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:
Harry Ives, d/b/a The Land Center vs. SCDHEC

AGENCY:
South Carolina Department of Health and Environmental Control

PARTIES:
Petitioner:
Harry Ives, d/b/a The Land Center

Respondent:
South Carolina Department of Health and Environmental Control
 
DOCKET NUMBER:
98-ALJ-07-0722-CC

APPEARANCES:
Kelly D.H. Lowry, Esquire, for Petitioner South Carolina Department of Health and Environmental Control

William S. Tetterton, Esquire, for Respondent Harry Ives, d/b/a The Land Center
 

ORDERS:

FINAL ORDER AND DECISION

STATEMENT OF THE CASE

This matter comes before the Administrative Law Judge Division pursuant to S.C. Code Ann. §§ 1-23-310 et seq. (1986 and Supp.1998) and 25 S.C. Code Ann.Regs. 61-72 (Supp.1998) upon request by the Respondent Harry Ives, d/b/a The Land Center (Respondent) for a contested case hearing. Respondent seeks to dismiss the South Carolina Department of Health and Environmental Control's (DHEC) Administrative Order 98-109-W dated December 2, 1998. The Administrative Order imposes civil penalties of $16,000, requires submission of a Storm Water Management and Sedimentation Reduction Plan (SM&SR Plan) to DHEC for approval, and requires installation, weekly inspections and monthly updates of Best Management Practices (BMPs) at the Hill Side View site in Lee County, South Carolina. The Administrative Order is predicated upon alleged violations of the National Pollutant Discharge Elimination System (NPDES) regulations under the South Carolina Pollution Control Act. 24 S.C. Code Ann.Regs. 61-9.122 (Supp.1998); S.C. Code Ann. §§ 48-1-10 et seq. (Supp.1998). More specifically, DHEC claims that Respondent cleared approximately 8.8 acres of forest land for the future construction of a residential subdivision, without complying with the storm water permitting requirements under the NPDES Program.

After timely notice to all parties, a hearing was conducted on August 19, 1999 at the Administrative Law Judge Division, 1205 Pendleton Street, Columbia, South Carolina. Based upon the following Findings of Fact and Conclusions of Law, this tribunal finds that DHEC failed to substantiate a violation by Respondent of Reg. 61-9.122 of the NPDES regulations. The clearing of 8.8 acres of forest land, however, does constitute a land disturbance for which Respondent must submit a SM&SR Plan, as required by the Stormwater Management and Sediment Reduction Act (SM&SRA). See §§ 48-14-10 et seq. (Supp.1998). Accordingly, the Administrative Order against Respondent is dismissed, in part, and sustained, in part.

FINDINGS OF FACT

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

On or about August 18, 1999, by written stipulation, Respondent and DHEC agreed to the following facts.

1. The site at issue in this case is referred to in the Administrative Order as "Hill

Side View," which is located in Lee County, South Carolina. Hill Side View is

located approximately three (3) miles from Red Hill.

2. The site consists of mainly forested land and includes one main cutting. The main

cutting is a road that is one (1)-mile long and sixty-six (66)-feet wide.

3. There are two (2) smaller cuttings that branch away from the main cutting. One

such small cutting is one-hundred twenty-two (122)-feet long and sixty-six (66)-

feet wide, with a circular terminus having a diameter of one-hundred (100) feet.

The second small cutting is two-hundred thirty (230)-feet long and sixty-six (66)-

feet wide, with a circular terminus having a diameter of ninety (90) feet. The total

area cleared by these cuttings equaled approximately three-hundred eighty-four

thousand (384,000) square-feet, or eight and four-fifths (8.8) acres.



Also, on August 16, 1999, DHEC pre-filed testimony of witnesses Chris McCluskey and Ronny Rentz, both of whom are employees of DHEC's Wateree Environmental Quality Control District Office. The pre-filed testimony of these witnesses was substantially consistent with their testimony at trial.

Respondent is an investment manager. On March 27, 1997, Respondent submitted to DHEC an "Application for Subdivision Approval" and conceptual plans for a subdivision at Hill Side View. This application proposed creating 38 lots with individual septic tanks. By letter dated August 21, 1997, DHEC "conceptually" approved this property for a subdivision with individual septic tanks. No individual septic tank permits, however, were actually approved. There was also no evidence that Respondent ever obtained final approval of a plat for the residential subdivision.

Prior to January 13, 1998, Respondent cleared (or grubbed) approximately 8.8 acres of forest land, which included pine trees and pre-existing roadbeds. Although Respondent prepared the land to build roads, he did not actually build any roads, ditches or any other storm water system. Such preliminary development would be suitable for a residential subdivision, the sale of individual lots, a hunting club or a variety of other activities. Despite contrary testimony of DHEC, additional bulldozing and construction probably would be necessary to construct roads suitable for a residential development.

On January 13, 1998, an employee at the South Carolina Department of Transportation (DOT) called the Wateree District Office of DHEC to report a development at the Hill Side View site. On January 14, 1998, DHEC and DOT inspected the Hill Side View site and determined that the land was being developed as a residential subdivision without a permit or any storm water or sediment controls. DHEC presented evidence that there was no off-site impact from any site work.

