SC Administrative Law Court Decisions

This is an appeal of Administrative Order 98-033-W issued by Petitioner South Carolina Department of Health and Environmental Control (DHEC) on May 28, 1998 to Respondent Charleston County School District for violations of the South Carolina Pollution Control Act (S.C. Code Ann. § 48-1-10 et seq. (Rev. 1987 & Supp. 1998)), the Water Pollution Control Regulations (24 S.C. Code Ann. Regs. 61-9 (Supp. 1998)), and NPDES Permit #SC0029386. After notice to the parties, a hearing was conducted on December 1, 1998, in Berkeley County. Based upon the testimony and evidence presented in this case, the administrative order is upheld and the fines are modified. Any issues raised or presented during the proceeding of this matter that are not specifically addressed in this Order are deemed denied. ALJD Rule 29(C).

I make the following Findings of Fact, considering the burden on the parties to establish their respective cases by a preponderance of the evidence and taking into account the credibility of the witnesses:

1. The Respondent owns and is responsible for the proper operation and maintenance of a waste disposal system (WDS) serving the Baptist Hill High School, located in Charleston County, South Carolina.

2. Effective June 1, 1994, the Petitioner reissued NPDES Permit SC0029386 to the Respondent allowing the discharge of treated wastewater from the Baptist Hill High School WDS into a ditch to Lower Toogoodoo Creek.

3. The reissued permit contained both interim effluent limits and a schedule for eliminating or upgrading the WDS to comply with substantially more restrictive final effluent limits. The compliance schedule contained in the permit was as follows:

a. Submit an approvable Preliminary Engineering Report (PER) by September 1, 1994;

b. Submit approvable Plans and Specifications (Plans and Specs) by February 1, 1995;

c. Begin construction by August 1, 1995;

d. Complete construction by August 1, 1996; and

e. Comply with final effluent limits or eliminate discharge by October 1, 1996.

4. Respondent failed to meet the deadline for submitting an approvable PER and Plans and Specs. DHEC issued a Notice of Violation for this deficiency on February 28, 1995. Respondent did not reply in writing to the Notice of Violation but contacted DHEC regarding its plan to eliminate the WDS and tie into the public sewer system being constructed by the Town of Hollywood.

5. Respondent also failed to meet the requirement to begin construction by August 1, 1995. DHEC issued a Notice of Violation for exceeding flow limitations on August 16, 1995. The Notice of Violation also requested an update on the progress of upgrading or eliminating the WDS. Respondent replied by letter dated August 30, 1995, stating that the WDS would be eliminated as soon as the wastewater treatment plant in Hollywood, S.C., was completed.

6. Respondent did not complete construction by August 1, 1996, pursuant to the permit. DHEC issued a Notice of Violation for this deficiency on August 28, 1996. Respondent replied by letter dated September 11, 1996, stating that it would eliminate the discharge upon connection with the wastewater treatment plant in Hollywood, S.C., which connection should take place by the end of 1996.

7. Respondent finally submitted Plans and Specifications for construction of a pump station and force main line to connect to the WDS in Hollywood, S.C., on May 14, 1997. DHEC issued a Permit to Construct on August 11, 1997. Respondent began construction on March 5, 1998.

8. Respondent was issued a permit to connect to the Town of Hollywood's system on June 19, 1998. Thereafter, Respondent's WDS ceased operation.

9. Respondent could not control the construction schedule for the sewage plant in Hollywood, South Carolina. The delays Respondent experienced in complying with the scheduling dates in its permit were due to the delays in Hollywood. Furthermore, fully upgrading the existing facility at Baptist Hill High School to meet the final limits in the permit would have been prohibitively expensive and was indeed not the preferred solution.

10. Based upon the repeated statements by Respondent of its intention to connect to the new system, DHEC knew that Respondent would not be upgrading its system or constructing a new system.

11. Respondent never requested an extension of any relevant deadlines in the schedule of compliance. DHEC never informed Respondent it was required to obtain an extension of the deadlines in the schedule of compliance.

12. Based upon discharge monitoring reports submitted by Respondent to DHEC, Respondent violated the effluent limits in its permit as follows:

a. fecal coliform: May 14-16, 1996;

b. biological oxygen demand: October and December, 1996; January, May,

June, July, August, and November, 1997; and January 1998;

c. total residual chlorine: January and February, 1998; and

d. flow rate: January, June, July, August, October, November, and December, 1997; January and February, 1998.

