SC Administrative Law Court Decisions

STATEMENT OF THE CASE

This matter is before me pursuant to S.C. Code Ann. §§ 1-23-310 et seq. (1986 & Supp. 2001) and 25 S.C. Code Ann. Regs. 61-72.201 (Supp. 2000) upon the request of Petitioner for review of an administrative order issued by the South Carolina Department of Health and Environmental Control ("Department" or "DHEC"). The issues for determination are whether the Department, by issuing Administrative Order 00-227-W, lawfully determined that RFP, Inc., Property on McElhaney Road ("Petitioner"), violated Water Pollution Control Permit, 24 S.C. Code Ann. Regs. 61-9.122.21(a)(2) (Supp. 2000), in that it initiated land disturbing activities prior to obtaining a permit, and whether it violated the Pollution Control Act, S.C. Code Ann. § 48-1-90(a)(2000), in that it failed to obtain a permit prior to initiating land disturbing activities and that it discharged silt, sediment, sand, and debris into the waters of the State.

After notice to the parties, a final hearing before the Administrative Law Judge Division was conducted on January 29, 2002. Upon review of the relevant and probative evidence and the applicable law, I find and conclude that RFP, Inc., conducted land-disturbing activities without the required permits, that as a result of such land-disturbance there has been release of some sediments off-site and into waters of the State. Generally, such a release would result in the assessment of a civil penalty; however, based on certain factors discussed herein, I find that the Department's assessment of a $20,000.00 civil penalty in this case is excessive.

BACKGROUND AND DISCUSSION

Following on-site investigations by Department staff, DHEC cited Petitioner, RFP, Inc., for violating several State and Federal regulations. Specifically, RFP, Inc. was cited for performing land disturbing activities covering greater than five (5) acres at the Property on McElhaney Road ("Site"), located in Greenville County, South Carolina. The amount of disturbed land is estimated to be fourteen (14) acres.

During an inspection of the Site on March 14, 2000, DHEC staff observed that the Site had been graded and that some sediment had been discharged into a tributary to the Reedy River. After review of Department records, DHEC staff concluded that Petitioner did not have a permit for land disturbing activities. During a follow-up inspection of the Site on March 31, 2000, the same inspector observed that the Site had been left unstabilized after being graded for more than fourteen (14) days. On May 12, 2000, the department informed the Petitioner, by letter, of the deficiencies found during the inspections of the Site. On July 24, 2000, the Department held an enforcement conference with the Petitioner. On August 17, 2000, the Department received an engineering submittal from the Petitioner's engineering firm, but the submittal was inadequate because it was missing several required items.

On October 23, 2000, the Department, based on its inspections of the Site and its findings, issued Administrative Order 00-227-W to the Petitioner directing Petitioner to comply with all permitting and operating requirements in accordance with State and Federal regulations and ordered Petitioner to pay a civil penalty to the Department.

On November 9, 2000, Petitioner, RFP, Inc., submitted to the Department a Petition and Appeal from Administrative Order 00-227-W. In its prehearing statement and through testimony of Bobby Hawkins, RFP denies any allegations that its activities required permits or, in the alternative, that the activities were a voluntary effort to provide a benefit to the YMCA and that any violations were inadvertent.

DHEC witnesses testified that a site of approximately 14 acres bisected by a stream had been cleared and graded. Hawkins asserted that the site had been cleared of trees and stumps had been grubbed out, which he distinguished from grading. However, Hawkins also testified that at least a portion of the site along McElhaney Road had been lowered to the level of the road.

Hawkins testified that he had given the Greenville YMCA an easement over the property to provide access to a YMCA facility under construction, and that the tract was cleared as a favor to the YMCA. He testified that the entire tract was cleared, rather than just the road right-of-way, so that the YMCA consultants and S.C. Department of Transportation representatives could agree on a suitable location for the access road. He admitted that most of the on-site activities were completed before any permits were obtained.

