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2012-UP-220 - 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Unpublished Opinion No. 2012-UP-220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.