ORDERS:
CONSENT ORDER OF DISMISSAL
This matter is before the undersigned by way of a request for a contested case hearing filed by Petitioner Melvin Durham
("Petitioner") to appeal the issuance of Administrative Order 02-133-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. Specifically, the parties agree as follows:
1. Using Attachment A as a reference, petitioner shall remediate those areas of the site indicated below as follows:
(a) Deck 1 to Crossing 1: waterbars shall be properly placed and the road will be stabilized with grass seed and straw;
(b) Crossing 1: this crossing shall be cleaned out and stabilized with grass and straw. This should be done at the end of
the remediation as this is a major access point for the site;
(c) Skid Trail 1: this trial shall be closed out and stabilized;
(d) Skid Trail 2: waterbars shall be installed in the steeper sections of this trail;
(e) Crossing 2: this crossing will be removed and stabilized and unmarked skid trail approximate to Crossing 2 shall be
closed out and stabilized;
(f) Crossing 1 to Deck 2: waterbars shall be installed in the section of the road between crossing 1 and Deck 2;
(g) Deck 2: this shall be stabilized;
(h) Skid Trail 3: waterbars will be installed and trail shall be stabilized; and
(i) Crossing 3: debris shall be removed and the crossing stabilized.
Prior to the initiation of any remediation work, petitioner shall contact Colton Bowles of the Department's Bureau of
Water to coordinate access to the site. Petitioner also agrees to have Department staff and/or staff of the South Carolina
Forestry Commission on site during the remediation work.
Petitioner has the option of retaining a third party to perform the remediation work. If he chooses this option, he shall
contact Mr. Bowles at the Department and provide him with the contact information of the third party that shall perform
the work.
1. The remediation work shall be completed within 90 days of receipt of this fully executed order.
2. Petitioner shall pay the Department $40,000 in civil penalties. The parties agree that petitioner may pay this amount
over the course of five years by making monthly installment payments. The parties further agree that the amount not
paid within the first year is subject to interest at the rate of 8.75% a year. Petitioner shall make payments as follows:
$500.00 for the first eleven (11) months of the year with a balloon payment of $2,960.59 for the twelve month of each
of the five years of payments. The first payment is due on January 15, 2003, with each subsequent payment due on or
before the 15th of the next month. Petitioner has the option of paying the full amount prior to the expiration of the five-year term without penalty.
3. Failure to make any payments pursuant to the above-schedule shall result in the full amount becoming immediately
due and payable.
4. Payments shall be made out to the South Carolina Department of Health and Environmental Control and sent to
Amy Stepp, SCDHEC, Bureau of Water, 2600 Bull Street, Columbia, South Carolina, 29205.
IT IS FURTHER AGREED that if any event occurs which causes or may cause a delay in meeting any of the above
scheduled dates for 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, 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. 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,
approvals, permits, licenses due to action or inaction of any governmental agency or authority; 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 the Administrative Law Judge Division shall retain jurisdiction over this case for purposes
of enforcement of this agreement.
Accordingly, by and with the consent of the parties, it is hereby ORDERED that this
contested case is DISMISSED.
WE AGREE:
_______________________ _______________________
Susan Fittipaldi David Harrison
Counsel for Respondent Counsel for Petitioner
South Carolina Department of Melvin Durham
Health and Environmental Control
IT IS SO ORDERED:
_______________________
Ray N. Stevens
Administrative Law Judge
This 2nd day of December, 2002.
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