SC Administrative Law Court Decisions

II. STATEMENT OF THE CASE

This matter is before the Administrative Law Judge Division pursuant to a challenge to the proposed National Pollutant Discharge Elimination System ("NPDES") permit (No. SC0000868) sought from the South Carolina Department of Health and Environmental Control (DHEC) by International Paper Company's (International Paper's) Georgetown Mill. Petitioner League of Women Voters of Georgetown County (the "League") requested a contested case hearing challenging the permit's discharge limitation for 2, 3, 7, 8 TCDD (dioxin) on several grounds. Subsequently, by consent of the parties, the Sierra Club intervened in the action, alleging the same defects in the permit conditions. Prior to the hearing, both the League and the Sierra Club (collectively "Petitioners") stipulated that the sole issue to be raised in the contested case hearing was whether the dioxin discharge limit of 27 parts per quadrillion ("ppq") was properly derived. Specifically, the Petitioners alleged that DHEC was required to calculate a technology-based limit using the permit writer's best professional judgment (BPJ) of best available technology (BAT), compare that number with the water quality-based limit of 27 ppq already computed, and include the more stringent of the two numbers as the discharge limit in the permit.

The contested case hearing was held on June 12, 1995, at the Administrative Law Judge Division offices in Columbia, South Carolina. Notice of the date, time, place, and nature of the hearing was timely given to all parties.

For the reasons set forth below, NPDES Permit No. SC0000868 is issued as proposed. Any issues raised in the proceedings or hearing of this case but not addressed in this Order are deemed denied. ALJD Rule 29(b). Further, the filing of a motion for reconsideration is not a prerequisite to any party filing a notice of appeal of this Order. ALJD Rule 29(c).

III. STIPULATIONS

Prior to the hearing, the parties agreed to the following stipulations:

1. The League raised the issue on appeal in its comments on the NPDES permit, thereby preserving the issue for this appeal.
2. The parties agree that Guidance Documents prepared by the United States Environmental Protection Agency (EPA) can be used in any briefing associated with the hearing without being introduced into evidence at the hearing.
3. The permit at issue is NPDES permit No. SC0000868, International Paper's Exhibit #17.
4. The effective dates of that proposed permit are from October 1, 1993 through September 30, 1998.
5. The dioxin limit is the only issue on appeal in the contested case hearing.
6. The dioxin limit of 27 ppq, which is the limit in the proposed permit at issue, is based on water quality criteria set by the South Carolina Department of Health and Environmental Control (DHEC), and approved by EPA.
7. EPA expressed no objection to the 27 ppq dioxin limit contained in the proposed permit.
8. The proposed permit provides that the dioxin limit can be changed, and is subject to change, if one or more of the following events occur:
a. If the State of South Carolina changes its water quality criteria;
b. If EPA promulgates a final national effluent guideline for dioxin;
c. Upon renewal of the permit (NPDES permits are renewable every 5 years); and
d. If a fish advisory is reissued for consumption of fish within the Sampit River.
9. The Petitioners have standing to pursue this appeal.

IV. EVIDENCE OF THE CASE

A. Significant Exhibits

The permit at issue in this hearing (proposed NPDES Permit No. SC0000868) was submitted as International Paper Exhibit ("IP Exh.") 17. After a complete review of the draft permit, EPA had no objections to the proposed permit conditions. (IP Exh. 14). In addition to the 27 ppq dioxin discharge limitation, the permit contains a "Reopener Clause" which requires that the permit be modified, or alternatively revoked and reissued, if necessary (1) to comply with any new applicable effluent standards or limitations promulgated under the Clean Water Act; or (2) to comply with any adjustment in the State's water quality criteria for dioxin.

As required by regulations, DHEC staff reviewed the significant comments received on the draft permit, and drafted a "Responsiveness Summary" with regard to the issues raised during the public comment period. (IP Exh. 16). This summary addressed the specific issue on appeal in this matter:

5. The draft doesn't address zero discharge. BAT can achieve much lower dioxin levels, why isn't it required? (BAT and water quality limits)

Best available technology (BAT) requirements of the Clean Water Act (CWA) do not apply to water-quality based limits. BAT requirements of the CWA apply only to technology-based limits. These may be either effluent limitation guideline or Best Professional Judgment (BPJ) - based limits. Currently, effluent limitation guidelines do not call for regulation of dioxin. Such limits are proposed to be issued by U.S. EPA in September 1995. BPJ is used in those cases where an effluent limitation guideline has not been promulgated for the industry or pollutant under consideration and where a water quality standard is not more restrictive. The South Carolina water quality standard is quite restrictive here; therefore, establishment of BPJ-based limits at a lower concentration is inappropriate based on the information available to the Department.

