ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter is before the Court upon the challenge of the Respondent to Administrative Order No.
00-085-W, issued by the Petitioner South Carolina Department of Health and Environmental Control
(DHEC or Department), on April 18, 2000. The Department found that the Respondent had violated the
Pollution Control Act, S.C. Code Ann. §§ 48-1-10 et. seq. (1987 and Supp. 1999), by virtue of violating his
NPDES permit, and assessed a penalty under the Pollution Control Act of $16,000.00. A hearing was held
on December 12, 2000 at offices of the Administrative Law Judge Division in Columbia, South Carolina.
At the conclusion of the Petitioner's presentation of its case, the Respondent moved for an involuntary
nonsuit pursuant to Rule 41(b), SCRCP. Based upon the following Findings of Fact and Conclusions of
Law, the Respondent's motion is granted.
BURDEN OF PROOF
Pursuant to S.C. Code Ann. § 48-1-330 (1987 and Supp. 1999), the Department, through its Administrative
Order, assessed the Respondent monetary penalties for violating the Pollution Control Act and its related
rules and regulations. 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. The Respondent is a developer and home builder in Spartanburg County, South Carolina. Several years
ago, he began developing Pleasant Green Subdivision in Spartanburg County. The Respondent purchased
the tract and was to conduct site preparation and grading, and then in turn divide the whole into tracts which
would be individually sold to builders to construct homes.
2. As part of his planned development, the Respondent was required to submit a stormwater and sediment
reduction plan. DHEC delegated authority to administer the provisions of the Stormwater Management and
Sediment Reduction Act, S.C. Code Ann. § 48-14-10 et. seq. (Supp. 1999), and the accompanying Sediment
Reduction Regulations, to Spartanburg County. Therefore, the Respondent submitted a stormwater and
sediment reduction plan to Spartanburg County. The Respondent's plans were approved by Spartanburg
County. The approved stormwater and sediment reduction plan called for various sediment control devices
such as sediment traps, ponds, silt fences, and other devices.
Despite the fact that Spartanburg County bore the responsibility for enforcement of sediment control issues
under its delegated authority, DHEC conducted a series of six sua sponte inspections of the Pleasant Green
Subdivision on the following dates: February 9, 1999, February 24, 1999, March 24, 1999, April 23, 1999,
April 29, 1999, and June 18, 1999. Specifically, DHEC conducted a macro invertebrate habitat assessment
on April 29, 1999. DHEC relied upon that inspection in determining that the Respondent violated the
Pollution Control Act and his NPDES permit. Mr. Joe Napolitano, who conducted the habitat assessment,
was never called as a witness at the hearing into this matter. Rather, the Department relied upon the
testimony of Ms. Peyton Sasnett. However, Ms. Sasnett did not personally engage in the study and could
not testify of her own knowledge whether the Respondent had created any likelihood of an adverse impact to
human health or the environment. (1) Therefore, DHEC produced no evidence of how much sediment entered
the adjacent creek. Consequently, there was no evidence whatsoever of any adverse impact to human health
or the environment.
3. DHEC also presented evidence of sediment in the creek. Nevertheless, the evidence did not establish that
the existing sediment created a reasonable likelihood of any adverse impact to human health or the
environment. Moreover, the evidence did not establish that the Respondent's sediment control devices in
place at the site were improperly installed in accordance with the approved stormwater and sediment
reduction plan or that the source of that sediment was a result of the Respondent's sediment control devices.
In fact, the Department never contended that the Respondent's sediment control plans failed to comply with
the approved stormwater and sediment reduction plan. (2) Accordingly, the evidence did not establish that the
Respondent failed to take reasonable steps to prevent or minimize any discharge of sediment, or that there
was a reasonable likelihood of any adverse impact to human health or the environment created by
Respondent's actions.
4. DHEC never directly provided the Respondent with any copies of its inspection reports until after it
referred this matter for enforcement. DHEC communicated directly with Spartanburg County, the delegated
authority in this instance. DHEC considered the sediment control enforcement of Spartanburg County to be
less than adequate, according to Mr. Aubrey Stewart. (Mr. Mark Cann, Mr. Stewart's supervisor and the
DHEC employee who initiated this enforcement case against the Respondent, did not testify in this case.)
Furthermore, DHEC did not request that Spartanburg County fine the Respondent or issue a stop-work
order, both options available to it, as will be set forth more fully below.
