SC Administrative Law Court Decisions

STATEMENT OF THE CASE

These contested cases, which were consolidated for hearing by Order of this Court on June 26, 2006, challenge the re-issuance of National Pollutant Discharge Elimination System (“NPDES”) permits for two publicly owned treatment plants (“treatment plants”) located in Charleston County, South Carolina.[2] One permit was issued to Isle of Palms Water and Sewer Commission (“IOP”) and the other was issued to the Town of Sullivan’s Island (“Sullivan’s Island”). IOP owns and operates the Forest Trails wastewater treatment plant that discharges treated effluent into the Atlantic Intracoastal Waterway. This discharge is authorized under NPDES Permit No. SC0025283 (“IOP NPDES Permit”). Sullivan’s Island operates a wastewater treatment plant that discharges into Cove Creek, a tributary of the intracoastal waterway. This discharge is authorized under NPDES Permit No. SC0020052 (“Sullivans Island NPDES Permit”)

ISSUES

1) Whether DHEC has the authority to impose monthly and weekly discharge limitations for flow of .30 Million Gallons per Day (“MGD”) included in the IOP NPDES permit and .57 MGD included in the Sullivans Island NPDES permit?

2) Whether DHEC properly applied/calculated permit limits for fecal coliform of 43/100 ml daily maximum included in the IOP NPDES permit?

3) Whether DHEC properly included limits for fecal coliform in the Sullivans Island NPDES permit based on a waterbody classification of shellfish harvesting (“SFH”) when Cove Creek and the Intracoastal Waterway into which it discharges are not designated SFH?

DISCUSSION

The Town of Sullivans Island operates a wastewater collection, treatment and disposal system serving the residents of the town. The Sullivans Island NPDES Permit grants the town permission to discharge treated wastewater into Cove Creek, which discharges into the Atlantic Intracoastal Waterway. However, the permit limits the amount of flow to .57 Million Gallons per Day (“MGD”).

IOP owns and operates the Forest Trails wastewater treatment plant that discharges treated effluent into the Intracoastal Waterway. This discharge is authorized by the IOP NPDES Permit which includes a flow restriction of .30 MGD.

DHEC asserts that it imposed flow limits in both permits to prevent water quality problems. Sullivans Island and IOP (collectively referred to as “Petitioners”) maintain that DHEC lacks statutory and regulatory authority to include flow limits in NPDES permits for surface water discharges. Moreover, they argue that even if DHEC has the authority to impose flow limits, the limits are not necessary to protect the water quality.

In arguing that it has the authority to impose flow limits in NPDES permits, DHEC relies on S.C. Code Secs. 48-1-50(5), and 48-1-100(A).

Sec. 48-1-50(5) gives DHEC the power to:

issue, deny, revoke, suspend or modify permits, under such conditions as it may prescribe for the discharge of sewage, industrial waste or other waste or air contaminants or for the installation or operation of disposal systems or sources or parts thereof; provided, however, that no permit shall be revoked without first providing an opportunity for a hearing.

Sec. 48-1-100(A) authorizes DHEC to issue permits for construction of a “new outlet or source” and for discharges of sewage, industrial wastes, and other wastes, from the “new outlet or source” and states that:

a person affected by the provisions of this chapter or the rules and regulations adopted by the department desiring to make a new outlet or source, or to increase the quantity of discharge from existing outlets or sources, for the discharge of sewage, industrial waste or other wastes, or the effluent therefrom, or 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. If, after appropriate public comment procedures, as defined by department regulations, the department finds that the discharge from the proposed outlet or source will not be in contravention of provisions of this chapter, a permit to construct and a permit to discharge must be issued to the applicant. The department, if sufficient hydrologic and environmental information is not available for it to make a determination of the effect of the discharge, may require the person proposing to make the discharge to conduct studies that will enable the department to determine that its quality standards will not be violated.

Although these statutes authorize DHEC to regulate discharges into the environment by requiring permits, they are general in nature. In implementing its powers and duties under the aforementioned statutes, DHEC has promulgated regulations governing every effluent limitation and condition in Petitioners’ permit, except for flow.

