SC Administrative Law Court Decisions

STATEMENT OF THE CASE

This matter came before the Division 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) upon the request of Respondent for review of an administrative order. The issues for determination are (1) whether the South Carolina Department of Health and Environmental Control (DHEC), by issuing Administrative Order 00-067-W, lawfully determined that Ronald E. Hughey, Keowee Falls RV Park, violated Water Pollution Control Permits, 24 S.C. Code Ann. Regs. 61-9.122.21 (a)(2)(Supp. 1999), in that he initiated land disturbing activities prior to obtaining a permit, and (2) whether he violated the Pollution Control Act, S.C. Code Ann. §48-1-90 (a)(1987), in that he failed to obtain a permit prior to initiating land disturbing activities and discharged silt, sediment, sand and debris into the waters of the state. Although it was not made part of the Administrative Order, the Petitioner placed the Respondent on notice that he had also violated the South Carolina Stormwater Management and Sediment Reduction regulations. That notice was given in the initial letter to Respondent on October 26, 1998 and was part of the Complaint filed with this Division on June 9, 2000.

After notice to the parties, the Division held a hearing on the merits in the matter on February 13, 2002. Since the agency imposed a civil penalty, it bears the burden of proof and the caption was amended as set out above by my Order dated April 20, 2000.

FINDINGS OF FACT

1. On October 7, 1998, DHEC received a citizen complaint that land disturbing

activities on property adjacent to Lake Keowee were causing a large plume of sediment in the lake. In response to this complaint, DHEC hydrologist Eddie Clements made a site visit to the property described in the complaint. At the site, Mr. Clements observed a recently constructed road and roadside ditch which showed signs of stormwater erosion. He also observed a large area that had been graded as well as erosion gullies covering the area and a sizeable plume of sediment in Lake Keowee.

2. Because the area appeared to exceed five acres, Mr. Clements returned the next day

with Mr. Chip Polk, the DHEC stormwater manager. On October 8, 1998, Mr. Polk also observed a large degree of land disturbance which he estimated to be approximately eight to ten acres. There were no Best Management Practices (BMPs) in place to control sediment or prevent any type of erosion. He observed severe erosion causing a sediment load to be transported into a tributary of Cane Creek which discharges into Lake Keowee. There was evidence of gullying through the shoreline and a very large silt plume in the lake as a result of the uncontrolled erosion. He further observed evidence of mechanical filling of the lake. Additionally, the lake had received a great amount of sediment from a recently constructed road and road-side ditch associated with the site. During his visit, Mr. Polk took a number of photographs depicting the large extent of land disturbing activities and the extent of erosion and sediment deposition due to the lack of control practices.

3. After a review of DHEC records, DHEC staff concluded that no permit had been

issued for land disturbing activity at that site. Intitially, DHEC staff believed the property was owned by Cane Creek Associated of Greenville. A Notice to Comply was issued to Cane Creek on October 9, 1998. However, on October 20, 1998, DHEC received correspondence from a representative of Cane Creek denying they were the owners of that property. They identified Ronald Hughey as the owner. Staff concurred that Mr. Hughey was the owner of the site property after searching county tax records.

4. On October 26, 1998, DHEC sent Mr. Hughey a Notice to Comply ordering him

to obtain the proper permits for the work being done and to cease and desist any further work at the site, except for the installation of temporary erosion controls. Thereafter, Mr. Nehme contacted DHEC claiming to represent Mr. Hughey and indicated that they were in the process of developing the appropriate plans and specifications to submit with an application to the permitting section of DHEC.

5. In February 1999, DHEC received a complaint that land disturbing activities were

continuing at the site without appropriate BMPs in place, causing continued impacts to Lake Keowee. Mr. Clements conducted a site visit in response to the complaint and found that some BMPs had been installed, but they were not properly installed nor maintained so as to effectively control erosion and sediment deposition.

