SCDHEC v. Southern Environmental Services

THIS OPINION HAS NO
PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY
PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

South Carolina Department of Health and Environmental Control, Respondent,

v.

Southern Environmental Services, Inc., Appellant.

Appeal From the Administrative Law Court

 John D. McLeod, Administrative Law Judge

Unpublished Opinion No. 2012-UP-220

Heard March 13, 2012 – Filed April 4, 2012   

AFFIRMED

Eric G. Fosmire, of Columbia, for Appellant.

Carlisle Roberts, Jr., and Jacquelyn S. Dickman, both of Columbia,
and Sara P. Bazemore, of Myrtle Beach, for Respondent.

PER CURIAM:  Southern Environmental Services, Inc. (SESI) appeals from
the Administrative Law Court (ALC) order finding it in violation of the South
Carolina regulations governing asbestos removal projects, which was issued
following a contested case hearing on the final decision of the South Carolina
Department of Health and Environmental Control (DHEC).  SESI argues the ALC
erred in determining: (1) SESI violated the asbestos regulations when the
physical and air sample results collected by DHEC were excluded because chain
of custody regarding the analysis of materials allegedly containing asbestos
was not established; (2) DHEC inspectors need not be licensed to enforce the
asbestos regulations; (3) DHEC's search of SESI's headquarters was
constitutional; (4) SESI failed to comply with permit and license regulations
for the Wade Hampton High School project; and (5) SESI violated the asbestos regulations
when the evidence established a subcontractor was responsible for the
polyethylene sheeting in the apartment at Quail Hollow Apartments.  We affirm.

1. SESI argues the ALC
erred in finding it violated the asbestos
regulations because the court excluded the physical and air sample results
collected by DHEC due to DHEC's failure to establish a sufficient chain of
custody regarding the analysis of materials that allegedly contained asbestos. 
It asserts evidence of the presence of a substance containing greater than one
percent of asbestos is a condition precedent to finding a violation of the
asbestos regulations.  During their inspection of the Wade Hampton project,
DHEC inspectors observed open dumpsters that contained polyethylene bags
labeled as asbestos.  See 25A S.C. Code Ann. Regs. 61-86.1(VIII)(B)(f)
(Supp. 2011) (requiring asbestos waste to be in a secured, locked location).  They
also observed moveable objects that SESI left in place during the project and
polyethylene sheeting that had not been removed after the work was completed.  See 25A S.C. Code Ann. Regs. 61-86.1(X)(C)(1)(a)(6) (Supp. 2011) (requiring that
prior to beginning work, all moveable objects must be cleaned and removed from
work area); 25A S.C. Code Ann. Regs. 61-86.1(X)(C)(3)(a)(4), (7) and (8) (Supp.
2011) (requiring that all polyethylene sheeting be removed and disposed of as
asbestos-contaminated waste when project is completed).  Additionally, SESI had
notified DHEC that it was only removing flooring; however, inspectors observed
that SESI had removed both floor and ceiling material.  See 25A S.C.
Code Ann. Regs. 61-86.1(X)(B)(4)(f) and (i) (Supp. 2011) (stating the written
project notification and application must describe the work to be performed and
an estimate of the approximate amount of asbestos-containing material to be
removed).  During the inspection of the Quail Hollow Apartment, inspectors
observed polyethylene sheeting in several places in Unit K-10, including
sheeting that was balled up on the floor with an "Asbestos Danger"
sign duct-taped to the inside.  See 25A S.C. Code Ann. Regs.
61-86.1(X)(C)(3)(a)(4), (7) and (8) (Supp. 2011) (requiring that all
polyethylene sheeting be removed and disposed of as asbestos-contaminated waste
when project is completed).  Further, upon inspection of 35 Rutherford Drive,
inspectors discovered no licensed air monitor was on site, and only one
licensed supervisor was on site and he was not inside the contained work area,
all of which were violations of the asbestos regulations.  See 25A S.C.
Code Ann. Regs. 61-86.1(V)(C)(3)(b) (Supp. 2011) (requiring that at all times
during abatement, at least one licensed supervisor must remain inside of each
contained work area supervising the work); 25A S.C. Code Ann. Regs.
61-86.1(VII)(D) (Supp. 2011) (requiring daily air sampling by a licensed air
sampler).  Also, the decontamination unit did not have any water connected to
it, which was a violation of the asbestos regulations.  See 25A S.C.
Code Ann. Regs. 61-86.1(X)(C)(1)(a)(12) (Supp. 2011) (requiring a
decontamination enclosure system to have a shower room with hot and cold or
warm running water controllable at the tap).  Furthermore, SESI stipulated
that: (1) it conducted asbestos abatement activities at Wade Hampton High
School; (2) one of the dumpsters at the Wade Hampton location contained
asbestos waste from the high school; (3) it removed asbestos from unit K-10 at
the Quail Hollow apartments; and (4) it removed asbestos from an abandoned
building at 35 Rutherford Drive.  Therefore, we find the evidence supports the
ALC's findings that SESI violated the asbestos regulations despite the
exclusion of the physical and air sample results collected by DHEC.  See Comm'rs of Pub. Works v. S.C. Dep't of
Health & Envtl. Control, 372 S.C.
351, 358, 641 S.E.2d 763, 766-67 (Ct. App. 2007) ("Under our standard of
review, we may not substitute our judgment for that of the [ALC] as to the
weight of the evidence on questions of fact unless the [ALC's] findings are
clearly erroneous in view of the reliable, probative and substantial evidence
in the whole record."); Leventis v. S.C. Dep't of Health & Envtl.
Control, 340 S.C. 118, 130, 530 S.E.2d 643, 650 (Ct. App. 2000) (stating substantial
evidence is not a mere scintilla of evidence, but evidence which, considering
the record as a whole, would allow reasonable minds to reach the conclusion the
ALC reached).   

