South Carolina              
Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
SCDHEC vs. Upstate Septic Tank Co.

AGENCY:
South Carolina Department of Health and Environmental Control

PARTIES:
Petitioner:
South Carolina Department of Health and Environmental Control

Respondent:
Upstate Septic Tank Co.
 
DOCKET NUMBER:
98-ALJ-07-0591-CC

APPEARANCES:
Josephine B. Patton, Esquire
for Petitioner

James P. O'Connell, Esquire
for Respondent
 

ORDERS:

FINAL ORDER AND DECISION

STATEMENT OF THE CASE

This matter concerning the collection and transportation of septage comes before me pursuant to S.C. Code Ann. §§ 1-23-600 (Supp. 1998) and 48-1-160 (Rev. 1987). Petitioner South Carolina Department of Health and Environmental Control alleges that Respondent violated 24A S.C. Code Ann. Regs. 61-56.1 (Supp. 1998) by failing to maintain accurate and current records. The Department, therefore, imposed a penalty of $5,000 on Respondent pursuant to S.C. Code Ann. § 48-1-330 (Rev. 1987). After notice to the parties, a hearing on the merits was conducted on February 2, 1999.

FINDINGS OF FACT

Having carefully considered all testimony and arguments presented at the hearing of this matter, and taking into account the credibility and accuracy of the evidence, I make the following Findings of Fact by a preponderance of the evidence.

Respondent Upstate Septic Tank Company ("Upstate") operates in Taylors, South Carolina and is licensed by the Department to clean septic tank disposal systems and transport the septage or collected materials. Respondent is authorized to transport the septage to Western Carolina Regional Sewer Authority for final disposal.

The issue giving rise to this case is the Department's allegations that Respondent violated regulatory requirements by failing to maintain accurate and current records in operating its business on four occasions. Specifically, the Department contends that on June 11, 1998, Respondent failed to record the cleaning and transporting of collected materials for two septic tanks it serviced; and, on June 11, 1998, Respondent incorrectly recorded the cleaning and transporting of collected materials for another septic tank as occurring on June 24, 1998; finally, Respondent logged a June 22, 1998 cleaning/transporting activity as occurring on June 25, 1998. The Department imposed a $5,000 penalty on Respondent.

On July 2, 1998, by way of letter, the Department requested that all septic tank and portable toilet pumpers in Greenville County submit copies of their June, 1998 logs for inspection. (Petitioner's Exhibit # 4). Respondent produced incomplete records for its activities during the month of June.

Respondent submitted documentation concerning cleaning activities performed at 200 Pine Forest Drive, Travelers Rest and the Greenville Country Club on Byrd Boulevard, Greenville, South Carolina. Respondent indicated in its Customer Log Book that the pumping activity at 200 Pine Forest Drive was performed on June 24, 1998 and disposed of on the same date. (Petitioner's Exhibit # 7 at p. 3). However, eyewitness testimony of DHEC agent John McMakin persuasively indicates that Respondent pumped this location on June 11, 1998. See (Petitioner's Exhibit # 7 at p. 3).(1)

Respondent's log (Petitioner's Exhibit # 8, pp. 4-5) indicated that the Greenville Country Club on Byrd Boulevard, Greenville, South Carolina, was pumped on June 25, 1998 and disposed of on the same date. However, the disposal date entered on the Sewer Authority log (Petitioner's Exhibit # 1, p. 5) persuasively indicated that the septage was dumped on June 22, 1998.

Finally, although Respondent never submitted records to the Department concerning its cleaning activities at the Pleasant Grove Parsonage and Turpin's Mobile Home Park on June 11, 1998, the Department learned of Respondent's pumping activities on the date in question through independent sources.



CONCLUSIONS OF LAW

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

The Department is authorized under S.C. Code Ann. § 44-1-140(11) (1976) to promulgate regulations to regulate the methods of disposition of sewage. Further, under § 48-1-50(22) (Rev. 1987), the Department may require an owner or operator of any source or disposal system to establish and maintain operational records.

In regard to promulgating regulations for the disposal of sewage, the Department promulgated 24A S.C. Code Ann. Regs. 61-56.1 pertaining to the construction and cleaning of onsite sewage treatment and disposal systems.

Respondent is licensed pursuant to Regulation 61-56.1.III.A-B to clean onsite treatment and disposal systems and self-contained toilets. As such, Respondent is required to maintain accurate, written records of its cleaning and transporting activities. 24A S.C. Code Ann. Regs. 61-56.1.V.A (Supp. 1998). The regulation requires the records to be kept current and to include at least the following information:

a. Date and time of septage removal.

b. Name and address of residence or facility where septage was removed.

c. Quantity and type of septage removed.

d. Date, time and location of septage disposal.



As it relates to record inspections, a licensee is required to make records available for inspection by the Department upon the Department's request. Additionally, records must be retained for at least two years. 24A S.C. Code Ann. Regs. 61-56.1.V.B (Supp. 1998).

The Department established that the Respondent violated Regulation 61-56.1 in two particulars. First, Respondent failed to provide records to the Department for inspection concerning its cleaning activities at Pleasant Grove Parsonage and Turpin's Mobile Home Park on June 11, 1998 in violation of Regs. 61-56.1.V.B.

Second, Respondent failed to keep accurate records as required by Regs. 61-56.1.V.A. Respondent's failure to keep accurate records is evidenced by the inaccuracy of its records with regard to Respondent's cleaning activities involving 200 Pine Forest Drive on June 11, 1998 and Greenville Country Club on June 22, 1998.

Regulation 61-56.1.VIII provides that violations of the regulation are punishable in accordance with S.C. Code Ann. §§ 44-1-150, 48-1-320 and 48-1-330. Of these provisions, § 48-1-330 provides for civil penalties. This section provides:

Any person violating any of the provisions of this Chapter, or any rule or regulation . . . shall be subject to a civil penalty not to exceed ten thousand dollars per day of such violation.

The Department's imposition of a $5,000 penalty upon Respondent is clearly within the permissive statutory limit, and is in fact well below what it could have imposed under the facts of this case.

ORDER

IT IS HEREBY ORDERED that the Department's imposition of a $5,000 fine upon Respondent is sustained.

AND IT IS SO ORDERED.



_________________________________

JOHN D. GEATHERS

Administrative Law Judge



March 24, 1999

Columbia, South Carolina

1. Contrary to the Department's contention, neither the Sewer Authority log nor the October 11, 1998 letter of Gary Elliott (owner of the company), specifically indicate when Respondent pumped 200 Pine Forest Drive, Travelers Rest.


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