CAPTION: Faith Cathedral Fellowship, Inc. vs. SCDHEC
AGENCY: South Carolina Department of Health and Environmental Control
PARTIES:

Petitioner:
Faith Cathedral Fellowship, Inc.

Respondent:
South Carolina Department of Health and Environmental Control

 
DOCKET NUMBER: 03-ALJ-07-0346-CC
APPEARANCES: Mathias G. Chaplin, Esquire, for the Petitioner.

Matthew S. Penn, Esquire, for the Respondent.
 
ORDERS:
FINAL ORDER AND DECISION

STATEMENT OF THE CASE

This matter comes before the Administrative Law Court pursuant to the petition of Faith Cathedral, Inc., challenging Administrative Order No. 03-136-DW issued by South Carolina Department of Health and Environmental Control which found Faith Cathedral had violated several aspects of the Safe Drinking Water Act and its attendant regulations and assessed a $20,000 penalty for these violations and $4,600.38 in annual fees and late penalties. Faith Cathedral Fellowship is also known as “Overcomer Ministry.” Petitioner requested a contested case hearing challenging the South Carolina Department of Health and Environmental Control’s (DHEC’s) issuance of Administrative Order No. 03-136-DW, pursuant to S.C. Code Ann. §§ 1-23-310 to -660 (1986 and Supp. 2002) and 25 S.C. Code Ann. Regs. 61-72 (Supp. 2002). A hearing was held on December 17 and 18, 2003, at the offices of the Administrative Law Court in Columbia, South Carolina.


DHEC contends that Faith Cathedral operates a public water system (PWS) which violated the Safe Drinking Water Act and provisions of its associated regulations, S.C. Code Ann. §§ 44-55-10 to -120 (2002) and 24A S.C. Code Ann. Regs. 61-58 to 61-58.13 (Supp. 2002). DHEC also asserts that Faith Cathedral failed to pay fees required under the Environmental Protection Fees regulation, 24A S.C. Code Ann. Regs. 61-30 (Supp. 2002).Petitioner does not deny that its drinking water system qualifies as a public water system under the law (Tr. Dec.18, p.28, lines 2-4)[1]; however, it contends that DHEC cannot regulate Faith Cathedral’s water system because DHEC treats similarly situated religious communities differently. Faith Cathedral also contends that during the process which resulted in this hearing, the Department failed to respond to requests for information that would have obviated the need for a hearing.

FINDINGS OF FACT

Based on the testimony and the exhibits admitted into evidence at the hearing, this Court hereby makes the following Findings of Fact.

General Findings

1. Notice of the time, date, place, and subject matter of the hearing was given to the Petitioner and the Department.2. Faith Cathedral Fellowship is a monastic religious community located outside Walterboro, South Carolina. (Tr. Dec.18, p.40, line 23-p.44, line 14). The Fellowship has a small water system that serves the members of the community by providing water and sewer services. (Tr. Dec. 17, p. 58, lines 9-15). Brother Christopher Landry, a leader of the Petitioner, testified that the legitimacy of the Petitioner has been challenged and various regulatory agencies have tried to intimidate them. [Tr. Dec. 18, p. 44, lines 19-23, p. 45, lines 70-24.] Specifically, the IRS and the FBI, as well as regulatory agencies (including DHEC), investigated the Petitioner in 1988 when its leader prophesied that 20 American cities would be destroyed in a thermonuclear exchange. [Tr. Dec. 18 pp. 46-47.] At that time, DHEC determined that the Ministry was operating a small water system. [P-3.] DHEC took no other actions against the Petitioner for the next fourteen years. [Tr. Dec. 18, p. 91, lines 20-25.]

DHEC’s Involvement

3. In response to a complaint from the DHEC Health Department, Mr. Ken Wilson, a quality control manager and well inspector in DHEC’s Low Country District, went to the site on June 21, 2002, [Tr. Dec. 17, p. 43, lines 1—5] accompanied by a SLED agent and Sheriff’s deputies. The Petitioner’s leadership was cordial and respectful, and allowed the DHEC officials free access. [Tr. Dec. 17 p. 69, l. 20 – p. 70, l. 8; Tr. Dec. 18p. 55, lines 2-16.] However, Brother Christopher testified that they felt that they were being singled out and persecuted for their unpopular religious views. [Tr. Dec. 18p. 50, l. 19, p. 53, lines 3-19.] They also felt that they were under siege because one of their leaders had been arrested and jailed just several weeks before this regulatory visit. [Tr. Dec. 18p. 5, l. 11, p. 60, l. 21 – p. 61, l. 3.]

4. On July 1, 2002, Mr. Wilson collected water samples from Faith Cathedral’s water system and evaluated the wells in accordance with the Primary Drinking Water Regulations, 24A S.C. Code Ann. Regs. § 61-58 (Supp. 2002). (Tr. Dec.17, p. 41, lines 9-13; p. 42, lines 4-13). . When DHEC tested the samples, the tests showed satisfactory levels of nitrates and an absence of total coliform. (Tr. Dec.17, line 4 – p.45, line 23); [Respondent’s Exhibits 4A – 4H.]


5. DHEC performed a sanitary survey on November 5, 2003, and determined that Faith Cathedral’s drinking water system is a public water system. Susan Alder, a DHEC information resource coordinator, put Faith’s PWS on the inventory system. (Tr. Dec.17, p.46, lines 15-25; p.64, line 22 – p.65, line 5); [Respondent’s Exhibit 1A-1O.] Mr. Wilson testified that his involvement with the complaint against Faith Cathedral and the subsequent inspection was similar to his involvement with other facilities. (Tr. Dec.17, p.65, line 6-p.66, line 2). 6. Faith Cathedral has three (3) wells that serve a food service operation, a school, a trailer park, and a water distribution system with forty-nine (49) connections for approximately eighty-five (85) people on the site. (Tr. Dec.17, p. 58, lines 9-15); [Respondent’s Exhibit 1A-1O.]

7. DHEC’s state Primary Drinking Water Regulations classify anything other than a water system for one private home as a PWS, therefore Faith Cathedral is a Public Water System. (Tr. Dec.17, p.116, lines 18-23).

