ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before me pursuant to Petitioner's appeal from an Administrative Order issued by the Respondent,
South Carolina Department of Health and Environmental Control (DHEC or Department). The Administrative Order
alleged that Petitioner violated the South Carolina Solid Waste Management Act, S.C. Code Ann. § 44-56-130 (Supp.
1999) and the South Carolina Hazardous Waste Management Regulations, 25 S.C. Code Ann. Regs. 61-79 (Supp. 1999).
For the alleged violations, the Department seeks a fine of Nine Thousand Five Hundred ($9,500.00) Dollars from the
Respondent. Petitioner asserts that the penalty imposed by the Department is excessive.
The Administrative Law Judge Division (ALJD) has jurisdiction over this matter pursuant to S.C. Code Ann. § 1-23-600
(B) (Supp. 2000) and S.C. Code Ann. §§ 1-23-310 et seq. (1986 & Supp. 2000) After timely notice to the parties, a hearing
was conducted on December 11, 2000 at the ALJD in Columbia, South Carolina.
FINDINGS OF FACT
Having carefully considered the testimony and the arguments of both sides, and taking into account the credibility of the
evidence and witnesses, I find the following by a preponderance of the evidence:
1. Notice of the time, date, place and subject matter of the hearing was given to all parties in a timely manner.
2. Carolina Collision Center (CCC) is located at 4418 Vaucluse Road, Aiken, South Carolina 29802.
3. On May 23, 2000, representatives of DHEC inspected CCC for compliance with the requirements set forth in the
South Carolina Hazardous Waste Management Regulations (SCHWMR). This inspection was prompted by an anonymous
complaint that Petitioner was planning to bury hazardous waste behind Petitioner's facility.
4. This anonymous complaint was unfounded. However, DHEC did discover the following deficiencies during the
inspection:
- There were ten (10) fifty-five gallon drums of hazardous waste onsite. Thus, CCC had begun storing more than
100 kilograms of hazardous waste onsite and should have been regulated as a Small Quantity Generator (SQG).
- Copies of manifests for hazardous waste shipped offsite were not available for inspection.
- Hazardous waste had remained on site for greater than 180 days.
- CCC failed to submit an annual report declaring its generator status as an SQC to the Department no later than
January 31, 2000.
- Several drums of hazardous waste were rusted, dented, and/or bulged.
- The ten (10) drums of hazardous waste did not contain a label to include an identification of contents, EPA
Hazardous Waste number, accumulation date, or the words "Hazardous Waste - federal law prohibits improper
storage or disposal."
- There was no weekly inspection of drums.
5. On June 8, 2000, the Department sent CCC a Notice of Violation and Enforcement Conference. DHEC held an
Enforcement Conference with representatives of CCC on June 29, 2000.
6. During this Enforcement Conference, Mr. Steve Bigg, the owner of CCC, explained to DHEC that he was
unfamiliar with the statutes and regulations of the Solid Waste Management Act and that he was involved in a contested
divorce proceeding with his wife that had distracted him from his business. Mr. Bigg was willing to cooperate with DHEC
and indicated that he would fully comply with the statutes and regulations of the Solid Waste Management Act in the
future.
CONCLUSIONS OF LAW
Based upon these Findings of Fact, I conclude as a matter of law:
1. The Administrative Law Judge Division has subject matter jurisdiction over this case pursuant to S.C. Code Ann. § 1-23-600(B) (Supp. 2000) and S.C. Code Ann. §§ 1-23-310 et seq. (1986 & Supp. 2000)
2. S.C. Code Ann. § 44-56-30 (1976) provides the authority for DHEC to promulgate regulations relating to hazardous
wastes.
3. S.C. Code Ann. § 44-56-130(3) (1976) states that after the promulgation of the regulations required under S.C.
Code Ann. § 44-56-30:
It shall be unlawful for any person to fail to comply with this chapter and rules and regulations promulgated pursuant to
this chapter; to fail to comply with any permit issued under this chapter; or to fail to comply with any order issued by the
board, commissioner, or department.
