South Carolina              
Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
Earl J. Crawford vs. SCDHEC

AGENCY:
South Carolina Department of Health and Environmental Control

PARTIES:
Petitioner:
Earl J. Crawford and Earl J. Crawford, d/b/a Crofco, Inc.

Respondent:
South Carolina Department of Health and Environmental Control
 
DOCKET NUMBER:
01-ALJ-07-0145-CC

APPEARANCES:
Douglas F. Dent, Esquire, for the Petitioner

Etta R. Williams, Esquire, for the Respondent
 

ORDERS:

FINAL ORDER and DECISION

STATEMENT OF THE CASE



This matter comes before the Administrative Law Judge Division (Division) following the Petitioner's request for a contested case hearing after the issuance of Administrative Order 99 0267-UST by the Department of Health and Environmental Control (DHEC) against the Petitioners. A hearing in this matter was held on October 17, 2001 at the offices of the Division with both parties represented by counsel. Pursuant to ALJD Rule 29 (B), DHEC has the burden of proof.

FINDINGS OF FACT

Having carefully considered the testimony and the arguments of both sides, and taking into account the credibility of the evidence and witnesses, I find by a preponderance of the evidence:

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

2. Petitioners owned underground storage tanks as defined in the State Underground

Petroleum Environmental Response Bank (SUPERB) Act, Title 44, Chapter 2 of the S.C. Code of Laws, as amended. The facility was known as Mel's #2 and the tanks at the facility were located at 4427 Pelzer Highway, in Easley, South Carolina. They held permit I.D. #03890. Petitioner Crawford registered the tanks in 1989. His notification informed DHEC that Crofco, Inc. owned the storage tanks and that he was the president of Crofco, Inc.

3. Petitioner Crawford's daughter and son-in-law ran the business for a period of

time. Then, on July 2, 1993, Petitioners leased the property to Bobby Mosley. Mosley in turn sub-leased the property to Christopher Cushman. Petitioners entered into a contract to sell the property, including the underground storage tanks, on November 29, 1995 with Christopher A. Cushman. The property was transferred by deed from Crawford to Cushman on February 26, 1996.

4. On November 1, 1995, Cushman sent a letter to DHEC stating that the

tanks were being abandoned. Subsequently, on November 28, 1995, DHEC responded to Cushman by letter with instructions regarding procedures for tank closure and removal.

5. In January 1996 the USTs were removed by American Lift and Petroleum, a UST Removal Contractor. Ken Vaughn was the person responsible for the tank removal which took place from January 15, 1996 through January 17, 1996. Vaughn testified that he would have been the person to deliver the closure report to DHEC. His standard practice was to deliver it within weeks of the closure, knowing that DHEC requires it be submitted within 120 days of the closure. Mr. Vaughn has no independent recollection of delivering the document nor does he have corroborating evidence that he did deliver the document.

6. In February 1996 Mr. Cushman put in new USTs which were permitted by DHEC.

The new USTs were not placed in the same area as the ones which had been removed, and they were installed in a separate excavation.

7. In May of 1998 Mr. Vaughn was notified by DHEC that DHEC had never

received a copy of the closure report for the tanks. Mr. Vaughn supplied the report to DHEC. The report was unsigned. On May 19, 1998 DHEC contacted Petitioner Crawford as the president of the company that was the registered owner of the tanks. DHEC requested Crawford's signature on the report and he signed the report. The cover page of the document he signed stated that Crofco, Inc. owned the USTs and that he was the contact person for the tanks. It also contained a certification that he believed all of the above information was true.

8. Based on the results of the lab testing of the soil samples taken during the removal

of the tanks in January 1996, DHEC required Mr. Crawford to have an Initial Ground Water Assessment (IGWA) performed. Mr. Crawford paid $1,250.00 to Bunnell-Lammons Engineering, Inc. to perform the assessment in September 1998.