8. Susan Alder, DHEC information resource coordinator, maintains the public drinking water inventory which includes all public drinking water systems in the state. When Ms. Alder received Mr. Wilson’s sanitary survey of Faith Cathedral’s system on January 3, 2003 (Tr. Dec.17, p. 12-p.23, line 10), she added Faith Cathedral to the state inventory on or about January 16, 2003. (Tr. Dec.17, p.24, line 21-p.24, line 17); [Respondent’s Exhibit 2.] She sent a letter to Faith Cathedral on January 21, 2003, notifying the Petitioner that its PWS had been added to the inventory. The letter included descriptions of the monitoring and fee requirements for public water systems and contact information if Faith Cathedral had questions. Ms. Alder included with the letter documents providing guidance for the monitoring and fee requirements. (Tr. Dec.17, p.25, line 18-p.27, line 19); [Respondent’s Exhibit 3.] Ms Alder said that the procedure she followed in adding Faith Cathedral to the state inventory was the same for all systems. (Tr. Dec.17, p.28, lines 12-22).9. DHEC determined that Faith Cathedral did not operate or maintain its PWS properly in the following respects. (Tr. Dec.17, p.48, line 21 – p.63, line 11).

a. Faith Cathedral failed to seal the outside well casing. (Tr. Dec.17, p. 49, lines 3-8; p.54, lines 16-17).


b. Faith Cathedral failed to install/maintain the check valve and blow-off on the well head piping. (Tr. Dec.17, p.51, line 13 – p.52, line 8).c. Faith Cathedral failed to install/maintain a flow meter for each well serving its PWS. (Tr. Dec.17, p.52, lines 17- 22). d. Faith Cathedral failed to provide valves for the isolation of tanks to ensure proper operation. (Tr. Dec.17, p.55, line 14- p.56, line 3).e. Faith Cathedral failed to initiate and maintain a viable cross connection control program by failure to locate and eliminate unprotected cross connections. (Tr. Dec.17, p.61, lines 9-23); [Respondent’s Exhibit 1E.]f. Faith Cathedral failed to establish and maintain up-to-date written Standard Operating Procedures for the operation and maintenance of its system. (Tr. Dec.17, p.61, lines 9-11); [Respondent’s Exhibit 1E.]g. Faith Cathedral failed to maintain a map of the distribution system. (Tr. Dec.17, p.62, lines 12-15); [Respondent’s Exhibit 1E.]h. Faith Cathedral failed to designate an operator of appropriate grade as the operator responsible for the operation and maintenance of its distribution system. (Tr. Dec.17, p.63, lines 1-11); [Respondent’s Exhibit 1E.] See also (Tr. Dec.18, p. 98, line 14- p. 99, line 15).

 

10.              DHEC sent an invoice to Faith Cathedral for the annual drinking water fees for

fiscal year 2002/2003. The total fee was $1,937. DHEC’s policy for facilities with fees over $800 allows these facilities to establish a payment plan, rather than paying the fees at one time. DHEC sent notices to Faith Cathedral when the fee was 30 days, 60 days, and 90 days late. At the 60-day point, a penalty was added, bringing the total due to $2,130.70. [Petitioner’s Exhibit 26.] At the 90-day point, a twenty-five percent penalty was added, so the total due for the 2002/2003 drinking water fees and penalties was $2,663.38. Faith Cathedral failed to submit the required annual drinking water fees for its PWS for the 2002/2003 fiscal year. Shari Rankin, DHEC’s supervisor for accounts receivable, testified that her involvement with Faith Cathedral was the same as her involvement with other facilities that fail to pay the annual fees. (Tr. Dec.18, p.5, line 13 – p.12, line 18); [Respondent’s Exhibits 9 and 10.]

FOIA Request

11. The Petitioner objected to the regulatory demands of DHEC, including the attendant fees and costly monitoring expenses, on the basis that other similarly-situated monastic communities were not being regulated. When Petitioner asked whether DHEC was enforcing the Safe Drinking Water Regulations at any other monastic communities, DHEC told them to make an official FOIA request. [Tr. Dec. 18p. 54, Tr. Dec. 17 pp. 89-90; P-7.]

12. The Petitioner promptly retained counsel, [Tr. Dec. 18, p. 67] who made an official FOIA request (on November 12, 2002) for a complete list of other similarly-situated religious families in South Carolina regulated by DHEC under the Safe Drinking Water Act. [P-6.] This request was referred to the DHEC Freedom of Information Office on November 20, 2002. [P-7.] A November 20, 2002, letter from Sam L. Finklea, attorney for DHEC, to Mathias Chaplin, attorney for Faith Cathedral, included a copy of Mr. Wilson’s sanitary survey and citations to the Department’s statutory and regulatory authority to regulate Faith Cathedral’s PWS. Mr. Finklea also stated that he referred the request for a list of similarly situated religious organizations to the DHEC Freedom of Information Office. [ Petitioner’s Exhibit 7.] By January 22, 2003, no information had been provided and the Petitioner’s counsel objected to any further enforcement actions until such information was provided. [P-8, see also P-20.] A February 27, 2003, letter from Jody Hamm, Coordinator of the Freedom of Information Office, informed Mr. Chaplin that the request had been received and that DHEC staff were working on researching the information. [Petitioner’s Exhibit 20.]


13. In addition, DHEC provided Faith Cathedral with a complete statement detailing the requirements that the facility would have to implement. (Tr. Dec.17, p.63, lines 12-18); [Respondent’s Exhibit 1A-1O.] 14. Department e-mails indicated that Department staff was in the process of collecting information on other facilities in South Carolina as early as April 3, 2003, and that the Department was not aware of Victory Religious Community, St. Claire Monastery, St. Mary’s, or St. Nicolas Monastery. The Department was aware of Mepkin Abbey and had initiated some contact with the facility, although DHEC had not completed an inspection of Mepkin. [Petitioner’s Exhibits 29 and 30;] [Respondent’s Exhibit 23.]

Similarly Situated Communities

15. DHEC eventually identified at least five (5) systems that were similar in nature to Petitioner:

·        Mepkin Abbey in the Trident Division;·        St. Claire Monastery in Greenville;·        St. Nicholas Monastery in Myrtle Beach;·        St. Mary’s in Wagner; and·        Victory Religious Community in Jefferson.

[R-20, P-17.] At trial, DHEC acknowledged that none of these religious communities was on the inventory as of January 2003 when the Petitioner was added. [Tr. Dec. 17 p. 32, 4-7; see also P-29.]

