ORDERS:
FINAL ORDER AND DECISION
Introduction
This matter was heard by the undersigned as a contested case pursuant to the provisions of S. C. Code Ann. §§ 1-23-600
(Supp. 1998) and 48-1-160 (Rev. 1987). The South Carolina Department of Health and Environmental Control
("Department" or "Petitioner") issued Administrative Order 98-071-W in which it stated that Winston Yoder and Tony
Yoder d/b/a Yoder Brothers Dairy ("Respondents") violated the South Carolina Pollution Control Act ("PCA"), Consent
Agreement 98-003-W, Bureau of Water Permit Number 18,390-AG ("Permit"), and the Waste Management Plan ("WMP")
approved for the Yoder Brothers Dairy operation in Newberry, South Carolina. Respondents in this matter have appealed
Administrative Order 98-071-W, claiming that the alleged violations resulted from adverse weather conditions, rain, and
other circumstances beyond their control. They further allege that they complied, as best they could, with the requirements
placed upon them by the Department, that they were denied due process and equal protection of the laws, that the fine
assessed by the Department in the amount of Twelve Thousand Five Hundred and no/100 ($12,500.00) Dollars was
excessive, and that the Department's actions were arbitrary and capricious.
After notice to the parties, a hearing was held on February 12, 1999, in the Spartanburg County Courthouse, East Court
Room, 180 Magnolia Street, Spartanburg, South Carolina. At the hearing, the parties presented testimony and introduced
exhibits, all of which have been carefully reviewed. The witnesses giving live testimony at the hearing were: Mr. Christopher
Michael Lake, an agricultural facilities inspector from the Departments' Central Midlands office; Kristine Hoskins, an
inspector in the DHEC Central Midlands District office qualified as an expert in determining regulatory compliance at sites
where soils are moved during the course of construction, grading operations, and other land-disturbing activities; Mr. J.
Robin Foy, an enforcement officer in the South Carolina Department of Health and Environmental Control's Bureau of
Water; and Winston Yoder, co-operator of Yoder Brothers Dairy.
For the reasons stated herein, I conclude that the Respondents violated the PCA, the Permit, and the WMP which had been
approved for the Yoder Brothers Dairy operation, and that these violations subject Respondents to penalties under the PCA.
Further, I conclude that the appropriate penalty in this case is Two Thousand Five Hundred and no/100 ($2,500.00) Dollars.
Finally, I conclude that Respondents technically violated Consent Agreement 98-003-W, but that such violation does not
subject Respondents to any fine.
Any issues raised in the proceedings or hearing of this case but not specifically addressed in this Final Order and Decision are
deemed denied. ALJD Rule 29 (B).
Statement of the Case and Discussion
Respondents are brothers who currently operate Yoder Brothers Dairy in Silverstreet, South Carolina. During the latter
part of 1997, Respondents decided to relocate their herd of 400 dairy cows from Montezuma, Georgia, to the current
location in Silverstreet. Prior to operating the dairy, Respondents were required to obtain permits for, inter alia, the milking
operation and the management of the waste generated by the herd.
Respondents contacted the United States Department of Agriculture's Natural Resources Conservation Service ("NRCS") in
late 1997 for creation of a WMP. Respondents received a completed WMP on December 8, 1997. The plan contemplated
use of a lagoon to contain the waste until disposed of by land application. The WMP listed five items Respondents needed
to do:
(1) erect warning signs on all four sides of the waste storage pond;
(2) repair the dam on the lagoon to return the top of the dam to a 92.3 foot elevation above sea level and a minimum of
twelve feet in width;
(3) cover the PVC pipes bringing waste into the lagoon with a minimum of two feet of compacted earthfill;
(4) construct the emergency spillway on the lagoon at a 90.6 foot elevation above sea level with 3:1 side slopes; and
(5) stabilize all earthwork on the dam and the inlet pipes with vegetation.
Respondents notified the Department on December 23, 1997, that the herd was in transport from Montezuma to Silverstreet,
and requested approval of their WMP so that they could milk the cows and sell the milk. (1) The Department approved the
WMP through Consent Agreement 98-003-W, signed by Respondents on January 8, 1998, which specifically incorporated
the WMP and the repairs recommended therein. In the Consent Agreement, Respondents committed to make the necessary
repairs to the lagoon by February 1, 1998. However, they failed to do so.
Respondents' failure to repair the lagoon by February 1, 1998, is a violation of the terms of Consent Agreement 98-001-W.
