ORDERS:
FINAL ORDER
On
February 25, 2008, the parties filed a Consent Order of Settlement of this
matter. Pursuant to that agreement, it is hereby
ORDERED that this matter is DISMISSED.
IT
IS SO ORDERED.
______________________________________
PAIGE J. GOSSETT
Administrative Law Judge
February 25, 2008
Columbia, South Carolina
STATE OF SOUTH
CAROLINA
ADMINISTRATIVE
LAW COURT
Town of Lyman,
Petitioner,
vs.
South Carolina Department of Health and Environmental
Control,
Respondent. |
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Docket No. 07-ALJ-07-0081-CC
CONSENT ORDER OF
SETTLEMENT |
This
matter is before the Court on Petitioner Town of Lyman’s (“Lyman”) or (“Petitioner”)
request for a contested case hearing filed on February 23, 2007. Petitioner
sought review of various proposed limits, terms, and conditions in the
re-issued NPDES Permit No. SC 0021300 to Lyman by the South Carolina Department
of Health and Environmental Control (“Department”).
Prior
to a hearing on the merits scheduled to begin on September 4, 2007, the Parties
reached a settlement of the issues on August 31, 2007. The Agreement between
the parties required the approval of the Region IV of the United States
Environmental Protection Agency, and the Department has notified the Petitioner
that such approval has now been obtained by the Department. The terms and
conditions of the Agreement are incorporated into this Order and the provisions
related to the specific NPDES Permit Limits for Permit No. SC0021300 are as follows:
1.
Calculation of 7Q10 and Allocation to Town of Lyman. In previous
NPDES Permits for the Town of Lyman (SC0021300), the wasteload calculations and
other discharge parameters have been based upon a low flow condition in the
Middle Tyger River of 7.15 cfs. This amount was calculated by using the 7Q10
at USGS Station 02157500 of 18 cfs minus a withdrawal of 7.0 MGD (10.85 cfs) by
SJWD Water District or its predecessor owner of the water treatment plant. A
review of the 2004 through 2006 Water Production Logs of the SJWD Water
Treatment Facility indicate an average pumping of raw water of 7.99 MGD for
June 2006, 7.32 for July 2006, and 7.79 MGD for August 2006. These three
months represent the highest three months of raw water pumping for the entire
year of 2006 and for the three year period of 2004 through 2006 when the only
source of supply was the Middle Tyger River. Based upon this data, the
allocable 7Q10 for purposes of calculating limits for the Town of Lyman NPDES Permit
will be the 7Q10 at USGS Station 02157500 of 18 cfs minus a withdrawal of 8.0
MGD (12.4 cfs) for the SJWD facility or a total of 5.6 cfs plus 0.39 cfs for
the basin area between the USGS station 02157500 and the Town of Lyman
wastewater discharge into the Middle Tyger River, for a total flow in the
Middle Tyger at the Town of Lyman discharge point of 5.99 cfs. The Town of
Lyman is accepting this critical condition flow number for purposes of
settlement of the contested provisions of the renewal NPDES Permit No.
SC0021300 issued by DHEC on November 15, 2006.
2.
Utilization of Permit Limits. The NPDES permit limits will
be based upon limits calculated at 4.5 MGD and 6.0 MGD design flows, provided
however that flow as a limit will be replaced with monitor and report. In
addition, interim limits will be based upon a design flow of 4.5 MGD.
3.
Metals Limits. The limits described in Paragraph 2 above
include limits for metals. The previous permit included limits for total
copper and total lead. This permit as drafted presently includes limits for
the additional metals of antimony, total cadmium, total mercury, nickel, total
silver, and total zinc. The reasonable potential analysis for all additional metals
was based upon sampling data that included three data points for each metal
submitted by the Town with its application for permit renewal. In order for
the Town of Lyman to evaluate compliance with the metals limits, DHEC will
consider and incorporate results (where justified) from any of the following
requests made by the Town for adjustment of the metal limits via the normal
NPDES modification process per R. 61-9.122.62:
(a) Evaluation of additional hardness data of the effluent
with calculation of a mixed hardness for purposes of metals limit calculations.