While one may argue that Sec. 48-1-20 vests DHEC with the “authority to abate, control and prevent pollution,” flow is not identified as a pollutant in S. C. Code Reg. 61-9 or in S. C. Code Reg. 61-8. S. C. Code Reg. 61-9 provides extensive detail as to how permit limits are determined for each pollutant. S. C. Code Reg. 61-68 identifies over 120 pollutants and establishes numeric standards for each. In this vast body of regulation, flow limits are only given one reference. That reference can be found in S. C. Code Reg. 61-9 505.42(D)(1)(v),which states that “the overland flow design application period shall not exceed 12 hours per day for each terrace or slope or portion thereof” and that “the NPDES or land application permit issued for the overland flow facility shall provide specific discharge flow limits or application rates.” Because it is apparent from the statutes that flow is not a pollutant and that DHEC was never given specific authority to regulate flow limits in NPDES permits, the flow limits in the IOP NPDES permit and Sullivans Island NPDES permit must be removed.

DHEC’s decision to impose flow limits is also unsupported by case law. The Administrative Law Court has found that DHEC lacks authority to impose flow limits and that flow limits are unnecessary for facilities indistinguishable from the Petitioners’ facilities. On appeal, the Court of Appeals, in Commissioners of Public Works et al. v. SCDHEC, 372 S.C. 351, 641S.E.2d 763 (2007), determined that the issue of flow limits was moot, because the DHEC Board had agreed with the Administrative Law Court that the flow limits were unnecessary and ordered them removed from the Respondents’ permits. Although the Court found the issue moot, it nevertheless addressed DHEC’s lack of authority,:

Our decision not to address this issue [flow authority] is further supported by the uncertain circumstances surrounding it. If DHEC has the authority to impose flow limits in NPDES permits, as it contends, DHEC has done nothing required to promulgate this authority into a regulation. (Supra, fn 7)

The Court based its determination on S. C. Code Sec. 48-1-30, which states that:

The Department shall promulgate regulations to implement this chapter [The Pollution Control Act].

The Legislature has specifically addressed the issue of promulgation of regulations for water quality standards in S.C. Code Sec. 48-1-40 which states that:

The Department, shall adopt standards and determine what qualities and properties of water and air shall indicate a polluted condition and these standards shall be promulgated and made a part of the rules and regulations of the Department…

The Courts of this state as well as the legislature have made it clear that DHEC does not have the authority to impose flow limits in absence of some regulation.

Even if DHEC had the authority to impose such limits, the limits are not necessary to protect the water quality. The testimony of Petitioners’ expert, Robert Gross, as well as the Discharge Monitoring Reports reflecting pollutant concentrations during high flows demonstrate that there is no correlation between flow and Petitioners’ ability to comply with the mass and concentration of allowable pollutants in its discharge. Although DHEC’s expert, Jeff deBessonet, testified that “Excess flows would typically result in problems with the treatment performance of the facility,” no evidence was presented by DHEC to specify what problem could result from excess flows. Sullivans Island presented evidence via its Discharge Monitoring Reports that the water treatment plant in Sullivans Island has no performance problems under high flow conditions. “It is generally recognized that the trier of fact, who has the opportunity to observe the witnesses and listen to their testimony in person, is in the best position to determine issues of witness credibility.” Dixon v. Dixon, 336 S.C. 260, 263, 519 S.E.2d 357, 358 (Ct. App. 1999). My finding is that Robert Gross’s testimony was more than merely “substantial;” it was the more credible testimony offered because it was internally consistent and consistent with the Discharge Monitoring Reports. Therefore, this court finds that the testimony of Robert Gross that excess flows would not cause problems to the performance of the facilities is more persuasive than that of Jeff deBessonet’s.

Fecal coliform limits were also imposed in the Sullivans Island NPDES permit for the effluent that flows from the treatment plant to Cove Creek. The parties agree that Cove Creek is classified as Salt Water or “SB.” However, they disagree on whether the portion of the Intracoastal Waterway to which Cove Creek discharges is classified as Saltwater (“SB”) or Shellfish Harvesting (“SFH”). The Department determined that it was SFH waters and imposed stringent fecal limits consistent with that classification.

Water quality classifications and standards are established by DHEC regulation. S. C. Code Reg. 61-69 adopts classifications for the State’s waters. However, Cove Creek is not classified. S.C. Code Reg. 61-69(B) states that “[w]here surface waters are not classified by name (unlisted) in this Regulation, the use classification and numeric standards of the class of the stream to which they are a tributary apply.” Cove Creek, a tributary to the Intracoastal Waterway, has the classification and numeric standards assigned to the segment of the Intracoastal Waterway to which it is tributary.