However, Respondents did not receive the Permit for these repairs until February 3, 1998, with an effective date of February
27, 1998. (2) The Permit, issued under the Standards for the Permitting of Agricultural Animal Facilities, 24A S.C. Code
Ann. Regs. 61-43 (Supp. 1998), required compliance with Respondents' WMP, and included 26 special conditions designed
to ensure that the operation and maintenance of the facility did not threaten human health or the environment.
Mr. Chris Lake performed the first of several inspections of the facility on Wednesday, February 18, 1998. He found that
Respondents had begun utilizing the lagoon as a waste collection system even though none of the five required repairs had
been completed or initiated. Mr. Lake rated the facility "Unsatisfactory" based upon this shortcoming. Winston Yoder
accompanied Mr. Lake on the inspection, and was informed that the requirements of the WMP had not been met and that
this condition was unsatisfactory. Mr. Yoder testified during the hearing that the warning signs had been erected prior to
this inspection but they had been knocked down by cattle some time later and had not been replaced.
Mr. Lake performed a follow-up inspection on the following Monday, February 23, 1998. Again, he noted that none of the
five required repairs had been initiated. Also, he noticed that the lagoon had discharged through the emergency spillway
sometime since his last inspection. The Department informed Yoder Brothers of this "Unsatisfactory" rating by mailing a
Notice of Violation ("NOV") by certified mail.
Mr. Lake performed a third inspection of the facility on Wednesday, March 18, 1998. Again, none of the five required
repairs had been initiated. Mr. Lake rated the facility "Unsatisfactory" based upon this failure. On March 20, 1998 Mr.
Lake informed Yoder Brothers of this rating by hand-delivering the NOV dated February 23, 1998 to Mrs. Winston Yoder.
On that same day Mr. Lake also hand-delivered a copy of Consent Agreement 98-003-W.
On March 23, 1998, the Department received a letter from Winston Yoder stating that the required work had not been
completed because the ground was too wet; however, he noted that the signs would be erected immediately and that the
remainder of the items would be completed by April 3, 1998. While this letter may not in its strictest sense formally request
an extension of any deadlines, it indicates, as testified to by Mr. Yoder at the hearing, of his intent that the time frame for
performance of the conditions be extended. The Department did not consider the language contained in the letter to be a
request for an extension.
Mr. Lake inspected the facility again on April 9, 1998, and found that none of the five required repairs had been initiated.
Mr. Lake again rated the facility "Unsatisfactory" based upon this shortcoming. When he conducted a final inspection of the
facility on Monday, May 18, 1998, Respondents had completed all required repairs, and the facility was in compliance with
the Consent Agreement, the Permit, and the WMP.
All of the witnesses agreed that the period of time between December 1997 and April 1998 was a time of wet weather. Mr.
Yoder testified that the wet weather caused the delay in completing the required corrections to the facility. He further
testified that the contractor he had originally retained to perform the work had been unable to complete the project. Mr.
Yoder eventually retained the services of another contractor, who completed the necessary repairs shortly after being
retained. The Respondents offered extensive testimony regarding their inability to perform the required work under the
WMP. They submitted pictures showing the area. The Respondents testified that throughout the period of time during
which they were to perform their required work, the rain in the area was heavy, causing the farm land and the surrounding
areas of the lagoon to be wet and muddy. The area of the spillway separating the lagoon itself from the spillway area was,
according to the Respondents, too fragile upon which to place an earth moving dozer. The Respondents testified that they
had tried diligently to have a contractor complete the work, but thattheir contractors indicated that conditions were too wet and muddy to perform the work during this time. Moreover,
Respondents testified that they had extreme difficulty in getting a contractor who would take such a small job. Further,
Respondents testified that they constantly informed the Department of the problems they were encountering.
This Court finds that the Respondents made diligent efforts to complete the required work on time, but were hampered by
the wet weather, mud and heavy rainfall in this area. The other land-disturbance projects ongoing during this period were in
other parts of Newberry County and there was no evidence presented that the land at the locations of those projects had
excessive moisture comparable to that at Respondents' location. Further, the Court accords great credibility to
Respondents' testimony that the area between the lagoon and the spillway was of such fragility that to place a bulldozer
upon it during this wet and muddy season would have been irresponsible and perhaps increased the harm to the environment.
The Court finds that there has been no showing of any adverse environmental impact because of the delay.
FINDINGS OF FACT
After consideration and review of all the evidence, I make the following findings of fact:
1. This Division has personal and subject matter jurisdiction.
2. Notice of the date, time, place and nature of the hearing was given to the parties.
3. Respondents own and operate Yoder Brothers Dairy in Newberry County, South Carolina.
4. During the latter part of 1997, Respondents decided to relocate their herd of 400 dairy cows fromMontezuma, Georgia to
the current location in Newberry County.
