SC Administrative Law Court Decisions

This is a contested case challenging the issuance, by the South Carolina Department of Health and Environmental Control (DHEC or Department), of Administrative Order 00-14-SW to Respondent Bamberg County (the County) for violations in operation of a waste transfer station. The Department seeks a fine in the amount of $32,200.00 from Bamberg County. After notice to the parties, a hearing was held at the offices of the Administrative Law Judge Division (Division) on August 7, 2001.

1. Whether the proximate causes of the violations were due to DHEC permitted design flaws or were the result of improper management of a well designed facility;

2. Whether an adequate opportunity was provided for Bamberg County to remedy the violations after notice was given by the Department; and

3. Whether the penalties assessed by the Department for each violation are appropriate in light of the two preceding issues.

Pursuant to S.C. Code Ann. §48-1-330 (1987 & Supp. 1999), the Department, through its Administrative Order, assessed the Respondent monetary penalties for violating S.C. Code Ann. §44-96-440(B) & (C) (Supp. 1999), S.C. Code Ann. §48-1-90 (A) (1987 & Supp. 1999), 25A S.C. Code Ann. Regs. 61-107.7 (Supp. 1999), and various provisions of the permit to operate the waste transfer station in Bamberg County. 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.

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:

General Findings

1. Notice of the time, date, place and subject matter of the hearing was given to the parties.

2. Bamberg County operates a solid waste transfer station pursuant to DHEC Permit No. 051001-6001 issued February 7, 1995. The station is subject to periodic reviews by DHEC to ensure compliance with the law and the conditions of the permit. These reviews were conducted on a monthly basis by Kurt Zollinger, an agent of DHEC. Additionally, as part of a five year environmental compliance review, Cathy Montgomery, an environmental health manager with DHEC, inspected the facility on July 15, 1999 and August 5, 1999 to determine if the facility had been operating in accordance with the permit and 25A S.C. Code Ann. Regs. 61-107.7 (Supp. 1999). Following these visits, Ms. Montgomery issued a report on January 5, 2000. This report noted various deficiencies associated with the tipping floor of the station and the leachate tank.

DHEC requested a written response to Ms. Montgomery's report, including a corrective action plan, by February 15, 2000. On March 23, 2000, DHEC notified Bamberg County by certified letter that it was scheduling an Enforcement Conference. ⁽¹⁾ That conference was held on May 11, 2000. Matthew Delk attended and presented a detailed corrective action plan, with expected dates of completion. ⁽²⁾ On March 27, 2000, Matthew Delk, on behalf of Bamberg County, served a letter responding to DHEC's request for a corrective action plan which set forth the proposed steps the County would take to address the noted deficiencies and the approximate time for completion. This letter refers to the conversations Mr. Delk had with Ms. Montgomery during February of 2000 regarding an extension of time for Bamberg to respond with a corrective action plan. On March 28, 2000, Cathy Montgomery responded to Mr. Delk's proposal. In her response, Ms. Montgomery acknowledged having prior conversations with Mr. Delk and commended him on his efforts to resolve DHEC's concerns. Nevertheless, on November 17, 2000, the Department issued Administrative Order 00-14-SW.

3. The Department contends that stained soil around the tipping floor noted during a compliance inspection is an indication that waste, or at least leachate, extended beyond the impermeable pad. 25A S.C. Code Ann. Regs. 61-107.7(C)(2) (Supp. 1999) states, in pertinent part: "Any spillage or leakage of solid waste ... shall be contained ... and unpermitted discharges ... shall be prohibited." The Department found the County in violation of these provisions due to the stained soil around the tipping floor and assessed the County a fine of $2,100.00 for the violation. The Department offered the testimony of Pete Stevens to substantiate the appropriateness of the fines though he had never actually gone to the Bamberg station. However, Mr. Stevens had no idea how large the stain was, how far into the ground it penetrated, nor what actually caused the stain.

4. The permit for this facility requires a leachate collection tank to collect waste run-off from the "tipping pad." The leachate collection tank overflowed in August and September 1999 and three times between May and June 2000. The Department contends that the leachate collection tank capacity is an adequate design and therefore, the overflows stem from management's failure to empty the tanks as needed to avoid overflow. ⁽³⁾ Therefore, the Department found that the overflow of leachate from the collection tank was a violation of 25A S.C. Code Ann. Regs. 61-107.7(C)(2)(Supp. 1999), and fined Bamberg County $7,800.00. The Department also found that Bamberg was not pumping the tank often enough and assessed $4,400.00 for a violation of Permit Operating Criteria F.4 and F.6.