16. After the Petitioner’s inquiries, DHEC determined that St. Claire and St. Nicholas are on city water systems. [R-23.] As of September 2003, DHEC had not determined if St. Mary’s operated a public water system. [P-31.]17. Mepkin Abbey was added to the inventory in September 2003. [P-19.] Although DHEC had been aware of Mepkin Abbey,[P-30] it did not conduct a sanitary survey until June 10, 2003. [P-8.] DHEC found that the water was contaminated with fecal matter and issued a boil advisory, but DHEC officially listed the water quality as “needed improvement” on the survey form. [P-22, P-23.] In contrast to the 90-day deadline given to the Petitioner, DHEC did not give Mepkin Abbey any deadline to make substantial upgrades and it did not indicate that a follow-up inspection would be scheduled. [P-9.] Nor did DHEC impose any penalty against Mepkin Abbey. [See Tr.Dec. 17 pp. 169, 171.]18. A sanitary survey was conducted at the Victory Religious Community in October 2003, and it was added to the inventory. [R-21; see also P-21, P-27.]19. By the date of the hearing of this case, Faith Cathedral’s attorney had been directed to the Department’s Freedom of Information Office, and the Department had provided the information on all facilities requested by Faith Cathedral through the discovery process. (Tr. Dec.18, p.37, line 21-p.38, line 3; Dec.18, p.67, lines 15-25; Dec.18, p.92, lines 4-7).20. African Village, Mepkin Abbey, Victory Religious Community, Bonnie Doone Plantation, Camp Christian, St. Claire Monastery, St. Mary’s, and St. Nicolas Monastery are all facilities in South Carolina that are similar to Faith Cathedral to the extent that they are religious in nature.

21. The African Village is a religious facility similar to Faith Cathedral; is a public water system on the DHEC inventory. (Tr. Dec.17, p.117, lines 10-18). The Village, located in Sheldon, South Carolina, has less than 25 residents on a full time basis. (Tr. Dec.17, p.118, line 15- p.119, line 2). Ms. Cornette, a district engineer in the DHEC Low Country District, testified that the drinking water regulations were applied consistently to known religious facilities within the Low Country District, including The African Village. (Tr. Dec.17, p.123, lines 6-24).


22. Mepkin Abbey is a facility that is “similar in nature” to Faith Cathedral. (Tr. Dec.17, p.32, line 12 – p.33, line 9); [Respondent’s Exhibit 20; Petitioner’s Exhibit 17.] In June 2003, the Department began the process of adding Mepkin’s PWS to the inventory. [Petitioner’s Exhibit 10.] On June 16, 2003, the Department conducted a sanitary survey of Mepkin Abbey. [Petitioner’s Exhibit 9.] Because the Department detected fecal coliform in Mepkin’s water, the system was placed on a “boil water” notice, which continued into at least September 2003. (Tr. Dec.17, p.211, lines 7-11); [Respondent’s Exhibit 22.] Ms. Adler testified that Mepkin Abbey was added to the inventory in September 2003. (Tr. Dec.17, p.36, lines 1-22); [Petitioner’s Exhibit 18.] DHEC sent an invoice to Mepkin Abbey on September 17, 2003, and the invoice was paid in full on October 20, 2003. (Tr. Dec.18, p.10, line 16- p.11, line 22). 23. Victory Religious Community (Victory) in Jefferson, South Carolina is a facility that is “similar in nature” to Faith Cathedral. (Tr. Dec.17, p.32, line 12 – p.33, line 9); [Respondent’s Exhibit 20; Petitioner’s Exhibit 17.] Department personnel inspected Victory and were impressed by what they saw. [Petitioner’s Exhibit 21.] They were unclear about the status of the system, but wanted to treat the system similarly to other systems in the state. [Petitioner’s Exhibit 21.] Ms. Ramos testified that an e-mail was sent to her from Jerry Baxley on October 24, 2003. At that time, DHEC was in the process of adding Victory to its drinking water inventory.[2] (Tr. Dec.17, p.185, line 14 – p.186, line 6); [Respondent’s Exhibit 21.]

24. Bonnie Doone Plantation is a religious facility located outside Walterboro, South Carolina. Bonnie Doone has a PWS which has been on the inventory for several years. (Tr. Dec.17, p.80, line 2 – p.81, line 5; Dec.17, p.83, line 24 – p.84, line 5; Dec.17, p.117, lines 10-18).


25. Camp Christian has a small water system located outside Hampton, South Carolina. Camp Christian is a religious facility that accommodates fewer people for shorter periods of time than does Faith Cathedral. It is a public water system on the DHEC inventory. (Tr. Dec.17, p.80, line 2 – p.81, line 5; Dec.17, p.83, line 24 – p.84, line 5; Dec.17, p.94, lines 10-25; Dec.17, p.95, lines 13-18; Dec.17, p.117, lines 10-18). 26. St. Mary’s in Wagner is “similar in nature” to Faith Cathedral. [Respondent’s Exhibit 20; Petitioner’s Exhibit 17.] The only evidence concerning the facility was a department e-mail stating that the facility was a Catholic Orthodox Monastery, and that it was not served by a known public water system. There was no evidence produced at the hearing concerning the number of connections or residents at St. Mary’s and no evidence produced concerning any violations by St. Mary’s or enforcement actions against St. Mary’s.

27. St. Claire Monastery and St. Nicholas Monastery are “similar in nature” to Faith Cathedral. [Respondent’s Exhibit 20; Petitioner’s Exhibit 17.] However, there was no evidence produced at the hearing as to the similarities between St. Claire, St. Nicholas, and Faith Cathedral. St. Claire and St. Nicholas are served by municipal-type public water systems. (Tr. Dec.17, p.183, line 17 – p.184, line 14; Dec.17, p.189, lines 19-22).

Petitioner’s Attempts at Compliance


28. Brother Christopher Landry, a resident at Faith Cathedral’s facility, testified that Faith Cathedral corrected the physical violations on the facility’s three wells in February 2003. (Tr. Dec.18, p.71, line 20-p.78, line 8). Meanwhile, in order to protect the integrity of the aquifer and assure safe drinking water for its members, Petitioner undertook improvements to address the items of noncompliance. [T-2, p. 72.] Specifically, the Petitioner took the following actions towards substantial compliance with DHEC’s directives:

  • sealed the outside well casing; installed a check value & blow-off valve; installed a flow meter; installed valves for isolation tanks; initiated cross-connections controls; established a log of repairs; created a map; and
  • conducted monitoring in September 2003.

