SC Administrative Law Court Decisions

STATEMENT OF THE CASE

The South Carolina Department of Health and Environmental Control ("DHEC" or "the Department") issued Administrative Order 99-171-W, effective October 27, 1999, against Petitioner David Breland, d/b/a Eastwood Acres Wastewater Treatment Facility ("Breland"), alleging violations of the Pollution Control Act and Land Application Permit ND0067288 ("Land Application Permit," "Land Disposal Permit" or "NPDES Permit") ⁽¹⁾, in that unauthorized discharges of wastewater have occurred from the Waste Water Treatment Facility (WWTF); the WWTF has not been properly operated and maintained; a certified operator has not conducted daily inspections of the WWTF; and no request to modify the permit to reflect a change in ownership has been submitted to the Department. Administrative Order 99-171-W assessed a civil penalty of forty-two thousand dollars ($42,000.00) for these violations.

Breland objected to the issuance of the Order and sought a contested case hearing on the matter. The contested case was heard before the undersigned on January 22, 2002 at 10:00 a.m. For For the reasons set forth below, the Department's issuance of Administrative Order 99-171 and its assessment of a $42,000.00 fine is affirmed.

FINDINGS OF FACT

Having observed the witnesses and exhibits presented at the hearing and closely passed upon their credibility, taking into consideration the relative burdens of the parties, I make the following Findings of Fact by a preponderance of evidence:

• Notice of the date, time, and place of the hearing was given to the parties on December 1, 2001. Notice was given by placing the Third Amended Notice of Hearing issued in this case in the United States mail, with postage paid, on December 1, 2001. The Third Amended Notice of Hearing stated that "this action will be heard on the merits before the Administrative Law Judge at 10:00 a.m. on January 22, 2001 [2] at the Administrative Law Judge Division ("ALJD"), Edgar A. Brown Building, Suite 224, 1205 Pendleton Street, Columbia, South Carolina.

2. Breland bought the Eastwood Acres Waste Water Treatment Facility (WWTF) at a tax sale in Orangeburg County on December 2, 1996.

3. Breland filed the deed to the property with the Register of deeds in Orangeburg County on March 11, 1998.

• Between April 9 and December 17, 1997, Respondent DHEC received several complaints regarding an overflowing manhole, a malfunctioning line, and an unauthorized discharge at the facility. After several inspections of the WWTF, Respondent DHEC determined that the WWTF was not being operated properly. As a result of the inspections, DHEC gave WWTF unsatisfactory ratings.
• Breland was notified of the violations occurring at the facility. After Petitioner made no effort to bring the facility into compliance, the Department issued Administrative Order 99-171-W.
• In that Administrative Order, Breland was cited for violations of the Pollution Control Act and regulations promulgated thereto and assessed a civil penalty in the amount of forty-two thousand dollars ($42,000.00).
• The Administrative Order required that Breland correct the violations and pay the civil penalty within thirty (30) days of the date of the Order.
• Thereafter, on November 17, 1999, Breland requested a contested case hearing in opposition to the issued Administrative Order.
• Mr. Harris L. Beach, Jr., attorney for Breland, attended the scheduled hearing without his client, Breland. According to Mr. Beach's affidavit, his client was extremely uncooperative and routinely failed to respond to Mr. Beach's attempts to prepare for the hearing. Further, his affidavit revealed that Mr. Beach made every reasonable effort to locate his client. Despite these efforts, however, Breland failed to appear at the hearing. Accordingly, I find that Breland willingly and knowingly failed to appear at the contested case hearing he requested.
• Lewis E. Rourk, an Environmental Health Manager I assigned to the Lower Savannah EQC District of DHEC, investigated several complaints concerning overflows from the collection system and lagoon, sewage back-ups into homes, and odors emanating from the Facility. During his inspections, Rourk determined that the Facility had been abandoned and that the tile field was broken, resulting in the discharge of untreated sewage into the surrounding area when it rains heavily. The discharge of untreated sewage is one of the most serious of violations.
• R. Keith Frost, Manager of DHEC's Air Enforcement Section, initiated an enforcement action against Breland after Breland repeatedly failed to correct violations identified in previous wastewater inspections. As a result of that enforcement action, Frost drafted Administrative Order 99-171-W was issued on October 27, 1999.

• Breland was not in attendance at the hearing, although his attorney, Mr. Harris Beach, made many attempts to notify him of the date and time.
• Mr. Beach cross-examined Respondent DHEC's witnesses but did not put on any witnesses on behalf of Petitioner.

