SC Administrative Law Court Decisions

This contested case arises from the decision of the South Carolina Department of Health and Environmental Control (DHEC or Department) to grant an air permit to York Asphalt Services, Inc., (York Asphalt) to construct a Hot Mix Asphalt Manufacturing Facility in McConnells, York County, South Carolina. DHEC issued construction permit number 99-00-0300-CA for the construction of the facility at 150 Cemetery Street in McConnells, South Carolina, on April 15, 1998. Petitioners are property owners in the vicinity of the proposed facility who seek denial of the permit. A hearing was held on November 13, 1998, at the Administrative Law Judge Division.

Having observed the witnesses and exhibits presented at the hearing and closely passed upon their credibility, taking into consideration the burden of persuasion by the Parties, I make the following Findings of Fact by a preponderance of evidence:

1. York Asphalt filed an application for an air permit to construct a Hot Mix Asphalt Manufacturing Facility in McConnells, York County, South Carolina. DHEC issued construction permit number 99-00-0300-CA for the construction of the facility at 150 Cemetery Street in McConnells, South Carolina, on April 15, 1998. The permit incorporated DHEC Regulation 61-62.1, Section 2, Paragraph C and the Code of Federal Regulations, Title 40, Part 60, Subpart A. The permit requires that the asphalt manufacturing facility operate such that it would not interfere with the maintenance of State and Federal Standards. The permit further requires that any changes in the parameters used in air dispersion modeling may require review by the facility to determine continuing compliance with the standards.

2. The site of the proposed asphalt manufacturing facility is in a rural area. Located next to the facility is a public solid waste disposal facility and a dairy farm. The driveway leading to the asphalt manufacturing facility is between a church cemetery and woods. The cemetery and waste disposal facility are immediately adjacent to the asphalt plant site. Near the proposed asphalt plant is the Olivet Church, several houses, and a recreation center. The town recreation center, which is located directly across the road from the asphalt plant site, conducts a variety of recreational activities for the public, including Little League baseball games and cookouts at the picnic shelter.

3. Though the York Asphalt Plant is not currently operating, the facility has already been constructed at the proposed site. The proposed facility will employ a mixer-dryer for the purpose of mixing hot liquid asphalt with aggregate. The hot mixed asphalt is carried from the mixer-dryer by conveyor to a load-out hopper from which it is discharged into the open bed of a customer's dump truck.

4. The facility will burn Number 2 fuel oil. As a result, the plant will emit certain criteria

pollutants, including particulate matter (PM), sulfur dioxide (SO₂), oxides of nitrogen (NO_x), and carbon monoxide (CO). However, the York Asphalt Plant is an Astec design and is constructed in the same fashion and using the same configuration as other asphalt manufacturing facilities. The bag house is a state-of-the-art emission control. Moreover, the stack emissions from the plant are projected to produce pollutant levels at the plant boundary which meet all pertinent regulatory requirements.

5. York Asphalt contends that it will utilize standard industry practices to reduce and control fugitive emissions, such as wetting down the driveways and keeping the bag house and covers on the conveyors properly maintained. Furthermore, DHEC requires the owner/operator of an asphalt manufacturing facility to prepare a Pollution Prevention Plan which addresses proper monitoring and operation of the source or any air pollution control devices within 180 days of the "start-up" of the facility.

6. DHEC did not submit an independent air dispersion model. However, Trigon Engineering performed an air modeling analysis on behalf of York Asphalt which took into consideration local atmospheric conditions. The air modeling analysis is used to determine, based upon emissions from the facility, what the ambient air concentrations from certain pollutants are going to be for those who are in the vicinity of the facility and at the property line of the facility and beyond. Trigon's air modeling analysis demonstrates that emissions from the facility's three stacks⁽¹⁾ will comply with the National Ambient Air Quality Standards at the facility property line and beyond. Those national standards are health-based standards. DHEC submits that so long as the National Ambient Air Quality Standards for stack emissions are met at the fence line, the facility meets DHEC requirements for permitting even if a restaurant or hospital with patients having severe allergies and respiratory problems were located at the property line.