After a failed attempt to contact Respondent by telephone, by letter dated January 19, 1998, DHEC directed Respondent to ". . . cease and desist from any site work activity other than the installation of storm water, erosion, and sediment control measures. . . ." The January 19 letter cited the Storm Water Management and Sediment Reduction regulations that require Respondent to submit a SM&SR Plan to the permitting office at DHEC. The January 19 letter further stated that DHEC was requesting that Lee County Planning and Zoning refrain from issuing any building and/or grading permits until Respondent obtained all "appropriate State permits," such as an NPDES permit. DHEC conceded at trial that Respondent did, in fact, cease and desist from unpermitted activities at the site.

On January 21, 1998, Respondent responded to the cease and desist letter, as requested, by telephoning DHEC and explaining that his preliminary development of the land was intended to assess whether to pursue residential, recreational or agricultural uses of the land, each of which implicated different statutory and regulatory requirements. In response to Respondent's telephone call, DHEC visited the site once again. Based on its site review, DHEC determined that Respondent's intent was to develop a residential subdivision. DHEC based its determination primarily on (1) the clearing of a main road with cul-de-sacs, which are typical of subdivisions; and (2) the presence of a sign at the entrance to the property depicting the subdivision and referencing "The Land Center" as the contact for Hill Side View. DHEC also considered (1) the presence of mobile homes on plots, even though they were exempt under the Pollution Control Act(1); and (2) Respondent's March 27, 1997 "Application for Subdivision Approval," which was only "conceptually" approved.

Inspections subsequent to DHEC's January 19, 1998 cease and desist letter -- including inspections on January 21, January 26,(2) and 28 -- similarly revealed that Respondent had not installed any storm water or sediment controls. On January 27, 1998, Respondent informed DHEC that he had removed the sign for Hill Side View and had decided to sell the land as one tract to be utilized as a pine plantation. In any event, DHEC advised Respondent that he should hire a consultant to contact DHEC because he may still have to submit a SM&SR plan in case he decided to develop the land in the future.

On April 16, 1998, after notice to Respondent, DHEC conducted an Enforcement Conference. At this conference, Respondent agreed to stabilize the property. As DHEC conceded at trial, Respondent did attempt to re-stabilize the property soon thereafter. On May 29, 1998, DHEC inspected the site and calculated that the site was less than 70% stabilized and that sediment had filled ditches along the road-cut and was beginning to travel to woods adjacent to the ditches. On June 23, 1998, DHEC conducted a final inspection of the site and noted that sediment was being carried from the ditches along the road-cut into a ditch on the low side of the property. At this point, there was more natural growth at the site than development activity. DHEC found that the road needed to be reseeded but did not pursue Respondent to do the work.

On December 2, 1998, DHEC issued Administrative Order 98-109-W. DHEC concluded that Respondent violated Regulation 61-9.122 by failing to (1) obtain the proper permit prior to engaging in land disturbing activity; (2) develop a Storm Water Pollution Prevention Plan; and (3) operate and maintain best management practices, or BMPs, in accordance with such Plan. DHEC imposed penalties of $16,000 under S.C. Code Ann. § 48-1-330 of the Pollution Control Act, which authorizes fines up to $10,000 per day per violation.

As for the $16,000 in civil penalties, DHEC's employee, J. Robin Foy, testified that the potential for harm to the environment (not human health) created by Respondent's conduct was "major" and that the extent of Respondent's deviation from standards was also "major." Mr. Foy further stated that the environmental harm consisted of increased drainage on the land that could negatively impact an offsite pond located approximately 500-600 yards away. According to Mr. Foy, Respondent's deviation from standards consisted of failing to apply for a permit and install storm water controls. Mr. Foy did not credit Respondent for attempting to stabilize the property. Instead, he doubled the base amount of the penalties due to what he deemed as recalcitrance on the part of Respondent for failing to apply for a permit and failing to admit liability. The record is devoid of any evidence of recalcitrance. Mr. Foy calculated the penalty for this violation as a first offense.(3) Mr. Foy indicated that this violation occurred when Respondent engaged in land disturbing activity without obtaining a permit, which was sometime prior to January 13, 1998. Also, Mr. Foy stated that Respondent would not be required to apply for an NPDES permit for the mere clearing of forest land, and DHEC would only require Respondent to submit an application for a permit if there was further development of the residential subdivision.

At the trial, the parties did not contest that Respondent did not obtain an NPDES permit. Additionally, it is indisputable that Respondent did not implement BMPs or submit a SM&SR Plan to DHEC for approval. Instead, the parties disagreed as to whether Respondent's clearing of 8.8 acres of forest land constituted "construction activity" for which Regulation 61-9.122 would apply. The Respondent contended that he was considering using the property for a hunting club or selling the tract as a pine plantation, and he never decided to pursue the subdivision. DHEC argued that Respondent intended to pursue the subdivision. Although Respondent considered (and may still be considering) using the property for a hunting club or a pine plantation, I find that Respondent intended to pursue a residential subdivision, in the event that his advertising induced enough interest.

