South Carolina              
Administrative Law Court
Edgar A. Brown building 1205 Pendleton St., Suite 224 Columbia, SC 29201 Voice: (803) 734-0550

SC Administrative Law Court Decisions

CAPTION:
Smiley's Market & Malls, Inc. vs. SCDHEC

AGENCY:
South Carolina Department of Health and Environmental Control

PARTIES:
Petitioner:
Smiley's Market & Malls, Inc.

Respondent:
South Carolina Department of Health and Environmental Control
 
DOCKET NUMBER:
98-ALJ-07-0541-CC

APPEARANCES:
Ben Campen, President, for Petitioner

Kelly D.H. Lowry, Esquire, for Respondent
 

ORDERS:

FINAL ORDER AND DECISION

STATEMENT OF THE CASE

This matter comes before me pursuant to S.C. Code Ann. §§ 1-23-310 et seq. (1986 & Supp. 1997) and 25 S.C. Code Ann. Regs. 61-72.201 (Supp. 1997) upon Petitioner's request for a contested case hearing. Respondent South Carolina Department of Health and Environmental Control ("DHEC") seeks an order from this tribunal finding Petitioner liable for alleged violations of the South Carolina Pollution Control Act, S.C. Code Ann. §§ 48-1-10 et seq. (1987 & Supp. 1997), and the State Safe Drinking Water Act, S.C. Code Ann. §§ 44-55-10 et seq. (1976& Supp. 1997).

After notice to the parties, a hearing before the Administrative Law Judge Division was conducted on December 4, 1998. Upon review of the relevant and probative evidence and the applicable law, I find and conclude that Petitioner committed the alleged violations. I further find and conclude that an appropriate penalty under the circumstances of this case is $3,000.

Prior to the hearing of this matter, Petitioner's attorney, John W. Davidson, moved to be relieved as counsel. Mr. Davidson's motion is hereby granted.

DISCUSSION

Petitioner ("Smiley's") does not contest that there were technical violations of the Pollution Control Act and the State Safe Drinking Water Act. Rather, the essence of this contested case is the appropriateness of the penalty imposed. Smiley's President, Ben Campen ("Campen") asserts that he had no intent to violate the law. Campen asserts that he was acting in good faith based on a statement made by a DHEC employee during inspection of the water system for the flea market. Campen understood the statement to be that on-site inspection of waste collection lines and water distribution lines is unnecessary. Campen interpreted the statement to mean that, for permitting purposes, water distribution lines are not included in a public water system until they are connected to a well, and waste collection lines are not included in a waste disposal system until they are connected to a septic tank. Campen asserts that he never intended to connect the sewer lines or the water distribution lines to their corresponding systems before obtaining a construction permit.

Campen's confusion is understandable under the circumstances. The applicable law, however, does not support his position. South Carolina Code Ann. § 48-1-110(a) (Supp. 1997) provides that it shall be unlawful for any person to construct a waste disposal system without a permit. "Disposal system" is defined in S.C. Code Ann. § 48-1-10(12) (Rev. 1987) as "a system for disposing of sewage . . . or other wastes, including sewerage systems . . . ." "Sewerage system" is defined in S.C. Code Ann. § 48-1-10(10) (Rev. 1987) as "pipelines and conductors, pumping stations, force mains and all other construction, devices and appliances appurtenant thereto used for conducting sewage . . . or other wastes . . . ."

Further, S.C. Code Ann. § 44-55-40 (1976) provides that before construction, expansion or modification of any public water supply, an application for a construction permit must be obtained from DHEC. "Public water supply" is defined in S.C. Code Ann. § 44-55-20(g) (1976) to include all structures and appurtenances used for the collection, treatment, storage or distribution of drinking water delivered to point of meter of consumer or owner connection.

Therefore, the water distribution lines are part of the public water system and the waste collection lines are part of the waste disposal system. No part of a system may be constructed without a permit from DHEC. While DHEC may not have visually inspected the lines during its on-site inspection of the flea market systems, the lines are examined for proper design during review of the engineering plans. Such an examination must be conducted before construction can begin so that DHEC can prevent harm to the public and the environment.

