SC Administrative Law Court Decisions

This matter comes before the Administrative Law Judge Division (Division) upon request of the Petitioners for an administrative hearing pursuant to the South Carolina Administrative Procedures Act, S.C. Code Ann §§ 1-23-310, et seq. (1986 & Supp. 2000). The Petitioners seek review of the Department of Health and Environmental Control's (DHEC or Department) issuance of Stormwater and Sediment Reduction Permits (collectively, Permits or Stormwater Permits) to Anderson County Environmental Services Division (ESD) and Anderson County (County) (collectively, Anderson Respondents) for the Beaverdam Creek Sewer Project (Project) Phase 1A (Permit No. 04-00-01-04) and Phase II (Permit No. 04-00-01-04A). The Petitioners allege that DHEC's issuance of the Permits was in violation of the requirements of 26 S.C. Code Ann. Regs. 72-300, et seq. (Supp. 2000) (Standards for Stormwater and Sediment Reduction), 25 S.C. Code Ann. Regs. 61-68 (Supp. 2000) (Water Classifications and Standards), and 25A S.C. Code Ann. Regs. 61-101 (Supp. 2000) (Water Quality Certification, § 401 of the Clean Water Act, 33 U.S.C. § 1341). A hearing was held before me on September 5 and 6, 2001, at the offices of the Division in Columbia, South Carolina.

At the beginning of the hearing, Anderson Respondents and the Department made a Motion in Limine to exclude any evidence regarding the requirements of Regulation 61-68, the requirements of Regulation 61-101, and certain other matters, except to the extent that such evidence was otherwise relevant to DHEC's issuance of the Permits for the Beaverdam Creek Sewer Project pursuant to S.C. Code Ann §§ 48-14-10, et seq. (Supp. 2000), the Stormwater Management and Sediment Reduction Act (Stormwater Act), and Regulation 72-300, et seq, (Stormwater Regulations). In their Motion, the Respondents listed nine issues on which they anticipated the introduction of evidence, based on the Petitioners' Petition and Prehearing Statement, which they sought to exclude as irrelevant to the Permits at issue. Those issues were:

1. Whether the Project is consistent with Section 208(b) of the federal Clean Water Act, 33 U.S.C. § 1288(B)(2)(e), and whether the Project is consistent with a properly adopted plan to meet community needs;



2. Whether ESD possesses adequate character and competence to safely design, construct, and operate the Project;



3. Whether the Project will fail during operation, causing a discharge into surface waters or groundwater;



4. Whether the Project unreasonably interferes with the Petitioners' use and enjoyment of their property or will lower their property values;



5. Whether the long-term cumulative effect of the construction of the sewer project will include undesirable "sprawl" development of the Beaverdam Creek basin resulting in impacts on water quality, loss of natural habitat, and other harm;



6. Whether the activity to be permitted will be conducted in a manner which will violate applicable water quality standards;



7. Whether the proposed activity to be permitted will permanently alter the aquatic ecosystem in the vicinity of the project such that its functions and values will be eliminated or impaired;



8. Whether there is a feasible alternative to the proposed activity which reduces adverse consequences on water quality and classified uses; and



9. Whether appropriate and practical steps will be taken to minimize the adverse impacts on water quality and the aquatic ecosystem.

During arguments on the Motion in Limine, the Petitioners conceded that they would not make substantive arguments nor present evidence concerning the applicability of Regulation 61-101 to DHEC's issuance of the Permits other than to make the legal argument that DHEC has no authority to issue a stormwater permit unless and until it has determined whether a § 401 Water Quality Certification should be issued as well. After hearing argument from all of the parties, I granted in part and denied in part the Respondent's Motion in Limine as follows:

- With regard to issue no. 1, I granted the Motion;

- With regard to issue no. 2, I allowed the Petitioners to introduce evidence concerning only the competence of the design, construction, and operation of the Stormwater Permits themselves;

- With regard to issue no. 3, I allowed the Petitioners to introduce evidence only concerning whether the Stormwater Permits will properly restrict stormwater runoff in the context of the Stormwater Regulations;

- With regard to issue no. 4, I allowed the Petitioners to introduce only evidence of use and enjoyment of the property solely as such evidence related to the issue of the Petitioners' standing. ⁽¹⁾ I granted the Motion as it related to the introduction of evidence of the impact on use and enjoyment of the property and the lowering of property values in determining whether or not to issue the Permits;

- With regard to issue no. 5, I granted the Motion; and

- With regard to issues nos. 6, 7, 8 and 9, I granted the Motion except to the extent of the evidence related to whether the Stormwater Permits themselves will affect adjacent waters in the context of the Stormwater Regulations.

