ORDERS:
ORDER
This matter comes before the Administrative Law Judge Division by request of Petitioner on March
27, 1997. It is a contested case, consisting of an appeal of an Administrative Order issued by the
Department of Health and Environmental Control (Department) that was issued on March 20, 1997 that
alleged violation of the Stormwater Management and Sediment Control Act, S.C. Code Ann. 48-14-10 et
seq. and accompanying S.C. Code Reg. 72-300 and also alleged violation of S.C. Pollution Control Act,
S.C. Code Ann. Section 48-1-10 et seq.. Petitioner, in filing its appeal, set forth its defences, inter alla, that
discharges cited by DHEC and its Administrative Order were caused by an Act of God, and the acts or
omissions of third parties. Prior to the hearing in this matter, by and between the parties, an agreement was
reached and is memorialized via a consent order attached hereto as EXHIBIT A.
NOW, IT IS THEREFORE ORDERED that this action is hereby DISMISSED, with prejudice, as all
conclusions of law in fact between the Petitioner and Respondent have been resolved.
AND IT IS SO ORDERED.
John D. Geathers
Administrative Law Judge
Columbia, South Carolina
this 9th day of February, 1998.
I CONSENT:
Alex Shissias, Esquire
Attorney for Respondent
John Adams Hodge, Esquire
Attorney for Petitioner
THE STATE OF SOUTH CAROLINA
BEFORE THE DEPARTMENT OF HEALTH AND ENVIRONMENTAL CONTROL
IN RE: PADGETT CONSTRUCTION COMPANY
SPARTANBURG COUNTY
CONSENT ORDER
98-000-W
Padgett Construction Company (Respondent) owns and is responsible for the proper
operation and maintenance of a stormwater management system located in Spartanburg,
South Carolina. The South Carolina Department of Health and Environmental Control
(Department) finds the Respondent to be in violation of the Pollution Control Act, S.C. Code
Ann. Section 48-1-10, et seq. (1987), and the Stormwater Management and Sediment
Reduction Act, S.C. Code Ann. Section 48-14-10, et seq. (1991) S.C. Regs. 72-300 (1991).
Following approved procedures and based upon a meeting with the Respondent on
August 19, 1996, both parties have agreed to the issuance of this Consent Order.
FINDINGS OF FACT
1. The Respondent owns and is responsible for 148 acres of land off Westmoreland
Road, south of 1-85 and east of SC Highway 14, in Spartanburg County, South Carolina.
2. The stormwater permit No. 42-95-03-01 allows the Respondent to disturb land during
construction of Bent Creek Subdivision under the strict terms, requirements and conditions of
the plans and permit.
3. On September 26, 1995, a complaint was received by the Department's Appalachia
111 District Office. The complainant stated that mud, rock and water were coming onto his
property. The Department's District office investigated the complaint.
4. In a letter dated September 27,1995, the Respondent was informed that based on
the inspection on September 26,1996, the site was not in compliance with the approved plans
and therefore not in compliance with S.C. Code Ann. § 48-14-10, et seq. (1991) and S.C. Reg.
72-300. The Respondent was given ten (10) days from the receipt of the letter to comply with
the approved plan.
5. On December 15, 1995, Department personnel visited the Bent Creek Subdivision
site and observed large amounts of sediment in the creek. Department personnel also observed
that proper best management practices (BMPs) had not been installed.
6. On February 5, 1996, a complaint was received by the Department's Appalachia
lil District Office. On February 6, 1996, Department personnel visited the construction site.
Pictures were taken showing numerous stormwater management problems on site.
7. On March 6, 1996, Department personnel went to the site after receiving a large
number of complaints following a rainfall. The inspection revealed many stormwater
management problems including a failed sediment pond, numerous failed silt fences, and
sediment erosion impacting a nearby creek.
8. In a letter dated March 7, 1996, the Respondent was informed of the deficiencies
found the previous day. The Respondent was also informed that building would be suspended
until the design engineer has certified that the stormwater construction plan has been
adequately implemented.
9. A meeting was held on March 22, 1996, at which time the Respondent was
informed of problems in the sediment and erosion control measures that needed to be add
reseed.
10. On April 5, 1996, the building ban was rescinded after the Department received
the certification of the implementation of sediment control structures as approved under permit
No. 42-95-03-01.
11. On August 19, 1996, the Department held an enforcement conference with the
Respondent. During the conference, the Respondent stated that a 100 year flood that occurred
in August 1995 caused the sediment controls in place to need extensive work. The Department
stated that more wok needed to be completed in order for the Respondent to be in compliance
with the stormwater plan. The parties discussed the terms of the consent order.