[P-1; TR. DEC. 18pp. 73-82.] The only items not completely addressed were the lack of an operations manual and the operator’s lack of certification. [TR. DEC. 18p. 98, lines 22-25.] Brother Christopher Landry produced photographs depicting the well improvements intended to correct the violations. [Petitioner’s Exhibits 1A-1D.] Brother Christopher also testified that he did not send or show the photographs to Mr. Wilson or invite Mr. Wilson to the facility to confirm that the improvements had actually corrected the violations. (Tr. Dec.18, p.97, line 4-p.98, line 1). Mr. Wilson testified that Faith Cathedral verbally informed him that improvements had been made to the wells, but that he was not able to return to verify them. (Tr. Dec.17, p.63, line 19-p.64, line 18). Under the terms of the Safe Drinking Water Act, DHEC is authorized to investigate and enter upon the premises of any public water system at any time for the purposes of the Act. S.C. Code Ann. § 44-55-40 (F) and (H) (2002).29. Although Brother Christopher Landry did not testify that Faith Cathedral maintains a written standard operating procedure, he did testify that they maintain a log of repairs to the water system, although that log was not introduced into evidence nor provided through Petitioner’s evidence exchange. Brother Christopher Landry also testified that Faith maintains a map of the system, (Tr. Dec.18, p.78, line 9-p.80, line 13); [Petitioner’s Exhibit 32.] although it was not submitted to DHEC. (Tr. Dec.18, p.98, lines 2-6). Brother Christopher Landry testified that Brother Timothy was the contact for the system, although he had not received any training, served as an apprentice to a certified public water system operator, nor received any certification. (Tr. Dec.18, p.98, line 14- p.99, line 15).30. Brother Christopher testified that Faith Cathedral denied the Department access to its system in June 2003 because they wanted to force the Department to generate an order so that a hearing would be held. (Tr. Dec.18, p.86, line 8-p.88, line 10); [Petitioner’s Exhibit 13.]31. Brother Christopher admitted that Faith Cathedral did not conduct the monthly bacteriological monitoring for February, March, April, or May 2003. Faith Cathedral conducted bacteriological monitoring in September 2003, and the report showed that there was no total coliform and no fecal coliform in the facility’s water at that time. (Tr. Dec.18, p.84, line 13-p.86, line 7). 32. Mr. Idris Liban, DHEC’s director of bacteriological monitoring for public water systems sent notice of violation letters to Faith Cathedral by certified mail notifying the facility of the monitoring violations. (Tr. Dec.17, p.141, line 14-p.144, line 23; p.145, lines 5-13; p.147, line 23-p.148, line 16); [Respondent’s Exhibits 12, 13, and 14.]33. Mr. Liban also testified that Faith Cathedral failed to issue public notification and submit a copy of the notification to the Department for the failure to conduct monthly bacteriological monitoring. (Tr. Dec.17, p.145, line 22-p.146, line 20; p.148, lines 5-11); [Respondent’s Exhibits 12, 13, and 14.] Mr. Liban’s involvement with Faith Cathedral was identical to his involvement with other public water systems which fail to conduct the proper monitoring. (Tr. Dec.17, p.150, lines 6-17).34. Ms. Cornette, the district engineer in DHEC’s Low Country District, testified that after Faith Cathedral’s PWS was added to the inventory, she conducted chemical sampling of the system’s water. On June 13, 2003, she sent a letter to the Petitioner’s attorney stating that water samples had to be collected for maximum contaminate level testing. The letter advised Faith Cathedral that the Safe Drinking Water Act authorized the Department to enter the premises of a PWS. Ms. Cornette testified that Faith Cathedral did not allow the Department access to its PWS for the purpose of conducting the required quarterly bacteriological monitoring, and that she made an enforcement referral as result of that denial. (Tr. Dec.17, p.111, line 10-p.116, line 11); [Respondent’s Exhibits 7, 8, and 19.]

The Administrative Order


34. Karen Ramos, a DHEC drinking water enforcement officer, received the Faith Cathedral enforcement referral and drafted Administrative Order 03-136-DW. (Tr. Dec.17, p.156, line 5-p.159, line 23). While drafting the administrative order, Ms. Ramos referenced the enforcement referral, Mr. Wilson’s sanitary survey, and the notice of violation letters sent by Mr. Liban. (Tr. Dec.17, p.160, lines 14-25). Ms. Ramos also calculated the penalty. In calculating the penalty, Ms. Ramos used DHEC’s Penalty Assessment Guide. (Tr. Dec.17, p.161, line 11-p.162, line 16); [Respondent’s Exhibits 16, 17, and 18.] Ms. Ramos testified that the $20,000 penalty assessed against Faith Cathedral was consistent with the statutory maximum allowable for drinking water violations and with the matrix described in the Penalty Assessment Guidance. (Tr. Dec.17, p.162, line 17-p.166, line 9). Ms. Ramos included $4,638 on the penalty calculation sheet because Faith Cathedral had failed to pay the annual drinking water fees for fiscal years 2002/2003 and 2003/2004.[3] (Tr. Dec.17, p.166, lines 10-15). Ms. Ramos testified the order and the penalty were reviewed by her peers, upper management, and legal staff to make sure they were accurate and consistent with the way the Department treats other facilities. Ms. Ramos testified that the penalty against Faith Cathedral was exactly what she would assess against a facility with the same violations, and that her involvement with Faith Cathedral, the administrative order, and the penalty calculation was exactly the same as her involvement with other facilities. (Tr. Dec.17, p.166, line 23-p.168, line 25).The violations and assessments are summarized as follows:DHEC issued Administrative Order 03-136-DW on July 31, 2003. [R-16.] DHEC found that Petitioner owns and is responsible for the proper operation and maintenance of a public water system. DHEC further found that the Petitioner violated provisions of the State Primary Drinking Water Regulations promulgated under the authority of the State Safe Drinking Water Act, in that it:

·        Failed to properly operate and maintain its PWS in violation of Reg. 61-58.7(B)(1);·        Failed to seal the outside well casing in violation of Reg. 61-58.7(D)(9);·        Failed to install/maintain the check value and blow-off on the well head piping in violation of Reg. 61-58.5(D)(5);·        Failed to install/maintain a flow meter for each well in violation of Reg. 61-58.5(D)(7);·        Failed to provide valves for the isolation of tanks to ensure proper operations in violation of Reg. 61-58.5(E)(4);·        Failed to initiate and maintain a viable cross connection control program by failure to locate and eliminate unprotected cross connections in violation of Reg. 61-58.5(F)(1)(a);·        Failed to establish and maintain up-to-date written Standard Operating Procedures for the operation and maintenance of its system in violation of Reg. 61-58.5(B)(2)(a-1);·        Failed to maintain a map of the distribution system in violation of Reg. 61-58.5(E)(1)(b);·        Failed to designate an operator of appropriate grade in violation of Reg. 61-58.5(E)(1)(b);·        Failed to submit to the required annual drinking water fees for the 2003 year in violation of Reg. 61-30(G)(2)(a);·        Failed to conduct monthly bacteriological monitoring for February, March, April, and May 2003 in violation of Reg. 61-58.5(G)(1)(b);·        Failed to issue public notification with copies to DHEC in violation of Reg. 61-58.6(E)(1)(a); and ·        Refused to allow the Department access to its property to conduct quarterly monitoring in violation of § 44-55-40(F), (4).

 

Based on these cited violations, DHEC ordered the Petitioner to comply with the Safe Drinking Water Act and regulations, implement monthly monitoring, and allow inspection of its PWS.

DHEC assessed the Petitioner with $20,000 in civil penalties:

(1) The maximum penalty of $5,000 for the unsatisfactory sanitary survey in November 2002;(2) The maximum penalty of $5,000 for failure to conduct monthly monitoring;(3) The maximum penalty of $5,000 for failure to issue public notices of the failure to conduct monthly monitoring;(4) The maximum penalty of $5,000 for failure to allow access for additional inspections. [R-17.]  

DHEC also assessed the Petitioner a total of $4,600.38 for the 2003 and 2004 annual drinking water fees together with the late penalties. [R-17.]

CONCLUSIONS OF LAW

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

1. The Administrative Law Court has subject matter jurisdiction of this case pursuant to the South Carolina Administrative Procedures Act. See S.C. Code Ann. §§ 1-23-310 to -660 (1986 and Supp. 2002).2. In weighing the evidence and deciding a contested case on the merits, this Court must make findings of fact and conclusions of law by a preponderance of the evidence. Anonymous (M-156-90) v. State Board of Medical Examiners, 329 S.C. 371, 496 S.E.2d 17 (1998). Because it seeks a civil penalty, the burden of proof rests upon DHEC in this case. ALC Rule 29 (B). The trier of fact must weigh and pass upon the credibility of evidence presented. See S.C. Cable Television Ass’n v. Southern Bell Tel. & Tel. Co., 308 S.C. 216, 417 S.E.2d 586 (1992). The trial judge who observes a witness is in the best position to judge the witness’ demeanor and veracity and evaluate his testimony. See, e.g., McAlister v. Patterson, 278 S.C. 481, 299 S.E.2d 322 (1982).3. The Department is charged with administering the Safe Drinking Water Act (the Act), S.C. Code Ann. §§ 44-55-10 to -120 (2002). See S.C. Code Ann. § 44-55-100 (2002).

An agency decision must be reached utilizing reasoned judgment and must be based upon adequate determining principles and a rational basis. Deese v. S.C. State Bd. of Dentistry, 286 S.C. 182, 332 S.E.2d 539 (Ct. App. 1985).

4. The State Safe Drinking Water Act is codified in Chapter 55 of Title 44, S.C. Code Ann. §§ 44-55-10 et seq. (1976 and Supp. 2002). DHEC is charged with the responsibility for implementation of this Act and is empowered by Section 44-55-30 to establish regulations, procedures and standards as may be necessary to protect the health of the public and to ensure proper operation and function of public water systems.5. Pursuant to its authority, DHEC promulgated Regulations 61-58 through 61-58.13, setting standards and procedures it deems “necessary to maintain reasonable standards of purity of the drinking water of the State consistent with the public health, safety, and welfare of its citizens.” S.C. Reg. 61-58(A).6. Regulation 61-58.B (118) defines “public water system” as:

(1) any public or privately owned waterworks system which provides drinking water, whether bottled or piped, for human consumption, including the source of supply whether the source of supply is of surface or subsurface origin; (2) all structures and appurtenances used for the collection, treatment, storage or distribution of drinking water delivered to consumers; (3) any part of portion of the system and including any water treatment facility which in any way alters the physical, chemical, radiological, or bacteriological characteristics of drinking water; provided, that public water system shall not include a drinking water system serving a single private residence or dwelling. A separately owned system with its source of supply from another waterworks system shall be a separate public water system.

 

Simply put, a public water system is any system supplying drinking water other than a private, individual well serving a single residence.

7. The threshold question is whether Faith Cathedral operates a public water system subject to regulation under the Safe Drinking Water Act. With three wells serving multiple residential units, Faith Cathedral does not contest that it qualifies as a public water system as defined by the DHEC Regulation.


8. Under the Department’s regulations, public water systems must be operated and maintained in accordance with a Department permit. 24A S.C. Code Ann. Regs. 61-58.7 (B)(1) (Supp. 2002). The regulations contain numerous other requirements. Public water system wells must be maintained so that the outside well casing prevents the entrance of contaminates into the well. 24A S.C. Code Ann. Regs. 61-58.7 (D)(9) (Supp. 2002). Public water system wells must have a check valve and blow-off installed and maintained on the well head piping. 24A S.C. Code Ann. Regs. 61-58.7 (D)(5) (Supp. 2002). Public water systems must have a flow meter installed and maintained for each well in the system. 24A S.C. Code Ann. Regs. 61-58.7 (D)(7) (Supp. 2002). Each storage tank in a public water system must have a valve for the isolation of the tank to ensure proper operation. 24A S.C. Code Ann. Regs. 61-58.7 (E)(4) (Supp. 2002). Public water systems must initiate and maintain a cross connection control program that locates and eliminates unprotected cross connections. 24A S.C. Code Ann. Regs. 61-58.7 (F)(1)(a) (Supp. 2002). Public water systems must establish and maintain up-to-date written Standard Operating Procedures for the operation and maintenance of the system. 24A S.C. Code Ann. Regs. 61-58.7 (B)(2)(a-l) (Supp. 2002). Public water systems must maintain a map of the system’s distribution system. 24A S.C. Code Ann. Regs. 61-58.7 (E)(8) (Supp. 2002).


