SC Administrative Law Court Decisions

STATEMENT OF THE CASE

This matter is before the Administrative Law Judge Division pursuant to S.C. Code Ann. §§ 1-23-310 et seq. (1986 and Supp. 1997) and 25 S.C. Code Ann. Regs. 61-72.201 (Supp. 1997) upon Respondents' request for a contested case hearing. Petitioner South Carolina Department of Health and Environmental Control ("DHEC") seeks an order from this tribunal finding Respondents liable under the South Carolina Pollution Control Act, S.C. Code Ann. § 48-1-10 et seq. (1987 and Supp. 1997), for alleged unlawful discharge of sediment and topsoil into Hembree Creek in Anderson County, South Carolina.

By Order dated December 16, 1997, Respondents' contested cases were consolidated pursuant to ALJD Rule 19(D). By Order dated April 24, 1998, Petitioner's motion for summary judgment on Respondents' liability was denied.

Any issues raised in the proceedings or hearing of this case but not addressed in this Order are deemed denied pursuant to ALJD Rule 29(C).

This contested case arises from DHEC's October 10, 1997 Administrative Order requiring Respondents to pay a civil penalty of $105,370 for alleged violations of the South Carolina Pollution Control Act. DHEC cited Respondents with allowing discharge of sediment from land disturbing activities into the environment without a permit and failure to implement a storm water pollution prevention plan. Prior to the issuance of the Administrative Order, DHEC commenced an action for injunctive relief in circuit court which was ultimately resolved by agreement of the parties.

Respondents own a 66.8-acre tract located Northwest of Highway 76 and Highway 28 Bypass in Anderson County ("the site"). Hembree Creek runs through the site. During the summer of 1996, Respondents harvested timber from the site. After timber harvesting began, Respondents and Anderson County employees attempted to locate Anderson County's sewer line, and the corresponding right-of-way, which runs along Hembree Creek. During this process, Respondents discovered a portion of the sewer line exposed in the creek, and they subsequently repaired the sewer line on behalf of Anderson County.

On August 8, 1996, DHEC issued to Respondents a Notice of Action letter, requesting Respondents to submit proof of compliance with DHEC Regulation 72-300, governing standards for storm water management and sediment reduction, and to install temporary erosion and sediment control measures on the site. On August 16, 1996, Respondents' engineers sent to DHEC grading plans and an application for a storm water permit. On August 20, 1996, DHEC received the plans and permit application and issued a letter to Respondents' engineers stating that the application was incomplete.

On August 22, 1996, DHEC issued a stop work order prohibiting Respondents from any land disturbing activities on the site, with the exception of temporary erosion and sediment control measures approved by DHEC. DHEC advised Respondents that they could not engage in land-disturbing activities without a permit pursuant to S.C. Code Ann. § 48-14-30 (Supp. 1997). DHEC further advised Respondents that they would have to submit a storm water management and sediment control plan. On August 23, 1996, Respondents' engineers sent to DHEC amended grading plans, which was received by DHEC on August 26, 1996. Several exchanges of correspondence concerning the application and sediment control plan took place between Respondents' engineers and DHEC before DHEC approved Respondents' plan in June, 1997. In the interim, the creek banks continued to erode and sediment was continually discharged into the creek.

On August 27, 1996, DHEC filed with the Anderson county circuit court a motion for an ex parte temporary restraining order prohibiting any land disturbing activity on the site. DHEC also requested the court to require Respondents to implement temporary control measures to prevent further sediment discharge into Hembree Creek. On September 24, 1996, the Honorable Alexander Macaulay issued a temporary restraining order, effective until September 30, 1996, prohibiting any land disturbing activity on the site until Respondents obtained a permit and a sediment control plan approved by DHEC. The Order did not specifically require Respondents to implement temporary control measures.