DHEC witness Guy Tumblin testified that he observed sediment fans and other evidence that sediment had run off the graded portion of the site and into the creek. During his initial inspection, he looked for required silt fences or other sediment control measures, but did not observe any, although such fences had been installed close to the creek's edge. During the second inspection, Tumblin did observe silt fencing, but concluded that it had been improperly installed or not maintained, inasmuch as it was allowing sediment to flow past it and off the site.

DHEC also cited RFP for failing to stabilize the site. Hawkins testified that the tract had been seeded but that it took several tries to establish a vegetative cover. Tumblin testified that although it has sometimes been difficult to establish grass, particularly during the past period of dry weather, there are other methods which can and have been used to stabilize graded sites and that he observed none of them being used at this site at the time of the two initial inspections.

DHEC witness Richard Renfrow testified concerning a stream assessment conducted in May, 2001, after the administrative order was issued. Although it did not form part of the Department's basis for issuing the order, I find that it has some probative value in assessing the impact on the creek, if any, of the activities at the site. Renfrow testified that the creek was impacted to the point his team could not find any macro invertebrates at either of the sampling locations, which were located upstream from the construction and downstream from the construction. In other words, RFP's land-disturbing activities created no additional adverse impact on the macro invertebrate population. Renfrow also testified that the sedimentation was worse at the downstream station than at the upstream station.

Mr. Frank Cramer, a former employee in the Bureau of Water Quality Division of DHEC, drafted Administrative Order 00-227-W after receiving an enforcement referral from Tumblin. In calculating the penalty, Cramer used the Department's penalty matrix, which bases the appropriate penalty on the amount of deviation times the potential for harm. After determining that the extent of RFP's deviation from regulations was "major" and the potential for harm caused by that deviation was also "major," Cramer assessed the maximum penalty of $10,000.00 for each of the two violations of the Pollution Control Act.

Having observed the witnesses and exhibits presented at the hearing and closely passed upon their credibility, taking into consideration the burden of persuasion of the parties, I make the following Findings of Fact by a preponderance of the evidence:

• RFP, Inc., owns a tract comprising approximately 14 acres bordering McElhaney Road in Greenville County.

• From mid-July 1998 to March 2000, Bobby L. Hawkins, President of RFP, Inc., discussed with the then-director of the Greenville County YMCA about the possibility of the YMCA receiving an easement across the property of RFP to gain access to an interior site that the YMCA had been deeded.
• These discussions culminated in March 2000, at which time Hawkins orally agreed to grant the YMCA the easement free of charge. Hawkins then contracted with MB White to clear the land upon which the future road would lie. At that time, neither Hawkins nor MB White applied for or received a permit to conduct land-disturbing activities.

• MB White cleared the tract, grubbed out stumps, and graded much of the site. As a result of the grading, the site was no longer stabilized in that it was left in excess of fourteen days without necessary sediment control structures and vegetation or other cover.
• MB White and/or RFP attempted to control sediment runoff by placing two sediment fences and planting grass. However, such sediment and erosion control devices either were not installed in the right places, were installed improperly, or were not maintained.
• Guy Tumblin, a Water Quality inspector for DHEC, inspected the site on two occasions in March and April 2000. During those inspections, Tumblin noted that land disturbing activities had occurred and that the sediment and erosion control devices in place did not prevent sediment from running off the site through ditches or gullies and depositing into the creek, which crossed the site.
• After DHEC first notified RFP that its activities required a permit, the contractor conducting the land-disturbing activities upon the 14 acre site owned by RFP sought and obtained the requisite permit.
• A study conducted by DHEC biologists revealed that there was no appreciable difference in the water quality of the creek downstream of the sediment runoff and up-stream of the runoff. Essentially, the sediment runoff created by the land-disturbing activity conducted on RFP's site resulted in no additional adverse impact on the stream.

CONCLUSIONS OF LAW

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

1. Pursuant to the Administrative Procedures Act, the Administrative Law Judge Division has jurisdiction to conduct contested case hearings concerning matters governing land-disturbing activities. See S.C. Code Ann. §§1-23-310 et seq. (1986 and Supp. 2000); S.C. Code Ann. §§48-1-10 et seq. (1987 and Supp. 2000). The Department issued Administrative Order Number 00-227-W to the Petitioner, in which a civil penalty of $20,000.00 was assessed for violations of the Pollution Control Act and 24 S.C. Code Ann. Regs.61-9.122.21 (Supp. 2000), promulgated pursuant thereto.