DHEC issued Administrative Order 98-109-W to Respondent based specifically on alleged violations of NPDES permitting regulations, 24 S.C. Code Ann.Regs. 61-9.122. The U.S. Environmental Protection Agency (EPA) has delegated authority to South Carolina to issue permits under the NPDES program. South Carolina's NPDES regulations are virtually identical to EPA's NPDES regulations. See Reg. 61-9.122; 40 C.F.R. § 122 (1998); DHEC's Post-Trial Brief, at 2. In particular, Reg. 61-9.122.26, which governs storm water permits, contains similar language to the federal regulation, 40 C.F.R. § 122. 26. Federal case law and EPA guidance are therefore instructive in the present case.

In civil cases, generally, the burden of proof rests upon the party who asserts the affirmative of an issue. 29 AM. JUR.2d Evidence § 127 (1994); 2 AM JUR.2d Administrative Law § 360 (1994); Alex Sanders, ET AL., South Carolina Trial Handbook § 9:3 Party with Burden, Civil Cases (1994). DHEC issued an Administrative Order in which it explicitly cites Respondent with violating the NPDES regulations; accordingly, DHEC is the party asserting the affirmative in this case. Therefore, DHEC must prove by a preponderance of the evidence that Respondent violated Reg. 61-9.122. The preponderance of the evidence "is evidence which is of the greater weight or more convincing than the evidence which is offered in opposition to it." BLACK'S LAW DICTIONARY 1182 (6th ed. 1990). "The preponderance of the evidence means such evidence as, when considered and compared with that opposed to it, has more convincing force and produces in the mind the belief that what is sought to be proved is more likely true than not true." Sanders, supra, § 9:5 Quantum of Evidence in Civil Cases (1994), citing, Frazier v. Frazier, 228 S.C. 149, 89 S.E.2d 225 (1955).



Scope of the NPDES Program under Reg. 61-9.122

The NPDES program "requires permits for the discharge of 'pollutants' from any 'point source' into 'waters of the State' and into 'waters of the United States.' Reg. 61-9.122.1(b)(1) (emphasis added). Accordingly, DHEC must prove, by a preponderance of the evidence, that there was (1) a "discharge of a pollutant," (2) "from any "point source," (3) into "waters of the State." Reg. 61-9-122.2(b) contains definitions of a "pollutant," "discharge of a pollutant," and "point source." A "pollutant" includes in its definition ". . . rock [and] sand . . . discharged into water." Reg. 61-9.122.2(b)(59). A "discharge of a pollutant" means "[a]ny addition of any pollutant or combination of pollutants to waters of the State from any point source." Reg. 61-9.122.2(b)(22). A "point source" means "any discernible, confined, and discrete conveyance, including but not limited to, any pipe, ditch, channel, tunnel, [or] conduit . . . from which pollutants are or may be discharged." Reg. 61-9.122.2(b)(57). The "waters of the State" include "lakes, bays, sounds, ponds, impounding reservoirs, springs, wells, rivers, streams, creeks, estuaries, marshes, inlets, canals, the Atlantic Ocean within the territorial limits of the State, and all other bodies of surface or underground water, natural or artificial, public or private, inland or coastal, fresh or salt, which are wholly or partially within or bordering the State or within its jurisdiction." Reg. 61-9.122.2(b)(93). As discussed further below, while the record amply supports that the storm water at issue constitutes a "pollutant," the record does not support that there was a "discharge" of the storm water or that the storm water entered into the "waters of the State."

1. Storm water constitutes a "pollutant"

The evidence in the record establishes that the storm water at issue constitutes a "pollutant," as defined in the NPDES regulations. A "pollutant" is defined broadly and includes ". . . rock [or] sand . . . discharged into water." Reg. 61-9.122.2(b)(59). DHEC has analogized the sediment at issue to rock and sand, which are pollutants. See DHEC's Post-Trial Brief, at 2. Furthermore, federal case law states that where land disturbing activities have been conducted, such as grading and clearing, such storm water runoff constitutes a pollutant under the NPDES regulations. Hughey v. JMS Development Corp., 78 F.3d 1523, 1525 n.1 (11th Cir. 1996) (case arising in Georgia), citing, National Resource Defense Council, Inc. v. Costle, 568 F.2d 1369, 1377 (D.C. Cir. 1977). Relying on the broad definition of "pollutant" and this federal case law, this tribunal finds that the storm water from clearing activities at the Hill Side View site constitutes a "pollutant" under the NPDES program.

2. There is no "point source" at the Hill Side View site

The evidence does not support that there was a "point source" at the Hill Side View site from which the storm water originated. Like the term "pollutant," the NPDES regulations define a "point source" very broadly. A "point source" includes any "any discernible, confined, and discrete conveyance, including but not limited to, any pipe, ditch, channel, tunnel, [or] conduit." Reg. 61-9.122.2(b)(57). DHEC's witness, Mr. McClusky, conceded at trial that Respondent only cleared the area and did not create any such ditch or other conveyance at the site. Therefore, this tribunal finds that there is no "point source" on the land at the Hill Side View site.

3. There is no discharge of storm water into waters of the State

DHEC has not proved that there was a "discharge" into any "waters of the State," either on property at Hill Side View or off-site. As stated above, a "discharge of a pollutant" requires "[a]ny addition of any pollutant or combination of pollutants to waters of the State from any point source." Reg. 61-9.122.2(b)(22) (emphasis added). The evidence in the record does not demonstrate that there was any introduction of storm water or sediment into any waters of the State, from either a point source or elsewhere. See Reg. 61-9.122.1(b)(1); Reg. 61-9.122.2(22); Respondent's Post-Hearing Brief, at 3. DHEC has offered testimony that there was a pond located approximately 500-600 yards away from the land clearing activity that could be impacted. Although the definition of "waters of the State undeniably includes "ponds," DHEC concedes that there was no such discharge into the pond. See Reg. 61-9.122.2(b)(93) (defining "waters of the State").