Fugitive Emissions

7. The asphalt plant will emit fugitive particulates and volatile organic compounds (VOC's). Asphalt plants such as this facility include a number of fugitive emissions sources. The Astec diagram of this facility identifies emissions points as "ducted emissions," "processed fugitive" emissions, "open dust" emissions, "emissions points," "emissions sources," and "control device." The main sources of processed fugitive emissions at this facility will be the point at which the hot asphalt mix is loaded onto the conveyor, the point at which the mix is discharged from the conveyor into the feed hopper and the point where the hot mix is dumped into the truck beds.

Fugitive emissions will distinctly result from loading the asphalt into the truck beds. A blue haze is often produced at the load-out area that consists of both particulates and a form of volatilized organic compounds of very fine particle size. These fugitive emissions could be transported by the air. The polynuclear aromatics would include such coal tar constituents as crysene, benzoate pyrene and flourenthene. Therefore, asphaltic type odors upon the property of the neighboring landowners will likely result from the fugitive emissions at the load-out area.

There had been only minimal attempts to contain fugitive emissions at the conveyor discharge to the silo and at the asphalt load-out area. Diagrams of other asphalt facilities show the use of large plastic flaps over the area where the asphalt is dumped into the truck beds to control the fugitive emissions. Nothing in the permit application here indicated attempts to control the fugitive emissions at any of these identified points. The evidence demonstrates that the emissions of fugitive particulate matter from the load-out area will not be controlled in such a manner and to a degree that it will not create an undesirable amount of air pollution. A shroud as explained in the hearing testimony would greatly decrease the probability of particulate emissions escaping from the load-out area without creating any apparent burdensome expense upon York Asphalt.

8. The conveyor device includes a number of holes which are axle or pivot points for the conveyor system. Several of these pivot points exhibit black discoloration. These points were not included by the Astec flow diagram as sources of process fugitive emissions. However, the discolorations on the conveyor device may be attributable to several possibilities, including processed fugitive emissions or simply oil leaking from the pivot points.

9. The facility roads on which the dump trucks will travel are unpaved. The Astec plant schematic identifies the base of these dump trucks as sources of open dust emissions. During the drier months there will be dust emissions from trucks moving over the unpaved roads as well as from every place where the aggregate is moved, conveyed and dropped. While the use of water spray trucks is expected of all companies operating asphalt manufacturing facilities to control dust from trucks running on the facility roads, nothing in the permit or conditions "specifically" requires or even addresses fugitive dust control. DHEC expects that the Pollution Prevention Plan required by the permit condition to be submitted by the permittee within 180 days of the date of "start-up" will address the issues and that failure to propose a plan which provides for adequate dust control might subject the permittee to DHEC enforcement action. However, I find that a specific requirement for dust control is warranted in this permit.

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

1. The Administrative Law Judge Division has subject matter jurisdiction over the issuance of environmental permits pursuant to S.C. Code § 1-23-600(B)(Rev. 1986 and Supp. 1998) and S.C. Code Ann. § 48-1-50 (Rev. 1987 and Supp. 1998).

2. The standard of proof in weighing the evidence and making a decision on the merits at a contested case hearing is a preponderance of evidence. National Health Corp. v. South Carolina Department of Health and Environmental Control, 298 S.C. 373, 380 S.E.2d 841 (Ct. App. 1989).

3. DHEC administers the Pollution Control Act and its implementing regulations. S.C. Code Ann. §§ 48-1-10 et seq.

4. Regulations authorized by the legislature have the force of law. Norton v. Opening Break of Aiken, Inc., 319 S.C. 469, 462 S.E.2d 861 (1995).

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

6. Upon the completion of Petitioners' case in chief, counsel for Respondent DHEC made a Motion for Directed Verdict, which was joined by counsel for Respondent York Asphalt. I granted the motion. Upon consideration of the matter, I have concluded the more appropriate action is to issue an Order for Involuntary Nonsuit. Consequently, I considered the Motion for Directed Verdict as one for Involuntary Nonsuit.

Petitioners had the burden of proving the insufficiency of DHEC's determination with regard to the permit by a preponderance of the evidence. National Health Corp., supra. I conclude as a matter of law that the Petitioners presented no justiciable facts relating to this permit at the contested case hearing. Since Petitioners did not carry their burden of offering competent evidence relating to permit number 46-98-04-02, including the lack of any expert testimony contradicting the adequacy of DHEC's evaluation and/or treatment of these issues, Petitioners failed to sustain their burden of proof as a matter of law. Therefore, I grant Respondent's Motion for Involuntary Nonsuit on Docket No. 98-ALJ-07-0374-CC.