In accordance with S. C. Code Reg. 61-69(E), the Intracoastal Waterway is divided into six sections in Charleston County. Each section is described by geographic or physical boundaries. The section into which Cove Creek (carrying Sullivans Island’s discharge) combines is “[f]rom confluence of Elliott Cut and the Stono River through Charleston Harbor to Ben Sawyer Bridge.” This section is classified as Saltwater or SB. In accordance with S. C. Code Reg. 61-68(G)(13) “Class SB are tidal saltwaters suitable for primary and secondary contact recreation, crabbing, and fishing, except harvesting of clams, mussels, or oysters for market purposes or human consumption.” Since the Intracoastal Waterway south of the Ben Sawyer Bridge is classified SB, it does not support the use of shellfish harvesting. (See S. C. Code Reg. 61-68(G)(13)).

Evidence introduced at trial shows that the Sullivans Island discharge does not move past the bridge, but instead joins the outgoing tide to the harbor. Sullivans Island’s discharge, when combined with the incoming tide, flows toward the bridge. However, the volume of water, which includes the incoming tide (and the effluent from dischargers other than Sullivans Island), constitutes no more than one percent of the total volume of water that flows through the upstream section of the Intracoastal Waterway classified as SFH. Mr. Gross testified for the Petitioners that there is no potential for the Sullivans Island discharge to degrade water quality in the Intracoastal Waterway. Moreover, the Town’s discharge is so insignificant that it would take a detailed engineering analysis to convince him that it could even reach the shellfish area, much less degrade the water quality.

There is no legal requirement, and certainly no factual basis, to require that Sullivans Island meet SFH standards when Cove Creek discharges into SB waters. The numeric standard for fecal coliform for class SB waters is established by S. C. Code Reg. 61-68(G)(13) as “[n]ot to exceed a geometric mean of 200/100 ml, based on five consecutive samples during any 30 day period; nor shall more than 10% of the total samples during any 30 day period exceed 400/100 ml.” Therefore, the SB fecal standard of 200 (monthly) and 400 (daily maximum) apply to the Sullivans Island NPDES Permit.

The IOP permit contains a fecal coliform daily maximum limit of 43/100 ml. IOP discharges into a section of the Intracoastal Waterway classified as SFH. Thus, there is no dispute that the SFH standards apply to the IOP permit. However, there is a dispute as to whether the fecal coliform limit in IOP’s permit is proper in accordance with the standard for fecal coliform developed for Class SFH waters.

S. C. Code Reg. 61-68(G)(11) establishes the water quality standards for SFH waters. The standard for fecal coliform is “Not to exceed an MPN fecal coliform geometric mean of 14/100 ml; nor shall more than 10% of the samples exceed an MPN of 43/100 ml.” S. C. Code Reg. 61-68(E)(14)(c)(8) states that “[i]n order to protect for the consumption use of shellfish, for SFH water and other waters with approved shellfish harvesting uses, the stated value of 14/100 ml for fecal coliform shall be used as a monthly average number for calculating permit effluent limitations and the stated value of 43/100 ml for fecal coliform shall be used as a daily maximum number for calculating permit effluent limitations.”

DHEC has a regulatory duty to calculate fecal coliform daily maximum limits using a value of 43/100. The undisputed expert testimony is that this calculation was not done. It is further undisputed that if this calculation were done, and IOP was given credit for the 10% exceedance allowed in the standard, the derived limits would be less restrictive than the 43/100 value imposed in the permit.

FINDINGS OF FACT

Having observed the Petitioners’ witnesses, reviewed Respondent’s pre-filed testimony and the exhibits presented at the duly noticed hearing conducted on April 23, 2007, and taking into consideration the burden of persuasion and credibility of the witnesses, I make the following findings of fact by a preponderance of the evidence:

1. Petitioners operate wastewater treatment plants that provide wastewater collection, treatment, and disposal services for the Isle of Palms and Sullivans Island.

2. Petitioners’ discharges are authorized by DHEC through the issuance of NPDES permits. Petitioners’ NPDES permits contain discharge limitations which limit the amount of certain substances in Petitioners’ discharges. Included in the discharge limitations in Petitioners’ permits are flow limits, which do not limit the amount of any particular substance in a discharge, but restrict the volume of water flowing through Petitioners’ plants. The discharge limitations included in Petitioners’ permits are, in part, to maintain the water quality standards developed for the receiving stream. Here, Petitioners each discharge directly (IOP) or indirectly (Sullivans Island) into the Intracoastal Waterway.