2. SESI argues the ALC erred in
finding DHEC's inspectors need not be licensed to enforce the asbestos regulations. 
It asserts that DHEC's inspectors did not hold the necessary licensing
qualifications to conduct inspections; therefore, DHEC's inspections of SESI's
projects are void as a matter of law because DHEC failed to comply with its own
requirements.  The ALC determined DHEC inspectors are not required to be
licensed as building inspectors under the asbestos regulations because a DHEC
inspector or "government project inspector" is considered an
"authorized visitor" under the asbestos regulations, which is
different from a licensed "building inspector."  An "authorized
visitor" is defined as "any representative of a regulatory or other
agency having jurisdiction over the project" and "is limited to
government project inspectors, police, paramedics, fire-safety personnel,
nuclear plant operators, and insurance loss prevention safety auditors, or
other personnel as approved on a case-by-case basis by the Department."  25A
S.C. Code Ann. Regs. 61-86.1(I)(21) (Supp. 2011).  The ALC reasoned that a
building inspector's responsibilities involve performing building inspections
to identify the presence, location, and condition of asbestos, and collecting
samples.  25A S.C. Code Ann. Regs. 61-86.1(I)(23) and (24) (Supp. 2011); 25A S.C.
Code Ann. Regs. 68-86.1(VI) (Supp. 2011).  The court noted a building inspector
must also comply with sampling procedures; prepare a detailed report based on
his or her findings, including a description of non-suspect materials; and
provide an assessment of all materials suspected to contain asbestos, including
an evaluation of the material's current condition, estimated quantities, and
potential for disturbance.  25A S.C. Code Ann. Regs. 68-86.1(VI) (Supp. 2011). 
In contrast, the ALC determined the duties of DHEC asbestos inspectors involve
inspecting a project involving known or alleged asbestos material to ensure
compliance with applicable laws and regulations.  The court also noted DHEC
asbestos inspectors are trained in accordance with DHEC and EPA policy and
regulations.  Courts are to defer to an administrative agency’s interpretation
of its own regulations unless there is a compelling reason to differ.  Brownlee
v. S.C. Dep't of Health & Envtl. Control, 382 S.C. 129, 136, 676 S.E.2d
116, 120 (2009) (citation omitted).  In the proceedings below, DHEC
interpreted the regulations as not requiring its inspectors to be licensed as building
inspectors to enforce the asbestos regulations.  We find the ALC properly construed
the regulations in a manner consistent with DHEC's interpretation.