7. Pursuant to the Federal Clean Air Act, federal regulations were promulgated controlling certain criteria pollutants, including particulate matter (PM), sulfur dioxide (SO₂), oxides of nitrogen (NO_x), and carbon monoxide (CO), and to prevent significant deterioration in areas in attainment of the National Ambient Air Quality Standards (NAAQS). See 42 U.S.C. § 7409; 42 U.S.C. §§ 7470 et seq.; 40 C.F.R. § 50. Responsibility for achieving and maintaining the NAAQS falls to the States, which are required to submit State Implementation Plans (SIPs) specifying the manner in which they will achieve, maintain, and enforce the NAAQS for the various criteria pollutants. See 42 U.S.C. §§ 7407, 7410(a)(1). The primary NAAQS are health-based standards. 42 U.S.C. § 7409(b)(1). These health-based standards are designed to protect not only healthy adults, but more vulnerable individuals. 42 U.S.C. § 7408(a)(2). See American Lung Association v. Environmental Protection Agency, 134 F.3d 388, 389 (D.C. Cir. 1998); Lead Industries Ass'n, Inc. v. EPA, 647 F.2d 1130, 1155 (D.C.Cir. 1980). The EPA is required to promulgate national standards that limit emissions sufficiently to establish that margin of safety. See

42 U.S.C. § 7409(b)(1); American Petroleum Inst. v. Costle, 665 F.2d 1176, 1181-82 (D.C.Cir. 1981). The selection of any particular approach to providing an adequate margin of safety is a policy choice left specifically to the EPA Administrator's judgment. Lead Industries Association v. EPA, 647 F.2d 1130 (D.C. Cir. 1980), cert. denied, 101 S. Ct. 621.

8. DHEC is principally charged with assuring the health and welfare of the public by controlling air and water pollution. The South Carolina Pollution Control Act gives DHEC the power to "[t]ake all action necessary or appropriate to secure to this State the benefits of the Federal Water Pollution Control Act or the Federal Air Quality Act and any and all other Federal and State acts concerning air and water pollution control." S.C. Code Ann. § 48-1-50(17) (1987). Specifically, S.C. Code Ann. § 48-1-100 (Supp.1998) provides that a person who seeks to operate an industry that releases "air contaminants, into the waters or ambient air of the State, first shall make an application to the Department for a permit to construct and a permit to discharge from the outlet or source." To that end, DHEC promulgated ambient air quality standards for the criteria pollutants that are identical to the federal NAAQS. 24A S.C. Code Ann. Regs. 61-62.5, Std. 2 (Supp. 1998). These regulations set forth concentrations of these pollutants that may be emitted into the ambient air. No facility may emit pollutants into the air in excess of these concentrations.

Therefore, the issuance of permits to construct and operate a hot mix asphalt manufacturing plant is governed by the South Carolina Pollution Control Act, S.C. Code Sections 48-1-10, et seq. Specifically, issuance of a permit to construct and operate an asphalt plant is governed by S.C. Code Ann. Regs. 61-62.5 (Supp. 1998), Standard 1 (Emissions from Fuel Burning Operations), Standard 2 (Ambient Air Quality Standards), and Standard 4 (Emissions from Process Industries). Additionally, S.C. Code Ann. Regs. 61-62.6 (Supp. 1998) provides the standards for control of "fugitive particulate matter."

9. Regulation 61-62.5, Standard 4(B), provides as follows:

All hot mix asphalt plants shall be equipped with a fugitive dust and/or fugitive emissions control system which shall be operated and maintained in such a manner as to reduce to a minimum the emissions of particulate matter from any point other than the stack outlet.

10. S.C. Code Ann. Regs. 61-62.6 at Section III provides, in part:

(A) Emissions of fugitive particulate matter shall be controlled in such a manner and to the degree that it does not create an undesirable level of air pollution.

(C) No source/plant shall use any method of materials handling which will generate fugitive particulate matter that is not fully described in

the permit application.