Bamberg County contends that the overflow of the leachate tank is directly attributable to the inadequate size of the tank which was approved by the Department. Therefore, the County maintains it is unfair to fine them for using that permitted tank.

The leachate collection tank overflowed on three occasions. Two of the incidents involved periods of heavy rains, and the third occurred when a water main broke at the station during efforts by local firefighters to extinguish a blaze which broke out after hours. John Schnabel, a DHEC engineer who approved Bamberg's permit, testified that while the 500 gallon tank at the site should be adequate for most rains, the County station inspectors should recognize instances of heavy rains and be prepared to prevent the tank from overflowing. Mr. Schnabel estimated the tank should handle rains that are less than a twenty-five year storm event of six inches in a given day. However, Mr. Schnabel offered no calculations to arrive at this number and admitted he was making assumptions in his estimate. Furthermore, the Department did not establish the amount of leachate which escaped, nor the content of the leachate. In fact, the Department did not know whether the leachate posed any significant threat to humans or the environment. Additionally, the County now owns a pumping tank and keeps it on site in an effort to prevent additional leachate tank overflows. This should minimize the threat of any future leachate tank overflows, and indicates that the goal of deterrence has already been met.

5. The Department found that in September 1999 and again in February 2000 waste spread beyond the tipping pad. It also found that during the fifteen inspections between May 2000 and June 2001, waste extended beyond the tipping pad twelve times. The permit establishes a rate limit for waste leaving the facility but does not dictate a rate for waste entering the facility. The Department contends that though there is not an express inflow rate limit for waste, the outflow limitations, in conjunction with other requirements found in the permit and regulations, necessitate management of the inflow rate of waste to prevent waste from "spilling off" of the tipping floor. Therefore, the Department contends that inadequate tipping floor space was due to misuse of an adequate design and assessed a $3,500.00 fine for violation of 25A S.C. Code Ann. Regs. 61-107.7 (E)(7)(Supp. 1999). The County, on the other hand, argues that the tipping floor was improperly designed to handle the volume of incoming waste. Furthermore, Bamberg County contends that there was no practical way to decrease the amount of incoming waste. In fact, past efforts to hold incoming trucks at the gate to control the rate of waste coming in usually resulted in the trash being dumped in the woods within Bamberg County.

The engineer's report submitted with the permit application established that the station was adequate for a volume of incoming waste nearly twice that of the actual volume of waste which the station was permitted to handle on any given day. There is no evidence in the record that Bamberg County ever exceeded, or even approached, its daily waste volume limit.

The overflow of the waste from the tipping floor was a consequence of inadequate design of the transfer station. The transfer station was designed with too low of a roof, creating a useable tipping floor space that was inadequate for the amount of waste being handled. Furthermore, decreasing the amount of incoming waste could precipitate waste being dumped in the woods within Bamberg County, resulting in clean-up costs to the County and damage to the environment. Therefore, the environmentally practical method of resolving this problem is not controlling the incoming waste but rather renovating the transfer station to insure that the tipping pad is sufficient to handle the incoming waste. In that regard, Bamberg County has spent $93,155.98 to renovate the transfer station as of the date of the hearing. These renovations included raising the height of the roof, and removing some of the side supports to allow equipment more room to maneuver on the tipping floor.

6. The tipping floor and pit area had grime build-up due to inadequate cleaning on July 21, 1999, September 30, 1999, August 21, 2000, and September 25, 2000. That "muck" was contributing to the large number of flies and maggots. Permit Operating Criteria F.4 calls for "washdown and cleaning of the transfer station on a daily basis . . . as required to maintain a neat appearance. . . ." However, the water source provided for washing the tipping floor and pit areas did not provide sufficient pressure for wash down. Therefore, the Department assessed a $1,000.00 fine for violation of 25A S.C. Code Ann. Regs. 61-107.7(E)(8)(Supp. 1999).