Campen also asserts that because no actual harm was done to the environment, no penalty should be assessed for the cited violations. A showing of harm to the environment, however, is not a prerequisite to liability. S.C. Code Ann. § 48-1-330 (1987); Midlands Utility, Inc. v. South Carolina Department of Health and Environmental Control, 298 S.C. 66, 378 S.E.2d 256 (1989). Where the potential for harm exists, the imposition of a penalty is necessary to deter future violations. See Midlands Utility, Inc. v. South Carolina Department of Health and Environmental Control, 313 S.C. 210, 437 S.E.2d 120 (1993) (In assessing a penalty, the fact finder "should give effect to the major purpose of a civil penalty -- deterrence."). The potential for harm includes possible future contamination and the threat to public health if a system is not designed properly. This is precisely why it is necessary to obtain a construction permit to allow DHEC to review engineering plans before construction can begin.

In assessing a penalty for violation of environmental statutes, each fine must be analyzed individually to determine if it is appropriate under the circumstances. Midlands Utility, Inc. v. South Carolina Department of Health and Environmental Control, 313 S.C. 210, 437 S.E.2d 120 (1993). Under the circumstances of this case, an $8,000 fine is inappropriate. Campen made an honest mistake in misinterpreting DHEC representations. Further, as soon as the Official Notice to cease construction was issued, no further construction took place until after Smiley's obtained the necessary permits. Additionally, while the potential for harm to the environment warrants a penalty, no actual harm resulted from Smiley's actions. Finally, the construction and operating permits for the campground were ultimately issued to Smiley's. These are mitigating factors which may be taken into consideration in determining an appropriate penalty. See Midlands Utility, Inc. v. South Carolina Department of Health and Environmental Control, 301 S.C. 224, 391 S.E.2d 535 (1989).

FINDINGS OF FACT

By a preponderance of the evidence, I find the following facts:

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

2. Petitioner Smiley's Market and Malls, Inc. owns and operates a flea market and a recreational vehicle ("RV") campground in Edmund Business Park near the Town of Edmund in Lexington County, South Carolina.

3. On May 16, 1996, Smiley's submitted to DHEC an application for a permit to construct a small water system to serve the flea market. In the application, Smiley's represented to DHEC that the project would not be expanded in the future.

4. On May 16, 1996, DHEC issued to Smiley's a small water system construction permit.

5. On September 17, 1996, DHEC issued a permit to Smiley's for the operation of the small water system.

6. On May 23, 1997, DHEC amended the operation permit to add one additional tap to the small water system.

7. On May 27, 1997, Smiley's engineer submitted to DHEC a preliminary engineering report for an on-site waste disposal system for a proposed 100 space RV campground adjacent to Smiley's flea market.

8. On May 30, 1997, DHEC employees Gene Trussell ("Trussell") and Allen Montgomery ("Montgomery") visited the site to review the preliminary engineering report. At that time, Smiley's contractor had already begun construction of the waste disposal system for the campground. Trenches had been dug for the sewer lines, and the pipes for the lines were partially assembled and lying beside, but not in, the trenches.

9. As of May 30, 1997, Smiley's had constructed an expansion of the flea market's small water system. Distribution lines for the neighboring campground had already been installed in the ground and were located less than ten feet from the sewer line trenches.

10. Before leaving the site, Trussell and Montgomery issued a written Official Notice to cease construction of the waste disposal system immediately.

11. Upon receiving a copy of the Official Notice, Smiley's contractor contacted Campen to apprise him of the situation. Smiley's contractor then placed the assembled pipe in the trenches to prevent the trenches from filling in.

12. As of May 30, 1997, Smiley's had not submitted to DHEC an application for a permit to construct either an expansion of the small water system or a waste disposal system for the campground. There was no approved plan for the project and no permit had been issued for the construction.

13. On the afternoon of May 30, 1997, Trussell returned to the site to document the construction with photographs.

14. No adverse environmental impact resulted from Smiley's actions.

15. No further construction took place until after Smiley's obtained the necessary permits.

16. On August 4, 1997, Smiley's obtained a permit for construction of the waste disposal system at the campground.

17. Smiley's moved the sewer lines to obtain the ten feet minimum distance from the water lines.

18. On September 5, 1997, DHEC approved the installation of the septic tanks serving the campground.

19. On October 21, 1997, Smiley's obtained a permit for operation of the public water system serving the campground.

20. On August 11, 1998, DHEC issued an Administrative Order requiring Smiley to pay an $8,000 penalty for violation of the South Carolina Pollution Control Act and the State Safe Drinking Water Act for beginning construction of a waste disposal system without a permit, construction of public water system distribution lines without a permit, and locating water lines less than ten feet from a sewer line.

CONCLUSIONS OF LAW

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

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& Supp. 1997) and 25 S.C. Code Ann. Regs. 61-72.201 (Supp. 1997).