9. Public water systems must designate an operator of appropriate grade as the operator responsible for the operation and maintenance of its distribution system. 24A S.C. Code Ann. Regs. 61-58.7 (E)(1)(b) (Supp. 2002). An operator is defined as “a person certified by the South Carolina Environmental Certification Board as being qualified to operate and maintain a public water system.” 24A S.C. Code Ann. Regs. 61-58(105) (Supp. 2002)10. Public water systems serving 25 to 1,000 residents must conduct monthly bacteriological monitoring. 24A S.C. Code Ann. Regs. 61-58.5(G)(1)(b) (Supp. 2002).11. If a public water system fails to conduct monthly bacteriological monitoring, it must issue a public notice of its failure to conduct monitoring and submit a copy of that notice to the Department. 24A S.C. Code Ann. Regs. 61-58.6(E)(1)(a) (Supp. 2002).12. The Department is authorized to investigate public water systems and enter upon the premises of any public water system at any time for the purposes of the Act. S.C. Code Ann. § 44-55-40 (F) and (H) (2002). 13. Public water systems must pay annual drinking water fees. 24A S.C. Code Ann. Regs. 61-30 (G)(2)(a) (Supp. 2002).14. The State Safe Drinking Water Act, S.C. Code Ann. § 44-55-90(b) (1) (2002), provides for a civil penalty not to exceed five thousand dollars ($5,000.00) a day per violation for any person violating the State Safe Drinking Water Act, S.C. Code Ann. § 44-55-80(A) (1) (2002).15. Under the South Carolina Freedom of Information Act (FOI Act), individuals and organizations have the right to inspect and copy the public records held by agencies of the State, unless the records are covered by an FOI exception. S.C. Code Ann. § 30-4-30(a). If a State agency fails to respond properly to an FOI request, the affected individual may apply to the circuit court for a declaratory judgment and injunctive relief to enforce the provisions of the FOI Act. S.C. Code Ann. § 30-4-100(a). Nothing in the FOI Act eliminates the obligation of a regulated entity to comply with applicable regulations if a State agency fails to properly comply with an FOI request from the regulated entity.16. Faith Cathedral asserts that it should not be subject to penalties for the violations because DHEC specifically targeted Faith Cathedral for selective enforcement of the Safe Drinking Water Act and regulations while allowing similarly-situated monastic communities to operate their water systems free of DHEC regulation. Faith Cathedral maintains that while it was willing to cooperate, DHEC acted unreasonably and arbitrarily in refusing to timely provide the requested information and initiate investigation and enforcement at the similarly-situated monastic communities.17. While the ALC has no jurisdiction over challenges to the constitutionality of statutes and regulations, it does have jurisdiction over allegations of unconstitutional application of statutes and regulations. Evans v. State, 344 S.C. 60, 543 S.E.2d 547 (S.C. 2001); Ward v. State, 343 S.C. 14, 538 S.E.2d 245 (2000).18. Administrative agencies, such as DHEC, have broad powers and broad discretion in enforcement of the statutes and regulations within their purview. However, a party may state a claim of denial of its equal protection by the exercise of regulatory authority by administrative agencies based on selective enforcement in an intentionally, discriminatory unconstitutional manner. Such a claim may be asserted in defense of a regulatory enforcement/violation proceeding separate and apart from any civil rights claim. See generally McGowan v. Maryland, 366 U.S. 420 (1961); Pork Motel Corp. v. Kansas Dept. of Health & Environ., 673 P.2d 1126, 1135 (Kan. 1983); State v. Malone Service Co., 829 S.W.2d 763 (Tex.1992)(although defense of discriminatory enforcement originated in context of criminal prosecutions, governing principles also apply to civil proceedings involving state agencies); see also Yick Wo v. Hopkins, 118 U.S. 356, 373 (1886) (holding that law is unconstitutionally enforced if it is applied and administered by a government authority with “an evil eye and an unequal hand.”) 19. The equal protection clause requires that all persons similarly situated be treated alike. “Regulatory or enforcement decisions based on personal dislike, vendetta, or some other impermissible consideration, are anathemas to the American tradition honoring the rule of law.” 421 Corp. v. Metropolitan Gov’t of Nashville and Davidson County, 36 S.W.3d 469 (Tenn. App. 2000).20. To state a claim of selective treatment, a plaintiff must first establish that similarly-situated persons received disparate treatment not only that it was selectively treated in comparison to others similarly situated See, e.g., Weaver v. S.C. Coastal Council, 309 S.C. 368, 423 S.E.2d 340 (1992); Grant v. South Carolina Coastal Council, 461 S.E.2d 388, S.C.,1995. However, the Plaintiff must also show that the agency’s selective treatment was motivated by an intention to discriminate on the basis of impermissible considerations, such as race or religion, to punish or inhibit the exercise of constitutional rights, or by a malicious or bad faith intent to injure the person. LaTrieste Restaurant & Cabaret, Inc. v. Village of Port Chester, 40 F.3d 587 , 590 (2nd Cir. 1994); Thomas v. City of West Haven, 734 A.2d 535 (Conn. 1999).21. In State v. 192 Coin-operated Video Game Machines, 338 S.C. 176, 525 S.E.2d 872, 885 (2000), the Court articulated a two-prong test to establish a claim of selective prosecution:

First, a defendant must show "he has been singled out for prosecution while others similarly situated have not been prosecuted for conduct similar to that for which he was prosecuted." United States v. Catlett, 584 F.2d 864 (8th Cir. 1978). Second, "the defendant must demonstrate that the government's discriminatory selection of him for prosecution was based upon an impermissible ground, such as race, religion or his exercise of his first amendment right to free speech." Id. At 865. See also Armstrong, 517 U.S. at 465, 116 S.Ct. 1480 ("The requirements for a selective-prosecution claim draw on 'ordinary equal protection standards.' The claimant must demonstrate that the federal prosecutorial policy 'had a discriminatory effect and that it was motivated by a discriminatory purpose.' ") (citations omitted).  

See also Whaley v. Dorchester County Zoning Bd. of Appeals, 337 S.C. 568, 524 S.E.2d 404 (1999)(“To prove that a statute has been administered or enforced discriminatorily, more must be shown than the fact that a benefit was denied to person while conferred on another. A violation is established only if the plaintiff can prove that the state intended to discriminate.”)