6. In April 1999, DHEC received a storm water permit application for a project

disturbing two acres or less from Mr. Hughey for the site in question. The permitting staff issued a waiver notice to Mr. Hughey stating that he was not required to obtain a permit for the work proposed in this application because he would be disturbing less than two acres. However, once the permitting staff learned from Mr. Polk that the site actually disturbed in excess of five acres, DHEC rescinded the waiver notice and required that an application for projects disturbing more than two acres be completed and returned as soon as possible. DHEC did not receive any objection to this rescission.

7. In May 1999, Mr. Polk returned to the site at the request of Mr. Nehme. Mr. Polk

observed that the site had minimal erosion and sediment controls in place and that those controls were improperly and in appropriately installed. He observed that there continued to be impacts to the lake. He took photographs of the site which showed tributary discharges of sediment into the lake and additional silt deposition due to the unpermitted land disturbing activities.

• On June 23, 1999, DHEC sent Mr. Hughey a Notice of Enforcement Conference

detailing what DHEC believed to be the violations of state law and regulations he had committed by conducting unpermitted land disturbing activities. Mr. Hughey attended the enforcement conference held on July 13, 1999. Richard Geer, a member of the DHEC permitting staff, was also present for the conference.

• After the enforcement conference, Mr. Geer accompanied Mr. Polk to the site in

question to provide technical advice on BMP design and implementation for the control of erosion and sediment. Mr. Hughey and his engineer Mario DiPietro were present. At that time, Mr. Geer observed a very large area of land disturbance, erosion on the site and sediment transport in the lake. At no time during the site visit did Mr. Hughey deny that he owned the property in question. Mr. Geer made a number of recommendations for BMPs for the site.

• In August 1999, Geer received a permit application, signed by Mr. Hughey as

owner/financially responsible party, for the property he recognized from the site visit as being the same as the site in question. In October 1999, DHEC issued to Mr. Hughey the permit he needed to lawfully conduct the land disturbing activities on the site.

• On March 30, 2000, based on its inspections of the site and its findings, DHEC

issued Administrative Order 00-067-W to Mr. Hughey ordering him, among other things, to submit to DHEC a monthly summary of BMP inspections and maintenance reports and to pay a $14,000 civil penalty. As a result, Mr. Hughey requested a contested case hearing before this Division.

CONCLUSION OF LAW

Based on the foregoing Findings of Fact, I conclude the following as a matter of law:

• Pursuant to the South Carolina Administrative Procedures Act, the Division has

jurisdiction to hear contested case hearings concerning matters governing land-disturbing activities. See S.C. Code Ann. §1-23-310 et seq. (Supp. 1999); S.C. Code Ann. §48-1-10 et seq. (Supp. 1999). DHEC issued Administrative Order Number 00-067-W to Respondents in which a civil penalty of $14,000 was assessed for violations of the Pollution Control Act, including 24 S.C. Code Ann. Regs. 61-9.122.21 (Supp. 1999), promulgated pursuant thereto and the South Carolina Storm Water Management and Sediment Reduction regulations.

2. In weighing the evidence and deciding a contested case on the merits, the

Administrative Law Judge must make findings of fact and conclusions of law by a preponderance of the evidence. Anonymous (M-156-90) vs. State Board of Medical Examiners, 329 S.C. 371, 496 S.E.2d 17 (1998). Because it seeks a civil penalty, the burden of proof rests upon DHEC in this case. ALJD Rule 29 (B).

• The Department promulgated regulations pursuant to its authority under §48-1-10 et

seq. (Supp. 1999) of the S.C. Code of Laws. Those regulations are found in 24 S.C. Code Ann. Regs. 61-9 (Supp. 1999). Regulation 61-9 sets forth specific demands which are applicable to all NPDES

permits issued by DHEC. Specifically, the Department contends that the Respondent should have obtained a National Pollution Discharge Elimination System permit pursuant to 24 S.C. Code Ann. Regs. 61- 9.122.1(b)(1) (Supp. 1999) which states "[t]he NPDES program requires permits for the discharge of 'pollutants' from any 'point source' into 'waters of the State' and into 'waters of the United States."'. 24 S.C. Code Ann. Regs. 61- 9.122.1(b)(2) (Supp. 1999) provides, "The following are point sources requiring NPDES permits for discharges:

(i) Concentrated animal feeding operations....