On October 3, 1996, DHEC filed with the circuit court a Complaint and Motion for Injunctive Relief requesting a temporary injunction prohibiting land disturbing activity on the site and requiring Respondents to implement temporary control measures to prevent further sediment discharge into Hembree Creek. On November 7, 1996, the Honorable Don Rushing issued a temporary injunction, specifically prohibiting any further discharge of soil or sediment into Hembree Creek without a permit from DHEC. The Order enjoined any land disturbing activity within Hembree Creek, along its banks, and along a twenty foot strip from the edge of the creek banks inland, until Respondents received from DHEC an approved storm water and sediment control plan for that area. The Order denied all other injunctive relief requested by DHEC.

In the November 7, 1996 Order, Judge Rushing found that the Anderson County Sewer Authority, through its director, authorized as its agent Respondent Richard McClellion to perform repair and maintenance of its sewer line in and along Hembree Creek. Judge Rushing also found that the production and harvesting of timber occurred on the site, except within Hembree Creek, along its banks, and along a twenty foot strip from the edge of the creek banks inland. Judge Rushing further found that the land disturbing activities that occurred on the site may be exempt from the Stormwater Management and Sediment Reduction Act pursuant to S.C. Code Ann. § 48-14-40(B) (Supp. 1997), except those land disturbing activities within the creek, along its banks, and twenty feet on either side exceeding what was reasonably necessary to repair and maintain the sewer line. Judge Rushing implicitly found that any activity reasonably necessary to repair and maintain the sewer line was exempt from the Stormwater Management and Sediment Reduction Act pursuant to S.C. Code Ann. § 48-14-40(I) (Supp. 1997).

On June 11, 1997, the circuit court issued an Order finding that implementation of Respondents' proposed temporary control measures would not constitute land disturbing activity, and that DHEC would not bring an action for contempt of Judge Rushing's Order on such grounds. The Honorable Henry Floyd ordered Respondents to immediately implement temporary sediment control measures. Judge Floyd also ordered DHEC to issue a permit within ten days. On that same day, DHEC gave approval to Respondents' plans to stabilize the creek banks. Respondents implemented the sediment control measures immediately after obtaining the necessary approval from the United States Army Corps of Engineers on August 5, 1997. In October, 1997, DHEC voluntarily dismissed its circuit court action against Respondents.

On October 10, 1997, DHEC issued Administrative Order 97-087-W, requiring Respondents to pay a civil penalty of $105,370 for alleged violation of S.C. Code Ann. § 48-1-90(a) (1987) for discharge of sediment into Hembree Creek without a permit. The Administrative Order implicitly found that Respondents' land disturbing activities in and along Hembree Creek exceeded what was reasonably necessary to repair Anderson County's sewer line. The Administrative Order also found Respondents to be in violation of 26 S.C. Code Ann. Regs. 72-300 (Supp. 1997) for failure to implement a storm water pollution prevention plan. Respondents timely filed a request for a contested case hearing before the Administrative Law Judge Division.

Under the Pollution Control Act, no person may directly or indirectly discharge into the environment any organic or inorganic matter, "except as in compliance with a permit issued by DHEC." S.C. Code Ann. § 48-1-90(a) (1987). Under the Stormwater Management and Sediment Reduction Act, unless exempted, no person may engage in a land disturbing activity without first submitting a storm water management and sediment control plan to DHEC and obtaining a permit to proceed. S.C. Code Ann. § 48-14-30(A) (Supp. 1997). A land disturbing activity is defined as "any use of the land by any person that results in a change in the natural cover or topography that may cause erosion and contribute to sediment and alter the quality and quantity of stormwater runoff." S.C. Code Ann. § 48-14-20(8) (Supp. 1997).

Certain land disturbing activities are exempt from the Stormwater Management and Sediment Reduction Act. These activities include, but are not limited to, the production and harvesting of timber on forest land, and activities undertaken by local governments relating to the repair and maintenance of existing facilities and structures. S.C. Code Ann. § 48-14-40(B) and (I) (Supp. 1997). Respondents maintain that their activities fall within these two exemptions. DHEC concedes that any activity exempt from the Stormwater Management and Sediment Reduction Act would also be exempt from the Pollution Control Act.