The Petitioners also requested that I take judicial notice of certain testimony from an earlier hearing held on the Construction Permits for the Beaverdam Creek Sewer Project, Docket No. 00-ALJ-07-0671-CC, for purposes of establishing the Petitioners' standing. Without objection from counsel for the Respondents, I admitted as evidence in this proceeding the following portions of the hearing transcript of the previous proceeding:

- The testimony of William McCoy on page 84, line 11, to page 88, line 11;

- The testimony of Chuck Sitka on page 208, line 17, to page 215; page 219 to page 233; and page 240, line 3, to page 241; and

- The testimony of Cindy Wilson on page 243 to page 251, line 23; and page 252, line 21, to page 254.

Having carefully considered all testimony, exhibits, and arguments presented at the hearing in this case and taking into account the credibility and accuracy of the evidence, I make the following Findings of Fact by a preponderance of the evidence:

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

2. The Petitioners object to the Department's issuance of Permit No. 04-00-01-04 on February 7, 2000, for Phase IA of the Project and Permit No. 04-00-04-04A for Phase II issued on October 12, 2000. The Project is a multiple-phase project approved by Anderson County Council to provide sanitary sewer services to meet the existing and future development needs of the County. The land disturbing activity involved in construction of this interceptor sewer project will be the clearing, grubbing, and trenching for placement of the sewer line. Afterwards, the land is to be revegetated and returned practically to its pre-disturbed condition.

3. The Permits for Phases IA and II meet the applicable requirements of Regulation 72-300, et seq., for Best Management Practices (BMPs) to control stormwater runoff and minimize sediment transport. ⁽²⁾

4. Respondent ESD submitted detailed stormwater permit application packages (Stormwater Packages) for both Phases IA and II. Both Stormwater Packages were prepared by the County's engineering consultant, B. P. Barber & Associates, Inc. (B. P. Barber), and were signed by James M. Longshore, P.E., a registered professional engineer in the State of South Carolina, as required by Section H of Regulation 72-305 and Section A(5) of Regulation 72-307. Furthermore, the Stormwater Packages for Phases IA and II contained all of the information required by Regulations 72-305 and 72-307 to be submitted to the Department, including the certifications required by Sections D and E of Regulation 72-305 from the owner of the Project, Anderson County, stating that the land disturbing activity will be accomplished pursuant to the approved plan and acknowledging the right of DHEC to conduct on-site inspections.

5. The Petitioners contend that the Permits do not comply with the requirements of Regulation 72-307(B)(4) which necessitate that "[w]hen work in a live waterway is performed, precautions should be taken to minimize encroachment, control sediment transport, and stabilize the work area to the greatest extent possible during construction." 26 S.C. Code Ann. Regs. 72-307(B)(4) (Supp. 2000). Both the Petitioners' expert, William McCoy, ⁽³⁾ and Anderson Respondents' expert, Jim Longshore, ⁽⁴⁾ testified that there would be work in live waterways.

The Stormwater Management and Sediment Control Plans (Plans) submitted by Anderson Respondents specify two methods for working in live waterways -- direct dig and coffer dam. The Petitioners contend that neither of these methods controls sediment transport to the "maximum extent possible" and that Anderson Respondents should be required to use the method which requires "boring under" the live waterway with a steel casing and putting the sewer pipe inside the casing. The Petitioners further argue that the "boring under" method is used where sewer lines cross public roads.

Only about 350 to 400 feet of the entire 65,000 feet of the Project would involve working in a live waterway. While both methods meet BMP requirements, the coffer dam method would likely be used for the two Rocky River crossings and the direct dig method on the smaller crossings, many of which are small enough for an individual to step over. Both the direct dig and coffer dams are commonly used and accepted methods to cross live waterways and both are standard industry engineering practices for laying sewer pipe across a live waterway. In fact, Mr. Longshore testified that he did not know of any sewer project where boring under streams had been undertaken and had never had a permit for sewer construction in South Carolina in which the bore method was required. Additionally, the "boring under" method is possibly three times as expensive as the coffer dam method and could cause greater problems because of the equipment involved, the extent of excavation required, and the difficulties of boring under rock.

Therefore, the erosion and sedimentation control methods for stream crossings detailed in the Plans meet the regulatory requirements of Regulation 72-307(B)(4) to minimize encroachment, control sediment transport, and stabilize the work area to the greatest extent possible during construction. Moreover, the § 401 Water Quality Certification would address stream crossings in greater detail than the Stormwater Permits and would include the specifics of construction methods. The Anderson Respondents could not proceed with creek crossings without having first obtained that § 401 Certification.