5. On December 8, 1997, Respondents received a Waste Management Plan prepared by the Natural Resources Conservation
Service for submittal to Petitioner during the process of obtaining a permit for their dairy operation. The WMP
contemplated use of a lagoon to contain the waste until its disposal by land application. The WMP listed five items that
Respondents needed to repair or perform prior to the usage and operation of the lagoon. They were:
(1) erection of warning signs on all four sides of the waste storage pond;
(2) repair of the dam on the lagoon to return the top of the dam to a 92.3 foot elevation above sea level and a minimum of
twelve feet in width;
(3) covering the PVC pipes bringing waste into the lagoon with a minimum of two feet of compacted earthfill;
(4) construction of the emergency spillway on the lagoon at a 90.6 foot elevation above sea level with 3:1 side slopes; and
(5) stabilization of all earthwork on the dam and the inlet pipes with vegetation.
6. On December 23, 1997, Respondents notified Petitioner that they were in the process of relocating the dairy herd from
Georgia to Newberry County, South Carolina. The Department issued Consent Agreement 98-003-W as temporary approval
of the WMP pending further review.
7. On February 3, 1998, the Department issued Permit to Construct 18,390-AG to Respondents for necessary repairs at the
facility. The Permit incorporated the WMP in Special Condition Number 5, which states: "Operate and maintain waste
system, including all special conditions, in accordance with Waste Management Plan developed by Charles E. Martin, NRCS
Field Engineer."
8. Mr. Chris Lake inspected the facility on Wednesday, February 18, 1998. Mr. Lake found that Respondents had begun
utilizing the lagoon as a waste collection system. None of the five required repairs had been initiated. Mr. Lake rated the
facility "Unsatisfactory" based upon these violations. Respondent Winston Yoder accompanied Mr. Lake on the inspection,
and was informed that the requirements had not been met and that this condition was unsatisfactory.
9. Mr. Lake performed a follow-up inspection on the following Monday, February 23, 1998. None of the five required
repairs had been initiated. The Department informed Respondents this "Unsatisfactory" rating by mailing a Notice of
Violation (NOV) by certified mail. Mr. Lake also noticed that the lagoon had discharged through the emergency spillway
sometime since his last inspection.
10. Mr. Lake performed a third inspection of the facility on Wednesday, March 18, 1998. Again, none of the five required
repairs had been initiated. As a result, Mr. Lake rated the facility "Unsatisfactory." Mr. Lake informed Respondents of this
rating by hand-delivering to Mrs. Winston Yoder the NOV dated February 23, 1998 on March 20, 1998. Mr. Lake also
hand-delivered a copy of Consent Agreement 98-003-W at the same time.
11. On March 23, 1998, the Department received a letter from Winston Yoder stating that the required work had not been
completed because the ground was too wet; however, the letter indicated that the signs would be erected immediately, and
that the remainder of the work would be completed by April 3, 1998. While this letter did not formally request an extension
of any deadlines, based upon its content and the testimony of Mr. Yoder at the hearing, this Court finds that it is sufficient to
constitute a request for an extension for completion of the five conditions.
12. Mr. Lake next inspected the facility on Monday, April 6, 1998; none of the five required repairs had been initiated.
Winston Yoder accompanied Mr. Lake on this inspection. According to his testimony, Mr. Lake explained to Mr. Yoder the
unsatisfactory state of his lagoon. Mr. Yoder responded that all work would be complete by April 8, 1998. Mr. Lake
inspected the facility again on April 9, 1998, and found that none of the five required repairs had been initiated. Mr. Lake
again rated the facility "Unsatisfactory."
13. Mr. Lake conducted a final inspection of the facility on Monday, May 18, 1998. Respondents had completed all required
repairs, and the facility was in compliance with the Consent Agreement, the Permit, and the WMP.
14. All of the witnesses agreed that December 1997 through April 1998 was a time of wet weather. I find that the wet
weather at Respondents' dairy farm caused the delay in the completion of the required corrections to the facility. The
contractor the Respondents had originally retained to perform the work had been unable to complete the project. Another
contractor had to be found and retained, and he did complete the necessary repairs shortly after being retained.
15. Although several major land-disturbance projects were underway in other parts of Newberry County as well as in
Lexington County, there was no evidence adduced at the hearing comparing the amount of moisture and rainfall at those
locations with that of Respondents. There was total agreement that the conditions at Respondents' farm were extremely wet
and that the ground was boggy and muddy. The conditions at Respondents' location were far from optimal for initiating or
completing repair of a waste lagoon, and the firm with whom Respondents had contracted to perform the work indicated
that it could not perform the work in those conditions. The preponderance of evidence in the record is that Respondents
could not complete the performance of the conditions 2-5 during this wet season. This Court finds, however, that even with
the wet weather there was no excuse for Respondents' failure to install signs on all four sides at the lagoon and maintain
them at those locations.