3. SESI argues the ALC erred in finding
DHEC's search of SESI's headquarters was constitutional.  It asserts DHEC's
search was unconstitutional because the DHEC inspector did not have a warrant,
and he did not have proper consent to search the building; therefore, SESI argues
this court should exclude the evidence obtained during the search as
"fruit of the poisonous tree."  However, the ALC excluded the
evidence obtained during the search of SESI's headquarters because of DHEC's
failure to sufficiently establish the chain of custody; the ALC expressly
stated the evidence was not considered in making its conclusions of law due to
DHEC's failure to establish the chain of custody; and the ALC did not cite SESI
for any violations related to the search.  Therefore, we find this issue is
moot and decline to address it.  See Linda Mc Co. v. Shore, 390
S.C. 543, 557, 703 S.E.2d 499, 506 (2010) ("An appellate court will not
pass on moot and academic questions or make an adjudication where there remains
no actual controversy." (quoting Curtis v. State, 345 S.C. 557,
567, 549 S.E.2d 591, 596 (2001))); Sloan v. Friends of the Hunley, Inc.,
369 S.C. 20, 26, 630 S.E.2d 474, 477 (2006) ("A moot case exists where a
judgment rendered by the court will have no practical legal effect upon an
existing controversy because an intervening event renders any grant of
effectual relief impossible for the reviewing court.").

4. SESI argues the ALC erred in finding
it failed to comply with permit and license regulations for the Wade Hampton
High School project.  It asserts it faxed its application for the project to
DHEC on May 26, 2005, and its project dates were June 15 to June 25, 2005;
therefore, the ALC should not have found it to be in violation of the license
requirement.  However, SESI admits it did not pay the project fee at that time. 
DHEC Regulation 61-86.1, subsections III(B)(1) and (2) state that an
application for a license will not be processed unless it is accompanied by the
required fee, and DHEC's receipt and deposit of fees submitted with an
application "shall in no way indicate approval of the application or
guarantee the issuance of a license."  25A S.C. Code Ann. Regs. 61-86.1(III)(B)(1)
and (2) (Supp. 2011).  Furthermore, DHEC's senior asbestos inspector, Mark
Fairleigh, testified license applications cannot be submitted to DHEC by fax
and will not be considered by DHEC until the fee is paid; which in this case
was more than a month after SESI had completed its work.  Therefore, we find
the ALC did not err in finding SESI failed to comply with the asbestos
regulations when it completed the project without a license.

5. SESI argues the ALC erred in
finding it violated the asbestos regulations because a drywall subcontractor
was responsible for the polyethylene sheeting in the apartment at Quail Hollow
Apartments.  When the DHEC inspector arrived at the apartment after SESI had
completed the project to conduct an asbestos inspection, he observed
polyethylene sheeting in several places in Unit K-10, including sheeting that
was balled up on the floor with an "Asbestos Danger" sign duct-taped
to the inside.  DHEC Regulation 61-86.1, subsections X(C)(1)(a)(5), (7), (8), (10),
and (11), all require polyethylene sheeting to be used to isolate the
contaminated areas from the uncontaminated areas.  25A S.C. Code Ann. Regs.
61-86.1(X)(C)(1)(a)(5), (7), (8), (10) and (11) (Supp. 2011).  Subsections
X(C)(3)(a)(4), (7), and (8) require that after an abatement project is
completed, all polyethylene sheeting must be removed and disposed of as
asbestos-contaminated waste.  25A S.C. Code Ann. Regs. 61-86.1(X)(C)(3)(a)(4), (7)
and (8) (Supp. 2011).  Therefore, because
the evidence supports the ALC's finding that SESI failed to remove the
polyethylene sheeting after completing its asbestos work, we find the ALC did not err in affirming DHEC's
determination that SEIS was in violation of the regulations.       

AFFIRMED.

FEW, C.J., and
HUFF and SHORT, JJ., concur.