In the Order Denying Partial Summary Judgment, this tribunal adopted Judge Rushing's November 7, 1996 finding that Respondents conducted timber harvesting activities on the site, except within Hembree creek, along its banks, and twenty feet inland on either side, and that those activities were exempt from the Stormwater Management and Sediment Reduction Act and the Pollution Control Act.⁽¹⁾ Therefore, the only remaining issues in the case are (1) whether the discharge of sediment, resulting from Respondents' Summer, 1996 activities within Hembree Creek, along its banks, and within twenty feet inland on either side, was without a permit and was not subject to exemption; and (2) the diligence, or lack thereof, of Respondents in implementing temporary sediment control measures to stabilize the creek banks.

The burden of proof is on the party asserting the affirmative in an adjudicatory administrative proceeding. 2 Am.Jur.2d Administrative Law § 360 (1994). The government is the proponent of an order seeking sanctions against a private party. Id. Therefore, DHEC has the burden of proving, by a preponderance of the evidence, that Respondents violated the Pollution Control Act and that the $105,370 civil penalty is justified. See Anonymous v. State Board of Medical Examiners, Op. No. 24754 (S.C.Sup.Ct. filed January 26, 1998) (Davis Adv.Sh. No. 5 at 11)(The standard of proof in administrative proceedings is a preponderance of the evidence, absent an allegation of fraud, or a statute or court rule requiring a higher standard.).

There is no dispute that Respondents' Summer, 1996 activities on the site were without a permit. There is also no dispute that after receiving the August 22, 1996 stop work order from DHEC, Respondents did not engage in any activity within Hembree Creek, along its banks, or within twenty feet inland on either side until after DHEC's June 11, 1997 issuance of the permit.

Respondents assert that their Summer, 1996 activities within Hembree Creek, along its banks, and within twenty feet inland on either side were undertaken to repair and stabilize Anderson County's sewer line and also to stabilize the creek banks. DHEC argues that these activities exceeded what was reasonably necessary to stabilize the sewer line.

Larry Locke, a maintenance mechanic with the Anderson County Sewer Authority, testified that the sewer line had not been maintained in years, and that it was desirable to locate the line to make sure that the manholes were still covered. Kudzu had consumed the creek banks on the site, obliterating the visibility of the sewer line and manholes. Locke further testified that it was necessary to clear the kudzu between manholes to determine whether any previous washout of the banks had exposed the sewer line.

Respondents first consulted their construction expert, Sam Thrift ("Thrift") to determine the best method of finding Anderson County's sewer line. After Thrift's initial visit to the site, Respondents' workers and Locke removed much of the kudzu covering the banks and found that the sewer line was left exposed in two areas from a washout of the banks. Respondents contacted Thrift, who returned to the site and noticed that the meandering of creek waters had created a winding "S" path in the channel. Storm water traveling at heightened velocity through this "S" path eroded the banks to such a degree that the slope was vertical in places, and had caused a washout of the banks, leaving portions of the sewer line exposed.

Thrift testified that it was necessary to prevent future washouts through straightening the channel to provide permanent stabilization of the sewer line, as well as the creek banks. To straighten the channel, it was necessary to perform work on both sides of the creek. Thrift also proposed sloping the banks in preparation for the laying of grass sod on the banks. Thrift's plans for straightening the channel and stabilizing the banks, to be immediately implemented, is what DHEC finally approved on June 11, 1997 as part of Respondents' sediment control plan. Respondents were able to slope portions of the bank before they received the stop work order from DHEC. Further implementation of Thrift's plans, however, was delayed by DHEC's stop work order.

I am persuaded by the testimony of Sam Thrift that Respondents' Summer, 1996 activities within Hembree Creek, along its banks, and within twenty feet inland on either side were reasonably necessary to repair, stabilize and maintain the Anderson County sewer line, and I so find. I further find that Respondents were duly authorized by Anderson County to perform this work. Therefore, Respondents' activities within Hembree Creek, along its banks, and within twenty feet inland on either side were exempt from the Stormwater Management and Sediment Control Act and the Pollution Control Act. Respondents were not required to obtain a permit for their activities within and along the banks of Hembree Creek.