9. Based on the closure report and the IGWA Report, DHEC ordered the

Petitioner to have a Tier 1 Assessment performed on the property. He refused contending that he was not the owner of the tanks at the subject location and DHEC issued its Administrative Order, levying a civil fine of $13,800.00.

10. The penalty of $13,800.00 was broken down as follows:

$2,000.00 - minimum fine for failing to determine the extent of a release

$1,000.00 - 50% of the initial fine for non-compliance when ordered to obtain a Tier 1 Assessment

$10,800.00- the economic benefit to the Petitioners for failing to obtain a Tier 1 Assessment

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. 2001), S.C. Code Ann. §44-2-10 et seq., and 25 S.C. Code Ann. Regs. 61-92 (Supp. 2001).

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. 2001), 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.



    • The above referenced statutes and regulations refer to "owners and operators".

The issue central to this case is whether the Petitioner was the owner of the underground storage tanks at the time of the release.

S.C. Code Ann. §44-2-20 (12) defines an owner as:

(a) in the case of an underground a) in the case of an underground storage tank system in use on November 8, 1984, or brought into use after that date, a person who owns an underground storage tank system used for storage, use, or dispensing of regulated substances;



(b) in the case of any underground storage tank system in use before November 8, 1984, but no longer in use on that date, a person who owned such an underground storage tank immediately before the discontinuation of its use; or



(c) a person who has assumed legal ownership of the underground storage tank through the provisions of a contract of sale or other legally binding transfer of ownership. (Emphasis added).



6. It is undisputed in this case that a contract of sale was entered into on

November 29, 1995 between Petitioner Crawford and Mr. Cushman. This was approximately six weeks before the removal of the tanks. However, the question becomes whether Cushman assumed legal ownership of the underground storage tanks through the contract of sale. I conclude he did not.

In the contract for sale the Petitioner agrees to convey the property by fee simple general warranty when the purchase price is paid or secured to be paid. The definition of the property includes the subject storage tanks. The property was not conveyed nor the purchase price secured to be paid by mortgage until February 26, 1996. Further, by the time the tanks were removed and the closure report prepared, the contract had expired. The contract called for a transaction closing date of January 2, 1996 or before. The contract does make the purchaser responsible and liable for the removal of the tanks; however, this alone does not convey legal ownership of the tanks since the tanks were part of the property subject to payment of the purchase price.

7. Also, Petitioner Crawford's actions as to the tanks indicate that he believed he was

the owner of the tanks on the removal dates in mid-January 1996. On May 19, 1998, the Petitioner Crawford signed the closure report on behalf of Owner Crofco, Inc. for the January 1996 removal. Then, on September 9, 1998, the Petitioner paid for an Initial Groundwater Assessment requested by DHEC because of contaminated soil samples taken during the January 1996 removal. It is irrelevant whether the Petitioner was the owner in 1998 since the testing required was based on the contamination caused by the 1996 removal. However, at the time of contact by DHEC in 1998, DHEC had no way of knowing Crofco, Inc. and Crawford had sold the property with the tanks.

8. There is a factual dispute as to whether the closure report was submitted within 120

days after the closure or if it was first submitted on May 13, 1998. However, the Administrative Order of December 20, 2000, from which this contested case was filed, does not impose a penalty for a late filing. The civil penalty is for failing to determine the extent of a release and for non-compliance in completing a Tier I assessment report. ORDER

Based upon the above Findings of Fact and Conclusions of Law, it is hereby:

ORDERED that within thirty (30) days the Petitioner complete a Tier 1 assessment of the property and submit the 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. 99-0267-UST in the amount of $3,000.00. The $10,800 portion of the civil penalty shall not be enforced since the Petitioner has been ordered to perform a Tier 1 assessment and therefore will receive no economic benefit for failing to do so.





AND IT IS SO ORDERED.



___________________________________

CAROLYN C. MATTHEWS

Administrative Law Judge



February 21, 2002

Columbia, South Carolina.


Brown Bldg.

 

 

 

 

 

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