All of the violations for flow rate and about one-half of the biochemical oxygen demand violations were in excess of the interim effluent limits as well as final effluent limits.

13. DHEC also cited Respondent in the administrative order for violations of its permitted ammonia-nitrogen limits during January, June, and November, 1997, and January, 1998. This citation was in error, and was abandoned by the Department.

14. DHEC performed operation and maintenance inspections of the WDS on November 12, 1996, and April 17, 1998. The facility was rated "unsatisfactory" for failure to properly operate the aeration units as required. Respondent failed to operate these units despite the fact that they were functional.

15. Aeration of the wastewater makes oxygen available to the micro-organisms in the wastewater, and oxygen is a necessary component in the attenuation of wastewater. The practical result of aeration is that it lowers the biochemical oxygen demand of the effluent. Biochemical oxygen demand was one of the parameters for which Respondent had multiple violations. Aeration could have reduced or eliminated these violations.

16. Even though Respondent did not intend to upgrade or construct a new system, Respondent could have initiated small efforts to increase compliance with the final limits, including additional aeration and improved attention to operation and maintenance.

17. Respondent operated the aerators on a sporadic basis. During DHEC inspection, both aerators were not operating.

18. Despite communication with DHEC about wanting to tie into the new public sewer system, Respondent never requested to have the interim effluent limits extended until it connected to the new system.

19. The civil penalty of $17,000 assessed against the Charleston County School District for violations at the Baptist Hill High School wastewater treatment facility was based upon DHEC's Bureau of Water Penalty Assessment Guide (Guide).

20. DHEC determined that Respondent failed to comply with each of the five dates contained in the schedule of compliance established in the NPDES Permit. DHEC considered this a violation of Part I, Section 9 of the Guide, "Failure to . . . comply with an NPDES permit requirement, condition, or term." Penalties are calculated based upon, inter alia, the "Potential for Harm," the "Extent of the Deviation," and whether the violation was a "Level I" or "Level II" violation.

21. Under Part I, Section 9, the "Potential for Harm" would be considered Major if the noncompliance resulted in effluent violations considered Major under Section 7 of the Guide. The effluent violations being reviewed were considered Major pursuant to Section 7 of the Guide. Based upon this determination, the Department considered the violations of the schedule to present a Major "Potential for Harm."

22. In assessing the "Extent of Deviation" under Part I, Section 9, the Guide requires a review of the Respondent's notification of noncompliance and the implementation of necessary corrective actions to rectify the noncompliance. In reviewing the file, the Department determined that Respondent failed to notify the Department of its noncompliance with the permit. Rather, the Department notified Respondent on several occasions of the noncompliance. Additionally, Respondent failed to implement any corrective actions to rectify the noncompliance. Based upon these facts, the "Extent of Deviation" would be considered Major for these violations.

23. The Guide also requires consideration of the number of occurrences in calculating the civil penalty. The determining factor is the facility's history of similar violations during the past three years. According to DHEC, since Respondent had violated each of the five deadlines established by the schedule of compliance, the violations were considered Level II.

24. Once DHEC determined that the violations were Major for "Potential for Harm," Major for "Extent of Deviation", and Level II for number of occurrences (Major/Major/Level II), the Department applied these criteria to the penalty matrix found on page 29 of the Guide. The matrix provides a penalty range of 80-100% of the statutory maximum penalty for violations considered to be Major/Major/Level II. Given the statutory maximum of ten thousand dollars, the penalty range for these criteria is between eight thousand and ten thousand dollars ($8,000-$10,000). DHEC chose to assess a penalty of ten thousand dollars ($10,000) for the violations of the schedule of compliance. The determination to use the upper portion of the range was based upon Respondent's failure to respond to the Department's notification with substantive responses and implement any corrective actions.

