ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
On January 26, 2001, Petitioner appealed an administrative order of the South Carolina Department of Health and Environmental Control (SC
DHEC) which imposed a civil penalty upon the Petitioner and required him to take certain actions in regard to certain underground storage
tanks. Subsequently, both parties filed Prehearing Statements as ordered and a hearing was held on September 26, 2001, in the offices of the
Division in Columbia, South Carolina. Counsel appeared on behalf of the Respondent. The Petitioner did not appear.
FINDINGS OF FACT
1. Notice of the date, time, and place of the hearing was given to the parties on
August 15, 2001. Notice was given was by placing the Order and Notice of Hearing issued in this case in the United States mail with postage
paid on August 15, 2001. The Order and Notice of Hearing stated that a hearing was to commence in this matter on Wednesday, September
26, 2001, beginning at 9:00 a.m.
2. On August 29, 2001, the Respondent sent a letter to the Petitioner seeking to settle
the case. A copy of that letter was mailed to this Division. The letter reminds the Petitioner that if an agreement is not reached, "...we will
proceed with the ALJD hearing which is scheduled for Wednesday, September 26, 2001 at 9:00 a.m." Respondent did not receive a response
as to settlement.
3. Joe W. Gladney, Enforcement Project Manager at SC DHEC, testified that he
spoke with the Petitioner the week before the hearing and that Petitioner was aware of the hearing on September 26, 2001.
4. The Petitioner has made no contact with this Division since the date and time of
the hearing. I find that the Petitioner knew of the date, time, and place of the hearing and chose not to attend. Therefore, the hearing proceeded
without the Petitioner present.
5. Petitioner, Johnnie Capers and Johnnie Capers d/b/a Pringletown Quick Stop,
Berkeley County, owns and operates underground storage tanks as defined in the State Underground Petroleum Environmental Response Bank
(SUPERB) Act, Title 44, Chapter 2, South Carolina Code of Laws, as amended. The tanks are located at 1088 Old Gilliard Road, Ridgeville,
Berkeley County, South Carolina.
6. On July 21, 2000, DHEC inspected the Petitioner's underground storage tanks.
The inspection and a file review indicated that the Petitioner failed to provide adequate release methods. Also, Petitioner failed to keep records
relating to release detection upon request by DHEC. Joe Gladney issued a notice of violation to the Petitioner requesting the Petitioner to come
into compliance with underground storage tank regulations before September 6, 2000. The Petitioner did not comply and on December 13,
2000, the Respondent issued an administrative order requiring that the Petitioner: (1) comply with all provisions of the SUPERB Act and the
Underground Storage Tank Control Regulations; (2) submit a copy of the current line tightness test; (3) submit a copy of the current line leak
detector function check results; and (4) pay a civil penalty of $2,565.00. The order required compliance within thirty (30) days of the order.
The violations cited in the order were corrected approximately four (4) months after the issuance of the order, but Petitioner has not paid the
civil penalty.
7. The amount of the civil penalty was assessed in the following manner: $1,500
assessed as the amount suggested for these violations in the Bureau of Land and Waste Management UST Enforcement Program's document
for Civil Penalty Guidance for More Commonly Seen Violations - Administrative Order Level. This amount was broken down into $1,000
which is the base amount for a violation of 25 S.C. Code Ann. Reg. 61-92.280.40(a) and $500 which is the base amount for a violation of 25
S.C. Code Ann. Reg. 61-92.280.34(c). Then, $750 was assessed which is half of the base amount was added because Petitioner was
uncooperative and failed to comply. Then, $315 was added which is the amount of the competitive advantage of noncompliance. This is the
civil penalty amount of $2,565.
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. On January 26, 2001, the Petitioner appealed the decision of SC DHEC
concerning his underground storage tanks. Pursuant to South Carolina statutes and regulations, this provides the Petitioner with a contested
case hearing before this Division. Petitioner then has a responsibility to appear and present his case to this Division. Therefore, failure to appear
is a ground for this matter to be dismissed. "The administrative law judge may dismiss a contested case or dispose of a contested case adverse
to the defaulting party. A default occurs when a party fails to plead or otherwise prosecute or defend, fails to appear at a hearing without the
proper consent of the judge or fails to comply with any interlocutory order of the administrative law judge. Any non-defaulting party may move
for an order dismissing the case or terminating it adversely to the defaulting party." ALJD Rule 23.
3. Nevertheless, the Respondent chose to put forth evidence since it carries the
burden of proof. "In matters involving the assessment of civil penalties, the imposition or sanctions, or the enforcement of administrative orders,
the agency shall have the burden of proof." ALJD Rule 29 (B). The Respondent met its burden.
4. 25 S.C. Code Ann. Reg. 61-92.280.40 requires that owners and operators
of new and existing UST systems provide a method, or combination of methods, of release
detection that can detect a release from any portion of the tank and the connected underground piping that routinely contains product. 25 S.C.
Code Ann. Reg. 61-92.280.34(b) provides owners and operators must maintain the information containing recent compliance with release
detection requirements. Finally, 25 S.C. Code Ann. Reg. 61-92.280.34(c) requires that owners and operators must keep the records required
either at the UST site and immediately available for inspection by the Department or at a readily available alternative site and be provided for
inspection to the Department upon request.
5. S.C. Code Ann. §44-2-140 (A)(Supp.2000) states, "Whenever the department
finds that any person is in violation of any provision of this chapter, any regulation promulgated
under this chapter, or prior order of the department, the department may issue an order requiring the person to comply with the provision,
regulation, or prior order, or the department may bring civil action for injunctive relief in an appropriate court of competent jurisdiction. An
order issued by the department or court may include civil penalties as provided for in this chapter." The civil penalty in this case is appropriate.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, it is hereby:
ORDERED that the Petitioner pay the civil penalty assessed by Respondent's Administrative Order No. 00-0886-UST in the amount of
$2,565.00.
AND IT IS SO ORDERED.
___________________________________
CAROLYN C. MATTHEWS
Administrative Law Judge
November 5, 2001
Columbia, South Carolina. |
