ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter came before the Administrative Law Judge Division (ALJD) on July 18, 2000, for a contested case hearing on the merits
of the appeal of Charles Brooks, and Charles Brooks, d/b/a Brooks Transit Charter Service, from an Administrative Order issued by
the South Carolina Department of Health and Environmental Control (DHEC or Department). The Administrative Order alleged that
charter buses belonging to Brooks Transit Charter Service had dumped waste from holding tanks on public streets. The Department
seeks a fine of Twenty-Eight Thousand Three Hundred ($28,300.00) Dollars from the Respondent.
BURDEN OF PROOF
The Department, through its Administrative Order, assessed the Respondent monetary penalties for violating S.C. Code Ann. § 48-1-90 (1987). Basic principles of administrative law establish that an agency bears the burden of proof in establishing that the penalty
amount is justified. See Peabody Coal Co. v. Ralston, 578 N.E. 2d 751 (Ind. Ct. App. 1991); Shipley, South Carolina Administrative
Law § 5-79, 5-80 (1989). The caption, therefore, is amended to reflect the correct allocation of the burden of proof.
FINDINGS OF FACT
Having observed the witnesses and exhibits presented at the hearing and closely passed upon their credibility, taking into consideration
the burden of persuasion by the parties, I make the following Findings of Fact by a preponderance of the evidence:
1. Respondent Charles Brooks is the owner and operator of Brooks Transit Charter Service, which operates approximately nine buses.
2. On September 23, 1998, the Department's witness observed a bus with the markings "Brooks Transit" parked on Harlem Street in
Richland County, South Carolina. As the bus pulled away, a pile of foam was left on the side of the road, and water was trailing from
the right rear side of the bus. The pile was composed of toilet paper and tampons. The Brooks facility is less than a block away from
the area where the witness observed the bus and refuse pile on September 23, 1998.
3. DHEC also cited the Respondent for dumping incidents on October 4, 1998 and October 9, 1998. However, the only evidence
presented concerning these incidents was photographs of the refuse and tire tracks in the same general area as where the September
23, 1998 incident occurred. There was no witness presented who actually observed the vehicle dumping the refuse found on October
4, 1998 and October 9, 1998. Furthermore, there was no evidence that linked the tire tracks to the buses operated by the Respondent.
I find that though the fact that the October 4 and October 9 refuse was dumped in the same area as the September 23 incident may
lead to the suspicion that the dumping was also done by the Respondent's buses, the evidence presented did not establish that fact by a
preponderance of the evidence.
CONCLUSIONS OF LAW
Based upon the above Findings of Fact, I conclude the following as a matter of law:
1. Pursuant to S.C. Code Ann. §§ 1-23-310, et seq., (Supp. 1997), the Administrative Law Judge Division has jurisdiction to hear this
contested case.
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) v. State Board of Medical Examiners, 329 S.C. 371, 496 S.E.2d 17 (1998).
3. The dumping of sewage is governed by the Pollution Control Act. See S.C. Code Ann. 48-1-10 et seq. (1987 and Supp. 1997).
S.C. Code Ann. § 48-1-90(a) (1987) sets forth:
It shall be unlawful for any person, directly or indirectly, to throw, drain, run, allow to seep or otherwise discharge into the
environment of the State organic or inorganic matter, including sewage, industrial wastes, except as in compliance with a permit issued
by the Department.
4. A bus belonging to Brooks Transit Charter Service was observed dumping sewage without a permit on the side of Harlem Street in
Richland County, South Carolina on September 23, 1998. I therefore find that Respondent Brooks Transit Charter Service violated
S.C. Code Ann. § 48-1-90(a) (1987) on September 23, 1998. However, there was not sufficient evidence presented to confirm the
October 4, 1998 and October 9, 1998 alleged dumpings.
5. S.C. Code Ann. § 48-1-330 (1987) provides for the imposition of fines up to Ten Thousand ($10,000.00) Dollars per day for
violating of S.C. Code Ann. § 48-1-90(a) (1987). In its Administrative Order, DHEC imposed a fine of Twenty-Eight Thousand
Three Hundred ($28,300.00) Dollars on the Respondent. The fine was assessed as follows: Eight Thousand ($8000.00) Dollars for
the September 23, 1998 incident, Ten Thousand ($10,000.00) Dollars each for the alleged October 4, 1998 and October 9, 1998
incidents, and an economic gain penalty of One Hundred ($100.00) Dollars for each incident.
6. It is a generally recognized principle of administrative law that the fact-finder has the authority to impose an 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
Commission, 305 S.C. 209, 407 S.E.2d 633 (1991). In this case, the Respondent's bus dumped sewage on the side of a public street
in Richland County, South Carolina. I there find that a fine of Five Thousand One Hundred ($5,100.00) Dollars for the September 23,
1998 violation is appropriate.
ORDER
Based upon the foregoing Findings of Fact and Conclusions of Law,
IT IS HEREBY ORDERED that a fine of Five Thousand One Hundred ($5,100.00) Dollars is imposed against Brooks Transit
Charter Service for violating S.C. Code Ann. § 48-1-90(a) (1987) on September 23, 1998.
AND IT IS SO ORDERED
Ralph King Anderson, III
Administrative Law Judge
August 28, 2000
Columbia, South Carolina |