Regulation 61-107.7(E)(8) provides, in pertinent part, that: "The unloading, storage, and loading surface areas shall be . . . provided with a water supply for cleaning purposes . . . ." Bamberg County was using a common water hose which was in disrepair to wash down the tipping floor and pit areas. There is no pressure requirement for the water supply in the regulation, nor is one specified in the engineering report upon which the Department granted the permit. Nevertheless, Bamberg County now has a pressure washer in place at the site for washdown purposes and this problem has been resolved. Furthermore, there is no evidence that the grime, other than being unsightly, was at any time harmful to humans or the environment.

7. Bamberg County altered the facility from its permitted design by removing gates at the station thereby enlarging the tipping floor area. As a result of an unpermitted enlargement of the tipping floor, a substantial portion of the tipping floor was not under a covered area. Therefore, the County violated subsection (E)(10) of Regulation 61-107.7. The Department assessed a fine of $3,500.00 based upon a maximum deviation score of "30" for violation of 25A S.C. Code Ann. Regs. 61-107.7(E)(10) (Supp. 1999). However, the Department did not establish how many square feet were not under the covered area. Furthermore, the destruction of the facility's gates was a consequence of an original inadequate design of the station. Therefore, Bamberg extended the tipping floor beyond the covered area in an effort to give the equipment more room to maneuver because the tipping floor as originally permitted was inadequately designed.

8. Bamberg County's permit allowed the site to store scrap metal and appliances for a period of one week. The Department assessed the County a fine of $500.00 because there were materials stored longer than one week, in violation of the permit. However, the five year review was conducted on two separate dates. The initial inspection report did not address the issue of the scrap metal stockpile. Therefore, the only evidence available in the record regarding the stockpile is from Mr. Zollinger's monthly inspection reports. Those reports show that the stockpile size varied from visit to visit, and that on some occasions, it was excessive, in Mr. Zollinger's opinion. However, the permit does not refer to the amount of materials which may be stored. It simply states that scrap metal and appliances cannot be stored on site longer than one week. While the large stockpile raises a question that materials may not have been timely removed, it does not establish that fact. Therefore, the Department has failed to establish a violation of 25A S.C. Code Ann. Regs. 61-107.7(F)(5)(Supp. 1999).

9. The Respondent's permit requires that "[t]he building shall be lighted with six 400 watt fixtures." The Department contends that the ceiling lights, which are integral to the building design, were missing or malfunctioning at the time of the compliance review inspections. Therefore, it assessed a fine of $1,000.00 for violation of Permit Building Specification S.9. However, the only evidence with regard to missing or malfunctioning ceiling lights is the report from the compliance inspection which indicated that there was a violation because some of the lights were not working. The reports upon which this violation was based are not in the record. Additionally, the height of the shed and its open sides created ample ambient light for the operation of this facility. Therefore, I find that the Department has not established this violation. Moreover, the remodeled station, with its higher ceiling, does not require separate lighting. Given that fact, there is absolutely no possibility of the County not complying with this provision in the future. Consequently, even if the evidence were to demonstrate a violation of the lighting requirement, the infraction has been corrected.

10. The Department contends that there was standing water in the tipping area on August 11, 1999 and June 30, 2000. Therefore, it assessed a fine of $1,000.00 for violation of 25A S.C. Code Ann. Regs. 61-107.7(F)(3)(Supp. 1999). The standing water did not pose a risk to humans or the environment. Furthermore, the Department did not establish how much water was present or how long it had been there. Likewise, the report issued as a result of the July 1999 inspection did not address these issues.

11. The Department found that excessive flies and maggots were at the facility on July 21, 1999, and assessed a fine of $7,000.00 for a violation of 25A S.C. Code Ann. Regs. 61-107.7 (F)(2)(Supp. 1999). Mr. Zollinger, the Department's inspector, testified that it was possible that maggots could be brought in on trucks during the day. He admitted that he could probably find maggots in every load. Mr. Zollinger further testified that those maggots would be caught up in the off-loaded garbage and those left behind would be hosed down at the end of the day. In fact, the evidence did not establish that the maggots remained at the end of the day in which the inspection was conducted. Nevertheless, I find that the evidence established that there were excessive flies and maggots at the facility and that the amount of maggots was related to inadequate housekeeping.