(ii) Concentrated aquatic animal production facilities....

(iii) Discharges into aquaculture projects....

(iv) Discharges of storm water as set forth in section 122.26; and

(v) Silvicultural point sources ....

(emphasis added)

At issue in this matter is whether the activity is a discharge of storm water and thus a point source. The NPDES regulations set forth specific provisions dealing with "storm water" discharges. See 24 S.C. Code Ann. Regs. 61-9.122.26 (Supp. 1999). If an activity under Regulation 61-9.122.26 involves "construction activity including clearing, grading and excavation activities except: operations that result in the disturbance of less than five acres of total land area which are not part of a larger common plan of development or sale" the activity is considered "industrial activity."

24 S.C. Code Ann. Regs. 61- 9.122.26(b)(14)(x) (Supp. 1999). Then, the guidelines are written as to stormwater discharge for industrial activity. However, this case does not extend to that point. The disturbance under S.C. Code Ann. Regs. 61-9.122.26 (Supp. 1999) must affect five acres or more. The preponderance of the evidence does not show that this matter involves five acres or more. There is some evidence, primarily the testimony of the Department's eye-witnesses to the scene, that the disturbance appeared to cover more than five acres. However, that evidence does not rise to the preponderance standard.

4. DHEC also contends the Respondent violated provisions of the South Carolina Storm

Water Management and Sediment Reduction regulations. DHEC alleges the Respondent should have obtained a stormwater permit pursuant to R.72-300. Also, Petitioner contends that Respondent violated Regulations 72-105, 72-307 and 72-308 in that it failed to institute best management practices for the control of silt, sediment and runoff of debris into the waters of the State.

Reg. 72-305 (B)(1) refers to land disturbing activities involving two acres or less of actual land disturbance. These activities do not require approval by the agency. Regs. 72-305(B)(2) refers to projects involving more than two acres and less than five acres of actual land disturbance which are not part of a larger common plan of development or sale. For these projects, a simplified permitting process will be used meeting the requirements of Regs. 72-307(I). Further, these activities are required to utilize Best Management Practices to control erosion and sediment and to utilize

appropriate measures to control the quantity of stormwater runoff. ⁽¹⁾

Regs. 72-305(B)(3) provides for a third category of land disturbing activities, those

disturbing more than five acres. The requirements of Regs. 72-305 and 72-307 apply in the evaluation of these types of projects.

5. However, as stated previously, there has not been a showing of how much property

is involved in this matter. For applicability under these regulations, the issue becomes whether there has been two acres of disturbance. Witnesses for DHEC testified that they did not measure the disturbance. They also could not state that they had determined the activity did not cross property ownership lines. Mr. Clements testified he never attempted to determine where the four corners of the property were.

Further, there has been no showing who owns the property where the disturbance activity is located. On one of the visits to the property in which Mr. Hughey was present, he commented that one of the roads in question did not belong to him. There is no showing as to how much disturbed property there was and to whom it belonged. Without question, Mr. Hughey owns property in the area. He met with DHEC employees at the site. He did not object when suggestions were made regarding ways to control the problem. He submitted applications to the Department. However, DHEC carries the burden of proof to show by a preponderance of the evidence that Hughey owns the property with the land disturbance, that it involved the requisite acreage by statute, and that his actions caused the disturbance to happen. There has not been a preponderance of the evidence as to these issues.

ORDER

Based on the preceding Findings of Fact and Conclusions of Law,

IT IS HEREBY ORDERED that Administrative Order 00-067-W is DISMISSED and accordingly, the Respondent owes no civil penalty to the Department.

AND IT IS SO ORDERED.

______________________________

CAROLYN C. MATTHEWS

Administrative Law Judge

August 26, 2002

Columbia, South Carolina

1. "'Best Management Practices' means a wide range of management procedures, schedules of activities, prohibitions on practices and other management practices which have been demonstrated to effectively control the quality and/or quantity of stormwater runoff and which are compatible with the planned land use." 26 S.C. Code Ann. Regs. 72-300 (5) (Supp. 1999).