3. Each of the challenged permits includes limits, measured in MGD’s, for flow. A limit of .30 MGD is included in the IOP NPDES permit and .57 MGD included in the Sullivans Island NPDES permit.

4. S. C. Code Regs 61-9 does not address flow limits for permits authorizing a discharge to surface waters. The Department has only promulgated regulations which impose flow limits for land application systems governed by R. 61-9.505, not for discharges to surface waters as is the case with Petitioners’ facilities.

5. Petitioners challenge DHEC’s legal authority to impose flow limits because there is no regulation or statute that grants DHEC authority to regulate flow limits for Petitioners’ facilities. Petitioners also challenge whether flow limits are necessary to protect water quality.

6. Robert G. Gross, an expert in NPDES permit-related matters, testified that mass and concentration limits in the Petitioners’ permits adequately protect water quality in the receiving stream because as flows increase, the concentration of each limited pollutant must decrease in order to remain in compliance with concentration and mass limitations. Higher flows do not negatively impact water quality as long as Petitioners do not exceed the concentration and mass, or amount, of pollutant they are authorized to discharge.

As flow increases, it is Petitioners’ responsibility to decrease the concentrations of pollutants in order to maintain compliance with applicable mass limits. Limits other than flow are established to be protective at critical low-flow levels. Accordingly, compliance with these limits when flows are higher is also fully protective of water quality – in fact, more so. Because DHEC has agreed to remove the flow limits from the NPDES permits for Charleston Water System and the North Charleston Sewer District,[3] there is no reason for the Department to impose the limits on the Petitioners.

7. Petitioners’ plants are designed to handle peak flows[4] in excess of the limits in the permits. Petitioners’ monthly discharge reports are evidence that flow limits are unnecessary to protect water quality. Based on the data provided to DHEC by the Petitioners, known as Discharge Monitoring Reports, Sullivans Island reported flows in excess of its permitted flow limit in March, April, October, November, and December of 2005. Yet, in each instance, the reported concentrations and mass of pollutant parameters in the permit were far below the allowable limits. Thus, even though the flow limit was exceeded, there were no water quality violations. Moreover, Petitioners provided additional examples of monitoring reports from other wastewater treatment plants which experienced flow violations, yet the reported concentrations and quantity of the authorized pollutants were well below the maximum limits.

8. DHEC contends it is appropriate to impose a flow limit to ensure that the facility does not operate beyond its rated capacity and to control additional flows into the system by way of connections or infiltration. DHEC contends that Petitioners’ plants cannot perform effectively unless flow is limited. DHEC’s witness, Jeff deBessonet, testified that “Excess flows would typically result in problems with the treatment performance of the facility.” However, no evidence was presented by DHEC to illustrate any specific potential problems. The only evidence in the record is Sullivans Island DMRs which indicate its plant has had no performance problems under high flow conditions.

9. The flow limits in Petitioners’ permits are punitive in that Petitioners’ facilities have violated the flow limit although they were discharging well below their substantive pollutant limits. Thus, they are liable for non-compliance with their permits when no environmental harm has occurred. NPDES permit violations give rise to criminal, civil, and administrative liability. Petitioners cannot consistently meet the flow limits imposed by DHEC. DHEC has never explained or published criteria for how Petitioners could avoid a flow limit in their permits.

10. The Department has authority to revise a permit if increased flow levels resulted in degradation of water quality and, accordingly, flow limits are not necessary.[5]

11. Monthly and weekly flow limits are not necessary to protect water quality. However, even if a flow limit were appropriate, the weekly limit should be set at a level higher than the monthly limit. There was no evidence of a negative impact to shellfish waters resulting from Petitioners’ facilities despite the significant reported exceedances of flow summarized by Petitioners’ expert. Bacteria limits – rather than flow limits – protect downstream shellfish areas; thus, flow limits are unnecessary in these permits to protect shellfish areas.

12. Sullivan’s Island discharges into a section of the Intracoastal Waterway classified as Saltwater or SB and IOP discharges into a section of the Intracoastal Waterway classified as Shellfish Harvesting or SFH. The SFH classification has a more restrictive standard for fecal coliform limits than the SB classification.

13. The Sullivans Island NPDES permit includes limits for Fecal Coliform which are 14/100 ml Monthly Average and 43/100 ml Daily Maximum. These limits represent the in-stream standard for fecal coliform bacteria for waters classified as shellfish harvesting, or SFH, waters.