2. The standard of proof in administrative proceedings is a preponderance of the evidence. Anonymous v. State Board of Medical Examiners, 329 S.C. 371, 496 S.E.2d 17 (1998); 25 S.C. Code Ann. Regs. 61-72.702(B) (Supp. 1997).

3. South Carolina Code Ann. § 48-1-110(a) and 24 S.C. Code Ann. Regs. 61-9.122.21 (Supp. 1997) provide that it shall be unlawful for any person to construct a waste disposal system without a permit.

4. South Carolina Code Ann. § 44-55-40(a) (1976) and 24A S.C. Code Ann. Regs. 61-58.1(B)(1) (Supp. 1997) provide that before construction, expansion or modification of any public water supply, an application for a construction permit must be obtained from DHEC.

5. The South Carolina Primary Drinking Water Regulations require that water mains be laid at least ten feet horizontally from any existing or proposed sewer. 24A S.C. Code Ann. Regs. 61-58.4(D)(12) (Supp. 1997).

6. The burden of proof is on DHEC to demonstrate that Petitioner violated the South Carolina Pollution Control Act, the State Safe Drinking Water Act, and the regulations promulgated thereunder. See 2 Am.Jur.2d Administrative Law § 360 (1994) (generally, the burden of proof is on the party asserting the affirmative in an adjudicatory administrative proceeding); Converse Power Corp. v. South Carolina Dep't of Health and Envt'l Control, 98-ALJ-07-0032-CC (June 15, 1998).

7. 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 his testimony. See, e.g., McAlister v. Patterson, 278 S.C. 481, 299 S.E.2d 322 (1982).

8. Acting as the fact-finder, it is the prerogative of the administrative law judge "to impose the appropriate penalty based on the facts presented." Walker v. South Carolina ABC Comm'n, 305 S.C. 209, 211 S.E.2d 633, 634 (1991).

9. Any person violating the Pollution Control Act is subject to a civil penalty not to exceed ten thousand dollars for each day of violation. S.C. Code Ann. § 48-1-330 (1987).

10. Any person violating the State Safe Drinking Water Act is subject to a civil penalty not to exceed five thousand dollars for each day of violation. S.C. Code Ann. §§ 44-55-80 and -90 (1976).

11. Section 48-1-330 does not require a showing of harm to the environment as a prerequisite to liability. Midlands Utility, Inc. v. South Carolina Department of Health and Environmental Control, 298 S.C. 66, 378 S.E.2d 256 (1989). Where the potential for harm exists, the imposition of a penalty is necessary to deter future violations. See Midlands Utility, Inc. v. South Carolina Department of Health and Environmental Control, 313 S.C. 210, 437 S.E.2d 120 (1993).

12. Each fine must be analyzed individually to determine if it is appropriate under the circumstances. Midlands Utility, Inc. v. South Carolina Department of Health and Environmental Control, 313 S.C. 210, 437 S.E.2d 120 (1993). In assessing a penalty, the fact finder "should give effect to the major purpose of a civil penalty -- deterrence." Id.

13. A reduced penalty is justified where the permit is eventually obtained or other mitigating factors are present. See Midlands Utility, Inc. v. South Carolina Department of Health and Environmental Control, 301 S.C. 224, 391 S.E.2d 535 (1989).

14. Petitioner violated the Pollution Control Act by beginning construction of an on-site waste disposal system without a permit.

15. Petitioner violated the State Safe Drinking Water Act by expanding a public water system without a permit.

16. Petitioner violated 24A S.C. Code Ann. Regs. 61-58.4(D)(12) (Supp. 1997) by locating water lines less than ten feet from a sewer line.

17. An appropriate penalty under the facts of this case is a $1,000 fine for each violation, for total fines of $3,000.

18. Any motions or issues raised in these proceedings, but not addressed in this Order are deemed denied pursuant to ALJD Rule 29(C).

ORDER

IT IS THEREFORE ORDERED that Petitioner pay to the South Carolina Department of Health and Environmental Control a fine of Three Thousand Dollars ($3,000) within thirty (30) days of the date of this Order for violations of the South Carolina Pollution Control Act and the State Safe Drinking Water Act.

IT IS FURTHER ORDERED that Petitioner's attorney, John W. Davidson be relieved as counsel in this matter.

AND IT IS SO ORDERED.

___________________________________

STEPHEN P. BATES

ADMINISTRATIVE LAW JUDGE

January 20, 1999

Columbia, South Carolina


Brown Bldg.

 

 

 

 

 

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