12. A draft Consent Order with a cover letter was sent to the Respondent on
December 10,1996, by way of certified mail. The cover letter gave the Respondent fifteen (15)
days upon receipt to review, sign and return the Order to the Department. The return receipt
from the U.S. Post Office indicated that the Respondent received the draft Order on December
13, 1996.
13. During January and February of 1997 the Department and the Respondent,
through Respondent's counsel, attempted negotiation of a settlement; however, the parties
were unable to reach agreement as to resolution of this matter. On March 20, 1997, the
Department issued an administrative order seeking compliance with its regulations.
Respondent filed an appeal before the South Carolina Administrative Law Judge Division on
March 27, 1997 alleging inter alla that discharges and sedimentation cited by the Department
were the result of an Act of God and that certain discharges were caused by the acts or
omissions of third parties. Prior to a hearing on this matter, the parties agreed to the terms of
this consent order without the taking of testimony or the adjudication of the case.
CONCLUSIONS OF LAW
1. The Pollution Control Act, S.C. Code Ann. § 48-1-20 (1987), states that "the
Department has the authority to abate, control and prevent pollution."
2. S.C. Code §§ 48-1-50(3) and (11) enumerate the powers of the Department and
specify the Department's authority to make, revoke or modify orders and administer penalties
for violation of the Chapter, respectively.
3. The Respondent is in violation of Code § 48-1-90(a) in that it has allowed
discharge of organic matter into the environment, other than in compliance with a permit issued
by the Department.
4. The Respondent is in violation of the Stormwater Management and Sediment
Control Act, S.C. Code Ann. § 48-14-10, et seq. (1991) and S.C. Reg. 72-300 (1991) in that it
did not properly install and maintain requirements imposed with respect to approved land
disturbing activities.
5. Code § 48-1-330 states that anyone in violation of any Department permit or
permit condition shall be subject to a civil penalty not to exceed ten thousand dollars
($10,000.00) per day of violation.
THEREFORE, IT IS ORDERED, CONSENTED TO AND AGREED, that the Respondent shall:
1. Immediately upon execution of this Order and for the duration of constructionof the Bent Creek Subdivision project, comply with all stormwater regulations and Department
approved plans and permits.
2. Within sixty (60) days from the effective date of this Order, submit to the
Department a report, completed by a State registered engineer, certifying that construction of
the necessary stormwater and erosion control devices is complete and in accordance with the
approved plans and specifications.
3. The Respondent shall pay a civil penalty in the amount of eight thousand dollars
($8,000.00) to the Department in accordance with the following schedule:
(a) Commencing within thirty (30) days of the date of this order, pay one
thousand three hundred thirty-three dollars and 33/100 ($1,333.33) per month.
(b) Within sixty (60) days of the date of this order, pay one thousand three
hundred thirty-three dollars and 33/100 ($1,333.33) per month.
(c) Within ninety (90) days of the date of this order, pay one thousand
three hundred thirty-three dollars and 33/100 ($1,333.33) per month.
(d) Within one hundred twenty (120) days of the date of this order, pay
one thousand three hundred thirty-three dollars and 33/100 ($1,333.33) per month.
(e) Within one hundred fifty (150) days of the date of this order, pay one
thousand three hundred thirty-three dollars and 33/100 ($1,333.33) per month.
(f) Within one hundred eighty (180) days of the date of this order, pay one
thousand three hundred thirty-three dollars and 35/100 ($1,333.35) per month.
IT IS FURTHER ORDERED AND AGREED that in the interest of resolving this matter without
delay and expense of litigation the Respondent agrees to the entrance of this Consent Order,
but neither agrees nor disagrees with the Findings of Fact or the Conclusions of Law; and
therefore, agrees that this Order shall be deemed an admission of fact and law only as
necessary for enforcement of this Order by the Department or subsequent actions relating to
the Respondent by the Department.
IT IS FURTHER ORDERED AND AGREED, that failure to comply with any provision of this
order shall be grounds for appropriate sanctions and further enforcement action.
THE SOUTH CAROLINA DEPARTMENT OF
HEALTH AND ENVIRONMENTAL CONTROL
BY:
Douglas E. Bryant
Commissioner
DATE: BY:
Alton C. Boozer, Chief
Bureau of Water
WE CONSENT:
Padgett Constuction Company Date:2/9/98
Alex Shissias Date: 2/9/98
Attorney for Department
John Adams Hodge Date: 2/9/98
Attorney for Padgett Construction Company
Valerie A. Betterton, Director Date:
Water Enforcement Division |