In any event, I find that Respondents had already begun bank stabilization efforts when they received the stop work order from DHEC. These efforts were not a violation of the Stormwater Management and Sediment Control Act under DHEC's own definition of "land disturbing activity," which excludes bank stabilization efforts. While DHEC's inspector characterized Respondents' efforts to stabilize the creek banks as "extremely poor," these efforts were cut short by DHEC's stop work order, which undeniably prohibited any activity, including bank stabilization, on the site without prior approval from DHEC:

You are hereby ordered to cease and desist all land disturbing activities on the above referenced site, save those associated with, as ... approved by the District, temporary erosion and sediment control.

(emphasis added).

I find that, under the surrounding circumstances, Respondents acted with reasonable diligence in resuming their bank stabilization efforts. DHEC maintains that Respondents should have implemented bank stabilization efforts immediately after receiving the stop work order, as bank stabilization does not fall within the statutory definition of a "land disturbing activity" requiring a permit.⁽²⁾ Respondents' bank stabilization efforts were already under way when DHEC's stop work order was issued, specifically requiring District approval of temporary control measures. Moreover, both Judge Macaulay's and Judge Rushing's orders denied DHEC's request for an affirmative injunction requiring Respondents to implement temporary control measures. Judge Rushing's Order also specifically prohibited "further discharge of soil or sediment into Hembree Creek without a duly issued permit by [DHEC]." Therefore, Respondents were justified in believing that they were prohibited from doing anything within and around Hembree creek without first receiving a permit from DHEC.

Although DHEC finally issued a permit on June 11, 1997, the record is unclear as to when Respondents received notice of the permit issuance. Further, Respondents were waiting for approval of their bank stabilization plans from the U.S. Army Corps of Engineers ("Corps"). Respondents filed a Pre-Construction Notification with the Corps on March 25, 1997, which included a plan for stabilization of the creek banks. The Corps of Engineers suggested changes to the stabilization plan. Therefore, Respondents submitted a revised stabilization plan to the Corps on August 1, 1997. The Corps of Engineers issued final written approval on August 5, 1997.

Finally, although not necessary to my decision, it is noteworthy that DHEC calculated the $105,370 penalty based on four violations of the Pollution Control Act. The October 10, 1997 Administrative Order formally charged Respondents with only two violations. Therefore, the penalty calculations are invalid.

Based on the evidence presented, I make the following findings of fact, taking into consideration the burden on the parties to establish their respective cases, and taking into account the credibility of the witnesses:

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

2. Respondents own a 66.8-acre tract located Northwest of Highway 76 and Highway 28 Bypass in Anderson County ("the site"). Hembree Creek runs through the site.

3. During Summer, 1996, Respondents harvested timber from the site, except within Hembree creek, along its banks, and twenty feet inland on either side.

4. After timber harvesting began, Respondents and Anderson County employees attempted to locate the County's sewer line, and the corresponding right-of-way, which runs through the site along Hembree Creek.

5. Prior to Summer, 1996, the portion of Anderson County's sewer line running through the site had not been maintained in years.

6. It was desirable to locate the sewer line on the site to make sure that the manholes were still covered.

7. Kudzu had consumed the creek banks on the site, obliterating the visibility of the sewer line and manholes. It was necessary to clear the kudzu between manholes to determine whether any washout of the banks had exposed the sewer line.

8. Respondents' workers and Larry Locke, of Anderson County Sewer Authority, removed much of the kudzu covering the banks and found that the sewer line was exposed in two areas from a washout of the banks.

9. The meandering of creek waters had created a winding "S" path in the channel.

10. Storm water traveling at heightened velocity through this "S" path had caused a washout of the banks, leaving portions of the sewer line exposed and eroding the banks to such a degree that the slope was vertical in certain places.

11. To prevent future washouts, it was necessary to straighten the channel to provide permanent stabilization of the sewer line and the creek banks.