While DHEC offered expert testimony concerning the discharge and the resultant impact upon the pond, this tribunal is unpersuaded that the storm water discharges may ever impact any waters of the State, including the pond. "The qualification of a witness as an expert in a particular field is within the sound discretion of the trial judge." Smoak v. Liebherr-Am., Inc., 281 S.C. 420, 422, 315 S.E.2d 116, 118 (1984); South Carolina Dep't of Highways and Pub. Trans. v. Manning, 283 S.C. 394, 323 S.E.2d 775 (1984). However, where the expert's testimony is based upon facts sufficient to form the basis for an opinion, the trier of fact determines its probative weight. Berkeley Elec. Coop. v. South Carolina Pub. Serv. Comm'n, 304 S.C. 15, 402 S.E.2d 674 (1991); Smoak, supra. Further, a trier of fact is not compelled to accept an expert's testimony, but may give it the weight and credibility he determines it deserves. Florence County Dep't of Social Serv. v. Ward, 310 S.C. 69, 425 S.E.2d 61 (1992); Greyhound Lines v. South Carolina Pub. Serv. Comm'n, 274 S.C. 161, 262 S.E.2d 18 (1980). He also may accept one expert's testimony over that of another. South Carolina Cable Television Ass'n v. Southern Bell Telephone and Telegraph Co., 308 S.C. 216, 417 S.E.2d 586 (1992). In evaluating the experts' testimony in the present case, this tribunal noted hesitance and indecisiveness in responding to questions concerning any impact upon the pond; further, the facts on which the experts' opinions were formed were insufficient to support that the pond could be impacted. Site inspection reports prepared by DHEC also do not reflect such a potential impact.

Moreover, the regulations do not require an NPDES permit unless there is a discharge or proposed discharge. For example, Reg. 61-9.122.21(a)(1) states that a ". . . person who discharges or proposes to discharge pollutants . . . shall submit a complete application (which shall include a BMP program if necessary under R.61-9.125.102) to [DHEC] . . . ." Reg. 61-9.122.21(a)(1) (emphasis added). Therefore, this tribunal finds that the NPDES regulations explicitly contemplate either a discharge or a proposed discharge to trigger a duty to apply for an NPDES permit.

DHEC has failed to convince this tribunal that there was a "point source" or "discharge" of storm water into "waters of the State." Consequently, Respondent's activities do not fall within the scope of the NPDES regulations. Reg. 61-9.122.1(b)(1).

Scope of the Storm Water Permitting Requirements under Reg. 61-9.122.26

Logic dictates that activity falling outside the general scope of the NPDES regulations should not trigger any subpart of the NPDES regulations, including Reg. 61-9.122.26. Nevertheless, both parties contend that storm water discharges associated with an industrial activity, in this case "construction activity," may be regulated separately under Reg. 61-9.122.26. In essence, DHEC has argued that NPDES is a preventative program under which there need not be a discharge. While this tribunal generally respects DHEC's interpretation of the NPDES regulations, it cannot concur that a person may have a duty to apply for an NPDES permit where there is no discharge at issue. As discussed further below, DHEC's interpretation contradicts the plain meaning of the regulation, as well as EPA guidance on storm water permitting under the NPDES program.

For example, as discussed above, the scope of the regulations extends only to "discharges" of pollutants into waters of the State or the United States. Reg. 61-9.122(b)(2)(22) (emphasis added). Furthermore, the regulations explicitly state when a person has a duty to apply for a permit: ". . . person who discharges or proposes to discharge pollutants . . . shall submit a complete application (which shall include a BMP program if necessary under R.61-9.125.102) to [DHEC] . . ." Reg. 61-9.122.21(a)(1) (emphasis added). In fact, Reg. 61-9.122.21(c)(1) requires a person to submit such an application either 90 or 180 days prior to the discharge. These regulations make clear that NPDES is prospective, by requiring an application 90 or 180 days prior to a discharge. The regulations, however, explicitly contemplate that either a discharge or a proposed discharge occur to trigger a duty to apply.

EPA guidance on storm water permitting for "industrial activities" and "construction activities," which are alleged in the present case, supports that a discharge or a proposed discharge is indeed required to trigger a duty to apply for an NPDES permit. For example, "EPA is requiring permits for all storm water discharges from construction activities where the land disturbed meets the requirements established in § 122.26(b)(14)(x) and which discharge into waters of the United States." National Pollutant Discharge Elimination System Permit Application Regulations for Storm Water Discharges, 55 Fed. Reg. 47,990, 48,036 (1990) (emphasis added). Also, "[c]onstruction activities that disturb at least five acres of land and have point source discharges to waters of the U.S. are defined as an 'industrial activity.'" Final National Pollutant Discharge Elimination System General Permit for Storm Water Discharges from Construction Activities, 63 Fed. Reg. 15,622 (1998) (emphasis added), citing, 40 C.F.R. § 122.26(b)(14)(x).