(b) Evaluation of additional data points for each of the
additional metals in evaluating both the reasonable potential for the necessity
of a limit and calculation of the limit, if necessary. This evaluation could
result in a change or elimination for some or all of the additional metals.
(c) Determination of metal limits based upon a water
effects ratio study for certain selected metals.
(d) Any other methodology or evaluation that may be
selected by the Town of Lyman consistent with DHEC’s NPDES Permit regulations
and the Water Quality Classification Standards.
DHEC agrees that
a revision to a limit that has not been in effect does not trigger an antibacksliding
review.
4.
Whole Effluent Toxicity (WET) Limit. The Town of Lyman is
presently involved with compliance with an Administrative Order, Docket No.
CWA-04-2006-4798, issued by the United States Environmental Protection Agency,
Region IV on July 26, 2006, regarding WET limit violations of the 2001 NPDES
Permit. This Order requires the Town to conduct various tests under a Toxicity
Reduction Evaluation (TRE), conduct other toxicity tests, and to make various
reports to EPA. The schedule for completion of the TRE and other tests is anticipated
to be June 30, 2008, based upon a request to EPA for an extension to the
originally scheduled date which is expected to be approved. As part of
compliance with the EPA Administrative Order, the Town may seek to utilize an
alternative test species, Daphnia ambigua, in place of Ceriodaphnia
dubia. DHEC will modify where appropriate the permit to allow for the WET
test to be conducted utilizing the alternative test organism for WET testing and
any other test modifications where justified. The permittee must request a
modification to the NPDES Permit per R.61-9.122.62.
5.
Schedule of Compliance. In order for the Town of Lyman to
fully evaluate the metals limits issues described herein, to implement metal
limits as appropriate in the pretreatment programs, and to conduct the
headworks analysis as required by the permit, DHEC and the Town agree to the
following schedule of compliance:
(a) Submit
an administrative and technically complete preliminary engineering report (PER)
for facility upgrade within one (1) year of the effective date of the permit or
if the facility can meet the final limits without an upgrade, submit a written request
by the due date of the PER to place the final limits into effect.
(b) Submit
a construction permit application for facility upgrade seven (7) months after
submission of the PER.
(c) Start
construction for facility upgrade six (6) months after submission of the construction
permit application.
(d) Complete construction within one (1) year of the start
of construction.
(e) Comply
with the final effluent limits within four (4) months of completion of construction.
(f) The Pretreatment Works Update will be concluded by July
1, 2008.
The Town
reserves the right to request modifications to the schedule of compliance as circumstances
may require and where justified per R.61-9.122.62.
6.
No Waiver of Right to Contest NPDES Permit Parameters or Limits. By entering into this settlement agreement, the Town does not waive its
right to contest any parameter or limit that may be included in future NPDES
Permit renewals regardless of whether that parameter or limit was contested or
could have been contested with respect to the presently contested NPDES Permit.
I
find this Agreement to be fair and equitable, approve such settlement, and
hereby ORDER its adoption. This Court retains continuing jurisdiction to
enforce this Order.
AND IT IS SO
ORDERED.
_________________________________
The Honorable Paige J. Gossett
Administrative Law Judge
March 17, 2008
Columbia, South Carolina
WE
CONSENT:
________________________________
W. Thomas
Lavender, Jr.
Leon C. Harmon
Joan W. Hartley
NEXSEN PRUET,
LLC
Post Office Drawer
2426
Columbia, South
Carolina 29202-2426
(803) 771-8900
Attorneys for
Petitioner Town of Lyman
_________________________________
Stephen P.
Hightower
Office of
General Counsel
South Carolina
Department of Health
and
Environmental Control
2600 Bull Street
Columbia, South
Carolina 29201
Attorney for
Respondent South Carolina Department of Health
and Environmental
Control
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