12. To straighten the channel, work had to be performed on both sides of the creek.

13. Respondents' construction expert, Sam Thrift, proposed sloping the banks in preparation for the laying of grass sod on the banks.

14. Thrift's immediate plans for straightening the channel and stabilizing the creek banks is what DHEC finally approved on June 11, 1997 as part of Respondents' sediment control plan.

15. During Summer, 1996, Respondents repaired the sewer line on behalf of Anderson County and began efforts to straighten the channel and slope the banks to permanently stabilize the the creek banks and the sewer line.

16. Respondents' Summer, 1996 activities on the site were without a permit.

17. Respondents' Summer, 1996 activities within Hembree Creek, along its banks, and within twenty feet inland on either side were reasonably necessary to repair, maintain and stabilize the Anderson County sewer line.

18. Respondents were duly authorized by Anderson County to perform repair, maintenance and stabilization work on the sewer line.

19. On August 8, 1996, DHEC issued to Respondents a Notice of Action letter, requesting Respondents to submit proof of compliance with DHEC Regulation 72-300 and to install temporary sediment control measures on the site.

20. On August 16, 1996, Respondents' engineers sent to DHEC grading plans and an application for a storm water permit.

21. On August 20, 1996, DHEC received the plans and permit application and issued a letter to Respondents' engineers stating that the application was incomplete.

22. On August 22, 1996, DHEC issued a stop work order containing the following language:

You are hereby ordered to cease and desist all land disturbing activities on the above referenced site, save those associated with, as directed by a professional consultant and approved by the District, temporary erosion and sediment control.

23. DHEC's stop work order prohibited any activity, including bank stabilization, on the site without first obtaining approval from DHEC.

24. In the stop work order, DHEC advised Respondents that they could not engage in land-disturbing activities without a permit pursuant to S.C. Code Ann. § 48-14-30 (Supp. 1997). DHEC further advised Respondents that they would have to submit a storm water management and sediment control plan.

25. Respondents were able to slope portions of the bank before they received the August 22, 1998 stop work order from DHEC.

26. Respondents had already begun bank stabilization efforts when they received the stop work order from DHEC.

27. After receiving the stop work order from DHEC, Respondents did not engage in any activity within Hembree Creek, along its banks, or within twenty feet inland on either side until August 5, 1997.

28. On August 23, 1996, Respondents' engineers sent to DHEC amended grading plans, which were received by DHEC on August 26, 1996.

29. Several exchanges of correspondence concerning the application and sediment control plan took place between Respondents' engineers and DHEC before DHEC approved Respondents' plan in June, 1997.

30. Between August, 1996 and August, 1997, the creek banks continued to erode and sediment was continually discharged into the creek.

31. On August 27, 1996, DHEC filed with the Anderson County circuit court a motion for an ex parte temporary restraining order prohibiting any land disturbing activity on the site. DHEC also requested the court to require Respondents to implement temporary control measures to prevent further sediment discharge into Hembree Creek.

32. On September 24, 1996, the Honorable Alexander Macaulay issued a temporary restraining order, effective until September 30, 1996, prohibiting any land disturbing activity on the site until Respondents obtained a permit and a sediment control plan approved by DHEC.

33. The September 24, 1996 Order did not specifically require Respondents to implement temporary control measures.

34. On October 3, 1996, DHEC filed with the circuit court a Complaint and Motion for Injunctive Relief requesting a temporary injunction prohibiting land disturbing activity on the site and requiring Respondents to implement temporary control measures to prevent further sediment discharge into Hembree Creek.

35. On November 7, 1996, the Honorable Don Rushing issued a temporary injunction, specifically prohibiting any further discharge of soil or sediment into Hembree Creek without a permit from DHEC. The Order enjoined any land disturbing activity within Hembree Creek, along its banks, and along a twenty foot strip from the edge of the creek banks inland, until Respondents received from DHEC an approved storm water and sediment control plan for that area.