Based on the authorities cited pertaining to the scope of the regulations, this tribunal is compelled to conclude that where there is no discharge or proposed discharge of storm water into waters of the State or the United States, such storm water is outside of the scope of the NPDES regulations, including Reg. 61-9.122.26.

Respondent's Activities Do Not Constitute "Industrial Activity" or "Construction Activity"

Even if I were to accept DHEC's position that no discharge into waters is necessary to trigger a duty to apply for an NPDES permit, nonetheless, I would find no violation of Reg. 61-9.122.26 in the present case. The reason is that DHEC did not demonstrate that clearing activity constitutes "industrial activity" or "construction activity" for which a storm water permit is required under Reg. 61-9.122.26. DHEC specifically predicated its Administrative Order on storm water that allegedly originated from "industrial activity" in the form of "construction activity." More specifically, DHEC argues that ". . . any person who, after October 1, 1992, seeks to conduct clearing, grading, and excavation activities disturbing more than five acres of land (land disturbance) must first acquire an NPDES permit from [DHEC]."(4) See DHEC's Post-Hearing Brief, at 2-3, citing, Reg. 61-9.122.26(a)(1)(ii) & (b)(14)(x) (regarding storm water originating from "construction activity").

Reg. 61-9.122.26(a)(1)(ii) requires an NPDES permit for a storm water "discharge associated with an industrial activity." Reg. 61-9.122.26(b)(14) defines a "storm water discharge associated with an industrial activity" as a:

. . . discharge from any conveyance which is used for collecting and conveying storm water and which is directly related to manufacturing, processing or raw materials storage areas at an industrial plant. . . . This term does not include discharges from facilities or activities excluded from the NPDES program under this regulation. . . . This term excludes areas located on plant lands separate from the plant's industrial activities, such as office buildings and accompanying parking lots as long as the drainage from the excluded areas is not mixed with storm water drained from the above described areas. . . .



Reg. 61-9.122.26(b)(14). This definition further provides a list of industrial activities which are regulated under the NPDES program and includes:

[c]onstruction activity including clearing, grading and excavation activities except: operations that result in the disturbance of less than five acres of total land area which are not part of a larger common plan of development.



Reg. 61-9.122.26(b)(14)(x).

A person engaged in these "construction activities" must file an application for a storm water permit at least 90 days prior to initiating such construction. Reg. 61-9.122.21(c)(1). Also, under Reg. 61-9.122.26(b)(14)(x), the applicant must discuss BMPs "to control pollutants in storm water discharges during construction." Reg. 61-9.122.26(c)(1)(ii).

Reg. 61-9.122.26(b)(14)(x), like its federal counterpart 40 C.F.R. § 122.26(b)(14)(x), provides that "industrial activity" requiring an NPDES permit includes "construction activity," and that "construction activity" encompasses clearing and grading work. See Hughey, 78 F.3d at 1527. EPA, in fact, requires NPDES permits for storm water discharges from construction activity including clearing, grading and excavation activities. See O 'Aha 'Ino v. Galiher, 28 F. Supp.2d 1258, 1261 (1996).

Although "construction activity" encompasses clearing and other activity, it is less clear whether clearing activity alone constitutes "construction activity" triggering a duty to apply for a storm water permit. To clarify, in the present case, DHEC claims that Respondent cleared approximately 8.8 acres of forest land for the future development of a residential subdivision. While the "construction" of the subdivision may, of course, encompass this clearing activity, it is unclear whether this clearing activity, without any actual construction of the subdivision, constitutes "construction activity" for purposes of the NPDES regulations. This tribunal has not been apprised of any case in South Carolina that decides this issue. Nonetheless, federal case law, other language from the NPDES regulations and EPA guidance support that the clearing of forest land alone does not constitute "construction activity" and, consequently, does not trigger a duty to apply for a storm water permit under the NPDES program.

For example, the District Court of Hawaii's decision in Galiher supports that the construction of roads should not constitute "construction activity" requiring an NPDES permit where the roads at issue are as innocuous as silvicultural roads. 28 F. Supp.2d at 1261-62. Reg. 61-9.122.27(b)(1) specifically exempts from permitting requirements any road construction from which there is natural runoff where the roads are associated with silvicultural activities. Silvicultural activities include "rock crushing, gravel washing, log sorting, or log storage facilities." The federal district court in Galiher extended the road construction exemption for silvicultural activity to agricultural activity. 28 F. Supp.2d at 1261-62. In so doing, the court stated that where there is no substantial difference between the harm from building agricultural roads and forest roads, the building of agricultural roads should also be exempt from NPDES permitting requirements. Id. In the present case, DHEC did not present evidence that the storm water at the Hill Side View is any different than ordinary storm water associated with the building of road construction on agricultural or forest land. Therefore, the sole activity of clearing of the forest land at the site should, like agricultural roads, be exempt under the exemption for silvicultural roads. Reg. 61-9.122.27(b)(1).

Importantly, the language contained within Reg. 61-9.122.26(b)(14)(x) also suggests that the mere clearing of land does not constitute "industrial activity" or "construction activity" requiring an NPDES permit. The regulation further states, in part:

[a storm water discharge associated with industrial activity] excludes areas located on plant lands separate from the plant's industrial activities, such as office buildings and accompanying parking lots as long as the drainage from the excluded areas is not mixed with storm water drained from the above described areas. . . .