14. Although the effluent from Sullivans Island discharges into Cove Creek, Cove Creek is not classified or listed in S. C. Code Reg. 61-68. But, in accordance with S. C. Code Reg. 61-69(B), “[w]here surface waters are not classified by name (unlisted) in this Regulation, the use classification and numeric standards of the class of the stream to which they are a tributary apply.” Cove Creek is a tributary to the Intracoastal Waterway. The confluence of Cove Creek with the Intracoastal Waterway occurs south of the Ben Sawyer Bridge that spans the Intracoastal Waterway and connects Mt. Pleasant to Sullivans Island. It is undisputed that the Intracoastal Waterway from Charleston Harbor to south of the Ben Sawyer Bridge is classified by DHEC as SB waters. The Intracoastal Waterway north of the Ben Sawyer Bridge is classified by DHEC as SFH waters.

15. The water quality standard for fecal coliform in SB waters is less restrictive than the water quality standard for fecal coliform in SFH waters. The SB standard is set by regulation in S. C. Code Reg. 61-68. It imposes a 200/100 ml average; no more than 10% of the total samples during any 30 day period can exceed 400/100 ml.

16. The discharges downstream of the Sullivans Island discharge point, coming from Charleston Water Systems, the Town of Mt. Pleasant, and the Charleston Harbor, are subject to the Class SB standard of 200/100 ml. and 400/100 ml. On an outgoing tide, the Sullivans Island’s discharge combines with those discharges to the Harbor and flows to the south through the Harbor. On an incoming tide, the Town’s discharge combines with the flows from the harbor (which contains regulated discharges initiated in Class SB waters) and flows north through the Intracoastal Waterway from the SB section into the SFH section. The Sullivans Island discharge represents less than one percent of the total volume of water flowing from the Harbor on an incoming tide into the section of the Intracoastal Waterway classified as SFH.

17. The undisputed testimony was that “it would be virtually impossible for Sullivans Island’s small discharge to cause a problem in the … Intracoastal Waterway in the area of those shellfish beds just because of the relative volumes of water … coming in from Charleston Harbor under the Ben Sawyer Bridge toward the shellfish waters would so greatly overwhelm the [Town’s discharge] … that the Sullivan’s Island discharge would never be seen in these shellfish waters.”

18. Petitioners’ expert testified that he would need a technical analysis to convince him that Sullivans Island’s insignificant discharge could have any impact on the shellfish waters and that he was not aware that the Department had done any such analysis. DHEC has provided no evidence of fecal impairment at the monitoring station just north of the Ben Sawyer Bridge and has not tied the Sullivan’s Island discharge to any impairment.

19. Setting the Sullivans Island limits for fecal coliform consistent with the SB standard of 200 (monthly) and 400 (weekly) is fully protective of the receiving waters.

20. Sullivans Island’s daily maximum fecal coliform limit did not include (1) the ten percent allowance from the water quality standard or (2) reflect a higher limit that effectively allowed ten percent of the samples to exceed the 43 mpn value in the standard. Petitioners’ expert testified that if a shellfish limit were legally appropriate, it should have included either the 10 percent allowance found in the shellfish standards (no more than 10 percent of all samples in a month can exceed 43 mpn) or a higher value – such as 420 mpn to reflect the 10 percent provision. Petitioners’ expert provided uncontroverted testimony that DHEC committed errors in establishing the fecal coliform limit in the Town’s permit (including (1) not allowing the 10 percent provision, (2) not calculating a proper daily maximum limit and (3) imposing the shellfish limit at all given the lack of any basis) which allow the removal of the limit consistent with antidegradation and antibacksliding rules.

21. Unlike the Town, it is undisputed that IOP discharges to SFH waters. Accordingly, IOP’s permit includes SFH-based limits. IOP’s discharge limits for fecal coliform are 14/100 ml monthly average and 43/100 ml daily maximum.

22. The water quality standard for fecal coliform in SFH waters is “[n]ot to exceed an MPN fecal coliform geometric mean of 14/100 ml; nor shall more than 10% of the samples exceed an MPN of 43/100 ml.” The permit limit imposes an absolute daily maximum of 43/100 ml, when the standard allows for 10% of the samples to exceed the daily maximum level of 43. In accordance with S. C. Code Reg. 61-68(E)(14)(c)(8), “the stated value of 43/100 ml for fecal coliform shall be used as a daily maximum number for calculating permit effluent limitations.” Here, DHEC used the 43/100 ml as the limit, instead to calculate the limit. IOP was not given the benefit of the 10% exceedance provision of the fecal coliform standard for SFH waters.