25. Respondent failed to comply with the permitted effluent limitations for several parameters, including, biochemical oxygen demand (BOD), fecal coliform, and flow. During a review of the effluent sampling conducted at the wastewater treatment facility by Respondent, it was revealed that BOD was the most significant and reoccurring violation at the wastewater treatment facility during the period of noncompliance with the schedule of compliance. For this reason, DHEC calculated the civil penalty only for the violations of BOD at the wastewater treatment facility during the months of August 1997 through January 1998. DHEC could have considered each occurrence of exceeding each parameter as a separate violation.

26. Part I, Section 7 of the Guide addresses calculation of a civil penalty for an offense of this nature. Penalties are also calculated considering, inter alia, the "Potential for Harm," the "Extent of the Deviation," and whether the violation was a "Level I" or "Level II" violation.

27. To determine if the effluent violations were considered Major for "Potential for Harm", DHEC reviewed the reported values of monitoring results to assess whether or not the values exceeded the permitted limitation by the percentage provided in the Guide. BOD is considered a Group I, or conventional, pollutant, and to be considered Major, the violations must exceed 40% of the permitted limitation. The values reported for August 1997 (2.77 lbs/day), November 1997 (6.16 lbs/day), and January 1998 (19.77 lbs/day) exceeded the permitted limitation by more than 40% and therefore were considered Major for "Potential for Harm."

28. To determine the "Extent of Deviation" in Part I, Section 7 of the Guide, the number of months in which violations of the same parameter were documented during the six month period being reviewed was considered. Since BOD violations were reported on only three of the six months being reviewed, the "Extent of Deviation" was determined to be Moderate.

29. In Part I, Section 7, the Level I or Level II determination includes reviewing the six month period prior to the six month period being used in determining the "Potential for Harm" and "Extent of Deviation." According to the Guide, a violation is considered Level II if it is the second offense within a one year period. In this case, there were additional violations for BOD during the previous year; thus the violations were considered Level II.

30. Violations of BOD occurred regardless of whether the interim or final limits were applied.

31. Applying these criteria (Major/Moderate/Level II) to the penalty matrix results in a penalty range of 60-70% of the statutory maximum. Using the statutory maximum of ten thousand dollars, the penalty range for these criteria is between six thousand and seven thousand dollars ($6,000-$7,000). The Department assessed a penalty of seven thousand dollars ($7,000) for the violations of the permitted effluent limitations. The upper portion of the range was used in the assessment of the penalty based upon the failure of Respondent to implement any corrective actions or to mitigate the violations and failure to properly operate and maintain the existing equipment as documented during Department inspections.

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

1. The Administrative Law Judge Division has jurisdiction over the issuance of administrative orders pursuant to S.C. Code Ann. § 1-23-600(B) (Supp. 1998).

2. The standard of proof in administrative proceedings is a preponderance of the evidence. Anonymous v. State Board of Medical Examiners, 329 S.C. 371, 496 S.E.2d 17 (1998); 25 S.C. Code Ann. Regs. 61-72.702(B) (Supp. 1998).

3. DHEC has the authority to issue permits for point source discharges of effluent (NPDES permits) pursuant to the South Carolina Pollution Control Act (S.C. Code Ann. § 48-1-10 et seq. (Rev. 1987 & Supp. 1998)), and the Water Pollution Control Regulations drafted pursuant thereto (24 S.C. Code Ann. Regs. 61-9 (Supp. 1998)).

4. S.C. Code Ann. § 48-1-50 (Rev. 1987) authorizes DHEC to make orders and to administer penalties for violation of the Pollution Control Act.

5. S.C. Code Ann. § 48-1-110(d) (Supp. 1998) provides that it shall be unlawful for any person to operate an approved waste disposal facility in violation of the conditions of the permit to discharge.

6. S.C. Code Ann. § 48-1-90 (Rev. 1987) provides that it shall be unlawful for any person, directly or indirectly, to discharge into the environment of the State organic or inorganic matter, except as in compliance with a permit issued by DHEC.

7. S.C. Code Ann. § 48-1-330 (Rev. 1987) imposes a civil penalty not to exceed $10,000 per day of violation.

8. The burden of proof is on DHEC to demonstrate that Respondent violated the South Carolina Pollution Control Act and the Water Pollution Control regulations. See 2 Am.Jur.2d Administrative Law § 360 (1994) (generally, the burden of proof is on the party asserting the affirmative in an adjudicatory administrative proceeding); Converse Power Corp. v. South Carolina Dep't of Health and Envt'l Control, 98-ALJ-07-0032-CC (June 15, 1998).

