ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
On December 4, 2000, the South Carolina Department of Health and Environmental Control (DHEC) issued
Administrative Order No. 00-0554-UST to Mr. Joseph Hilton, III (Respondent) concerning underground storage tanks. On
December 27, 2000, the Respondent filed a Request for Contested Case Hearing with DHEC which was forwarded to this
Division on January 4, 2001. A hearing was held in this matter at the Division on November 28, 2001. DHEC had the
burden of proof in this case since it involved an administrative penalty, and accordingly, the caption of the case was
changed as reflected above at the start of the hearing.
FINDINGS OF FACT
I find by a preponderance of the evidence the following facts:
1. Prior to a deadline date of December 22, 1998, DHEC began reminding underground
storage tank (UST) owners of the need to upgrade their UST systems. The upgrade was required due to the SUPERB Act
and UST Control Regulations and was designed to ensure spill and overflow protection. DHEC gave notice of the
impending deadline by certified mail to all owners and operators of non-upgraded UST systems. The owners were told that
all USTs had to be either upgraded by December 22, 1998, or else properly closed. The letter also informed UST owners
and operators that releases reported from non-upgraded UST systems after December 22, 1998, would be considered not in
substantial compliance and therefore not eligible for SUPERB Account Funding.
2. The Respondent owned two USTs at Hilton's Grocery, 3715 Celanese Road, Rock
Hill, South Carolina, and he received his letter of notice on November 4, 1998. Hilton did not install spill and overflow
prevention equipment as outlined at 25A S.C. Code Ann. Regs. 61-92, Subpart B, § 280.20(c). Rather, despite the notice,
Hilton continued to operate his USTs beyond the December 22, 1998 deadline even though the USTs had no upgrades for
spill protection and no upgrades for overflow protection.
3. On December 29, 1998, a DHEC inspector inspected Hilton's site. On December 29,
1998, Hilton was selling gasoline to the public and was operating a UST system without the required
upgrades. By the middle of 1999, Hilton had closed the UST system and submitted a closure report to DHEC. The closure
report disclosed that a release of gasoline had occurred from Hilton's non-upgraded UST system in July 1999. The soil
analysis performed by Columbia Analytical Laboratories, Inc. concerned DHEC, specifically because of the high level of
Naphthalene.
4. As a result, DHEC held a Notice of Violation conference with the Respondent. He
was informed of the requirements for compliance. Respondent did not comply and DHEC subsequently issued an
Administrative Order on December 4, 2000, in which they found Hilton failed to determine the extent of the release in
accordance with the schedule DHEC had established. Hilton also failed to submit assessment information related to the
July 1999 release in accordance with the schedule established by DHEC. As a result, the Department found that Hilton had
violated 25A S.C. Code Ann. Regs. 61-92.280.65 (a) and (b). (1)
5. Administrative Order No. 00-0554-UST ordered that the Respondent:
1. comply with all provisions of the SUPERB Act and the Underground
Storage Tank Control Regulations;
2. submit an Initial Ground Water Assessment Report;
3. and pay a civil penalty of $4,395.00.
5. Joe Gladney, Enforcement Project Manager of the UST program, testified as to the
assessment of the civil penalty. He stated the initial $2,000.00 was assessed as the base amount in the penalty range. There
was no testimony as to the remainder of the fine.
CONCLUSIONS OF LAW
Based on the foregoing Findings of Fact, I conclude the following as a matter of
law:
1. The South Carolina Administrative Law Judge Division has jurisdiction in this
matter pursuant to S.C. Code Ann. §1-23-600 (Supp. 2000), S.C. Code Ann. §44-2-10 et seq., and 25 S.C. Code Ann. Regs.
61-92 (Supp. 2000).
2. Title 44, Chapter 2 establishes the State Underground Petroleum Environmental
Response Bank Act. One of the purposes of the Act is strengthen the regulatory control of underground storage tanks to
lessen the threat of ground and surface water contamination from spills, leaks and other discharges.
3. Pursuant to §44-2-50 (Supp. 2000), the Department promulgated regulations
"relating to permitting, release, detection, prevention, and correction applicable to all owners and operators of underground
storage tanks...."
4. Specifically, in this matter DHEC alleges a violation of 25 S.C. Code Regs. 61-92
Section 280.65 (a) and (b). That regulation reads as follows:
- In order to determine the full extent and location of soils
contaminated by the release and the presence and concentrations of dissolved product contamination in the ground water,
owners and operators must conduct investigations of the release, the release site, and the surrounding area possibly affected
by the release if any of the following conditions exist:
(1) There is evidence that ground-water wells have been affected by the release (e.g., as found during release confirmation
or previous corrective action measures);
(2) Free product is found to need recovery in compliance with Section 280.64;
(3) There is evidence that contaminated soils may be in contact with ground water (e.g., as found during conduct of the
initial response measures or investigations required under Sections 280.60 through 280.64); and
(4) The Department requests an investigation, based on the potential effects of contaminated soil or ground water on nearby
surface water and ground-water resources.
b. Owners and operators must submit the information collected under
paragraph (a) of this section as soon as practicable or in accordance with a schedule established by the Department. 5. The
evidence is clear that the soil in the area of the release was contaminated. For that
reason, DHEC was justified in requiring the Respondent to begin an investigation to start with an Initial Groundwater
Assessment. When the Respondent did not comply, the issuance of an Administrative Order was appropriate.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, it is hereby:
ORDERED that the case caption be changed to reflect DHEC as the Petitioner and Hilton as the Respondent;
ORDERED that within sixty (60) days the Respondent submit an Initial Ground Water Assessment Report to the
Department.
IT IS FURTHER ORDERED that the Petitioner pay the portion of the civil penalty assessed by DHEC's Administrative
Order No. 00-0554-UST in the amount of $2,000.00. The remaining portion of the civil penalty shall not be enforced since
there has been no finding that the penalty is supported by the evidence.
AND IT IS SO ORDERED.
___________________________________
CAROLYN C. MATTHEWS
Administrative Law Judge
April 23, 2002
Columbia, South Carolina.
1. DHEC notified Hilton that he was not eligible for funds for remediation costs from the SUPERB Fund or the SUPERB
Financial Responsibility Fund. The reason given by DHEC was that Hilton was not in substantial compliance with
regulations governing USTs. The Respondent appealed that decision and a Final Order and Decision affirming the
Department was issued by the Honorable Ray N. Stevens on January 4, 2000 (ALJD Docket No. 99-ALJ-07-0500-CC).
The Respondent appealed that decision to the Board of DHEC. The Board affirmed the Final Order of Judge Stevens on
March 16, 2001. However, an appeal concerning funds under SUPERB does not obviate the need for an Initial
Groundwater Assessment or other potential investigatory measures.
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