Reg. 61-9.122.26(b)(14)(x). In other words, even where there is an industrial plant, fully-constructed roads and storm water that are separate from the industrial plant roads and storm water are exempt from regulation under the NPDES program. Clearly, it is not just any road that triggers a duty to apply for a storm water permit under the NPDES program.

In fact, EPA has issued guidance consistent with this interpretation, which has stated, in part, that:

EPA does not intend to require permit applications for access roads to operations which are not yet industrial activities. EPA does agree with comments made by several industries that undeveloped areas, or areas that do not encompass those described above, should generally not be addressed in the permit application, or a storm water permit, as long as the storm water discharge from these areas is segregated from the storm water discharge associated with the industrial activity at the facility.



55 Fed. Reg. at 48,009. In the present case, Respondent has cleared forest land and roadbeds but has not constructed roads, storm sewers or any other facilities, whether industrial in nature or otherwise. It is not possible that storm water discharge "mixed with storm water drained from the [industrial activity]" were at issue here. As Respondent suggests, there is no industrial activity in this case for which an NPDES permit should be required. See id.; Respondent's Post-Trial Brief, at 3-4. Since there is no industrial plant, it follows that there is no requirement, at this time, for an NPDES permit.

The EPA guidance also specifically narrows the application of the federal storm water permitting requirements under the NPDES program to the construction industry alone. 55 Fed. Reg. at 48,033. The Court of Appeals for the Fourth Circuit, in Appalachian Energy Group v. Environmental Protection Agency, 33 F.3d 319, 320 n.2 (4th Cir. 1994), acknowledged that EPA limited § 122.26(b)(14)(x) to the construction industry, as opposed to other industries such as the oil and gas industry. Respondent is not in the construction industry and is only an investment manager. As long as Respondent's activities do qualify as activities of the construction industry, he should be exempt from regulation under Reg. 61-9.122.26(b)(14)(x).

For the foregoing reasons, I find that a person is not engaged in "construction activity" under Reg. 61-9.122.26(b)(14)(x) for the mere clearing of forest land, as is the case here.(5)

Instead, actual "construction" must occur, or at least be proposed, in addition to the clearing activity. Significantly, the trial testimony of one of DHEC's witnesses, Mr. Foy, buttresses the finding that Respondent would not be required to apply for an NPDES permit for the mere clearing of the forest area without further development of the residential subdivision.

An Intent To Build a Residential Subdivision Does Not Trigger a Duty To Apply under the NPDES Program

This tribunal is aware that the construction of a residential subdivision would constitute "construction activity" for purposes of the NPDES regulations. Galiher, 28 F. Supp.2d at 1263. There is an important difference, however, between an intent to construct and actual construction. For example, the court in Galiher specifically distinguished an intent to develop from actual "construction activities." The court found that while a working master plan submitted to the county office may indicate an intent to develop, it did not indicate that construction activity may occur on a specific plot or that the construction activity would ever occur. Id. (addressing construction of an orchard and grazing area).

Similarly, Respondent's Application for Subdivision Approval and sign advertising subdivisions evidence an intent to develop a subdivision. This tribunal is unpersuaded, however, that the Application and sign demonstrate that construction activities would occur on any specific plot. Indisputably, Respondent sold individual lots to mobile home owners at the site. Respondent could sell the remaining lots to individual owners rather than constructing a residential subdivision. Respondent could also use the land as a pine plantation or a hunting club. DHEC contends that Respondent should have applied for an NPDES permit prior to clearing the approximate 8.8 acres of forest land, which occurred some time prior to January 13, 1998. Respondent, however, was free to consider alternative uses for the property. DHEC's speculative analysis of Respondent's intent and the variety of options available to Respondent -- both then and now -- clearly demonstrate that it is inappropriate to require Respondent to apply for an NPDES permit prior to clearing the 8.8 acres of land. As DHEC's own testimony reveals, DHEC would not require Respondent to apply for a NPDES permit if he did not construct a residential subdivision. For that reason, it is premature to require Respondent to apply for an NPDES storm water permit for the mere intent to develop a residential subdivision.

Furthermore, as stated above, a person only has a duty to file an application for an NPDES permit 90 days prior to initiating construction. Reg. 61-9.122.21(c)(1). There is no evidence in the record that Respondent ever contemplated construction activities at the site within 90 days. For that reason, I cannot find that Respondent had a duty to apply for an NPDES permit prior to clearing land at the site. Even at the hearing, there was no evidence presented that Respondent would initiate construction activities within 90 days. Similarly, it is premature to require Respondent to propose and implement BMPs, which may be required under the NPDES program. Although I find no violation for Respondent's failure to apply for an NPDES permit prior to clearing the approximate 8.8 acres of forest land, which occurred prior to January 13, 1998, I am not deciding whether Respondent will be required in the future to apply for an NPDES permit based on subsequent conduct.

If this tribunal were to adopt DHEC's argument that an intent to develop suffices to impose a duty to apply for an NPDES permit, DHEC would be empowered to police people's thoughts, albeit in the interests of protecting the environment and human health. The South Carolina General Assembly did not give DHEC such authority under the NPDES regulations. Rather, in the present case, the actual activity undertaken must fit within the definition of "construction activity" to require the procurement of an NPDES permit.