• 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). Because it seeks a civil penalty, the burden of proof rests upon the Department in this case. See Rule 29(B), ALJDRP.

• Runoff from clearing or grading activities involving more than 5 acres is a "storm water discharge." 24 S.C. Code Ann. Regs. 61-9.122.26(b)(14) (Supp. 2000). A storm water discharge is a "point source" requiring a permit. Regs. 61-9.122.1(b)(4)(iv). Permits are required for discharges from point sources. Regs. 61-9.122.21(a). This type of land-clearing activity is not exempted by Regs. 61-9.122.26(a). See O'Aha'ino v. Galiher, 28 F. Supp.2d 1258, (D.Hawai'i,1998); Hughey v. JMS Development, 620 F.2d 41 (N.D. Ga, 1993).
• Discharge of pollutants without the necessary permits is a violation of the Pollution Control Act, S.C. Code Ann. §48-1-90 (2000).
• Violations of the Pollution Control Act subject the violator to civil penalties. See S.C. Code Ann. §48-1-330 (2000).
• In this case, there is no question but that land-disturbing activities initiated by RFP on behalf of the Greenville YMCA required a permit issued by the Department prior to the initiation of such activities. In addition, it is uncontroverted that such activities resulted in sediment run-off into the creek crossing RFP's property.
• However, I conclude that DHEC's assessment of a $20,000.00 penalty in this instance is excessive. In defense of its penalty, DHEC's witness testified that he used a penalty matrix that compares the potential for harm to the severity of the violation such that the maximum penalty is assessed to the most severe of violations resulting in the most harm. For both the potential for harm and the severity of the violation, DHEC assigned a value of "major" and assessed the maximum penalty. Clearly, RFP failed to obtain the necessary permit prior to commencing land-disturbing activities, for which a civil penalty would be appropriate. However, once RFP was alerted to its violation of the Water Pollution Act, the necessary permit was sought and measures were taken to control the sediment discharge. Further, there is no discernable evidence in the Record that RFP's attempts to control its sediment discharge by installing two sediment fences and planting grass were "major" deviations from that which is required by law. Instead, the only evidence in the Record with regard to this point is that RFP failed to obtain the necessary permit prior to the initiation of land-disturbing activities and that RFP's attempts to control sediment discharge were not completely effective, in that some runoff of sediment did occur. More importantly, however, there is absolutely no evidence that any off-site harm, much less evidence of "major harm," was caused by the sediment runoff. DHEC's own biologist testified that there was no additional adverse impact on the stream caused by RFP's land-disturbance activities. This tribunal acknowledges that one can not rely upon his neighbor's pollution to justify polluting himself. However, RFP's activities caused no adverse effect on the stream. Consequently, DHEC's determination that the sediment runoff constituted a "major" potential for harm is wholly unfounded. Given these circumstances, the Department's assessment of the maximum penalty of $20,000.00 against RFP is excessive. Rather, a more appropriate penalty for RFP's violation of 24 S.C. Code Ann. Regs. 61-9.122.21(a)(2) (Supp. 2000) by conducting land-disturbing activities without obtaining a permit is $100.00 per acre disturbed, or $1400.00. In addition, the appropriate penalty for RFP's violation of S.C. Code Ann. § 48-1-90(a)(2000) by discharging sediment into the waters of this State, given its nominal, if not nonexistent, effect on the environment is $500.00.

ORDER

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

IT IS HEREBY ORDERED that Administrative Order 01-227-W is AFFIRMED to the extent that it finds that RFP, Inc., violated certain provisions of the Pollution Control Act;

IT IS FURTHER ORDERED that a civil penalty of $1900.00 must be remitted to the Department within 30 days of the date of this Order;

AND IT IS SO ORDERED.

_______________________________________

C. DUKES SCOTT

ADMINISTRATIVE LAW JUDGE

April 5, 2002

Columbia, South Carolina