Violations

• The evidence presented by Respondent DHEC is sufficient evidence to prove, by a preponderance of the evidence, that Petitioner Breland is in violation of the statutes and regulations promulgated pursuant to the Pollution Control Act and as such should be held liable for those violations.

• Due to the severity of the violations and the extent of time these violations have existed, without any effort by Petitioner Breland to come into compliance or to alleviate the conditions resulting in the repeated discharge of untreated sewage, I find that the evidence supports the penalty imposed by Respondent.

CONCLUSIONS OF LAW

Based on the foregoing Findings of Fact, I conclude the following as a matter of Law:

1. Pursuant to S.C. Code Ann. § 1-23-310 et seq. ( 1986 and Supp. 1997), and

S.C. Code Ann. § 48-1-200(1987), the Administrative Law Judge Division has jurisdiction to hear this matter.

2. Respondent DHEC has regulatory authority over the Pollution Control Act pursuant to S.C. Code Ann. § 48-1-50 (1987).

3. Respondent DHEC may "make, revoke or modify orders requiring the discontinuance of the discharge of sewage, industrial waste or other wastes into any waters of the State . . ." pursuant to S.C. Code Ann. 48-1-50(3)(1987).

• Respondent DHEC may issue an Administrative Order to enforce the provisions of

the Pollution Control Act pursuant to S.C. Code Ann. § 48-1-50(4)(1987).

• Respondent DHEC may issue, deny, revoke, suspend or modify permits, under

such conditions as it may prescribe for the discharge of sewage, industrial waste or air contaminants . . ." pursuant to S.C. Code Ann. 48-1-50(5)(1987).

• Respondent DHEC may administer penalties for violations of the Pollution Control

Act, including any order, permit, regulation or standards pursuant to S.C. Code Ann.§ 48-1-50(11)(1987).

• Petitioner Breland violated S.C. Code Ann. 48-1-90(a)(1987) in that Petitioner

allowed untreated wastewater to be discharged into the environment in a manner inconsistent with the NPDES Permit held by the Eastwood Acres Waster Water Treatment Facility (WWTF).

• Petitioner Breland violated S.C. Code Ann. 48-1-110(d)(Supp. 2001) and

24 S.C. Code Ann. Regs. 61-9.122.41(e) by failing to properly operate and maintain the WWTF.

• Petitioner Breland violated S.C. Code Ann. Regs. 61-9.122.63(d) in that

Petitioner did not request to modify the NPDES permit to reflect a change in ownership within thirty (30) days of the transfer of ownership, after Petitioner purchased the WWTF.

• Petitioner Breland violated 24 S.C. Code Ann. Regs. 61-9.122.41(a) in that

Petitioner failed to provide for a certified operator to conduct daily inspections of the WWTF as required by the NPDES permit.

• The weight and credibility assigned to evidence presented at a hearing of a matter

is within the province of the trier of fact. See South Carolina Cable Television Ass'n v. Southern Bell Tel. and Tel. Co., 308 S.C. 216, 417 S.E.2d 586 (1992). Furthermore, a trial judge, who observes a witness, is in the better position to judge the witness's demeanor and veracity and evaluate their testimony. See Mann v. Walker, 285 S.C. 194, 328 S.E.2d 659 (Ct. App. 1985); Marshall v. Marshall, 282 S.C. 534, 320 S.E.2d 44 (Ct. App. 1984); McAlister v. Patterson, 278 S.C. 481, 299 S.E.2d 322 (1982); Peay v. Peay, 260 S.C. 108, 194 S.E.2d 392 (1973).

• I conclude that Petitioner Breland is in violation of the aforementioned statutes and

regulations pertaining to the Pollution Control Act. Further, in part because Petitioner Breland failed to appear and offer any evidence of mitigation, I conclude that the imposed penalty of $42,000.00 is appropriate in this case.ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law,

IT IS HEREBY ORDERED that Petitioner Breland must comply with Administrative Order 99-171-W within thirty (30) days of receipt of this Order;

IT IS FURTHER ORDERED that Petitioner Breland must remit payment of forty-two thousand dollars ($42,000.00) within sixty (60) days of receipt of this Order;

AND IT IS SO ORDERED.

____________________________________

C. DUKES SCOTT

ADMINISTRATIVE LAW JUDGE

February 21, 2002

Columbia, South Carolina

1. The Land Application Permit is also known as the Land Disposal Permit and is issued within the scope of the National Pollutant Discharge Elimination System (NPDES) permitting program. Therefore, the terms Land Application Permit, Land Disposal Permit and NPDES Permit may be used interchangeably.