4. In the Administrative Order, DHEC found that the Petitioner had failed to comply with the following regulations:
- 25 S.C. Code Ann. Regs. 61-79.262.23(a)(3) because CCC, as a generator of hazardous waste failed to
retain one copy of the manifest, in accordance with 25 S.C. Code Ann. Regs. 61-79.262.40.
- 25 S.C. Code Ann. Regs. 61-79.262.34(c)(1)(ii) because CCC failed to mark its containers either with the
words "Hazardous Waste" or with other words that identify the contents of the container.
- 25 S.C. Code Ann. Regs. 61-79.262.34(d)(2) & 265.173(c) because CCC failed to permanently and
legibly mark each container containing hazardous waste with the following or equivalent statement:
"Hazardous Waste - federal laws prohibit improper disposal."
- 25 S.C. Code Ann. Regs. 61-79.262.34(d)(2) & 265.173(d) because CCC failed to appropriately label each
container containing hazardous waste with an EPA Hazardous Waste Number.
- 25 S.C. Code Ann. Regs. 61-79.262.34(d)(4) & 262.34(a)(3) because CCC failed to provide that each
container and tank containing hazardous waste be labeled or marked clearly with the EPA Hazardous
Waste Number and the words: "Hazardous Waste - federal laws prohibit improper disposal" while being
accumulated onsite.
- 25 S.C. Code Ann. Regs. 61-79.262.34(d)(4) & 262.34(a)(2) because CCC failed to clearly mark and have
visible for inspection on each container of hazardous waste the date upon which each period of
accumulation began.
- 25 S.C. Code Ann. Regs. 61-79.262.34(d)(2) & 265.174 because CCC failed to, at least weekly, inspect
areas where containers are stored, looking for leaking containers and for deterioration of containers and the
containment system caused by corrosion or other factors.
- 25 S.C. Code Ann. Regs. 61-79.262.34(f) because CCC is an operator of a storage facility and is subject to
but failed to comply with the requirements of R. 61-79.264 and R. 61-79.265 and the permit requirements
of R. 61-79.270 and failed to obtain an extension to the 180-day period.
- 25 S.C. Code Ann. Regs. 61-79.262.44(b) because CCC failed to declare status annually on or before
January 31 by submission of a completed form as designated by the Department on which it certifies that it
is a small quantity generator and provisionally exempt from full regulation and that should its status
change during the calendar year it will comply with all requirements including quarterly reporting.
- 25 S.C. Code Ann. Regs. 61-79.262.34(c)(1)(i) & 265.171 because CCC had containers holding hazardous
waste that were not in good condition and failed to transfer the hazardous waste from these containers to
containers that are in good condition, or manage the waste in some other way that complies with the
requirements of this part.
5. Petitioner does not deny that he violated the regulations set forth above. However, Petitioner asserts that the
penalty imposed is excessive because of the extenuating circumstances surrounding these violations.
6. S.C. Code Ann. § 44-56-140(B) (1976) provides for the imposition of fines up to Twenty-Five Thousand
($25,000.00) Dollars per day for violating S.C. Code Ann. § 44-56-130 (1976). In its Administrative Order, DHEC
imposed a fine of Nine Thousand Five Hundred ($9,500.00) Dollars on the Petitioner.
7. 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). Considering the extenuating
circumstances in this case, I find that a penalty of Six Thousand ($6,000.00) Dollars is appropriate.
ORDER
Based upon the foregoing Findings of Fact and Conclusions of Law,
IT IS HEREBY ORDERED that Petitioner Carolina Collision Center pay a penalty of Six Thousand ($6,000.00) Dollars
in consecutive monthly installments of Two Hundred ($200.00) Dollars over a thirty month period. Petitioner shall make
the first monthly installment within thirty (30) days from the date of this Order.
AND IT IS SO ORDERED.
___________________________________
C. Dukes Scott
Administrative Law Judge
February 22, 2001
Columbia, South Carolina |