CONCLUSIONS OF LAW
Standard of Review
1. Rule 52 of the Rules of Procedure for the Administrative Law Judge Division provides that "[t]he South
Carolina Rules of Civil Procedure may, where practicable, be applied in proceedings before the Division to
resolve questions not addressed by these rules." Rule 41(b), SCRCP, provides that "[a]fter the plaintiff in an
action tried by the court without a jury has completed the presentation of his evidence, the defendant,
without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal
on the ground that upon the facts and the law the plaintiff has shown no right to relief." Rule 41(b) allows
the judge as the trier of fact to weigh the evidence, determine the facts, and render a judgment against the
plaintiff at the close of his case if justified. Johnson v. J.P. Stevens & Co., Inc., 308 S.C. 116, 417 S.E.2d
527 (1992). 2. At S.C. Code Ann. § 48-1-330 (1987 and Supp. 1999), the Pollution Control Act provides
for a civil penalty "for any person violating any rule, regulation, permit, permit condition, final
determination, or order of the Department." Based on these conclusions and the findings in its
Administrative Order, DHEC assessed a fine of $16,000.00. (3)
DHEC's Administrative Order
3. DHEC cited two violations in its Administrative Order. First, DHEC states that the Respondent violated
S.C. Code Ann. Section 48-1-90(a) (1987 and Supp. 1999) in that he "discharged silt, sediment, sand and
debris into the environment without a permit issued by the Department. This discharge was not permitted
under the NPDES permit." In other words, DHEC contends that the sand and debris which the Respondent
discharged into the environment was not allowed by the NPDES permit. However, the NPDES permit was
never submitted into evidence. Consequently, the evidence did not sufficiently establish that the Respondent
failed to comply with the provisions, if any, of the NPDES permit that prohibited a discharge of sand or
debris. Therefore, the evidence did not establish that the Respondent failed to comply with Section
48-1-90(a).
In DHEC's second violation against the Respondent, it alleges that the Respondent violated his NPDES
permit by failing to properly operate and maintain "best management practices" (BMPs) as required in Part
VI (D) of the permit. Part VI (D) of the permit provides: "Duty to Mitigate. The permittee shall take all
reasonable steps to minimize or prevent any discharge in violation of this permit which has a reasonable
likelihood of having an adverse impact on either human health or the environment." However, as stated
above, the NPDES permit was never submitted into evidence. Therefore, the evidence did not establish the
BMPs required of the Respondent. Furthermore, the evidence did not establish a likelihood of an adverse
impact to the environment.
The question ultimately before the Division in this matter is whether the Respondent violated Part VI (D) of
the NPDES permit. To establish a violation of Part VI (D) of the NPDES permit, there must have been a
discharge of sediment. In this case, there was some evidence of a discharge of sediment. However, DHEC
presented little or no evidence of how much discharge or whether such discharge could be directly
attributable to the action or inaction of the Respondent. Furthermore, DHEC must show that the actions of
the Respondent created a reasonable likelihood of an adverse impact on either human health or the
environment. DHEC did not present any credible evidence that the Respondent or any agent of the
Respondent created any likelihood of an adverse impact to either human health or the environment. The
only evidence presented in this general category was that of Ms. Peyton Sasnett, who testified that she
accompanied Mr. Joe Napolitano, a former DHEC aquatic biologist, on a site visit on April 29, 1999, at the
Pleasant Green Subdivision. Ms. Sasnett testified that only Mr. Napolitano conducted the habitat
assessment of the creek into which the sediment was allegedly discharged. In fact, she did not ever approach
the creek. Significantly, Ms. Sasnett testified that she could not confirm that the Respondent's actions
created any likelihood of an adverse impact on either human health or the environment. Accordingly, I find
that DHEC failed to establish that the Respondent did not take reasonable steps to prevent or minimize any
discharge of sediment, or that there was a reasonable likelihood of any adverse impact to human health or
the environment created by Respondent's actions.
Sediment Reduction Act
4. In 1992, the legislature enacted the Stormwater Management and Sediment Reduction Act (Sediment
Reduction Act). S.C. Code Ann. §§ 48-14-10 et. seq. (Supp. 1999). A review of the Sediment Reduction
Act shows that it was designed by the legislature to serve as a comprehensive scheme to manage stormwater
and sediment discharge in South Carolina. It was passed at least twenty-nine years after the Pollution
Control Act, which was enacted in 1962.
S.C. Code Ann. § 48-14-60 (Supp. 1999) provides that DHEC may delegate the sediment control programs
of the Sediment Reduction Act to county governments. Likewise, Regulation 72-300(C) sets forth:
To the extent possible, the Commission intends to delegate the provisions of these regulations to local
governments. Those program provisions which are subject to delegation include stormwater management
and sediment control plan approval, construction and maintenance inspections, enforcement, and education
and training.