9. 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. and 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's demeanor and veracity and evaluate his testimony. See, e.g., McAlister v. Patterson, 278 S.C. 481, 299 S.E.2d 322 (1982).

10. Section 48-1-330 does not require a showing of harm to the environment as a prerequisite to liability. Midlands Utility, Inc. v. South Carolina Department of Health and Environmental Control, 298 S.C. 66, 378 S.E.2d 256 (1989). Where the potential for harm exists, the imposition of a penalty is necessary to deter future violations. See Midlands Utility, Inc. v. South Carolina Department of Health and Environmental Control, 313 S.C. 210, 437 S.E.2d 120 (1993).

11. Each fine must be analyzed individually to determine if it is appropriate under the circumstances. Midlands Utility, Inc. v. South Carolina Department of Health and Environmental Control, 313 S.C. 210, 437 S.E.2d 120 (1993). In assessing a penalty, the fact finder "should give effect to the major purpose of a civil penalty -- deterrence." Id.

12. Respondent is in violation of S.C. Code Ann. § 48-1-110 (Supp. 1998) and S.C. Code Ann. Regs. 61-9.122.41(a) (Supp. 1998) for failure to comply with the compliance schedule and permitted effluent limitations in NPDES Permit #SC0029386.

13. Respondent is in violation of S.C. Code Ann. Regs. 61-9.122.41(e) (Supp. 1998) for failure to properly operate and maintain its WDS in accordance with NPDES Permit #SC0029386 and the Water Pollution Control Regulations.

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

15. Acting as the fact-finder, it is the prerogative of the administrative law judge "to impose the appropriate penalty based on the facts presented." Walker v. South Carolina ABC Comm'n, 305 S.C. 209, 211 S.E.2d 633, 634 (1991).

16. Under the circumstances of this case, it is unfair to impose a fine on Respondent for violations of the scheduling provisions of the permit. Respondent, a public entity, made a cost-conscious decision to connect to the public sewer system being constructed by the Town of Hollywood. DHEC was informed that Respondent intended to connect to Hollywood's system upon its completion, and yet DHEC never informed Respondent that it needed to request an extension of time to comply with the scheduling provisions in its NPDES permit. Further, Respondent had no control over the construction schedule for the sewage plant in Hollywood. Therefore, it is inappropriate to assess a fine against Respondent for violations of the scheduling provisions. Cf . Midlands Utility, Inc. v. South Carolina Department of Health and Environmental Control, 313 S.C. 210, 437 S.E.2d 120 (1993) (because a third party was the primary cause of certain unlawful discharges, the circuit court abused its discretion by assessing fine against Midlands for those discharges); Babcock Center, Inc. v. Office of Audits, 286 S.C. 398, 334 S.E.2d 112 (1985) (it was patently unfair and arbitrary for DSS, without notice, to impose upon appellant a method of cost allocation new and different from the one which was implicitly approved in an audit four years earlier).

17. DHEC's Penalty Assessment Guide need not be adopted as a regulation. Although the Guide is an internal document, it is appropriate for use by DHEC staff in exercising discretion as to the amount of fine to impose under the unique circumstances of each case. See S.C. Code Ann. § 48-1-50(11) (Rev. 1987); see also Midlands Utility, Inc. v. South Carolina Department of Health and Environmental Control, 313 S.C. 210, 437 S.E.2d 120 (1993) (each fine must be analyzed individually to determine if it is appropriate under the circumstances).

18. The penalty for the effluent violations calculated by DHEC pursuant to the Penalty Assessment Guide is proper. Therefore, Respondent is fined $7000.

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby

ORDERED that the Administrative Order 98-033-W issued by the Department to Respondent was properly issued. However, the penalty assessed for failure to comply with the scheduling provisions is vacated because DHEC had notice that Respondent intended to connect to the public sewer system and DHEC failed to notify Respondent that an extension of the schedule of compliance was required to comply with the Permit. The Respondent is fined $7000 for violation of the effluent limits contained in the permit.

AND IT IS SO ORDERED.

Alison Renee Lee

Administrative Law Judge

February 9, 1999

Columbia, South Carolina.