22. A mere laxity of enforcement does not establish intentional or purposeful discrimination. Whitney Trading Corp. v. McNair, 255 S.C. 8, 176 S.E.2d 572 (1970). See also Moog v. Industries, Inc. v. FTC, 355 U.S. 411 (1958); Pork Motel, 673 P.2d at 1136 (a failure to proceed against all alleged violators does not preclude an administrative agency from enforcing the law against one violator). 23. “Even an unequal enforcement of a valid state law is not a denial of equal protection unless the unequal enforcement is the result of “arbitrary and invidious discrimination.”” Pork Motel, supra.24. “Selectivity alone does not render law enforcement unlawful.... to be unlawful the selectivity must be improperly motivated.” Branch Ministries v. Richardson, 970 F. Supp. 11, 15-16 (D.C. 1997) (citing United States v. Armstrong, 517 U.S. 456 (1996)).25. An equal protection claim may be founded on proof of an orchestrated campaign of official harassment directed against the party out of sheer malice or deep-seated animosity. Unequal imposition of sanctions can constitute unequal treatment in violation of the equal protection if shown to be the result of a vindictive campaign. Esmail v. Macrane, 53 F.3d 176 (7th Cir. 1995).26. Selective enforcement of state regulation may constitute a violation of a plaintiff’s equal protection rights upon a showing that a state official with a personal vendetta treated the plaintiff more severely than other instances of code violations. Rubinovitz v. Rogato, 60 F.3d 906 (1st Cir. 1995) (where building inspector acted with a personal vendetta against the plaintiff for evicting her friend).27. Although the plaintiff bears a heavy burden of proving discrimination, it is not required to produce direct evidence of intent. “[I]ndeed, direct evidence of motive or intent is rarely available. As in any equal protection case, evidence concerning the unequal application of law, statistical disparities and other indirect evidence may be used to show bias or discriminatory motive.” Branch Ministries, 970 F. Supp. at 17.

28. “The very rarity of an official act can support a finding of discriminatory intent, although alone it may not necessary be sufficient basis for such a finding.” Branch Ministries, 970 F. Supp. at 17.


29. “In order to establish an equal protection violation, a party must show that similarly situated persons received disparate treatment.” TNS Mills, Inc. v. South Carolina Dep’t of Revenue, 331 S.C. 611, 626, 503 S.E.2d 471, 479 (1998). See also Grant v. South Carolina Coastal Council, 319 S.C. 348, 355, 461 S.E.2d 388, 392 (1995) (“[W]e agree with the circuit court that Grant did not prove the Coastal Council treated him differently from other similarly situated landowners”). The person claiming unfair treatment carries the burden to establish an equal protection violation. See TNS Mills, Inc. v. South Carolina Dep’t of Revenue, 331 S.C. 611, 626, 503 S.E.2d 471, 479 (1998).30. The facts to be examined when determining whether entities are similarly situated under an equal protection claim are those facts which determine whether an entity is subject to regulation. See Grant v. South Carolina Coastal Council, 319 S.C. 348, 461 S.E.2d 388 (1995) (Grant found to have violated the Coastal Zone Management Act for filling an area within the critical zone after Hurricane Hugo despite claim that neighbors had been permitted to fill areas where evidence showed that neighbors’ properties were not in the critical areas when they conducted filling); Weaver v. S.C. Coastal Council, 309 S.C. 368, 423 S.E.2d 340 (1992) (dock permit application denied because proposed dock would be located in a protected public oyster ground, but equal protection violation found where neighbors were similarly situated because their the docks were already located in the same public oyster ground).31. Faith Cathedral operates a public water system under the Safe Drinking Water Act. According to the November 5, 2002, sanitary survey by Mr. Wilson, Faith Cathedral’s water system has forty-nine (49) connections and serves approximately eighty-nine (85) people. Faith Cathedral was properly added to the State’s inventory of public water systems in January 2003. Accordingly, this Court finds that Faith Cathedral’s water system is subject to the State Primary Drinking Water Regulations.

32. In addition, this Court finds that based on Mr. Wilson’s sanitary survey and testimony, Faith Cathedral violated numerous provisions of the Drinking Water Regulations regarding the construction of public water system wells. Faith Cathedral failed to seal the outside well casing; install/maintain the check valve and blow-off on the well head piping; install/maintain a flow meter for each well serving its PWS; provide valves for the isolation of tanks to ensure proper operation; and initiate and maintain a viable cross connection control program by failure to locate and eliminate unprotected cross connections.


33. Although Brother Christopher produced photographs at the hearing and testified that all of the violations had been corrected through improvements to the wells, the Department has been unable to verify that the improvements were properly implemented. 34. Faith Cathedral also failed to establish and maintain up-to-date written Standard Operating Procedures for the operation and maintenance of its system. Although the repair log was not introduced into evidence, a log which records repairs after they are made does not constitute Standard Operating Procedures for the operation and maintenance of a public water system.35. Faith Cathedral failed to designate an operator of appropriate grade as the operator responsible for the operation and maintenance of its distribution system. Although, Brother Christopher testified that Brother Timothy was the point of contact for the system, Brother Timothy had not received any type of training, served as an apprentice to a certified public water system operator, or received any certification as required by 24A S.C. Code Ann. Regs. 61-58(105) and 61-58.7 (E)(1)(b).

36. Faith Cathedral failed to conduct required bacteriological monitoring in February, March, April, and May. These monitoring requirements were not eliminated by the favorable results of the July 1, 2002, tests of the system’s water. The monthly monitoring requirement is an ongoing obligation and is designed to catch water contamination before it becomes a serious problem. Further, Faith Cathedral failed to issue public notification of the failure to conduct monthly bacteriological monitoring and failed to submit a copy of the notification to the Department.


37. After Faith Cathedral’s PWS had been added to the inventory, the Department was required to conduct chemical sampling of the system’s water. See Regulation 61-55.5, Maximum Contaminate Levels in Drinking Water. On June 13, 2003, the Department sent a letter to the Petitioner’s attorney stating that water samples had to be collected for maximum contaminate level testing. The letter advised Faith Cathedral that the Safe Drinking Water Act authorized the Department to enter the premises of a PWS for purposes under the Act. Faith Cathedral did not allow the Department to access to its PWS for the purpose of conducting the required quarterly bacteriological monitoring.38. Faith Cathedral failed to submit the required annual drinking water fees for its PWS for the 2003 fiscal year.