6. The Petitioners contend that the type of grasses included in the Grassing Specifications of the Plans are not native or indigenous grasses, i.e., upland grasses, and should not be utilized for bank stabilization because they will not tolerate a moist environment. The grasses specified in the Plans include Annual Rye Grass, Hulled Bermuda, Sericea Lespedeza, Kentucky 31 Fescue, Brown Top Millet, and Unhulled Bermuda. However, the grassing specifications were intended for covering disturbed areas along the right of way, not for bank stabilization. The issue of bank stabilization derived from an e-mail comment by Mr. Geer, the DHEC engineer who reviewed the Plans and specifications, to B.P. Barber suggesting that the Respondent should remediate the banks in the disturbed areas. ⁽⁵⁾ However, that recommendation was above and beyond what was required under the Stormwater Regulations. Furthermore, Mr. Longshore testified that Mr. Geer's recommendation would be addressed in the § 401 Water Quality Certification process in which Anderson Respondents were proposing certain planting and restabilization efforts at stream crossings.

7. The Petitioners contend that, in trenching to lay the sewer pipe, Anderson Respondents will encounter groundwater and that potentially the Anderson Respondents may pump that sediment-laden groundwater into streams since that act is not prohibited by the Plans. The Petitioners proposed that the issue could be addressed by pumping the groundwater into a sediment trap. However, the Petitioners' expert testified that he had not necessarily reviewed the final Plans as approved by DHEC.

The Department contends that an e-mail sent to B.P. Barber required Anderson Respondents to add a note to the Phase II Plan requiring that water pumped from trenches be routed through a sediment trap. The Department did not require that additional sediment trap details be included in the Plans because those details would be the same or similar to the details already on the Plans. B.P. Barber subsequently added the note on sediment traps to its Plans. Furthermore, Anderson Respondents intend to implement the same changes in Phase IA even though DHEC only required the changes for Phase II. Additionally, the silt fencing will also be an effective sediment trapping device particularly when construction is further away from the creek and there is not an excessive amount of water to be pumped out.

8. The Petitioners contend that burlap silt fencing is not appropriate because burlap allows too much sediment to flow through the fencing. Consequently, the Petitioners contend that synthetic silt fencing is more appropriate. However, the revised Phase II Plan already requires synthetic silt fencing. Additionally, Anderson Respondents intend to implement the same changes for the Phase IA Plan.

9. The Petitioners contend that the Plans did not address Mr. Geer's e-mail requirement that a note be added to the Phase II drawings regarding the use of temporary diversion berms and/or ditches as needed during construction to protect work areas from upslope runoff and/or to divert sediment-laden water to appropriate traps or stable outlets. However, that change was made on the Phase II drawings. Additionally, Anderson Respondents intend to adhere to this requirement for Phase IA construction as well.

10. The Petitioners contend that the wrong size of surge stone was specified for the Project's entrances and exits. Unless access is acquired across private property, all construction access for the sewer line will be from the nearest public road crossing. The excavation equipment, all of the stone to stabilize the bottoms of the trench, the sewer pipe and any excess excavated material will be transported through those crossings. The equipment would include track hoes (weighing from thirty to fifty tons), and several front-end loaders to bring in stone, pipe, manhole sections, and boxes for the stone. This equipment will cause ruts very quickly in the wet soils. Generally, surge stone of about 3" diameter is used to provide a stable foundation in such wet soils and to force mud from the treads of vehicle tires to prevent tracking of mud at the entrances to the public roads.

A smaller, No. 57 stone-- only 3/4" diameter-- is referenced in the Erosion Control Specifications. The No. 57 stone is inadequate to remove the mud which will be tracked onto the public roads. However, the construction drawings called for the larger No. 5 surge stone.

11. The Petitioners contend that the construction right-of-way is only twenty-five feet wide and that twenty-five feet is not sufficient to accommodate all construction activities including sediment traps. However, the Petitioners' evidence is based upon speculation that it would be impossible to work on a twenty-five foot right-of-way. The Petitioners did not establish that the Anderson Respondents could not adequately control sediment under the approved Permits. In fact, there are a variety of places within the twenty-five foot right-of-way to build sediment traps. Moreover, the Permits identify what areas are to be disturbed and, if Anderson Respondents disturb more than that acreage, they will be in violation of the Permits.

12. The Petitioners contend that the Plans do not contain any requirements for measuring the effectiveness of the stormwater and sediment control measures. They maintain that the effectiveness of the control measures should be monitored by measuring solids in streams under normal conditions and after a rainfall event. However, the Petitioners did not establish that measuring solids in streams was necessary to comply with the standards for stormwater management and sediment reduction.

13. The Petitioners contend that the Plans should require that the contractor seal the pipe at the close of each work day in order to prevent additional sediment from being discharged into the environment if there was a subsequent rainfall event.