The SM&SRA Requires Submission of a SM&SR Plan for Respondent's Land Disturbance

Although DHEC has failed to prove, by a preponderance of the evidence, that Respondent violated Reg. 61-9.122 or, in particular, Reg. 61-9.122.26, DHEC has submitted sufficient evidence to support that Respondent is required to submit a SM&SR Plan under the SM&SRA. §§ 48-14-10 et seq. Although the Administrative Order does not specifically cite Respondent for a violation of the SM&SRA, the Administrative Order does specifically require that Respondent submit a SM&SR Plan to DHEC for approval. See § 48-14-140 (addressing civil penalties). The Administrative Order, together with the evidence presented, supports that Respondent must submit a SM&SR Plan. The SM&SRA requires a SM&SR Plan prior to engaging in a "land disturbing activity." § 48-14-30. The SM&SRA defines a "land disturbing activity" 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." § 48-14-20(8). The SM&SRA exempts certain land disturbing activities, including (1) "agricultural land used for the production of [certain] plants and animals," and (2) "forest land for the production and harvesting of timber and timber product." § 48-14-40(a-b). Since Respondent altered the natural cover of the 8.8 acres and there was no evidence presented that the activities dispositively constituted either of these exempted activities, I cannot find that his activities are exempt under the SM&SRA as either agricultural or timber-related activities. § 48-14-40(a-b). In the event that Respondent takes definitive steps to demonstrate that the property will be used for an agricultural or timber-related use, Respondent can request that DHEC reconsider his status under the SM&SRA, as well as the NPDES program.(6) At this time, however, I find that Respondent's clearing of the 8.8 acres of forest land constitutes a "land disturbance" under the SM&SRA. Therefore, Respondent must comply with the Administrative Order in so much as it orders Respondent to submit a SM&SR Plan and to comply thereafter with a State-approved SM&SR Plan.

Since DHEC has failed to prove, by a preponderance of the evidence, that Respondent has violated Reg. 61-9.122 or, more specifically, Reg. 61-9.122.26, it was improper for DHEC to impose civil penalties against Respondent for violating these regulations. This tribunal shall dismiss all penalties against Respondent. Consequently, a discussion of the calculation of penalties becomes moot.

It is noted, however, that this tribunal was not persuaded by the evidence presented that there was "major" environmental harm or a "major" deviation from regulatory requirements. Based on the evidence presented, it is unlikely that storm water at the Hill Side View site will constitute a "major" environmental harm with respect to the pond located 500-600 yards away. See Hughey, 78 F.3d at 1526 (finding impact of thirteen discharges of storm water to a stream and one discharge to a river 900 feet downstream to be minimal). The evidence also does not support that the storm water "entered surface waters of the State [or] a direct human exposure route [, or the storm water] is considered hazardous [, or the volume of the storm water] was [greater than] 3,000 gallons," as DHEC's Water Enforcement Division Penalty Assessment Guide" requires for a "major" violation.

Instead of citing Respondent with a violation of the SM&SRA, which was referenced in its January 19 'cease and desist' letter, DHEC cited Respondent with violations of the NPDES regulations under the Pollution Control Act. Accordingly, DHEC assessed civil penalties under the Pollution Control Act, which authorizes penalties up to $10,000 per day per violation. § 48-1-330. In contrast, the SM&SRA authorizes penalties up to only $1,000 per day. § 48-14-140. Since DHEC did not cite Respondent under the SM&SRA in the Administrative Order, but rather cited Respondent under the NPDES regulations, a review in this case is limited to DHEC's assessment of penalties under the NPDES Program and the Pollution Control Act.

CONCLUSION

This tribunal is mindful of DHEC's view that NPDES is a preventative program that, among other things, seeks to prohibit a person from engaging in activity that discharges storm water into the environment. While the NPDES program is, most certainly, preventative in nature, it is preventative only to the extent that it requires a person to apply for an NPDES permit prior to a "discharge" (or a proposed "discharge") of a "pollutant" "into the "waters of the State." The SM&SRA supplements the NPDES program and applies more broadly to situations where there is no "discharge of a pollutant," "point source," or impact to "waters of the State." The SM&SRA broadly requires that any person engaging in any land disturbing activities must submit a SM&SR Plan to DHEC for approval. That person must comply with an approved SM&SR Plan to prevent storm water runoff by implementing storm water and sediment controls. The SM&SRA specifically addresses DHEC's articulated concerns regarding this Respondent.

Based on the aforementioned findings of fact and conclusions of law, I find that, with respect to Administrative Order 98-109-W, (1) Respondent's activities fall outside the scope of Reg. 61-9.122 and, consequently, Reg. 61-9.122.26; (2) Respondent's activities at the site do not constitute "construction activities" regulated by Reg. 61-9.122.26; (3) Respondent is not required to obtain an NPDES permit or implement BMPs at the site until 90 days prior to initiating construction activities as required under Reg. 61-9.122; (4) DHEC improperly assessed civil penalties of $16,000 under the Pollution Control Act against Respondent; and (5) Respondent must submit a SM&SR Plan to DHEC for approval and subsequently comply with a State-approved SM&SR Plan at the Hill Side View site, as provided in the Administrative Order.