23. Had the discharge limitation been properly calculated in accordance with the allowable standard, the daily maximum would be a higher, less restrictive limit in order to reflect the fact that the standard allows ten percent of the samples to exceed 43.

CONCLUSIONS OF LAW

Based on the above Findings of Fact, I conclude the following as a matter of law:

1. This tribunal has jurisdiction over this matter pursuant to Art. I, Sec. 22 of the South Carolina Constitution, S.C. Code Ann. § 1-23-310 and § 1-23-600 (1986 and Supp. 2006). The Administrative Law Court (“ALC”) presides over all hearings of contested DHEC permitting cases. In such cases the ALJ serves as the finder of fact. Marlboro Park Hospital v. S.C. Dep’t of Health & Envtl. Control, 358 S.C. 573, 595 S.E.2d 851 (Ct. App. 2004), citing Brown v. S.C. Dep’t of Health & Envtl. Control, 348 S.C. 507, 512, 560 S.E.2d 410, 413 (2002).

2. The ALC has subject matter jurisdiction in this action pursuant to S.C. Code Ann. §§1-23-500 et seq. (2005). In the instant case, the Petitioners, as the parties affirmatively asserting error in the Department’s issuance of the permit, bear the burden of proof. See, Leventis v. South Carolina Dept. of Health & Env. Control, 340 S.C. 118, 530 S.E.2d 643 (Ct. App. 2000). Therefore, the Petitioners must demonstrate by a preponderance of the evidence that the Department’s imposition of the contested permit conditions was in error. See, Anonymous (M-156-90) v. State Bd. of Medical Examiners, 329 S.C. 371, 496 S.E.2d 17 (1998).

3. S. C. Code Reg. 61-69 provides a classification for the surface waters where Petitioners discharge. S. C. Code Reg. 61-68 establishes water quality standards for classified waters. S. C. Code Reg. 61-9 governs NPDES permits, and provides the standards and limits applicable to surface water discharges.

4. In a contested case, the ALC conducts a de novo hearing to make sufficiently detailed findings of fact for subsequent review. Marlboro Park Hospital v. S.C. Dept. of Health & Envtl. Control, 358 S.C. 573, 595 S.E.2d 851 (Ct. App. 2004).

5. The weight and credibility assigned to evidence presented at the hearing of a matter is within the province of the trier of fact. See, S.C. Cable Television Ass'n v. S. Bell Tel. & Tel. Co., 308 S.C. 216, 222, 417 S.E.2d 586, 589 (1992). Furthermore, a trial judge who observes a witness is in the best position to judge the witness's demeanor and veracity and to evaluate the credibility of his testimony. See, e.g., Woodall v. Woodall, 322 S.C. 7, 10, 471 S.E.2d 154, 157 (1996); Wallace v. Milliken & Co., 300 S.C. 553, 556, 389 S.E.2d 448, 450 (Ct. App. 1990).

6. The South Carolina Rules of Evidence (“SCRE”) are applicable to this hearing. Under the SCRE, "[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise." Rule 702, SCRE. An expert is granted wide latitude in determining the basis of his or her opinion, and where an expert's testimony is based upon facts sufficient to form an opinion, the trier of fact must weigh its probative value. Small v. Pioneer Machinery, Inc., 329 S.C. 448, 470, 494 S.E.2d 835, 846 (Ct. App. 1997).

7. "[E]xpert testimony is essential in cases which involve a subject of special technical science, skill, or occupation of which the members of the jury or the trial court are not presumed to be specially informed." 32A C.J.S. Evidence § 729, at 85 (1996). For example, the South Carolina Supreme Court has held that, in medical malpractice cases, "the plaintiff must use expert testimony . . . unless the subject matter lies within the ambit of common knowledge and experience, so that no special learning is needed to evaluate the conduct of the defendant." Pederson v. Gould, 288 S.C. 141, 143, 341 S.E.2d 633, 634 (1986).