36. The November 7, 1996 Order denied all other injunctive relief requested by DHEC, including the requirement of temporary erosion control measures.

37. After issuing the stop work order, DHEC failed to communicate to Respondents, or their agents, the necessity of immediate installation of temporary erosion control measures without a permit or prior DHEC approval, other than as set forth in formal circuit court pleadings.

38. After issuing the stop work order, DHEC did not approve any temporary erosion control measures proposed by Respondents until June 11, 1997.

39. On June 11, 1997, the circuit court issued an Order finding that implementation of Respondents' proposed temporary control measures would not constitute land disturbing activity, and that DHEC would not bring an action for contempt of Judge Rushing's Order on such grounds. The Honorable Henry Floyd ordered Respondents to immediately implement temporary sediment control measures.

40. Judge Floyd also ordered DHEC to issue a permit within ten days.

41. On June 11, 1997, DHEC gave approval to Respondents' plans to stabilize the creek banks and issued a storm water permit to Respondents.

42. Respondents filed a Pre-Construction Notification with the Corps on March 25, 1997, which included a plan for stabilization of the creek banks.

43. The Corps of Engineers suggested changes to the stabilization plan. Therefore, Respondents submitted a revised stabilization plan to the Corps on August 1, 1997.

44. The Corps of Engineers issued final written approval on August 5, 1997.

45. Respondents implemented sediment control measures immediately after obtaining the necessary approval from the United States Army Corps of Engineers on August 5, 1997.

46. Respondents acted with reasonable diligence in resuming their bank stabilization efforts.

47. In October, 1997, DHEC voluntarily dismissed its circuit court action against Respondents.

48. On October 10, 1997, DHEC issued Administrative Order 97-087-W, requiring Respondents to pay a civil penalty of $105,370 for alleged violation of S.C. Code Ann. § 48-1-90(a) (1987) for discharge of sediment into Hembree Creek without a permit.

49. The Administrative Order implicitly found that Respondents' land disturbing activities in and along Hembree Creek exceeded what was reasonably necessary to repair Anderson County's sewer line.

50. The Administrative Order also found Respondents to be in violation of 26 S.C. Code Ann. Regs. 72-300 (Supp. 1997) for failure to implement a storm water pollution prevention plan.

51. DHEC calculated the $105,370 penalty based on four violations of the Pollution Control Act.

52. The October 10, 1997 Administrative Order formally charged Respondents with only two violations.

53. Respondents timely filed a request for a contested case hearing before the Administrative Law Judge Division.

Based on the foregoing Findings of Fact, I conclude, as a matter of law, the following:

1. The Administrative Law Judge Division has subject matter jurisdiction of this case pursuant to S.C. Code Ann. §§ 1-23-310 et seq. (1986 and Supp. 1997) and 25 S.C. Code Ann. Regs. 61-72.201 (Supp. 1997).

2. The burden of proof is on the party asserting the affirmative in an adjudicatory administrative proceeding. 2 Am.Jur.2d Administrative Law § 360 (1994). The government is the proponent of an order seeking sanctions against a private party. Id.

3. The standard of proof in administrative proceedings is a preponderance of the evidence, absent an allegation of fraud, or a statute or court rule requiring a higher standard. Anonymous v. State Board of Medical Examiners, Op. No. 24754 (S.C.Sup.Ct. filed January 26, 1998) (Davis Adv.Sh. No. 5 at 11).

4. DHEC has the burden of proving that Respondents violated the Pollution Control Act and that the $105,370 civil penalty is justified.

5. The trier of fact must weigh and pass upon the credibility of evidence presented. See S.C. Cable Television Ass'n v. Southern Bell Tel. and Tel. Co., 308 S.C. 216, 417 S.E.2d 586 (1992). The trial judge who observes a witness is in the best position to judge the witness's demeanor and veracity and evaluate their testimony. See, e.g., McAlister v. Patterson, 278 S.C. 481, 299 S.E.2d 322 (1982).