11. The plant will also burn fuel oil, and thus, as a fuel burning operation, is subject to regulation by DHEC. South Carolina has promulgated regulations governing emissions for fuel burning operations. 24A S.C. Code Ann. Regs. 61-62.5, Std. 1 (Supp. 1998). These regulations establish limits for the maximum allowable discharge of, among other pollutants, PM and SO₂. The facility will not emit pollutants into the air in excess of the concentrations established in Regulation 61-62.5, Standard 1.

12. This Court's consideration of Petitioners' opposition to the issuance of the permit is limited to issues of environmental and health protection and pollution control. However, under certain conditions, "nuisance factors" such as odors may, in and of themselves, constitute a threat to the health and welfare of the public and, in particular, neighboring residents.⁽²⁾ Moreover, the Department is no less responsible under the Pollution Control Act for regulating and controlling the operation of the York Asphalt Plant and the resulting discharges of air contaminants into the environment, including odors, than for regulating any other pollutants which are injurious to human health, welfare and the environment. The Department acknowledges its responsibility by addressing these impacts in its permitting regulations as well as in the conditions it included and incorporated into this permit. In fact, the Department has broad powers relating to the protection of the environment and the health and welfare of the citizens of South Carolina, and, in accordance with those powers, may "take action to abate, control and prevent pollution of the air and water resources of this State consistent with the public health, safety and welfare of its citizens." S.C. Dep't of Health and Envtl. Control v. Armstrong, 293 S.C. 209, 359 S.E.2d 302, 305 (Ct. App. 1987). Such action may include the issuance, denial, revocation, suspension, or modification of permits under such conditions as the Department may prescribe for the discharge of waste into the environment or for the installation or operation of disposal systems. See S.C. Code Ann. § 48-1-50(5) (1987). Therefore, the Department has the duty to consider nuisance impacts resulting from the operation of the facility being permitted, and to impose sufficient conditions in the permit to prevent harm to the environment or to the health and welfare of nearby residents. In addition, should threats to the environment, public health or welfare arise from the operation of the facility, DHEC has the duty and authority to inspect the facility and to require immediate abatement of such threats. See S.C. Code Ann. § 44-1-140 (1976).

13. Land use decisions are primarily the responsibility of zoning authorities who exercise wide discretion in decision making. See Bear Enterprises v. County of Greenville, 319 S.C. 137, 459 S.E.2d 883 (Ct. App. 1995); Rushing v. City of Greenville, 265 S.C. 285, 217 S.E.2d 797 (1975).

Based upon the Findings of Fact and Conclusions of Law, it is hereby ORDERED that:

Permit number 99-00-0300-CA and 46-98-04-02 be issued, with the additional conditions as set forth below:

1. In accordance with 24A S.C. Code Ann. Regs. 61-62.5, Standard 4(B), the owner/operator of this facility shall implement a fugitive dust control system to minimize fugitive dust emissions resulting from normal operations, including, but not limited to, the use of water spray trucks to control dust from trucks traveling over the facility's roads. A plan for dust control which includes the use of water spray trucks and which is satisfactory to DHEC must be included in the Pollution Prevention Plan which is to be submitted within 180 days of start-up.

2. In accordance with 24A S.C. Code Ann. Regs. 61-62.5, Standard 4(B), the owner/operator of this facility shall place a fugitive emissions control system, such as a shroud or flaps made of plastic or a similar material, at the following points depicted as "P.F." (Process Fugitive Emissions) on the Astec Industries, Inc., Flow Diagram (Petitioners' Exhibit 11):

a. The point at which the hot asphalt mix is loaded onto the conveyor;

b. The point at which the mix is discharged from the conveyor into the feed hopper; and

c. The point at which the mix is discharged into the truck beds.

AND IT IS SO ORDERED.

__________________________________

Ralph King Anderson, III

Administrative Law Judge

March 17, 1999

Columbia, South Carolina

1. Stack 1 is the baghouse for the mixer-dryer; stack 2 is the hot oil heater; and stack 3 is the lime silo.

2. For instance, S.C. Code Ann. Regs.61-46 (3) (Supp. 1998) generally provides that "[a]ny . . . industry shall at all times be properly policed and staffed so as to maintain a safe, sanitary, and tidy condition. Any such building, business, or industry shall at all times be properly ventilated, free from dust, vapors, and gases that might be detrimental to the public health; and free from obnoxious odors that are objectionable to the esthetic senses." (Emphasis added).