8. In general, "expert opinion evidence is to be considered or weighed by the triers of the facts like any other testimony or evidence . . . the triers of fact cannot, and are not required to, arbitrarily or lightly disregard, or capriciously reject, the testimony of experts or skilled witnesses, and make an unsupported finding to the contrary of the opinion." 32A C.J.S. Evidence § 727, at 82-83 (1996). However, the trier of fact may give an expert's testimony the weight he or she determines it deserves. Florence County Dep't of Soc. Servs. v. Ward, 310 S.C. 69, 72-73, 425 S.E.2d 61, 63 (Ct. App. 1992). Further, the trier of fact may accept the testimony of one expert over that of another. See, S.C. Cable Television Ass'n v. S. Bell Tel. & Tel. Co., 308 S.C. 216, 417 S.E.2d 586 (1992).

9. The preponderance of the evidence "is evidence which is of the greater weight or more convincing than the evidence which is offered in opposition to it . . . ." Black's Law Dictionary 1182 (6th ed. 1990). "The preponderance of the evidence means such evidence as, when considered and compared with that opposed to it, has more convincing force and produces in the mind the belief that what is sought to be proved is more likely true than not true." Sanders, Neese, and Nichols, South Carolina Trial Handbook, § 9:5 Quantum of Evidence in Civil Cases (1994), (citing Frazier v. Frazier, 228 S.C. 149, 89 S.E.2d 225 (1955)).

10. The issue of DHEC’s authority to impose flow limits is a matter of law. DHEC relies on S. C. Code Secs. 48-1-20, 48-1-50(5), and 48-1-100(A) for its authority to include flow limits in Petitioners’ NPDES permits. Sec. 48-1-20 vests DHEC with the “authority to abate, control and prevent pollution.” Sec. 48-1-50(5) gives DHEC the power to issue permits for discharges of sewage and waste “under such conditions as it may prescribe … .” Sec. 48-1-100(A) authorizes DHEC to issue permits for construction of a “new outlet or source” and for discharges of sewage, industrial wastes, and other wastes, from the “new outlet or source.” Although these statutes authorize DHEC to regulate discharges into the environment by requiring permits, they are general in nature. Moreover, DHEC has promulgated regulations governing every effluent limitation and condition in Petitioners’ permit, except for flow. S. C. Code Reg. 61-9 provides extensive detail as to how permit limits are determined for each pollutant and S. C. Code Reg. 61-68 identifies over 120 pollutants and establishes numeric standards for these pollutants. However, flow is not a pollutant. Moreover, in this vast body of regulation, flow limits are only given one reference, in S. C. Code Reg. 61-9 505.42(D)(1(v), relating to overland flow facilities.

12. S. C. Code Sec. 48-1-20 states that “the Department of Health and Environmental Control shall have authority to abate, control and prevent pollution.” Yet, flow is not identified as a pollutant in S. C. Code Reg. 61-9 or in S. C. Code Reg. 61-68. Moreover, S.C. Code Sec. 48-1-100(B) states that the Department “...shall develop and enforce standards as may be necessary for governing emissions or discharges into the air, streams, lakes, or coastal waters of the State, including waste water discharges.” There is no reference to flow limits in that section or any standard or regulation promulgated pursuant to that section.

13. There is no requirement in the Federal Clean Water Act to impose limits on flow. With regard to State law, to the extent the Department has the authority to regulate flow, it is required to first promulgate such authority. See, S.C. Code 48-1-30, which requires the Department to establish effluent limitations and conditions for its NPDES permit program by regulation. This conclusion is consistent with a prior decision of the Administrative Law Court and a recent ruling by the Court of Appeals. See, Final Order and Decision, Commissioners of Public Works, City of Charleston, et al. v. SCDHEC, Docket No. 03-ALJ-07-0124-CC, and Commissioners of Public Works, City of Charleston, et al. v. SCDHEC, 372 S.C. 351, 641 S.E.2d 763 (2007).

14. Because DHEC has imposed flow limits in all publicly owned water treatment plant permits in the State, flow limits constitute a binding norm. This conclusion is reinforced by the undisputed testimony of Mr. Gross that DHEC has not provided or published any criteria for a water treatment plant to avoid a flow limit. R. 61-9 authorizes flow limits only for overland discharge facilities. Thus, DHEC has neither sought nor received authority to impose flow limits in NPDES permits for other types of facilities, such as Petitioners’ which discharge to surface waters and are not overland facilities. See R. 61-9 Section 505.42(d). Accordingly, the Department lacks the authority to impose flow limits in Petitioners’ permits until such time as the Department promulgates such authority.