Sealing or closing off the pipe at the end of each workday is not required in the Plans. Nevertheless, closing off the pipe at the end of each workday is a standard industry practice for contractors. In that regard, B.P. Barber plans to have a representative on site full time due to the scope of the Project and daily closing of the trench would be one of the procedures that the B.P. Barber representative would verify. Additionally, Anderson County plans to have an inspector from ESD on site on a daily basis for at least some portion of the day. Moreover, any muddy water that got into the pipeline would not flow into Beaverdam Creek, but rather would flow into the pipeline below the Creek and, as such, would not be stormwater runoff. If, and when, any muddy water is pumped from the trench, it would be pumped into sediment traps. Furthermore, both Plans contain the language regarding inspections set forth in Regulation 72-307(B)(1). The construction sequences of both Plans require that all erosion and sedimentation controls be inspected at least once every seven days and after any storm event of 0.5 inches during any twenty-four hour period.

14. The Petitioners contend that a provision in Appendix B of both Plans regarding payments to contractors will have an adverse effect on the contractor's performance in carrying out the Plans. ⁽⁶⁾ Section 3.10 in Appendix B of both Plans states that "[n]o measurement and payment will be made for the work under this Section and all costs for same shall be included in the bid price for the item to which it pertains." The Petitioners argue that this payment term could have a "lessening effect" on what the contractor would do in terms of stormwater runoff and sediment control. However, there will be extensive oversight by both B.P. Barber and ESD to ensure that both the intent and the specific provisions of the Plans are implemented.

15. The Petitioners contend that the certifications required by Regulation 72-305 and Regulation 72-307 were improperly made by Dewey Pearson. When Mr. Pearson signed the certifications, he was the Director of ESD for Anderson County. Since that time, he has retired and now works as a consultant to the County. Mr. Pearson signed the certification as an agent of Anderson County. Therefore, Anderson County is bound by that certification and will continue to be the financially responsible party. Furthermore, the Stormwater Regulations do not require the Department to inquire into the level of responsibility of the person signing the certifications.

16. The Petitioners contend that the construction sequence provided in the Plans is inadequate because it is too general and because it does not address certain seasonal limitations on when construction can take place, such as during spawning season. However, there are not any requirements in the Stormwater Regulations regarding seasonal requirements. Moreover, the Petitioners did not establish that seasonal limitations on when construction can take place were necessary to comply with the standards for stormwater management and sediment reduction.

17. The Petitioners contend that the Plans are inadequate because they do not specifically require removal of soils that cannot be deposited back into the trench. However, that issue is in fact addressed in both Plans. The section on General Site Features provides that "[p]resent contours will be reestablished and no permanent improvements are to be considered." In other words, this provision requires that Anderson County account for all excess soils.

18. In their Prehearing Statement, the Petitioners contend that DHEC did not meet the due process requirements of Article 1, § 22 of the South Carolina Constitution, including notice and opportunity to be heard. The Petitioners have not offered evidence that their rights have been prejudiced by DHEC's not holding a public hearing or meeting with the Petitioners prior to the issuance of the Permits. The Petitioners had notice of the issuance of the Permits on March 1, 2001. Furthermore, the Petitioners have had full opportunity to be heard in this administrative hearing and to present their concerns for administrative review.

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

1. The 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 & Supp. 2000).

2. 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). The burden of proof rests upon the Petitioners in this case. Id. Therefore, the Petitioners have the burden of proving by a preponderance of the evidence that the Department's decision to issue the Permits should be denied.

3. "The qualification of a witness as an expert in a particular field is within the sound discretion of the trial judge." Smoak v. Liebherr-Am., Inc., 281 S.C. 420, 422, 315 S.E.2d 116, 118 (1984). Where the expert's testimony is based upon facts sufficient to form the basis for an opinion, the trier of fact determines its probative weight. Berkeley Electric Coop. v. Pub. Service Comm'n, 304 S.C. 15, 402 S.E.2d 674 (1991); See also Smoak, supra. Furthermore, a trier of fact is not compelled to accept an expert's testimony, but may give it the weight and credibility he determines it deserves. Florence County Dep't of Social Services v. Ward, 310 S.C. 69, 425 S.E.2d 61 (1992). He also may accept one expert's testimony over that of another. S.C. Cable Television Ass'n v. Southern Bell Telephone and Telegraph Co., 308 S.C. 216, 417 S.E.2d 586 (1992).

4. Contrary to the Petitioners' assertions, the requirements of 25 S.C. Code Ann. Regs. 61-68 (Supp. 2000) and 25A S.C. Code Ann. Regs. 61-101 (Supp. 2000) are not applicable in the issuance of the Stormwater Permits.

