South Carolina              
Administrative Law Court
Edgar A. Brown building 1205 Pendleton St., Suite 224 Columbia, SC 29201 Voice: (803) 734-0550

SC Administrative Law Court Decisions

CAPTION:
Tindall Corporation vs. SCDHEC

AGENCY:
South Carolina Department of Health and Environmental Control

PARTIES:
Petitioner:
Tindall Corporation, Tindall Concrete Facility, Spartanburg County

Respondent:
South Carolina Department of Health and Environmental Control
 
DOCKET NUMBER:
00-ALJ-07-0463-CC

APPEARANCES:
Mason A. Summers, Esq.
Office of General Counsel
South Carolina Department of Health
and Environmental Control
2600 Bull Street
Columbia, SC 29201
(803) 898-3349
Attorney for Respondent DHEC

Roy Mcbee Smith, Esq.
P.O. Box 3545
Spartanburg, SC 29304
(864) 582-6727
Attorney for Petitioner Tindall Corporation
 

ORDERS:

CONSENT ORDER OF DISMISSAL

This matter is before the South Carolina Administrative Law Judge Division ("Division") pursuant to Tindall Corporation's filing two Petitions for Contested Case Hearings to challenge both Administrative Order 00-148-W and Emergency Order 01-158-W, issued by the Department of Health and Environmental Control. These two appeals were consolidated for hearing by the Honorable Carolyn C. Matthews on August 20, 2001. Prior to a hearing being held in the Division, the parties executed Consent Order 01-200-W, which resolved all outstanding issues related to the two appeals and which pursuant to the wishes of the parties, brings litigation of the consolidated cases to a close. Consent Order 01-200-W is attached and incorporated into this Consent Order of Dismissal by reference. Accordingly, by and with the consent of the parties, it is ordered and agreed that this contested case be dismissed.

AND IT IS SO ORDERED.



________________________________

The Hon. Carolyn C. Matthews

Administrative Law Judge

Columbia, South Carolina

September 12, 2001







Mason A. Summers, Esq. 9-4-01

Office of General Counsel

South Carolina Department of Health

and Environmental Control

2600 Bull Street

Columbia, SC 29201

(803) 898-3349

Attorney for Respondent DHEC





_________________________________

Roy Mcbee Smith, Esq. 9-5-01

P.O. Box 3545

Spartanburg, SC 29304

(864) 582-6727

Attorney for Petitioner Tindall Corporation



































THE STATE OF SOUTH CAROLINA

BEFORE THE DEPARTMENT OF HEALTH AND ENVIRONMENTAL CONTROL





IN RE: TINDALL CORPORATION

TINDALL CONCRETE FACILITY

SPARTANBURG COUNTY





CONSENT ORDER

01-200-W





Tindall Corporation (Respondent) owns and is responsible for a Concrete Facility (Site), located in Spartanburg County, South Carolina.

Inspections of the Site by the South Carolina Department of Health and Environmental Control (Department) revealed that the Respondent violated the Pollution Control Act, S.C. Code Ann. ??48-1-90(a) (1987) and it's National Pollutant Discharge Elimination System (NPDES) Permit, in that it discharged process wastewater containing some part cement, sand, gravel, and aggregate into the environment and that it failed to revise its Storm Water Pollution Prevention Plan (SWP3).

In accordance with approved procedures and based on discussions with the Respondent on August 14, 2001, the parties have agreed to the issuance of this Order to resolve Administrative Order #00-148-W and Emergency Order #01-158-W, and all known violations to the date of this Order, and all violations based upon or arising out of facts and conditions known to the Department or which would have reasonably been revealed by inspection as of the date of this Order, which include the following Findings of Fact and Conclusions of Law.

IN THE INTEREST OF RESOLVING THIS MATTER without delay and expense of litigation, the Respondent agrees to the entry of this Consent Order, but does not agree with the Findings of Fact or the Conclusions of Law; except as necessary for enforcement of this Order by the Department or subsequent actions relating to the Respondent by the Department.

FINDINGS OF FACT

1. Effective June 22, 1998, the Department granted coverage under NPDES Permit SCR000000 through No. SCR001254 to the Respondent allowing a discharge entirely composed of storm water associated with industrial activities in strict compliance with the permit.

2. On July 17, 2000, the Department issued Administrative Order #00-148-W, which required the Respondent to develop and implement an amended SWP3 and submit it to the Department within thirty (30) days of the execution date of the Order; complete the removal of the Pond within thirty (30) days of the execution date of the Order; immediately install all necessary storm water and sediment controls to prevent any further non-storm water discharges; and pay a civil penalty of forty thousand dollars ($40,000) to the Department within thirty (30) days of the execution date of the Order.

3. On August 3, 2000, Administrative Order #00-148-W was appealed to the Administrative Law Judge Division.4. On June 26, 2001, Emergency Order #01-155-W was issued and required the Respondent to immediately cease discharges of process wastewater and within fifteen (15) days of receipt of this Order, submit to the Department for approval, a plan to remove the cement slurry from the SCDOT right-of-way.

5. On June 27, 2001, the Department rescinded Emergency Order #01-155-W due to administrative error and issued Emergency Order #01-158-W in its place with the same requirements of immediately ceasing discharges of process wastewater and within fifteen (15) days of receipt of this Order, submit to the Department for approval, a plan to remove the cement slurry from the SCDOT right-of-way.