26 S.C. Code Ann. Regs. 72-300(C) (Supp. 1999). To that end, Regulation 72-304(A) implements the
framework for the delegation of stormwater management and sediment control programs to local
governments. It provides that local governments may be delegated the following components of stormwater
management and sediment control programs:
a. Stormwater management and sediment control plan review and approval/disapproval.
b. Inspections during construction and maintenance inspections.
c. Enforcement.
26 S.C. Code Ann. Regs. 72-304(A) (Supp. 1999). Spartanburg County was delegated these functions by
DHEC.
S.C. Code Ann. § 48-14-140(B) (Supp. 1999) provides that Spartanburg County as "[t]he implementing
agency shall determine the amount of the civil penalty to be assessed under this section for violations under
its jurisdiction." However, "[i]f the Commission determines that a delegated program falls below acceptable
standards established by these regulations, delegation may be suspended." 26 S.C. Code Ann. Regs.
72-304(L) (Supp. 1999). Furthermore, Regulation 72-304(M) provides that "[u]pon suspension of the
delegation, the implementing agency has the right to file an appeal within 30 days of the notification of the
suspension following procedures listed in R.72-313." 26 S.C. Code Ann. Regs. 72-304(M) (Supp. 1999).
In this case, DHEC believed that Spartanburg County was not enforcing a violation of an "off-site sediment
or stormwater damage resulting from non-compliance with the approved plan." 26 S.C. Code Ann Regs.
72-304(L)(1) (Supp. 1999). However, rather than seeking to suspend the delegation of the enforcement of
the Sediment Reduction Act conferred upon Spartanburg County by DHEC, DHEC sought enforcement
against the Respondent for violating his NPDES permit. (4)
NPDES Violations
5. The evidence necessary to establish a violation of a NPDES permit is significantly different than that
necessary to establish a violation of the Sediment Reduction Act. Regulation 61-9 sets forth specific
demands which are applicable to all NPDES permits issued by DHEC. See 24 S.C. Code Ann. Regs. 61-9
(Supp. 1999). Generally, "[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)(1) (Supp. 1999). Accordingly, in this case, DHEC must positively prove: (1) that there was a
discharge of a pollutant; (2) that the discharge was from a point source; and (3) that the discharge flowed
into the waters of the State. A "point source" is "any discernible, confined, and discrete conveyance,
including but not limited to, any pipe, ditch, channel, tunnel, [or] conduit . . . from which pollutants are or
may be discharged." 24 S.C. Code Ann. Regs. 61-9.122.2(b)(57) (Supp. 1999).
Furthermore, 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). However, Regulation 122.26(b)(14) defines "storm water discharge
associated with industrial activity" as "the discharge from any conveyancewhich is used for collecting and
conveying storm water and which is directly related to manufacturing, processing or raw materials storage
areas at an industrial plant." (emphasis added). " 'Storm water point source' means a conveyance or system
of conveyances (including but not limited to pipes, conduits, ditches and channels) primarily used for
collecting and conveying storm water runoff. . . .'" 24 S.C. Code Ann. Regs. 61-9.122.26(b)(16) (Supp.
1999). Therefore, Regulation 61-9.122.26 also specifically requires a "point source."
The evidence at trial showed only that an area had been cleared. There was no evidence establishing that the
Respondent created any ditch or other conveyance at the site. Therefore, I find that there is no "point source"
on the land at the site. Consequently, I find that the Respondent's activities do not fall within the scope of
the general NPDES regulations.
ORDER
Based upon the foregoing, the Respondent's motion for an involuntary nonsuit is granted. Therefore,
DHEC's Administrative Order No. 00-085-W is dismissed with prejudice.
Ralph King Anderson, III
Administrative Law Judge
March 23, 2001
Columbia, South Carolina
1. See 26 S.C. Code Ann. Regs. 72-301(1) (Supp. 1999).
2. DHEC argues that the Respondent violated the Pollution Control Act and his NPDES permit and that
this violation is distinct from a violation of the Stormwater Management and Sediment Reduction Act.
Therefore, the issue of whether Respondent's sediment control plans were appropriate or correct is not before
the court.
3. Section 48-1-90(b) creates a civil remedy to the State to recover damages in the event of a discharge into
the environment which damages or destroys "fish, shellfish, aquatic animals, wildlife, or plant life
indigenous to or dependent upon the receiving waters or any property . . . ." S.C. Code Ann. § 48-1-90(b)
(1987 and Supp. 1999).
4. The Sediment Reduction Act requires that the developer receive copies of inspection reports. 26 S.C.
Code Ann. Regs. 72-312(D) (Supp. 1999). However, neither DHEC nor Spartanburg County provided any
inspection reports to the Respondent. This regulation also requires that the developer receive notice of the
nature of the violation, required corrective action, and the time period allowed for corrective action. None of
this was done in this case. |