5. The Department has the duty and authority to regulate stormwater runoff and sediment through the Stormwater Management and Sediment Reduction Act found at S.C. Code Ann. §§ 48-14-10, et seq. (Supp. 2000). Stormwater Permits are issued pursuant to the requirements of the Stormwater Act and its implementing regulations. See 26 S.C. Code Ann. Regs. 72-300, et seq. (Supp. 2000). The Stormwater Act was enacted in 1991 to reduce the adverse effects of stormwater runoff and sediment and to strengthen and make more uniform the programs addressing these issues. The Stormwater Act requires any person engaged in a "land disturbing activity," unless exempted, to submit a stormwater management and sediment control plan to DHEC, or to the appropriate local agency if authority has been delegated, and to obtain a permit to proceed. See S.C. Code Ann. § 48-14-30(A) (Supp. 2000). The Stormwater Act also requires each person responsible for land disturbing activity to certify on the plan submitted that all land disturbing activities will be done in accordance with the approved plan. See S.C. Code Ann. § 48-13-30(B) (Supp. 2000). The Act provides for enforcement through civil penalties and injunctive relief. See S.C. Code Ann. §§ 48-14-140 and 150 (Supp. 2000).

6. Pursuant to Section 48-14-50(C), regulations were promulgated to implement the requirements of the Stormwater Act. See Regulation 72-300, et seq. (Supp. 2000). Those regulations address, among other things, specific design criteria, minimum standards and specifications, and permit application and approval requirements. Because both phases of the Project will involve land disturbance of more than five acres, the provisions of Regulations 72-305 and 72-307 are applicable to Anderson Respondents' stormwater permit applications.

Regulation 72-305 sets forth the requirements for the permit application and approval process. It requires that a stormwater management and sediment control plan be submitted for review and approval. The plan must contain "sufficient supporting computations, drawings, and sufficient information describing the manner, location, and type of measures in which stormwater runoff will be managed from the entire land disturbing activity." 26 S.C. Code Ann. Regs. 72-305(C) (Supp. 2000). The plan must also contain a certification that the land disturbing activity will be accomplished pursuant to the approved plan and a certification of the right of DHEC to conduct on-site inspections. 26 S.C. Code Ann. Regs. 72-305(D) and (E) (Supp. 2000). The plan must also be certified by the designer. Regulation 72-305(H) specifies the professional disciplines that may certify and stamp/seal plans, including registered professional engineers. DHEC is required to "review the plan to determine compliance with the requirements of these regulations prior to approval." 26 S.C. Code Ann. Regs. 72-305(C) (Supp. 2000).

Regulation 72-307 sets forth the specific technical design criteria and minimum standards and specifications that the permit applicant must meet in order to obtain a stormwater permit. Regulation 72-307(A) lists the general submission requirements for all projects while Regulation 72-307(B) describes the specific requirements for the erosion and sediment control portion of the plan. It includes, for example, the requirement that the plan contain details and descriptions of temporary and permanent erosion and sediment control measures and minimum inspection requirements (Regulation 72-307(B)(1)); specifications for the sequence of construction operations (Regulation 72-307(B)(2)); a description of predominant soil types (Regulation 72-307(B)(3)); requirements for working in a live waterway, (Regulation 72-307(B)(4)); and a requirement that vehicle tracking of sediments onto certain paved public roads be minimized. (Regulation 72-307(B)(5)).

The Stormwater Packages submitted by Anderson Respondents meet all of the statutory requirements of the Stormwater Act and applicable regulatory requirements of Regulation 72-300, et seq.

7. The Petitioners argue that the methods specified in the Plans for working in live waterways will not control sediment transport "to the greatest extent possible" during construction. 26 S.C. Code Ann. Regs. 72-307(B)(4) (Supp. 2000) provides, in relevant part: "When work in a live waterway is performed, precautions shall be taken to minimize encroachment, control sediment transport and stabilize the work area to the greatest extent possible during construction." The Petitioners argue that this requirement can only be met by boring under the waterway. Testimony from all experts, including the Petitioners' expert, established that the methods specified in the Plans -- direct dig and coffer dam -- are widely accepted methods for crossing live waterways and are standard industry practices. These methods satisfy the requirement that sediment transport be controlled to the greatest extent possible, particularly in light of testimony that the boring under method may pose its own set of problems and that it is rarely used in sewer line construction. ⁽⁷⁾

8. The Petitioners argue that the grassing specifications of the Permits should require remediation for bank stabilization. ⁽⁸⁾ The Stormwater Regulations do not contain specific requirements regarding grassing and the type of grasses to be specified. However, 26 S.C. Code Ann. Regs. 72-307(B)(2) (Supp. 2000) provides, in relevant part:

Specifications for a sequence of construction operations shall be contained on all plans describing the relationship between the implementation and maintenance of sediment controls, including permanent and temporary stabilization and the various stages or phases of earth disturbance and construction. The specifications for the sequence of construction shall, at a minimum, include the following activities:

* * *

(h) Final grading, landscaping, or stabilization . . . .