12. The permit required that the Bamberg facility's tipping area must be enclosed with fencing to contain litter. As of December 1999, no litter control fence was in place at the facility. Therefore, the County violated design plans, and thus the permit, by failing to construct a litter control fence around the tipping area. Furthermore, the inspections in April, May, July and December 1999, in addition to January and February 2000, revealed that litter was a problem at the facility. Additionally, the inspection reports noted excessive litter on the premises in fourteen of fifteen inspections subsequently conducted between May 2000 and June 2001. The County had notice of the litter problems which spanned over one year. Bamberg is now prepared to erect a ten foot cyclone litter control fence around the site which will cost between $6,000.00 to $10,000.00.

13. Administrative Order 00-14-SW, issued on November 17, 2000, ordered that Bamberg County submit a remedial action plan, implement that plan once approved, and pay a civil penalty of $32,200.00. In calculating the penalty, the Department utilized the Solid Waste Penalty Procedures and its matrix values. Penalties within the matrix are calculated using two criteria: "Potential for Harm" and "Deviation from the Requirement." The Department gives the "Potential for Harm" category more weight in a penalty calculation than the "Deviation from the Requirement" category because the Department considers the potential effect on human health and the environment more important than noncompliance with a requirement.

Based upon the above Findings of Fact, I conclude the following as a matter of law:

1. The Administrative Law Judge Division has subject matter jurisdiction of this case pursuant to the South Carolina Administrative Procedures Act, S.C. Code Ann. §§1-23-310, et seq. (1986 and Supp. 1999).

2. The Department has the authority to regulate solid waste transfer stations through S.C. Code Ann. §44-96-440(B) & (C) (Supp. 1999).

3. 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).

4. The issuance of permits for waste transfer stations is governed by the South Carolina Solid Waste Policy and Management Act, S.C. Code Ann. §§44-96-10, et seq. (Supp. 1999).

5. 25A S.C. Code Ann. Regs. 61-107.7(C)(2) (Supp. 1999) provides that: "Any spillage or leakage of solid waste at a transfer station shall be contained on the storage site and unpermitted discharges to the environment shall be prohibited." The County did not contain spillage or leakage of solid waste at the facility and has caused unpermitted discharges to the environment.

6. 25A S.C. Code Ann. Regs. 61-107.7(E)(7) (Supp. 1999) provides that: "On-site roads and unloading areas shall be adequate in size and design to facilitate efficient unloading and loading of the collection and transportation vehicles and the unobstructed movement of vehicles." As used at the time violations were observed, the facility did not have unloading areas that were adequate in size and designed to facilitate efficient unloading and loading of the collection and transportation vehicles and the unobstructed movement of vehicles.

7. 25A S.C. Code Ann. Regs. 61.107.7(E)(8) (Supp. 1999) provides that: "The unloading, storage and loading surface areas shall be constructed of low permeability materials, e.g., asphalt, concrete, etc.; provided with a water supply for cleaning purposes; and, equipped with drains or pumps, or equivalent means to facilitate the removal of water for proper disposal." The facility did not have a sufficient water supply and equipment necessary for proper cleaning of the unloading, storage and loading surface areas (tipping floor and pit area).

8. 25A S.C. Code Ann. Regs. 61-107.7(E)(10) (Supp. 1999) provides that: "Tipping areas shall be located within an enclosed building or covered area and all waste shall be contained in the tipping area." Waste has not been contained within the tipping area and this area is not within an enclosed area as required by Regulation 61-107.7(E)(10).

9. 25A S.C. Code Ann. Regs. 61-107.7(F) (Supp. 1999) provides, in relevant part, that: "The following operational requirements shall apply to all facilities that transfer solid waste:

[2] The transfer station shall maintain a neat and orderly appearance. The facility and the interior of the transportation vehicles where the waste is held shall be cleaned as often as necessary so as to control litter, odors, rats, insects and other vectors;

* * *

[3] All floors shall be free from standing water. All drainage areas shall be discharged to a sanitary sewer or other management method acceptable to the Department;

* * *

[5] Solid wastes identified as nonputrescible recyclables or oversized, bulky, or untreatable solid waste may be temporarily stored outside on the premises for a period not to exceed one (1) week, unless an exemption is requested and approved by the Department in the facility's general operation plan, and if it does not create a nuisance or a sanitary or environmental problem.

