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. |