(emphasis added). 26 S.C. Code Ann. Regs. 72-301(38) (Supp. 2000) sets forth that "'[s]tabilization' means the installation of vegetative or structural measures to establish a soil cover to reduce soil erosion by stormwater runoff, wind, ice and gravity." Taken as a whole, the Grassing Specifications in the Plans are consistent with the Stormwater Regulations because they require that certain results be achieved, i.e., that a "satisfactory stand of grass" be produced, that all seeded areas be maintained in satisfactory condition until final acceptance, and that areas not showing satisfactory evidence of germination be reseeded. Additional protection is also provided by the provision in the Plans directing that silt fencing not be removed until sufficient ground cover has been established. Moreover, the issue of remediation of the removed grasses for bank stabilization will be specifically addressed as part of the § 401 Water Quality Certification. I therefore find that the § 401 Certification process is the appropriate venue to further address this issue.

Surge Stone Specifications

9. The Petitioners argue that the Plans are defective because of the size of surge stone specified. The Stormwater Regulations do not set forth requirements for size of surge stone at project entrances and exits or elsewhere. What the regulations require is that the "[v]ehicle tracking of sediments from land disturbing activities onto paved public roads carrying significant amounts of traffic (ADT of 25 vehicles/day or greater) shall be minimized." 26 S.C. Code Ann. Regs. 72-307(B)(5) (Supp. 2000). The Sediment and Erosion Control Notes on the drawings provide that "[t]he contractor must take necessary actions to minimize tracking of mud onto paved roadways from construction areas. The contractor shall daily remove mud/soil from the pavement, as may be required." Nevertheless, requiring a No. 5 surge stone is a reasonable precaution to protect roadway surfaces and to comply with the standards for stormwater management and sediment reduction.

10. The Petitioners argue that a twenty-five foot construction right-of-way is insufficient to accommodate all construction activities and that this is a defect in the Permits. The Stormwater Regulations, however, do not specify a minimum width for a construction right-of-way. The Permits specify what the construction area will be, and it is the applicant's responsibility to operate within that area.

11. The Petitioners argue that quantitative performance-based standards should be included in the Plans to measure the effectiveness of the stormwater and sediment control provisions contained therein. ⁽⁹⁾ The Petitioners do not cite any provision of the Stormwater Regulations as providing authority to impose a quantitative standard. Rather, they argue that Section 48-1-50(5) of the Pollution Control Act (PCA), S.C. Code Ann. §§ 48-1-10, et seq. (1987 & Supp. 2000), provides such authority. The PCA provides authority for the Department to require stream monitoring in the appropriate circumstances. ⁽¹⁰⁾ In fact, the Department has the authority and responsibility to adequately condition permits to control the discharge of pollutants to the environment. However, the general authority to impose permit conditions provided by the PCA does not provide broader authority than that set forth in the Stormwater Act and the Stormwater Regulations. Any permit conditions imposed must be authorized by, and consistent with, the specific statutory and regulatory requirements applicable to the activity being permitted. Therefore, since there is no requirement in the Stormwater Regulations to impose a quantitative performance standard, I do not find that the Petitioners' argument is persuasive.

12. The Petitioners argue that the Plans are flawed because they do not specifically require the contractor to seal the sewer pipe at the close of each work day. The Stormwater Regulations do not require that such a provision be included in the Plans. Moreover, it is a standard industry practice for contractors to close the sewer pipe at the end of each work day. In that regard, Anderson Respondents represented that there will be ongoing oversight of the Project to monitor compliance with this and other industry practices. The Plans also meet the inspection requirements set forth in Regulation 72-307 (B)(1).

13. The Petitioners cited concerns about the adverse impact of certain provisions of the Plans regarding payment of contractors. However, the Stormwater Regulations do not require or authorize the Department to approve or disapprove the circumstances under which a contractor is paid. The inclusion of such provisions does not constitute a shortcoming in the Plans.

14. The Petitioners questioned the authority of Dewey Pearson to sign the required certifications in the Stormwater Packages and whether the certifications are still binding now that Mr. Pearson is no longer a direct employee of the County. The Stormwater Packages and cover letters made clear that the Project is an Anderson County project. As Director of ESD, Mr. Pearson was clearly acting within the scope of his authority with the County when he signed the certifications. Those certifications remain binding on Anderson County as owner of the Project and the financially responsible entity. See South Carolina Insurance Company v. Greene and Company, 290 S.C. 171, 348 S.E.2d 617 (Ct. App. 1986) (an agent contracting with the authority of his principal binds the principal to the same extent as if the principal personally made the contract).