10. The Department contends that Bamberg County violated design plans, and thus the permit, by failing to construct a litter control fence around the tipping area and by not providing the lighting called for in the design plans. The Department also contends that the County violated the operational provisions of its permit by failing to capture leachate (from off-the-pad dumping and leachate tank overflow); enlarging and using an uncovered tipping area; failing to clean the facility sufficiently to maintain a neat appearance; failing to monitor, or at least pump out, the leachate tank as needed; failing to control vectors at the facility; and allowing nonputrescible recyclables to accumulate excessively during a period greater than one week. The County's permit requires compliance with 25A S.C. Code Ann. Regs. 61-107.7 (Supp. 1999), and failure to perform conditions of a permit is a violation of 25A S.C. Code Ann. Regs. 61-107.7(I) (Supp. 1999), which subjects the permit holder to a Department order. The permit also provides that the permittee shall adhere to the final design plans.

11. The Department failed to establish that:

a. The stained soil around the tipping floor was a violation of Regulation 61-107.7(C)(2);

b. The stored scrap metal and appliances were in violation of Regulation 61-107.7(F)(5); and

c. The ceiling lights were missing or malfunctioning in violation of the permit.

On the other hand, the Department established the following violations:

a. Leachate overflowed from the collection tank in violation of Regulation 61-107.7(C)(2) on three occasions;

b. Waste overflowed from the tipping floor in September 1999 and February 2000 in violation of Regulation 61-107.7 (E)(7);

c. The tipping floor and pit area had grime build-up due to inadequate cleaning on July 21, 1999, September 30, 1999, August 21, 2000, and September 25, 2000 in violation of Regulation 61-107.7(E)(8);

d. Bamberg County enlarged the tipping floor area and as a result a substantial portion of the tipping floor was not under a covered area in violation Regulation 61-107.7(E)(10);

e. There was standing water in the tipping area on August 11, 1999, and June 30, 2000 in violation of Regulation 61-107.7(F)(3);

f. Excessive flies and maggots were at the facility on July 21, 1999 in violation of Regulation 61-107.7 (F)(2); and

g. Bamberg facility failed to construct a litter control fence in violation of its permit.

Penalty

12. Inherent in and fundamental to the powers of an Administrative Law Judge, as the trier of fact in contested cases under the Administrative Procedures Act, is the authority to decide the appropriate sanction when such is disputed. Walker v. South Carolina ABC Comm'n, 305 S.C. 209, 407 S.E. 2d 633 (1991). The Administrative Law Judge, as fact-finder, must impose a penalty based on the facts presented at the contested case hearing. In particular, in assessing a penalty, "each fine must be analyzed individually to determine if it is appropriate under the circumstances." Midlands Utility, Inc., v. South Carolina Department of Health and Environmental Control, 313 S.C. 210, 212, 437 S.E.2d 120, 121 (1993). Furthermore, the fact-finder "should give effect to the major purpose of a civil penalty - deterrence." Id. Similarly, an Administrative Law Judge must also consider relevant evidence presented in mitigation. Mitigation is defined as a lessening to any extent, great or small. It may be anything between the limits of complete remission on one hand and a denial of any relief on the other. In a legal sense, it necessarily implies the exercise of the judgment of the court as to what is proper under the facts of the particular case. 58 C.J.S. Mitigation p. 834, 835 (1948).

13. The Department has established that some of the violations were due to improper management. However, while operational problems existing at the facility precipitated some of the violations, Bamberg County was not solely responsible for all of the proven violations. The station was also improperly designed to handle the amount of waste for which it was permitted. Though the County hired the engineer who designed the station, the Department reviewed and approved those plans. Therefore, the Department's approval of the design must be considered in determining the proper penalty for those instances in which the design of the station directly contributed to the violations.

Additionally, the Respondent is a public entity run solely on tax revenues. In response to the deficiencies noted in the five year review, Bamberg County has expended $93,155.98 to date. The County also anticipates spending an additional $6,000.00 to $10,000.00 for litter control fencing. The extensive efforts and expenditures already made by the County are further factors in determining the proper penalty, especially in context of the penalty effectuating the primary purpose of deterrence.

