ORDERS:
ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before the Administrative Law Judge Division ("Division") pursuant to
S.C. Code Ann. §§ 1-23-310 et seq. (1986 and Supp. 1994) and S.C. Code Ann. §§ 48-1-10 et seq.
for a hearing pursuant to the request for review by Clemson Realty Company, Inc., ("Petitioner") of
the South Carolina Department of Health and Environmental Control's ("Respondent") Administrative
Order No. 94-25-SW ("Administrative Order") dated August 24, 1994.
The Administrative Order required Petitioner to remove various materials, trees, appliances,
furniture, household garbage and other debris from a Site owned by Petitioner off Old Central Road
("Site") near Central, Pickens County, South Carolina, where dumping allegedly occurred.
The Administrative Order was issued against Robert N. Newton, individually. However, at
the hearing before me, it was stipulated that the correct owner of the Site is Clemson Realty
Company, Inc. This case was originally set for a hearing on December 20, 1994 at 2:00 p.m. at the
Anderson County Courthouse. However, in a telephonic Pre-Trial Conference with the parties on
December 8, 1994, the parties requested leave to explore a settlement, which request was granted
in an Order of Continuance dated December 8, 1994. After extensive negotiations and the execution
by both parties of an improperly drafted consent order by the Respondent, the case was reset for a
hearing on June 29, 1995. Prior to the hearing the parties discussed settlement but were unable to
reach any resolution and the hearing commenced.
The Administrative Order of the Respondent is affirmed, as amended herein.
EXHIBITS
The Petitioner placed into evidence without objection seven (7) photographs marked
Petitioner's Exhibit #1 (A-G). Petitioner was allowed to proffer eleven (11) additional photographs
marked Petitioner's Exhibit #2 (A-K). Respondent objected to their admissibility on the grounds of
relevance, which objection was sustained.
Respondent placed into evidence, without objection, the following:
1) Deed from M.N. Newton and G.B. Bailey to Clemson Realty Company, Inc.,
conveying three and one half (31/2) acres, more or less, dated July 30, 1963, which
is recorded in the Pickens County Clerk's Office in Deed Book 10-K at Page 235.
2) The Respondent's Investigation Report dated March 1, 1993.
Over Petitioner's objection, Respondent's sketch of the location and eight (8) photographs
were allowed into the record as Respondent's Exhibits #3 and #4 (A-H), respectively.
FINDINGS OF FACT
After careful consideration and review of all the evidence, listening to the testimony of the
parties and witnesses and judging their credibility, by a preponderance of the evidence I make the
following findings:
1. This Division has personal and subject matter jurisdiction.
2. Notice of the date, time, place and nature of the hearing was timely given to the
parties.
3. The Petitioner is a corporation duly organized under and existing pursuant to the laws
of the State of South Carolina. Robert N. Newton is a partial owner of and the registered agent of
the Petitioner and represented it at the hearing.
4. Mr. Newton, as a broker, salesman and property manager, has been active in the real
estate business at least thirty (30) years and presently limits his time to managing real estate properties
for others.
5. The findings of fact listed in the Respondent's Administrative Order are incorporated
herein in toto, and made findings of fact as if repeated verbatim herein.
6. Petitioner owns a tract of land off Old Central Road in Pickens County, South
Carolina, obtaining it by deed dated July 30, 1963.
7. Employees and representatives of the Respondent have visited the tract owned by
Petitioner off Old Clemson Road on numerous occasions and met Mr. Newton there at least on one
occasion. Mr. Newton acknowledged ownership of the Site by the Petitioner and the presence of
debris on the property.
8. Petitioner has allowed illegal dumping and disposal of activities to occur at the Site
as evidenced by testimony of Respondent's witnesses and photographs placed into the record.
9. Neither the Petitioner nor Mr. Newton have been issued a permit authorizing the
dumping of debris at the Site.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude, as a matter of law, the following:
1. Pursuant to S.C. Code Ann. § 48-1-10 et seq. (Supp. 1994) and Chapter 23 of Title
1 of the 1976 Code, as amended, the South Carolina Administrative Law Judge Division has
jurisdiction.
2. S.C. Code Ann. § 48-1-90(a) of the Pollution Control Act provides as follows:
"It shall be unlawful for any person directly or indirectly, to throw, drain, run, allow
to seep or otherwise discharge into the environment of the State organic or inorganic
matter, including sewage, industrial wastes and other wastes, except as in compliance
with a permit issued by the Department."
3. S.C. Code Ann. § 48-1-330 provides that any person who violates any provision of
Chapter 1 of the Pollution Control Act is subject to a civil penalty not to exceed ten thousand dollars
per day as such violation continues.
4. In this instance, it is concluded that Petitioner has violated § 48-1-90(a) by allowing
the unlawful disposal of building materials, construction and demolition debris, trees, stumps,
appliances, furniture and household garbage at the Site, without holding a permit authorizing such.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, it is hereby
ORDERED that the Petitioner, Clemson Realty Company, Inc., shall perform the following:
1. a) No later than October 1, 1995, complete the closure of the Site by pushing and
covering the waste remaining on the Site with a minimum of two feet (2') of clean compacted
soil with at least a 1% but not greater than 4% surface slope followed by stabilization with
a native vegetation (grass) to prevent erosion. Side slopes shall be stabilized with a native
vegetation to prevent erosion, and must be maintained. At least three (3) business days prior
to and upon completion of any and all described work at the Site, contact the Respondent's
Appalachia II District Office in order for Respondent's staff to provide guidance as necessary
and to approve final closure including stabilization and to approve final closure.
b) Within fourteen (14) days of completion of the work described hereinabove, submit
to the Respondent written certification that all requirements of this Order have been
completed.
c) 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, notify the Respondent in writing at
least one (1) week before the scheduled date, describing in detail the anticipated length of the
delay, the precise cause or causes of delay, if ascertainable, the measures taken or to be taken
to prevent or minimize the delay, and the timetable by which those measures will be
implemented. The Respondent shall provide written notice as soon as practicable that a
specific extension of time has been granted or that no extension has been granted. An
extension shall be granted for any scheduled activity delayed by any event arising from causes
beyond the control (force majeure) of Clemson Realty Company, Inc., that causes a delay in
or prevents the performance of any of the conditions under this Order including, but not
limited to: 1) acts of God, fire, war, insurrection, civil disturbance, explosion; 2) adverse
weather conditions that could not be reasonably anticipated causing unusual delay in
transportation and/or field work activities; 3) restraint by court order or order of public
authority; 4) inability to obtain, after exercise of reasonable diligence and timely submittal
of all applicable applications, any necessary authorizations, approvals, permits, or licenses due
to action or inaction of any governmental agency or authority; and 5) delays caused by
compliance with applicable statutes or regulations governing contracting, procurement or
acquisition procedures, despite the exercise of reasonable diligence by Clemson Realty
Company, Inc.. 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 failure to exercise due diligence in obtaining governmental permits.
Such determination will be made in the discretion of the Respondent. Any extension shall be
in writing signed by both parties.
IT IS FURTHER ORDERED that the failure of Petitioner to comply with the provisions of
this Order constitute a violation thereof, and upon application by Respondent, sanctions and/or civil
penalties may be ordered against the Petitioner.
AND IT IS SO ORDERED.
_____________________________________
Marvin F. Kittrell
Chief Judge
Columbia, South Carolina
July 13, 1995 |