15. The Petitioners argue that the Plans are defective because the construction sequence does not address the impact of certain seasonal limitations. As addressed above, Regulation 72-307 (B) provides that: "Specifications for a sequence of construction operations shall be contained on all plans describing the relationship between the implementation and maintenance of sediment controls." However, the Stormwater Regulations do not require that the construction sequence address seasonal limits, such as spawning season. Additionally, the evidence did not establish that a seasonal limitation was necessary to comply with the standards for stormwater management and sediment reduction. See 26 S.C. Code Ann. Regs. 72-300 (A) (Supp. 2000). Thus, the inclusion of a seasonal limitation was unnecessary.

16. The Petitioners contend that DHEC's failure to provide them with notice and an opportunity to be heard prior to issuing the Permits violates S.C. Const. Art. I, § 22. Section 22 of Article I provides that the Petitioners "shall not be finally bound by a judicial or quasi-judicial decision of an administrative agency affecting private rights except on due notice and an opportunity to be heard. . . ." To prove the denial of due process, a party must show that it has been substantially prejudiced by the administrative process. Palmetto Alliance, Inc. v. S. C. Public Service Comm'n., 282 S.C. 430, 319 S.E.2d 695 (1984). The Petitioners have not identified any fundamental right at stake here which can only be addressed by their having an earlier opportunity to be heard before DHEC and which right can only be protected by imposing an additional procedure at the Department level. See Ogburn-Matthews v. Loblolly Partners, et al., 332 S.C. 551, 505 S.E.2d 598 (Ct. App. 1998). Furthermore, in Ross v. Medical University of South Carolina, 328 S.C. 51, 68, 492 S.E.2d 62, 71 (1997), the South Carolina Supreme Court held that:

Article I, § 22 requires an administrative agency provide notice and an opportunity to be heard, but does not require notice and an opportunity to be heard at each level of the administrative process. It mandates notice and opportunity to be heard at some point before the agency makes its final decision.

The Division, as part of the executive branch of South Carolina government, provides notice and opportunity to be heard before the final administrative decision. See S.C. Code Ann. §§ 1-23-500, et seq. (Supp. 2000). Though the Department may allow the input of interested parties before issuing a stormwater permit, this contested case hearing before the Division satisfies the Petitioners' rights to due process.

17. The Petitioners argue that stormwater runoff and sediment impacts from construction of the proposed sewer line would unreasonably harm the use and enjoyment of their property and the natural resources of the Beaverdam Creek Basin. I find that while the Department's authority is broad, in the absence of a duty related to the health and welfare of the public, neither the Department nor the Administrative Law Judge Division is charged with the responsibility of establishing the land use mix within an area. Land use decisions are primarily the responsibility of the local zoning authorities, who exercise wide discretion in decision making. See Bear Enterprises v. County of Greenville, 319 S.C. 137, 459 S.E.2d 883 (Ct. App. 1995); Rushing v. City of Greenville, 265 S.C. 285, 217 S.E.2d 797 (1975). It is beyond the jurisdictional scope of the Division to intervene in local zoning matters or to enjoin a potential future civil nuisance. Id. Furthermore, to the extent that the Petitioners' contentions center around the potential interference with the use and enjoyment of their property likely to result from the construction of the sewage lines, rather than the imposition of a threat to their health and welfare, a court of equity is the proper forum to adjudicate such a cause of action. See O'Cain v. O'Cain, 322 S.C. 551, 473 S.E.2d 460 (1996). Therefore, this Division does not have subject matter jurisdiction to entertain the nuisance claims raised by the Petitioners.

18. The Petitioners also contend that DHEC must consider and issue its certification pursuant to 25A S.C. Code Ann. Regs. § 61-101 (Supp. 2000) (Water Quality Certification) prior to issuing the Stormwater Permits because issuing the Stormwater Permits prior to Water Quality Certification for the Project is "getting the cart before the horse." This Division's determination concerning the issuance of these Stormwater Permits does not negate the requirement that other mandatory permit(s) must also be issued. It is not the province of this Division to second guess the Department's procedure of determining the sequence of issuing its permits.

19. The Department complied with all applicable statutory and regulatory requirements in reviewing and issuing Stormwater Permit No. 04-00-01-04 for Phase IA and Permit No. 04-00-01-04A for Phase II. Furthermore, these Permits comply with all applicable requirements set forth in Regulation 72-300, et seq. Therefore, the Petitioners have failed to prove by a preponderance of the evidence that the Stormwater Permits at issue in this proceeding do not meet the applicable requirements of Regulation 72-300, et seq.

