ORDERS:
FINAL ORDER AND DECISION
This matter comes before the Administrative Law Judge Division (Division) pursuant to S.C. Code Ann. Sections 44-96-100, 44-96-180(J), 48-1-50, and 48-1-90 (Supp. 1998) and 25A S.C. Code Regs. 61-107.279, 61-72, and 61-107-8 (Supp.
1998) for a contested case hearing. Haiyan Lin (Petitioner) challenges the issuance of an order from the Department of
Health and Environmental Control (the Department) requiring clean-up of the Petitioner's property and assessing a penalty.
A hearing was held on December 15, 1999 at the Division, 1205 Pendleton Street, Suite 224, Columbia, South Carolina.(1)
FINDINGS OF FACT
Having carefully considered the testimony and the arguments, and taking into account the credibility of the evidence, I find
by a preponderance of the evidence:
1. The Petitioner is the owner of property located at 140 Pond Drive in Lexington, S.C. (the Site).
2. On March 1993, the Petitioner leased the Site to David Whetsell (Whetsell). Whetsell intended to used the
Site for his recycling business.
3. On September 25, 1996, Whetsell wrote Rogers Property Management complaining about the Petitioner. In
that letter, which accompanied Whetsell's September rent payment, Whetsell indicated that he was moving to another
location. Whetsell requested additional time to complete his move explaining: "there is no way I can have everything moved
out and the premises cleaned up by September 30. I will need at least another 30-60 days to get everything moved out and
get the property cleaned up." Whetsell complained of difficulties accessing the Site because the Petitioner "leaves trash with
nails in it in the driveway, and she will not fill in the eroding driveway with appropriate materials or dirt." Other times,
Whetsell was unable to "get my truck and/or trailer in or out because Ms. Lin had my entranceway or other areas blocked."
Whetsell, therefore, requested access to the property. The letter also explained that the Petitioner had turned the water off
and that Whetsell had been without water for several months.
4. It is unclear from the record whether the Petitioner performed any of the requested actions to enable Whetsell
to access the property. Whetsell, however, was prevented from retrieving his property. The Petitioner later explained to the
Department that she refused Whetsell entry unless he signed an agreement for cleaning up the Site completely.
5. The Petitioner subsequently evicted Whetsell. According to her November 6, 1996 affidavit, the Petitioner
wrote that the purpose of the eviction was "failure to move; non-payment of rent."(2) The Petitioner indicated that Whetsell
did not pay rent for October 1996 or November 1996. She sought $700.00 plus court costs from Whetsell. That same day,
Magistrate Thomas H. Rawl signed a Rule to Vacate or Show Cause (Eviction).
6. On September 29, 1997, an anonymous caller complained to the Department that petroleum products were
being improperly stored at the Site.
7. On October 1, 1997, Department personnel found soil stained with waste oil, a variety of compressor motors,
unpermitted disposal of related debris, and used lead-acid batteries at the site.
8. By certified mail on April 6, 1998, the Department notified the Petitioner that the disposal activities
discovered during the October 1, 1997, inspection violated the Pollution Control Act. The Department instructed Petitioner
to excavate, contain, and analyze all visibly impacted soil by May 11, 1998. Further, the Department required the Petitioner
to remove and properly dispose of the compressor motors, used batteries, and related debris at a permitted facility.
9. On May 13, 1998, a follow-up inspection revealed that no cleanup activities had been performed.
10. On July 31, 1998, the Department issued to the Petitioner a Notice of Violation and Enforcement Conference.
11. On September 3, 1998, the Department met with the Petitioner at the enforcement conference to discuss the
cited violations.
12. On November 24, 1998, Department representatives met the Petitioner at the Site to discuss the contaminated
soil and miscellaneous debris on the property. The Petitioner was again instructed to remove and properly dispose of
miscellaneous solid waste and petroleum products at the Site. The specific items of waste include, but are not necessarily
limited to: 1) All visibly stained areas of soil; 2) Compressors and transformers (only located outside on the ground); 3) All
used lead-acid batteries (located inside the building on the Site and outside); 4) All drummed and containerized liquid wastes
(located inside the building on the Site and outside); 5) Contents of the storage tank inside building (presumed to contain
used motor oil); and 6) used air-conditioning parts, related dismantled debris, and miscellaneous scrap metal (located
outside).