Furthermore, had Bamberg County submitted a corrective action plan in the form desired by Cathy Montgomery on February 15, 2000, no referral to DHEC's enforcement division would have occurred in this case. Though the corrective action plan was directed to a county government and involved numerous structural design changes, Ms. Montgomery required that the plan be served upon the Department within forty days after the final compliance report was issued. Moreover, the Bamberg County Administrator, Matthew Delk, improvidently believed he had additional time in which to deliver Bamberg's corrective action plan. Bamberg's plan was ultimately presented in detail approximately forty-five days after Ms. Montgomery's arbitrary deadline. Mr. Delk's letter of March 27, 2000 included all of the points of Ms. Montgomery's desired corrective action plan except point-by-point anticipated completion dates. However, Ms. Montgomery had already decided to refer the matter to enforcement at that time due to Bamberg County missing her February 15, 2000, deadline. There is no evidence that Bamberg County was deliberately dragging its feet or ignoring DHEC's request.

14. Each of the violations found above have individual mitigating factors, in addition to the above cited general mitigating factors, which weigh in determining the appropriate penalty, if any. The leachate overflow was a consequence of both faulty design and poor management. Furthermore, the Department was unable to demonstrate that the leachate was at any time harmful to humans or the environment. Additionally, Bamberg County now owns a pumping tank and keeps it on site in an effort to prevent additional leachate tank overflows. This should minimize the threat of any future leachate tank overflows, and indicates that the goal of deterrence has already been met. Nevertheless, Bamberg should have taken precautions to prevent leachate tank overflow before this litigation. Therefore, I find that a fine of $1,000.00 for leachate tank overflow and inadequate tank capacity/insufficient tank pumping is appropriate under the circumstances of this case.

15. The waste overflow from the tipping floor was, in part, a result of inadequate space for the amount of waste which the Bamberg station was permitted to handle. Furthermore, Bamberg County was placed in a difficult position of potentially creating a greater environmental impact if it simply limited the incoming flow of waste to the site. Additionally, the cost of the renovations to the site adequately addressed the design flaws raised by DHEC and by Bamberg's expert. Therefore, a fine for violation of this provision would be inappropriate.

16. Bamberg should have employed the means necessary to insure the maintenance of sanitary conditions on the tipping floor . On the other hand, a primary purpose of fines is to deter future conduct. Since Bamberg County now has a pressure washer in place at the site for washdown purposes, this problem has been resolved. Furthermore, there is no evidence that the grime, other than being unsightly, was at any time harmful to humans or the environment. Therefore, I find that the appropriate fine in this case is $250.00.

17. The Department did not establish how many square feet of the tipping floor were not under the covered area. Furthermore, the tipping floor was extended beyond the covered area in an effort to give the equipment more room to maneuver because the tipping floor as originally permitted was inadequately designed. Nevertheless, when Bamberg County altered the facility from its permitted design, it should have also extended the tipping floor cover. Therefore, I find that the appropriate fine in this case is $1,000.00.

18. The Department did not establish how much standing water was present or how long it had been there. Additionally, the standing water posed no threat to humans or the environment. Therefore, though technically Bamberg County did violate the provisions of Regulation 61-107.7(F)(3), the extent of the violation is nebulous and the impact to the environment was inconsequential. Accordingly, I conclude that a fine for a violation of this provision would be inappropriate.

19. The evidence established that excessive flies and maggots were at the facility on July 21, 1999. However, the evidence did not establish that the maggots remained at the end of the day in which the inspection was conducted. Nevertheless, I find that the evidence established that there were excessive flies and maggots at the facility and that the amount of maggots was related to inadequate housekeeping. Therefore, I find that a fine of $250.00 is appropriate for this violation.

20. The County violated design plans, and thus the permit, by failing to construct a litter control fence around the tipping area. Bamberg County had notice of the litter problems which spanned over one year. The County is now prepared to erect a ten foot cyclone litter control fence around the site which will cost between $6,000.00 to $10,000.00 to control blowing litter. Therefore, I find that in addition to the requirement set forth below that Bamberg erect a litter control fence, a fine of $1,000.00 is appropriate for this violation.

Based upon the above Findings of Fact and Conclusions of Law, it is hereby ORDERED that a penalty of Three Thousand Five Hundred ($3,500.00) Dollars is imposed upon the Respondent to be paid to the Department within sixty (60) days of the issuance of this Order.

IT IS FURTHER ORDERED that the Respondent erect a ten foot cyclone litter control fence around the site as approved by the Department within sixty (60) days of the issuance of this Order.

AND IT IS SO ORDERED.

____________________________________

Ralph King Anderson, III

Administrative Law Judge

December 18, 2001