6. Under the Pollution Control Act, no person may directly or indirectly discharge into the environment any organic or inorganic matter, except as in compliance with a permit issued by DHEC. S.C. Code Ann. § 48-1-90(a) (1987).

7. Under the Stormwater Management and Sediment Reduction Act, unless exempted, no person may engage in a land disturbing activity without first submitting a storm water management and sediment control plan to DHEC and obtaining a permit to proceed. S.C. Code Ann. § 48-14-30(A) (Supp. 1997).

8. A land disturbing activity is defined as "any use of the land by any person that results in a change in the natural cover or topography that may cause erosion and contribute to sediment and alter the quality and quantity of stormwater runoff." S.C. Code Ann. § 48-14-20(8) (Supp. 1997).

9. Certain land disturbing activities are exempt from the Stormwater Management and Sediment Reduction Act. These activities include, but are not limited to, the production and harvesting of timber on forest land, and activities undertaken by local governments relating to the repair and maintenance of existing facilities and structures. S.C. Code Ann. § 48-14-40(B) and (I) (Supp. 1997).

10. Any activity exempt from the Stormwater Management and Sediment Reduction Act is also exempt from the Pollution Control Act.

11. Respondents' Summer, 1996 timber harvesting activities on the site, except within Hembree creek, along its banks, and twenty feet inland on either side, were exempt from the Stormwater Management and Sediment Reduction Act and the Pollution Control Act.

12. Respondents' Summer, 1996 activities within Hembree Creek, along its banks, and within twenty feet inland on either side were reasonably necessary to repair, maintain, and stabilize the Anderson County sewer line.

13. Respondents were duly authorized by Anderson County to perform repair, maintenance and stabilization work on the sewer line.

14. Respondents' bank stabilization efforts were not a violation of the Stormwater Management and Sediment Control Act or the Pollution Control Act.

15. Respondents' sewer repair, maintenance and stabilization within Hembree Creek, along its banks, and within twenty feet inland on either side were exempt from the Stormwater Management and Sediment Control Act and the Pollution Control Act.

16. Respondents were not required to obtain a permit for their activities within and along the banks of Hembree Creek.

17. DHEC's stop work order prohibited any activity, including bank stabilization, on the site without prior approval from DHEC.

18. Although DHEC sought to require Respondents to utilize erosion control measures on the banks, the court orders issued failed to impose such a duty on Respondents.

19. After issuing the stop work order, DHEC failed to communicate to Respondents, or their agents, the necessity of immediate installation of temporary erosion control measures without a permit or prior DHEC approval, other than as set forth in formal circuit court pleadings.

20. After issuing the stop work order, DHEC did not approve any temporary erosion control measures proposed by Respondents until June 11, 1997.

21. Respondents were justified in believing that they were prohibited from doing anything within and around Hembree creek without first receiving a permit from DHEC.

22. Respondents acted with reasonable diligence in resuming their bank stabilization efforts.

23. DHEC's penalty calculations are invalid, as they were based on four violations of the Pollution Control Act when Respondents were formally charged with only two violations.

Based upon the foregoing Findings of Fact and Conclusions of Law, It is hereby

ORDERED that DHEC's October 10, 1997 Administrative Order, citing Respondents with violations of the Pollution Control Act, and the resulting civil penalty, be DISMISSED.

AND IT IS SO ORDERED.

________________________________

ALISON RENEE LEE

Administrative Law Judge

July 22, 1998

Columbia, South Carolina

1. The parties consented to my adoption of this finding, although the finding is not binding in this proceeding since the Order was interlocutory. See Town of Sullivan's Island v. Felger, 318 S.C. 340, 457 S.E.2d 626 (Ct. App. 1995)(For doctrine of res judicata to apply, the judgment must be final and on the merits).

2. In arguing that bank stabilization efforts do not fall within the statutory definition of a "land disturbing activity," DHEC stated that the definition hinges on the actor's intent to control erosion. Under this analysis, much of the Summer, 1996 work done by Respondents would not fall under the definition of "land disturbing activity," as it was done in an attempt to control the erosion of the creek banks.