In reaching a decision in this matter, I am constrained by the record of evidence as developed by the opposing parties and by the applicable law. S.C. Code Ann. § 1-23-320(I) (Supp.1998). This decision was rendered impartially, as a judge "ought to live, an eagle's flight beyond the reach of fear or favor, praise or blame, profit or loss." WILLIAM S. McFEELEY, FREDERICK DOUGLASS 318 (1991); Rule 501, SCACR, Canon 3.

The final decision of an Administrative Law Judge in cases involving an agency that is governed by a board or commission authorized to exercise the sovereignty of the state is initially appealed back to the board or commission of the agency from which the case arose. S.C. Code Ann. § 1-23-610(A) (Supp.1998). Hence, a party wishing to file an appeal must do so with the agency from which the case originated. On appeal, the scope of review is limited as follows.

The scope of review of final ALJ decisions is essentially identical to the scope of review established in section 1-23-380. This scope of review applies to the circuit court or the applicable board or commission. Under S.C. Code Ann. § 1-23-610(D), the reviewing tribunal may affirm the decision or remand the case for further proceedings, or it may reverse or modify the decision if the substantive rights of the petitioner have been prejudiced because the finding, conclusion, or decision is:



a. in violation of constitutional or statutory provisions;

b. in excess of the statutory authority of the agency;

c. made upon unlawful procedure;

d. affected by other error of law;

e. clearly erroneous in view of the reliable, probative and substantial evidence

on the whole record; or

f. arbitrary or capricious or characterized by abuse of discretion or clearly

unwarranted exercise of discretion.



JEAN H. TOAL, SHAHIN VAFAI & ROBERT A. MUCKENFUSS, APPELLATE PRACTICE IN SOUTH CAROLINA 56-57 (1999) (emphasis added), citing, S.C. Code Ann. § 1-23-610(D) (Supp.1998).

ORDER

IT IS THEREFORE ORDERED that Administrative Order 98-109-W be dismissed with respect to the alleged violations of Regulation 61-9.122, including Regulation 61-9.122.26, and the civil penalty of $16,000.

IT IS FURTHER ORDERED that Administrative Order 98-109-W be sustained with respect to its requirement that Respondent submit to DHEC a Stormwater Management & Sediment Reduction Plan and subsequently comply with a State-approved Plan at the Hill Side View site, as required in Administrative Order 98-109-W.

AND IT IS SO ORDERED.



______________________________

JOHN D. GEATHERS

Administrative Law Judge

Post Office Box 11667

Columbia, South Carolina 29211-1667



September 30, 1999

Columbia, South Carolina

1. The sale of lots to the mobile home owners at the Hill Side View were not subject to the Pollution Control Act, §§ 48-1-10 et seq., because they were less than two (2) acres and adjacent to a public road.

2. DHEC presented evidence that, on January 26, 1998, it discovered continued development in the nature of a new mobile home adjacent to two pre-existing mobile homes. DHEC's own inspection, however, revealed that Respondent sold the lots to the mobile home owners on December 1, 1997, prior to the January 19 cease and desist letter.

3. DHEC presented evidence of a prior notice of stop work order issued to Respondent for failing to obtain a grading permit at another site in approximately August 1994. Under DHEC's Water Enforcement Division: Penalty Assessment Guide, DHEC does not consider offenses more than three years old, such as the August 1994 stop work order, to calculate the penalty.

4. Section 61-9.122.26(a)(1)(ii) addresses permitting of storm water discharges "associated with industrial activity" "[p]rior to October 1, 1992," as opposed to on or after October 1, 1992, as contended by DHEC. Section 61-9.122.26(a)(6), however, supports that NPDES regulations apply to storm water discharges associated with industrial activity on or after October 1, 1992. Section 61-9.122.26(a)(6) addresses "storm water discharges associated with industrial activity from point sources through a non-municipal or non-publicly owned separate storm sewer system."

5. This tribunal does not need to reach Respondent's argument that DHEC must prove that Respondent's clearing activity was part of a "common plan of development" in addition to encompassing more than five acres of land. The regulation requires an NPDES permit for:

[c]onstruction activity including clearing, grading and excavation activities except: operations that result in the disturbance of less than five acres of total land area which are not part of a larger common plan of development.

Reg. 61-9.122.26(b)(14)(x) (emphasis added). Based on a plain reading of the regulation, if the "construction activity" involved clearing of land less than five acres, Respondent would not be required to obtain an NPDES permit, unless it were part of a larger common plan of development. The rule, however, is unqualified as to clearings greater than five acres. See 55 Fed. Reg. at 48,036. Any "construction activity" involving a clearing greater than five acres would require an NPDES permit, regardless of whether it is part of a common plan of development.

6. Although DHEC has argued that the silvicultural exemption of the SM&SRA does not apply to the NPDES regulations, DHEC has previously conceded and this tribunal has ruled that if a person is exempt under the SM&SRA, that person is exempt under the Pollution Control Act. See S.C. Dep't of Health and Envt'l Control v. D.C. Bryson, Dkt. # 97-ALJ-07-0646-CC & # 97-ALJ-07-0647-CC (June 30, 1998). Furthermore, the NPDES regulations similarly contain a silvicultural exemption.


Brown Bldg.

 

 

 

 

 

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