39. The Department failed to respond in a timely fashion to Faith Cathedral’s Freedom of Information request for information about other allegedly similarly situated facilities in South Carolina. However, the Court finds that as of November 20, 2002, the Department was making efforts to collect the information Faith Cathedral sought. The Department’s Freedom of Information Office acknowledged receipt of the request on February 27, 2003. Department e-mails show that Department staff was still attempting to collect the information in April 2003. Although the Department’s response was delinquent, Faith Cathedral’s proper remedy for the Department’s delinquent response was to seek injunctive relief in the circuit court under the Freedom of Information Act. In addition, the Department’s failure to provide a timely response to Faith Cathedral’s request did not excuse the facility from complying with clearly stated requirements under the applicable statutes and regulations. Ultimately, the effect of the Department’s failure to provide a timely response is now moot because the request was satisfied through the discovery process after the appeal was filed.


40. There is no remedy this Court could grant Faith Cathedral under the drinking water statutes and regulations for an untimely response to a FOIA request. As stated above, the information requested by Faith Cathedral was eventually turned over either through the Freedom of Information Office or through discovery. Faith Cathedral was clearly operating a public water system, and the Department properly added the system to the state’s inventory, thereby triggering all of the applicable requirements. A timely response from the Department would not have changed Faith Cathedral’s status as a public water system and would not have changed the requirements under the safe drinking water statutes and regulations. 41. Faith Cathedral’s argument that a hearing would not have been necessary if the Department had provided a timely response is disingenuous. Faith Cathedral was provided with ample notice of the Department’s intent to regulate its PWS. The notice was provided with detailed information on how to comply with the regulations and contact information if the facility had questions about the requirements. In fact, Brother Christopher testified that Faith Cathedral had a lot of dialogue with Mr. Wilson concerning the requirements for the wells. (Tr. Dec.18, p.80, lines 10-22). Faith Cathedral had plenty of opportunity to either comply with the Department’s regulations or to show that it was willing to comply with the regulations if the equal protection claims proved invalid.

42. Faith Cathedral made improvements to the three wells on its property in February 2003, but failed to allow the Department onto its property to verify the improvements. Faith Cathedral could have either paid the drinking water fees for fiscal year 2003 under protest or paid the fees into an escrow account and notified the Department that the fees would be surrendered if the equal protection allegations proved invalid. Faith Cathedral showed a capacity to conduct bacteriological monitoring in September 2003, yet failed to conduct this monitoring in February, March, April, and May when it was clearly required under the law. The monthly monitoring would have served only as a benefit to the public health of the facility’s residents, and would have served as a benefit to Faith Cathedral’s legal arguments. The only detriment of this monitoring to Faith Cathedral was financial, and Faith Cathedral produced no evidence that it was unable to afford such monitoring. This Court finds that the Freedom of Information Act cannot be used as a shield against compliance with applicable statutes and regulations.


43. In June 2003, the Department gave Faith Cathedral yet another opportunity to comply with the drinking water regulations when it notified the facility that samples needed to be collected from the system and tested. Faith Cathedral could have granted access to the system, allowed the testing, and had the Department verify the improvements made to its wells, while still maintaining that it was being treated unfairly under the equal protection doctrine. Instead of showing a willingness to comply with the regulations, Faith Cathedral refused the Department access to its system and engaged in another violation of the law.44. Regarding Faith Cathedral’s equal protection claim, this Court finds that the Petitioner failed to carry its burden to show by a preponderance of the evidence that similarly situated facilities received disparate treatment. St. Claire Monastery and St. Nicholas Monastery are both served by municipal type systems; they are clearly not similarly situated to Faith Cathedral. St. Mary’s Monastery, Bonnie Doone Plantation, African Village, and Camp Christian are similar to Faith Cathedral in that they are religious in nature. However, Faith Cathedral did not produce evidence regarding the number of connections or residents at these facilities and therefore failed to show that those facilities are similarly situated to Faith Cathedral under the drinking water regulations. Faith Cathedral also failed to produce evidence that these facilities suffered the same type of violations of the drinking water regulations as Faith Cathedral. 45. The Department established that Bonnie Doone Plantation, African Village, and Camp Christian are on the state public drinking water system inventory, so to the extent that they are similar to Faith Cathedral, they received similar treatment through addition to the state inventory. 46. This Court finds that Petitioner failed to establish that St. Mary’s, Bonnie Doone Plantation, African Village, or Camp Christian are similarly situated to Faith Cathedral under the drinking water regulations. Petitioner established no similarities between St. Mary’s and Faith Cathedral beyond their religious nature. To the extent that Bonnie Doone Plantation, African Village, and Camp Christian are similar to Faith Cathedral, the Department established that they had been treated similarly because they are in the state inventory.

 


ORDER

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

IT IS HEREBY ORDERED that Administrative Order 03-136-DW is affirmed as to the violations committed by Faith Cathedral. IT IS FURTHER ORDERED that a civil penalty of $2,500 must be remitted to the Department within 60 days of the date of this Order.

 


IT IS FURTHER ORDERED that Faith Cathedral pay $2,663.38 in annual drinking water fees and penalties for the 2003 fiscal year and that Faith Cathedral shall pay all annual drinking water fees due up to the date of this order, with no penalties. All payments required under this Order shall be paid within sixty (60) days of the filed date of this Order. 

AND IT IS SO ORDERED. ________________________

Carolyn C. MatthewsAdministrative Law Judge  July 12, 2005Columbia, SC

 



[1] The transcript of this hearing is divided into two volumes, one for December 17, one for December 18. Each citation to the transcript will identify the date, then the page and line numbers.

[2] DHEC counsel notes that the Victory Religious Community, or Church of God – Emmanuel, was added to the state inventory on or about January 8, 2004.

[3] DHEC counsel notes that Administrative Order 03-136-DW cited Faith Cathedral for failure to pay the “water fees for its PWS for the 2003 fiscal year.” [Respondent’s Exhibit 16, p.5.] Faith Cathedral was not cited in the Order for failure to pay the fees for fiscal year 2004, so the fees due under Administrative Order 03-136-DW would be those consistent with Ms. Rankin’s testimony and Respondent’s Exhibit 10, a total of $2,663.38.