B. Summary of Testimony

The Industrial Wastewater Section of DHEC's Bureau of Water Pollution Control, drafted the permit at issue in this case. In writing the permit, Gerald Slice reviewed the national effluent guidelines based on BAT for the Pulp and Paper Industry, and incorporated the applicable provisions of those regulations into the Georgetown Mill permit conditions. At the time the permit was issued (August 19, 1993), however, the national standards for the industry did not contain a specific discharge limit for dioxin.

Slice next reviewed state water quality standards that were applicable to dioxin discharges. South Carolina adopted, and the United States Environmental Protection Agency (EPA) approved, a state water quality criteria of 1.2 ppq. Slice testified that he calculated the permit limit for International Paper by multiplying this ambient state water quality criteria by a dilution factor of 22.5, which was determined through computer modeling. Slice then applied the resulting number (27 ppq) as the "end-of-pipe" effluent discharge limitation included in the permit.

Slice also testified that he reviewed and evaluated a multitude of information, in addition to the national effluent standards and state water quality criteria, when he was writing NPDES Permit No. SC0000868. Specifically, he looked at toxicological information on dioxin from EPA and other sources. Slice also reviewed effluent data submitted by International Paper, as well as fish tissue studies and similar reports performed in the area of the Sampit River where the International Paper plant is located. He reviewed effluent data and waste treatment technologies used in numerous paper mills across the country, including the well known "104 Mill Study," and the follow-up to that study, regarding dioxin discharges from pulp and paper mills. Finally, Slice evaluated what other paper mills in South Carolina and throughout the United States were doing with regard to reducing or eliminating dioxin from their discharge. He determined that International Paper was on average with or better than other paper mills using the same process. Based on this information, Slice testified that, if he had calculated a formal BPJ/BAT limit for the Georgetown Mill, he would have arrived at a dioxin discharge level in excess of 27 ppq. According to Slice, nothing in the information he reviewed would support a discharge limit of less than 27 ppq.

In addition to the testimony of the permit writer, Dr. Christopher Teaf, a toxicologist, testified that the 27 ppq discharge limitation for dioxin proposed by the DHEC staff was protective of human health and the environment. Dr. Teaf reviewed dioxin data from the International Paper and DHEC files, reviewed general information available to the scientific community on dioxin toxicology, and toured the Georgetown facility and the surrounding area along the Sampit River. He testified that his review of the records indicated that the environmental conditions in the Sampit River have improved dramatically in recent years as the result of International Paper's improvements in dioxin reduction. Dr. Teaf emphasized that the available fish tissue data showed that, from 1987 to 1989, the dioxin concentration in fish tissue samples taken from the Sampit River area decreased by a factor of six. By 1991, the fish tissue levels were at or below the advisory level of seven parts per trillion ("ppt"). Based on this information, the original fish advisory issued in June of 1989 was lifted in October of 1992.

V. FINDINGS OF FACT

By a preponderance of the evidence, I make the following findings of fact:

1. This Division has personal and subject matter jurisdiction over the parties and issues presented.
2. Notice of the date, time, place, and nature of the hearing was timely given to all parties.
3. DHEC issued NPDES Permit No. SC0000868 to International Paper's Georgetown Mill on August 19, 1993.
4. A water quality-based discharge limit of 27 ppq for dioxin was included in the permit.
5. In its comments on the draft permit, EPA expressed no objection to the 27 ppq dioxin discharge limit.
6. DHEC calculated this "end-of-pipe" discharge limitation of 27 ppq by multiplying the ambient state water quality criteria of 1.2 ppq by a dilution factor determined through computer modeling.
7. The 1.2 ppq water quality criteria for dioxin was adopted by the State of South Carolina and approved by EPA. 25 S.C. Code Ann. Regs. 61-68, Appendix 2 (Supp. 1994).
8. The national effluent guidelines for the Pulp and Paper Industry category (40 C.F.R. Part 430) do not currently contain discharge limitations for dioxin, but EPA is in the process of evaluating and establishing such national guidelines. See 58 Fed. Reg. 66078 (Dec. 17, 1993) (Proposed Rules).
9. DHEC did not undertake a formal BPJ/BAT analysis in determining the dioxin limit in the NPDES permit.
10. DHEC did, however, on an informal basis, examine the requirements of a formal BPJ/BAT analysis and concluded that a formal analysis was not necessary. Specifically, the DHEC staff reviewed and evaluated the equipment, facilities, and processes employed by International Paper's Georgetown Mill; analyzed the various types of control techniques and process changes used or considered by other mills; and considered the environmental impacts of the various milling operations.
11. The DHEC staff was aware that, as described in Stipulation #8, the permit numbers will be changed should the river conditions worsen or if EPA or the State of South Carolina change the effluent limits or water quality criteria during the life of the permit.