13. Another follow-up site inspection was conducted on January 4, 1999. Department staff noted no change.
14. On March 3, 1999, the Department issued the Petitioner, by certified mail and first class mail, a proposed
consent order. At the Petitioner's request, the Department met with her on April 7, 1999, to discuss the terms of the
proposed order. The Department granted the Petitioner a thirty day extension for the settlement of the proposed order.
15. By certified mail on April 8, 1999, the Department notified the Petitioner that if agreement concerning the
terms of the proposed order was not reached within thirty days, the Department would proceed with the issuance of an
administrative order without her consent.
16. The Petitioner refused to enter into a Consent Order and refused to clean up the property. The Department
issued an Administrative Order without the Petitioner's consent on July 1, 1999.
17. In Administrative Order 99-08-SW, the Department ordered the Petitioner to: 1) Immediately cease the
improper discharge/disposal of all petroleum products, used oil, lead-acid batteries, and other debris into the environment; 2)
Ensure proper recycling/disposal of used oil, petroleum products, and used lead-acid batteries generated by Petitioner and by
any businesses and/or associates under her ownership or control, and on any property under her ownership or control; 3)
Excavate, stockpile, and sample all petroleum, used oil, and lead-acid battery contaminated soil at the Site; 4) Submit
written laboratory analysis results to the Department for all soil samples collected from the stockpiles; 5) Transport and
properly dispose of all contaminated soils and all petroleum products, used oil, lead-acid batteries, and other debris; 6) Upon
completion of Item 5, submit to the Department written verification, to include all copies of signed receipts and/or invoices;
and 7) Pay a civil penalty in the amount of Six Thousand, Six Hundred ($6,600.00) dollars .
18. The Petitioner requested a contested case hearing on July 26, 1999.
19. On November 1, 1999, this Court issued an Order and Notice of Hearing for December 14, 1999. On
November 10, 1999 this Court issued an Order Amending Hearing Date to December 15, 1999.
CONCLUSIONS OF LAW
Based on these Findings of Fact, I conclude:
20. The ALJD has subject matter jurisdiction in this matter pursuant to Chapter 23 of Title 1 of the 1976 Code,
as amended.
21. "It shall be unlawful for any person, directly or indirectly to throw, drain, run, allow to seep or otherwise
discharge into the environment of the State organic or inorganic matter, including sewage, industrial wastes and other
wastes, except as in compliance with a permit issued by the Department." S.C. Code Ann. § 48-1-90(A) (Supp. 1998).
22. "No person shall knowingly . . . discard or otherwise dispose of used oil, except by delivery to a used oil
collection facility, used oil energy recovery facility, oil recycling facility, or to an authorized agent for delivery to a used oil
collection facility, used oil energy recovery facility, or oil recycling facility." S.C. Code Ann. § 44-96-160(A) (Supp. 1998).
23. "(A) Whenever the department determines that a person is in violation of a regulation promulgated pursuant
to this article regarding Sections 44-96-160(X) . . . or 44-96-190(A) . . . the department may issue an order requiring the
person to comply with the regulation . . . The department also may impose reasonable civil penalties not to exceed ten
thousand dollars, for each day of violation, for violations of the regulations promulgated pursuant to this article regarding
Sections 44-96-160(X) . . . or 44-96-190(A). . . . © Each day of noncompliance with an order issued pursuant to this section
. . . ." S.C. Code Ann. § 44-96-100 (Supp. 1998).
24. "No person shall knowingly discharge used oil into sewers, drainage systems, septic tanks, surface water or
groundwater, or any other water of this State, or onto the ground." 25A S.C. Code Regs. 61-107.279, Section 279.12(H)
(Supp. 1998).
