, Pete Stevens, issued a Notice
of Violation to Respondent on November 17, 1998. The Notice set forth the specific violations and invited Respondent to
attend an enforcement conference to discuss the violations. On December 9, 1998, Mr. Stevens met with Respondent in the
enforcement conference to discuss the violations.
13. On January 20, 1999, Ms. Montgomery visited the site to determine options for corrective action. At that time, Ms.
Montgomery observed a large area of LC debris mixed with miscellaneous C & D debris. The debris appeared to be up to
thirty feet in depth at certain points in the filled area. There was some dirt cover on top of the filled area and deep cracks in
the cover at certain points of the filled area. The filled area appeared to be slipping or separating and was in danger of giving
way and falling onto property of the adjacent landowner.
14. On February 11, 1999, Mr. Stevens sent a letter to Respondent requesting him to submit a written site closure plan
within the following thirty days.
15. On March 16, 1999, Respondent submitted to the Department a proposal to grind and compost the debris on the site.
On March 18, 1999, Mr. Stevens sent a letter to Respondent notifying him that the site did not meet the requirements for a
composting and wood chipping facility and could not be registered as such. Mr. Stevens advised Respondent that closure of
the landfill on the site must be in accordance with Solid Waste Regulation 61-107.11.
16. The Department calculated the economic benefit that Respondent derived from his unpermitted landfill operation to be
approximately $78,000. The Department's engineers determined that Respondent would have paid more than $78,000 in
transportation and disposal costs if the material had been taken to a permitted landfill.
17. On December 16, 1999, the Department issued Administrative Order 99-19-SW, citing Respondent for violation of the
South Carolina Solid Waste Policy and Management Act of 1991, and the regulations promulgated thereunder, for
operating a solid waste management facility without a permit and conducting open dumping of construction, demolition and
land-clearing debris.
18. The Department assessed a base penalty of $2,600 for open dumping, based on the potential for harm and Respondent's
deviation from requirements, and an additional $12,000 for avoided permitting costs under an economic benefit analysis.
The avoided permitting costs include costs for completion of a permit application, engineering costs for preparation of
construction plans and specifications, and costs involved with an outline of a financial assurance mechanism. Under the
economic benefit portion of the penalty, the Department chose to fine Respondent only for costs he would have incurred if
he had obtained a permit, instead of the $78,000 in transportation and disposal costs Respondent would have incurred if he
had taken the debris to a permitted landfill.
CONCLUSIONS OF LAW
A. Jurisdiction and Burden of Proof
1. Pursuant to S.C. Code Ann. § 1-23-320 (Supp. 1999) and 25 S.C. Code Ann. Regs. 61-72.201(A) (Supp. 1999), the
Administrative Law Judge Division has jurisdiction to hear this matter.
2. As a state-wide administrative tribunal authorized to hear evidence and adjudicate contested case hearings, the
Administrative Law Judge Division is the fact finder in this matter for purposes of administrative and judicial review. See Lindsey v. S.C. Tax Comm'n, 302 S.C. 504, 397 S.E.2d 95 (1990).
3. In civil cases, generally, the burden of proof rests upon the party who asserts the affirmative of an issue. 2 Am. Jur. 2d Administrative Law § 360 (1994); Alex Sanders, et al., South Carolina Trial Handbook § 9:3 Party With Burden, Civil Cases (1999). The Department is the party asserting the affirmative in this case; therefore, the Department must prove by a
preponderance of the evidence that Respondent unlawfully operated a solid waste management facility without a permit from
the Department and that Respondent illegally conducted open dumping of C & D debris and LC debris. See Anonymous v.
State Bd. of Medical Examiners, 329 S.C. 371, 796 S.E.2d 17 (1998) (standard of proof in an administrative proceeding is
the preponderance of the evidence).(2)
4. 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).
B. Solid Waste Laws
5. No person shall operate a solid waste management facility without a permit from the Department. S.C. Code Ann. § 44-96-290(A) (Supp. 1999); 25A S.C. Code Ann. Regs. 61-107.11, Pt IV(B)(1) (Supp. 1999).
6. S.C. Code Ann. § 44-96-290(D) (Supp. 1999) requires the Department to promulgate regulations for the permitting of
solid waste management facilities.
7. S.C. Code Ann. § 44-96-440(C) (Supp. 1999) provides that it shall be unlawful for any person to fail to comply with
Article 2 of Chapter 96 of Title 44 of the South Carolina Code and any regulations promulgated pursuant to this article.
8. Open dumping of construction, demolition and land clearing debris is specifically prohibited by 25A S.C. Code Ann. Regs.
61-107.11, Pt. IV(A)(8) (Supp. 1999).
9. Respondent violated S.C. Code Ann. § 44-96-290(A) (Supp. 1999) and 25A S.C. Code Ann. Regs. 61-107.11, Pt.
IV(B)(1) (Supp. 1999) by operating a solid waste management facility without a permit from the Department
10. Respondent violated 25A S.C. Code Ann. Regs. 61-107.11, Pt. IV(A)(8) by engaging in open dumping of construction,
demolition and land clearing debris.
11. Respondent violated S.C. Code Ann. § 44-96-440(C) (Supp. 1999) by failing to comply with Article 2 of Chapter 96 of
Title 44 of the South Carolina Code and the regulations promulgated pursuant to this article.
C. Penalties
12. S.C. Code Ann. § 44-96-450(A) (Supp. 1999) authorizes the Department to impose reasonable civil penalties established
by regulation, not to exceed ten thousand dollars for each day of violation, for violations of the provisions of Article 2 of
Chapter 96 of Title 44 of the South Carolina Code, including any order, permit, regulation, or standard.
13. It is a generally recognized principle of administrative law that the fact-finder has the authority to determine an
appropriate administrative penalty, as established by the legislature, after the parties have had an opportunity for a hearing on
the issues. See, e.g., Walker v. S.C. ABC Comm'n, 305 S.C. 209, 407 S.E.2d 633 (1991).
14. A penalty of $14,600 is reasonable and supported by the evidence.
15. Respondent must fully comply with the Department's Administrative Order 99-19-SW. 16. Pursuant to ALJD Rule
29(C), issues raised in the proceedings but not addressed in this Order are deemed denied.
ORDER
Based upon the foregoing Findings of Fact, and Conclusions of Law,
IT IS HEREBY ORDERED that Respondent Jim Miller shall pay a penalty of $14,600 to the Department within thirty
days of the date of this Order.
IT IS FURTHER ORDERED that Respondent shall fully comply with the Department's Administrative Order 99-19-SW.
AND IT IS SO ORDERED.
______________________________
JOHN D. GEATHERS
Administrative Law Judge
June 13, 2000
Columbia, South Carolina
1.
After the hearing, Petitioner filed with this tribunal several documents, including photographs and descriptions, that were not admitted into
evidence. In response, the Department objected to the admissibility of these documents for several reasons, including that there was no
authentification of these documents, certain documents were irrelevant, and there was no opportunity to rebut the evidence contained in the
documents. Consequently, the record was not reopened, and these documents were not admitted into evidence. See United States v. Bayer, 331
U.S. 532, 537-38 (1947).
2. The preponderance of the evidence is "[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 (1999) (citing Frazier v. Frazier, 228 S.C. 149, 89 S.E.2d 225
(1955)). |
