ORDERS:
CONSENT ORDER OF DISMISSAL
This matter is before the undersigned by way of a request for a contested case hearing filed by Petitioner Carter Excavating
Company, Inc. ("Petitioner") to appeal the issuance of Administrative Order 02-04-SW, 02-055-W by Respondent South
Carolina Department of Health and Environmental Control ("Department"). Prior to the date of the scheduled hearing, the
parties agreed to settle the underlying dispute without the need for a hearing. Upon mutual consideration, the parties
specifically agree as follows:
1. Within 30 days of receipt of a copy of this fully executed order, Petitioner shall submit to the Department a plan, in
triplicate, to leave in place all or a portion of the waste and debris disposed of outside the area of the permitted C & D
landfill. The plan shall provide all of the information needed as addressed in "Section I. Criteria for Closure-in-Place"
of the attachment to this order. Additionally, for the variance being sought, which will be a necessity in this case, the
plan shall provide all of the information needed, as addressed in "Section II. Issues to be Considered in Reviewing a
Request for Variance from Permitting Criteria," of the attachment to this order. The plan shall be complete in
addressing in detail the scope of the work to be done, as proposed. The plan shall contain a schedule of implementation
through completion. The plan shall be prepared by a South Carolina licensed professional engineer.
a. Within 30 days of receipt of any written comments, if any, from the Department regarding the plan, Petitioner shall
adequately revise the plan and resubmit, in triplicate, to the Department for further review.
b. Upon approval of the plan, which shall not be unreasonably withheld, Petitioner shall implement the plan which
shall become an enforceable part of this order.
1. Petitioner shall henceforth comply with all permitting and operating requirements in accordance with State and
Federal Law and regulations governing Petitioner's activities in connection with its construction and demolition ("C &
D") debris landfill.
2. Petitioner shall immediately stabilize the sloped areas of the northern C & D buffer area adjacent to the woods.
3. Within fifteen days of receipt of a copy of this fully executed order, Petitioner shall submit to the Department water
quality and sediment data from the impacted Tributary A.
4. Within thirty days of receipt of a copy of this fully executed order, Petitioner shall submit to the Department for
approval a written plan for hand removal of sediment in the exposed area of Tributary A, if required based on sediment
quality data, and treatment of the Creek water flowing out of the toe of the filled area, if required based on water quality
data. The plan shall contain a schedule of implementation through completion.
5. Upon the Department's approval of the removal and treatment plan, Petitioner shall implement the plan in
accordance with the approved schedule.
6. Upon the Department's approval of the plan and once the required action relating to the Creek is complete,
Petitioner shall conduct an assessment of Tributary A water quality once every six months until the Department
determines the assessments are no longer necessary or the Department closes the order, or four consecutive assessments
show no significant changes in water quality, whichever comes first. Sixty days following each six month assessment,
the Petitioner shall submit to the Department a report with the analytical results, an interpretation of the results and
conclusions.
7. Within 90 days of receipt of a copy of this fully executed order, Petitioner shall pay to the Department a civil
penalty in the amount of twenty eight thousand dollars ($28,000.00). The figure represents assessed penalties in the
amount of $14,400.00 for Water Quality violations and $13,600.00 for Solid Waste Management violations. This
represents final civil penalty settlement of past violations as addressed in Administrative Order 02-04-SW, 02-055-W.
8. This is a compromise of a disputed matter and Petitioner agrees to the issuance of this Consent Order to avoid the
further expense and uncertainty of litigation. No admission of any wrongdoing shall be implied by the issuance of this
Consent Order.
IT IS FURTHER AGREED that if any event occurs which causes or may cause a delay in meeting any of the above
scheduled dates or prevents the completion of any specified activity, Petitioner shall notify the Department in writing at
least one week before the scheduled date, describing in detail the anticipated length of delay or the activity prevented, the
precise cause or causes of the delay, the measures taken or to be taken to prevent or minimize the delay, and the timetable
by which those measures will be implemented.
The Department shall provide written notice as soon as practicable that a specified extension of time has been granted or
that no extension has been granted or that a modification of the plan has been approved due to the prevented activity. An
extension shall be granted for any scheduled activity delayed by an event of force majeure, meaning any event arising from
causes beyond the control of Petitioner that causes a delay in or prevents the performance of any of the conditions under the
Order including, but not limited to: a) acts of God, fire, war, insurrection, civil disturbance, explosion; b) adverse weather
conditions that could not be reasonably anticipated causing unusual delay in transportation and/or field work activities; c)
restraint by court order or order of public authority; d) inability to obtain, after exercise of reasonably diligence and timely
submittal of all applicable applications, any necessary authorizations, access, approvals, permits, licenses due to action or
inaction of any, governmental agency or authority, or any other person or entity; and e) delays caused by compliance with
applicable statutes or regulations governing contracting, procurement or acquisition procedures, despite the exercise of
reasonable diligence by Petitioner.
Events which are not force majeure include by example, but are not limited to, unanticipated or increased costs of
performance, changed economic circumstances, normal precipitation events, or any person's failure to exercise due
diligence in obtaining governmental permits or fulfilling contractual duties. Such determination will be made in the sole
discretion of the Department. Any extension shall be incorporated by reference as an enforceable part of this Order and
thereafter be referred to as an attachment to this Order.
IT IS FURTHER AGREED that failure to comply with any provision of this Order shall be grounds for further enforcement
action pursuant to the Pollution Control Act and the South Carolina Waste and Policy Management Act of 1991, as
amended, to include the assessment of civil penalties.
Accordingly, by and with the consent of the parties, it is ordered and agreed that this contested case is dismissed without
prejudice with leave to restore within 1 year of the date of this order.
WE AGREE:
_____________________ _______________________
Susan Fittipaldi Daniel Patterson
Counsel for Respondent Counsel for Petitioner
South Carolina Department of Carter Excavating Company, Inc.
Health and Environmental Control
_______________________
Gene McCall
Counsel for Petitioner
Carter Excavating Company, Inc.
IT IS SO ORDERED.
______________________
C. Dukes Scott
Administrative Law Judge
This 10th day of October, 2002.
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