16. While Respondents also claim that they were denied due process and equal protection of the law because they were from
Georgia, Respondents failed to provide this Court with any testimony or evidence demonstrating a denial of due process or
equal protection. In fact, the only evidence germane to this issue was the testimony of Mr. Foy, who stated that the
Department accommodated Respondents by accepting Respondents' WMP by Consent Agreement so that they would be
able to acquire a milking permit. In short, I find no evidence that the Department violated Respondents' due process rights
or treated them differently from those similarly situated.
17. Respondents claim that the civil penalty imposed in the Administrative Order is excessive. Essentially, Respondents'
position is that, because no adverse environmental consequences resulted from these violations, the fine of twelve thousand
five hundred dollars is excessive. The Department's position is that the penalty is within the statutory maximum, fits within
the Department's standard penalty schedule describing severity levels and the associated penalties for each level, and is
calculated to deter future violations and ensure future compliance. Mr. Foy testified that, in this case, he determined that the
degree of harm or potential for harm to the public health, safety, or the environment was moderate. He came to this
conclusion because he did not consider any unauthorized discharges. After learning that the lagoon had in fact discharged at
least once, Mr. Foy testified that he could have increased the penalty based on that fact. Next, Mr. Foy determined that the
extent of deviation from the requirements of the consent order and the permit was major, as the non-compliance was
discovered without timely notice being given to the Department by Respondent. At no time did Respondent request an
extension five days in advance of failing to meet a condition, as required by the Consent Agreement. Lastly, because the
condition persisted, Mr. Foy ranked this a Level II violation. These three factors, when applied to the penalty matrix in the
penalty guide, result in application of a penalty of 40-50% of the statutory maximum. The Pollution Control Act allows a
penalty of $10,000.00 per day of violation. Mr. Foy calculated this penalty based upon one day of violation rather than the
one hundred or so days he could have included, and arrived at a figure of $5,000.00. This is the baseline amount. To this
baseline amount, Mr. Foy added a recalcitrance factor of 150% of the baseline amount, which gave the figure of $7,500.00.
Mr. Foy added the two together to arrive at the $12,500.00 penalty assessed in the Administrative Order. Although he could
have done so, Mr. Foy did not increase the fine for the economic benefit Respondents enjoyed by failing to comply.
18. Although the penalty imposed by the Department is within the amount allowable by law, I find that the weather
conditions at Respondents' farm rendered compliance with the requirements of the WMP, except for the placement of the
signs, impossible. Accordingly, I find that the fine imposed should be reduced to reflect this mitigating factor, as will be
further discussed herein.Conclusions of Law
1. The Administrative Law Judge Division has subject matter jurisdiction in this action pursuant to S.C. Code Ann. §§ 1-23-310 et seq. (1986 & Supp. 1998); cf. 25 S.C. Code Regs. 61-72 §§ 501 & 502 (Supp. 1998). Further, the Administrative
Law Judge who tries the contested case issues a Final Decision and Order pursuant to the provisions of S.C. Code Ann. §§
1-23-350 and 1-23-600(B)(Supp. 1998).
2. The standard of proof in weighing the evidence and making a decision on the merits at a contested case hearing is a
preponderance of the evidence. National Health Corp. v. S.C. Department of Health and Environmental Control, 298 S.C.
373, 380 S.E.2d 841 (Ct. App. 1989).
3. The issuance of permits to construct and operate a dairy facility involving the collection of animal wastes and their
disposal into the environment is governed by the South Carolina Pollution Control Act, S.C. Code Sections 48-1-10, et seq.,
(1987 & Supp. 1998), and the Standards for the Permitting of Agricultural Animal Facilities, 24A S.C. Code Ann. Regs.
61-43 (Supp. 1998), which require a permit issued by the South Carolina Department of Health and Environmental Control
prior to construction of the facility and any discharge of waste from that facility to the environment. S.C. Code Ann. §
48-1-90. The discharge of animal wastes from confined animal operations such as the Respondents' dairy facility poses the
risk of significant environmental harm through contamination of the air and water of the State. Pollution Control Act, S.C.
Code Ann. §48-1-10 et seq. (1987 & Supp. 1997).