 IV. CONCLUSIONS OF LAW

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

1. The Administrative Law Judge Division has subject matter jurisdiction in this action pursuant to S.C. Code Ann.  1-23-600 et. seq. and 1-23-310 et. seq. (1986 and Supp. 1994).
2. S.C. Code Ann.  48-1-50 (1987) authorizes DHEC to take all necessary or appropriate action to secure for South Carolina the benefits of the Federal Water Pollution Control Act, and any other federal and state acts concerning water pollution control.
3. S.C. Code Ann.  48-1-140 (1987) grants DHEC the authority to revise or modify NPDES permits in South Carolina.
4. S.C. Code Ann.  48-1-30 provides the authority for DHEC to promulgate regulations carrying out the provisions of Chapter 1 of Title 48 of the 1976 Code.
5. S.C. Code Ann. Regs. 61-9 (Supp. 1994) were promulgated by DHEC as the applicable regulations governing the NPDES permit program of the State.
6. South Carolina, as a state authorized by EPA to implement the NPDES program, is responsible for issuing permits
for the discharge of any pollutant, or a combination of pollutants, ... upon the condition that such discharge will meet either (A) all applicable requirements under Sections 1311, 1312, 1316, 1317, 1318, and 1343 of this title, or (B) prior to the taking of necessary implementing actions relating to all such requirements, such conditions as the Administrator determines are necessary to carry out the provisions of this chapter.
33 U.S.C.  1342(a)(1).
7. The authority to issue permits on a temporary or case-by-case basis under Section 1342(a)(1)(B) is known as the "best professional judgment" (BPJ) of the permit writer. Natural Resources Defense Council v. United States Environmental Protection Agency, 859 F.2d 156, 200 (D.C. Cir. 1988).
8. For purposes of this hearing, only two types of discharge restrictions were applicable: technology-based limits (Section 1311) and water quality-based limits (Section 1312).
9. The dioxin "end-of-pipe" effluent discharge limit in International Paper's NPDES permit (27 ppq) is a scientific derivation of the human health based in-stream state water quality criteria of 1.2 ppq. As such, the 27 ppq is a water-quality based limitation. See 33 U.S.C.  1312.
10. The 1.2 ppq ambient water quality criteria for dioxin, found at 25 S.C. Code Ann. Regs. 61-68, Appendix 2 (Supp. 1994), was adopted by the South Carolina General Assembly and approved by EPA.
11. The national effluent guidelines for the Pulp and Paper Industry (40 C.F.R. Part 430) contain technology-based discharge limitations (33 U.S.C.  1311) based on BAT, which are potentially applicable to that industry.
12. All provisions of 40 C.F.R. Part 430 that were applicable to the Georgetown Mill were included in the proposed permit.
13. The existing effluent guidelines for the Pulp and Paper Industry do not contain a discharge limitation for dioxin, but EPA is currently evaluating and establishing a national guideline for a dioxin discharge limit. See 58 Fed. Reg. 66078 (Dec. 17, 1993).
14. Because EPA is in the process of developing a national effluent guideline for dioxin discharges from pulp and paper mills and the state has an existing water-quality criteria for dioxin, it is not unreasonable, arbitrary, or capricious for DHEC not to undertake a formal BPJ/BAT analysis in determining the dioxin discharge limitation for this permit. Natural Resources Defense Counsel v. Environmental Protection Agency, 863 F.2d 1420 (9th Cir. 1988).
15. When the national limit for dioxin is promulgated as a final rule, if the limit is less than 27 ppq, then the reopener clause in International Paper's proposed NPDES permit requires that the permit be modified to include the newer, more stringent limitation.
16. The terms of International Paper's proposed NPDES permit are also subject to change if any of the following occur: the State revises its water quality criteria; renewal of the permit upon its current expiration date; or a fish consumption advisory due to dioxin levels is reissued for the Sampit River.
17. DHEC's analysis and establishment of the 27 ppq dioxin discharge limit contained in the proposed NPDES permit is proper and fulfills DHEC's review and issuance of the permit.

IT IS THEREFORE ORDERED that DHEC issue International Paper's NPDES Permit No. SC0000868 as proposed.

AND IT IS SO ORDERED.

STEPHEN P. BATES
ADMINISTRATIVE LAW JUDGE

Columbia, South Carolina
November 17, 1995