Based on the foregoing Findings of Fact and Conclusions of Law,

IT IS HEREBY ORDERED that Stormwater Permit No. 04-00-01-04 for Phase IA and Stormwater Permit No. 04-00-01-04A for Phase II of the Beaverdam Creek Sewer Project be issued to the Anderson Respondents in keeping with this Order.

IT IS FURTHER ORDERED that Anderson Respondents make the same changes to the Phase IA Plan that DHEC required for the Phase II Plan as set forth in Anderson Respondents' Exhibit No. 4, with the exception of the recommendation for remediation for bank stabilization which will be addressed in the § 401 Water Quality Certification process.

IT IS FURTHER ORDERED that the Permits for the Phase IA Plan and the Phase II Plan shall be amended to require No. 5 surge stone at the Project's entrances and exits.

AND IT IS SO ORDERED.

__________________________________ Ralph King Anderson, III

Administrative Law Judge

March 13, 2002

Columbia, South Carolina

1. Nevertheless, the Respondents did not contest the Petitioners' standing.

2. "'Best Management Practices' means a wide range of management procedures, schedules of activities, prohibitions on practices and other management practices which have been demonstrated to effectively control the quality and/or quantity of stormwater runoff and which are compatible with the planned land use." 26 S.C. Code Ann. Regs. 72-300 (5) (Supp. 2000).

3. Mr. McCoy is a registered professional engineer who was previously employed in that capacity by Anderson County. Mr. McCoy was qualified as an expert in "planning, design, construction, operation and maintenance of water quality management facilities including sewers and wastewater treatment plants." He was subsequently qualified as an expert in "stormwater management and sediment control," and in the impact of soil run-off on the character of a stream, including the effect on plant and animal life. Mr. McCoy was the only witness offered by the Petitioners.

4. Mr. Longshore is a registered professional engineer in the States of South Carolina and Georgia and has been employed by B.P. Barber & Associates as an engineer for twenty-nine years. He was qualified as an expert in civil engineering and design and construction of sediment and erosion control systems. Mr. Longshore testified that he had sealed stormwater plans for between twenty-five and fifty projects since promulgation of the Stormwater Regulations. I find that his opinion concerning this case was persuasive.

5. The parties referred to the bioremediation of the stream banks in the hearing into this matter. However, bioremediation is defined as "the treatment of pollutants or waste (as in an oil spill, contaminated groundwater, or industrial process) by the use of microorganisms (as bacteria) that break down the undesirable substances." Merriam-Webster OnLine (2002), available at http://www.m-w.com/. This issue in this case appears not to be the bioremediation of the steam banks but rather the remediation of the steam banks .

6. The Petitioners cited concerns about contractors submitting too low a bid unless certain items, such as sediment traps, were explicitly required in the Plans and about lack of oversight of the contractor. To the extent that the Petitioners are concerned about sediment traps for groundwater pumped from trenches, such traps are explicitly required for Phase II, and Mr. Longshore has testified that the same requirement will be implemented for Phase IA.

7. Although the project Plans do not specify a method for accomplishing stream crossings, leaving it to the contractor to choose either a coffer dam, direct dig or boring under method, the § 401 Water Quality Certification will address stream crossings in greater detail and will include the specifics of construction methods for each individual stream crossing. Therefore, this Order will not require the Anderson Respondents to specify in the Plans which construction method will be used for each stream crossing.

8. The evidence did not establish that the grasses specified in the Plans were in fact upland grasses. Additionally, the Plans called for silt fences to stay in place until sufficient permanent, i.e., indigenous, ground cover had been established. Nevertheless, this argument is addressed as follows.

9. In support of this argument, the Petitioners cite an Order issued on September 5, 2001, in Docket No. 01-ALJ-07-0090-CC in which a permit applicant, in a § 401 Water Quality Certification case, agreed to analyze for total suspended solids at certain specified times. This Order, however, was issued with the consent of all parties and was in the nature of a remedial order. It thus does not constitute precedent for requiring such analysis in the context of a stormwater permit where there is no statutory or regulatory basis for doing so.

10. The Pollution Control Act authorizes the Department "to take action to abate, control and prevent pollution of the air and water resources of this State consistent with the public health, safety and welfare of its citizens." South Carolina Dep't of Health and Envt'l Control v. Armstrong, 293 S.C. 209, 214, 359 S.E.2d 302, 305 (S.C. App. 1987). The Department also may "[i]ssue, deny, revoke, suspend or modify permits, under such conditions as it may prescribe for the discharge of sewage, industrial waste or other waste or air contaminants or for the installation or operation of disposal systems or sources or parts thereof. . . ." S.C. Code Ann. § 48-1-50(5)(1987).