4. The burden of proof is on the Department to demonstrate that Petitioner violated the statutory provisions involved and the
regulations promulgated thereunder. See 2 Am.Jur.2d Administrative Law § 360(1994)(generally, the burden of proof is
on the other party asserting the affirmative in an adjudicatory administrative proceeding); Converse Power Corp. v. South
Carolina Department of Health and Environmental Control, 98-ALJ-07-0032-CC (June 15, 1998). 5. The trier of fact must
weigh and pass upon the credibility of evidence presented. See S.C. Cable Television Association vs. 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' demeanor and veracity and evaluate his testimony. See, e.g., McAlister v. Patterson, 278 S.C. 481, 299 S.E.2d 322
(1982).
6. I conclude that a clear preponderance of the evidence in this record demonstrates that, although Respondents technically
violated Consent Agreement 98-003-W, Permit Number 18,390-AG, and the PCA, they were prevented by circumstances
beyond their control from complying with the requirements of the WMP except as to the construction of and placement of
warning signs on all four sides of the waste storage pond ("lagoon"). Although the Consent Agreement and the Permit
clearly indicate that Respondents must operate and maintain the waste system in accordance with the WMP, Respondents
were prevented from making the required repairs within the time allotted due to the wet weather and rainy conditions. It
would have created a safety hazard to place a bulldozer on the spillway given the wet condition of the soil in that area during
this entire time.
7. 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). Further, in
assigning a penalty the fact finder must give effect to the purposes for which fines are assessed, which is to deter such
conduct in the future. Id. A reduced penalty is justified where the permit is eventually obtained or other mitigating factors
are present.
8. I conclude that a fine is appropriate for the failure of Respondents to erect warning signs on all four sides of the waste
storage pond. On each of the occasions the inspector came to the property, no signs were located at the pond. If the signs
had indeed been prepared as Respondents testified to, then their reinstallation would have been almost effortless.
9. However, as to the Respondents' failure to comply with conditions 2-5 of the WMP, I find that mitigating circumstances
exist which preclude the imposition of a fine. The Respondents acted with due diligence. They gave their best effort to
complete the repairs and comply with the WMP notwithstanding the wet weather and adverse conditions and the failure of a
contractor to perform. They sought the services of another contractor as soon as possible and arranged for him to do the
work as quickly as they could retain his services and work into his work schedule. Accordingly, I conclude that a fine is not
appropriate for this portion of the violation.
11. Respondents claim that the Department violated Respondents' equal protection rights by selectively enforcing the PCA
against them and not against others similarly situated. In challenging a classification on equal protection grounds, the party
alleging a violation must show that similarly situated persons received disparate treatment. Grant v. South Carolina Coastal
Council, 319 S.C. 348, 461 S.E.2d 388 (1995). Respondents provided no evidence that the Department treated them
differently from those similarly situated. I therefore conclude that the Department did not violate Respondents' equal
protection rights.
12. Respondents further claim that the Department violated Respondents' due process rights by issuing Administrative Order
98-071-W against them while not having done the same against the prior owners of the farm. The due process clause of
Article I, Section 22 of the South Carolina Constitution provides only that a party be given notice and opportunity for a
hearing after the action of an administrative agency. Ross v. Medical University of South Carolina, 328 S.C. 51, 68, 492
S.E.2d 62, 71 (1997). I conclude that these rights have been fully afforded to Respondents, and that the Department did not
violate Respondents' due process rights.
DECISION AND ORDER
Based upon the Introduction, Statement of the Case and Discussion, Findings of Fact, and Conclusions of Law, it is hereby:
ORDERED that the Respondents are fined the sum of Two Thousand Five Hundred and no100 ($2,500.00 Dollars for
failing to place and maintain warning signs on all four sides of the waste storage pond (lagoon) at their dairy farm location in
Newberry County, South Carolina, and it is further
ORDERED that the Respondents shall remit the penalty amount to the Department within thirty (30) days of the date of
receipt of this Order and Final Decision, and it is further
ORDERED that Administrative Order 98-071-W is reversed, and
IT IS SO ORDERED.
__________________________
Marvin F. Kittrell
Chief Administrative Law Judge
August 25, 1999
Columbia, South Carolina
1.
Department approval of the WMP is a necessary prerequisite to obtaining a milking permit under S.C. Code Regs. Ann. 61-34 (1976).
Without the milking permit, Respondents would not have been able to sell the milk. The milking permit was not at issue in this proceeding.
2. The time between the date of issuance and the effective date reflects the time required for appeal of the permit under the S.C. Administrative
Procedures Act, S.C. Code Ann. §§ 1-23-500 et seq. (Supp. 1998), and the Department's Procedures for Contested Cases, S.C. Code Regs. Ann.
61-72 (Supp. 1998). |