6. On June 27, 2001, an inspection of the Site was conducted once Emergency Order #01-158-W was hand delivered to the Respondent. It was verified that discharging of process wastewater had ceased and that wastewater was being collected on Site until pump and haul approval was granted by the Department.

7. On June 28, 2001, a Department letter authorizing pump & haul was sent to the Respondent's lawyer.

8. On July 5, 2001, Emergency Order #01-158-W was appealed to the Administrative Law Judge Division.

9. On July 10, 2001, letter from Respondent's lawyer requesting pump and haul approval be extended past July 28, 2001. On July 12, 2001, pump and haul approval was extended until April 28, 2002.

10. On August 14, 2001, a meeting with the Respondent was held to discuss a possible resolution to Administrative Order #00-148-W and Emergency Order #01-158-W and all known violations to date as more fully defined above.

CONCLUSIONS OF LAW

Based upon the above Findings of Fact, the Department reaches the following Conclusions of Law:

1. The Respondent violated the Pollution Control Act, S.C. Code Ann. ? 48-1-90(a) (1987), and Water Classifications & Standards, 24 S.C. Code Ann. 61-68(G)(10)(b) & (f) (Supp.2000), in that it discharged non-hazardous plant process water containing some part cement, sand, gravel, and aggregate.

2. The Respondent violated Water Pollution Control Permits, 24 S.C. Code Ann. 61-9.122.26(c)(1) (Supp. 2000), in that it failed to update its SWP3 as required by Part IV.C of the NPDES permit.

3. The Pollution Control Act, S.C. Code Ann. ? 48-1-330 (1987), 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, CONSENTED TO AND AGREED, pursuant to Pollution Control Act, S.C. Code Ann. ? 48-1-50 and Pollution Control Act, S.C. Code Ann. ? 48-1-100 (1987), that the Respondent shall:

1. Henceforth, comply with all permitting and operating requirements in accordance with State and Federal regulations.

2. Within thirty (30) days of the execution date of this Order, develop and implement an amended SWP3 as required by the NPDES permit. A copy of the SWP3 shall be submitted to the Department.

3. By September 31, 2001, complete the removal of the Pond, including cleaning slurry out of the ditches flowing into and leaving from the Pond. Ensure that the waste from the Pond is properly disposed at a Department approved landfill. No remediation measures are required of the Respondent from the point where the ditches lead to tributaries or downstream.

4. Within thirty (30) days of the execution date of this Order, pay to the Department a civil penalty in the amount of forty thousand ($40,000.00) dollars.

THEREFORE IT IS FURTHER AGREED that if any event occurs which causes or may cause a delay in meeting any of the above scheduled dates for completion of any specified activity, notify the Department in writing at least one (1) week before the scheduled date, describing in detail the anticipated length of the delay, the precise cause or causes of delay, if ascertainable, the measures taken or to be taken to prevent or minimize the delay, and the timetable by which those measures will be implemented.

The Department shall provide written notice as soon as practicable that a specified extension of time has been granted or that no extension has been granted. An extension shall be granted for any scheduled activity delayed by an event of force majeure, which shall mean any event arising from causes beyond the control of the Respondent that causes a delay in or prevents the performance of any of the conditions under this Consent Order including, but not limited to: a) acts of God, fire, war, insurrection, civil disturbance, explosion; b) adverse weather conditions that could not be reasonably anticipated causing unusual delay in transportation and/or field work activities; c) restraint by court order or order of public authority; d) inability to obtain, after exercise of reasonable diligence and timely submittal of all applicable applications, any necessary authorizations, approvals, permits, or licenses due to action or inaction of any governmental agency or authority; and e) delays caused by compliance with applicable statutes or regulations governing contracting, procurement or acquisition procedures, despite the exercise of reasonable diligence by the Respondent.

Events which are not force majeure include by example, but are not limited to, unanticipated or increased costs of performance, changed economic circumstances, normal precipitation events, or any person's failure to exercise due diligence in obtaining governmental permits or fulfilling contractual duties. Such determination will be made in the sole discretion of the Department. Any extension shall be incorporated by reference as an enforceable part of this Consent Order and thereafter be referred to as an attachment to the Consent Order.

PURSUANT TO THIS ORDER, all communication regarding this Order and its requirements

shall be addressed as follows:



Amy K. Stepp Stephen F. Kalosis

Water Enforcement Division President and Chief Operating Officer

Bureau of Water Tindall Corporation

SCDHEC PO Box 1778

2600 Bull Street Spartanburg, SC 29304

Columbia, S.C. 29201 FAX: (864) 595-3344



And



Roy McBee Smith

Attorney for Tindall Corporation

218 E Henry St

Spartanburg, SC 29304

FAX: (864) 585-8358



IT IS FURTHER ORDERED AND AGREED that failure to comply with any provision of this



Order shall be grounds for further enforcement action pursuant to the Pollution Control Act, S.C.



Code Ann. ? 48-1-330 (1987), to include the assessment of civil penalties and subject to all due



process and procedural rights of the Respondent.





THE SOUTH CAROLINA DEPARTMENT OF

HEALTH AND ENVIRONMENTAL CONTROL



DATE:_____________________ C. Earl Hunter

Commissioner



DATE:_____________________

Alton C. Boozer, Chief

Bureau of Water



WE CONSENT



DATE:_____________

Tindall Corporation



DATE:_____________

Attorney for the Department



DATE:_____________

Valerie A. Betterton, Director

Water Enforcement Division


Brown Bldg.

 

 

 

 

 

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