25. "No person shall knowingly . . . discard or otherwise dispose of a lead-acid battery, except by delivery to a
lead battery retailer or wholesaler; a collection, recycling, or recovered material processing facility that is registered by the
Department to accept lead-acid batteries; or, a permitted secondary lead smelter." 25A S.C. Code Regs. 61-107.8, Section
C(1)(a)- © (Supp. 1998).
26. The Petitioner is liable for violations of the Pollution Control Act, S.C. Code Ann. §§48-1-10 et seq., and the
Solid Waste Policy and Management Act, S.C. Code Ann. §§ 44-96-10 et seq., as the owner of the contaminated land. In Carolina Chemicals, Inc. v. South Carolina Department of Health and Environmental Control, 290 S.C. 498, 351 S.E.2d 575
(Ct. App. 1986), the Department brought an action against the Columbia Airport and Carolina Chemicals for groundwater
contamination on the Airport property. The contamination resulted from an old agreement where the Airport District
allowed Carolina Chemicals to dispose of discarded pesticide bags and containers on the airport property. The Court of
Appeals declined to find liability for Carolina Chemicals, but found the airport liable under a theory of strict liability under
the Pollution Control Act. The court held:
The substantive liability created by Section 48-1-90 is different from liability under the common law and prior statutes. It
consists of discharging wastes except in compliance with a permit issued by the Department. Liability is strict. A violation
is established simply by showing the discharge does not comply with permitting requirements. Carolina Chemicals v.
SCDHEC, 290 S.C. at 505, 351 S.E.2d at 575(Ct. App. 1996).
The court went on to note that the crucial distinction here was the fact that the Airport was the property owner and
maintained current control over the property, and that by allowing the containers to remain on the property, and by allowing
certain chemical residues from the containers to seep into the groundwater, it committed a continuing violation of the
Pollution Control Act.
Because these violations are violations under the Pollution Control Act, a specific finding of actual or constructive
knowledge is not necessary; the statute imposes strict liability on the landowner who is in possession and control of the
property.
27. The Petitioner claims that, although she is the owner of the property on which the violations occurred, she should not be
held liable because she was not responsible for the violations. The Solid Waste Policy and Management Act requires the
element of knowledge for liability. Knowledge, however, need not be actual knowledge; constructive knowledge has been
found to be sufficient. South Carolina courts have long held that a party may be presumed to have knowledge of facts when
he is in possession of sufficient facts to put him upon inquiry, or notice, which, if pursued with due diligence, would lead to
knowledge of those facts. Norris v. Greenville, S. & A. Ry. Co., 97 S.E.848, 111 S.C. 322 (1919). The Petitioner had
possession of the property several years after Mr. Whetsell's eviction, and even a cursory inspection would have placed her
notice of the violations.
ORDER
THEREFORE, IT IS HEREBY ORDERED that the Department correctly issued Administrative Order 99-08-SW against
the Petitioner.
IT IS ALSO HEREBY ORDERED that the Petitioner comply with Administrative Order 99-08-SW, including, but not
limited to, payment of a fine in the amount of Six Thousand Six Hundred ($6,600.00) Dollars within thirty (30) days of the
date of this Order.
AND IT IS SO ORDERED.
_____________________________________
CAROLYN C. MATTHEWS
Administrative Law Judge
February 24, 2000
Columbia, South Carolina.
1. At the hearing, the Petitioner asserted that it was her belief that the hearing was to be a Prehearing Conference, not a
hearing on the merits and, therefore, she was unprepared to go forward. The wording of the Order and Notice of Hearing
dated November 1, 1999, which the Petitioner signed for on November 2, 1999, however, is clear in its language: "It is
hereby ordered that this action will be heard on the merits . . . All parties are notified to bring all documents, records, and
witnesses needed to present the party's case " (emphasis added).
2. According to Petitioner's letters to the Department, Whetsell was evicted on September 1996, because of "the violations
of the lease, and due to the repeated mishandling of waste material and contaminating the Site." Whetsell left behind not
only a huge amount of junk and waste material, but also some supplies. Later on, he contacted Petitioner in order to remove
his property from the Site. Petitioner, however, refused him entry unless Whetsell signed an agreement to clean up the Site
completely. |