15. The South Carolina Supreme Court has adopted the “binding norm” test established by several Federal cases. See Home Health Serv. Inc. v. S.C. Tax Comm’n, 312 S.C. 324, 440 s.E.2d 375, citing Ryder Truck Lines, Inc. v. U.S., 716 F.2d 1369 (11^th Cir. 1983) and Captains’ Quarters Motor Inn v. Coastal Council, 306 S.C. 488, 413 S.E.2d 13 (1991). “The key factor in determining whether a policy statement establishes a “binding norm” is the extent to which the challenged policy leaves the agency free to exercise its discretion to follow. . . . the policy at issue in a particular situation.” WCRSA v. DHEC, supra at 41, citing Home Health Srvs Inc. “Any policy or guidance relied on by DHEC that has not been promulgated pursuant to this regulatory process ‘does not have the force or effect of law’ S.C. Code Ann. 1-23-10(4) (Supp. 2006). Here the policy has not been through the process for promulgating an official regulation. Therefore, it constitutes a binding norm.

16. The Department has acknowledged the need to impose flow limits by regulation (as to overland spray facilities). Yet, the Department offers no argument or explanation as to why it has imposed flow limits on Petitioners’ facilities without first providing the rulemaking safeguards that were afforded owners of overland spray facilities through the adoption of R. 61-9 505.42(D)(1)(v).[6]

17. Every effluent limit and condition in Petitioners’ permits can be directly linked to a promulgated standard or condition, except for the flow limits.

18. In Commissioners of Public Works et al. v. SCDHEC, 372 S.C. 351, 641 S.E. 2d 763 (2007), the Court of Appeals was asked, inter alia, by DHEC to decide whether the Circuit Court erred in answering the flow authority question. Because the ALJ’s ruling that flow limits were unnecessary was upheld by the DHEC Board, the Court ruled that the legal question of whether DHEC has authority to impose flow limits was moot. However, the Court was clearly troubled by DHEC’s assertion of flow authority and addressed the question in Footnote Number Seven (emphasis added) of the decision as follows:

Our decision not to address this issue [flow authority] is further supported by the uncertain circumstances surrounding it. If DHEC has the authority to impose flow limits in NPDES permits, as it contends, DHEC has done nothing required to promulgate this authority into a regulation. See S.C. Code Ann. §48-1-30(1987)(providing that DHEC is required to promulgate regulations to implement the SCPCA); see also Sloan c. S.C. Bd. of Physical Therapy Exam’rs, Op. No. 26209 (S.C. Sup. Ct. filed Sept. 25, 2006)(Shearouse Ad. Sh. No. 36 at 46)(“In order to promulgate a regulation, the APA generally requires a state agency to give notice of a drafting period during which public comments are accepted on a proposed regulation; conduct a public hearing on the proposed regulation overseen by an administrative law judge or an agency’s governing board; possible prepare reports about the regulation’s impact on the economy, environment, and public health; and submit the regulation to the Legislature for review, modification, and approval or rejection.”) (citing S.C. Code Ann. §1-23-110 to -160 (2005 and Supp. 2005). Conversely, DHEC argues it can apply flow limits as it chooses because its action does not establish a “binding norm.” Yet, DHEC has provided this court with no standard setting forth the conditions under which DHEC will impose the flow limits.

19. With respect to the fecal coliform limits in the Sullivans Island NPDES Permit, the issue of whether the limits are appropriate turns on the classification of Cove Creek. Cove Creek flows directly to, and connects with, the Intracoastal Waterway south of the Ben Sawyer Bridge. Because Cove Creek is unclassified and the Intracoastal Waterway south of the Bridge is classified as SB, Cove Creek takes on the classification of SB.[7] There is no basis to require Sullivans Island to meet SFH standards when Cove Creek discharges into SB waters. The SB fecal standard of 200 (monthly) and 400 (daily maximum) apply rather than the 14(monthly) and 43(weekly) standards for SFH waters.

20. The daily maximum limit for fecal coliform in the IOP permit should have either (1) added the ten percent provision from the water quality standards regulation or (2) reflected a higher limit that was calculated to provide the equivalent benefit of the 10 percent provision.

S. C. Code Reg. 61-68(11) establishes the water quality standards for SFH waters. The standard for fecal coliform is:

“Not to exceed an MPN fecal coliform geometric mean of 14/100 ml; nor shall more than 10% of the samples exceed an MPN of 43/100 ml.” S. C. Code Reg. 61-68(E)(14)(c)(8) states that “[i]n order to protect for the consumption use of shellfish, for SFH water and other waters with approved shellfish harvesting uses, the stated value of 14/100 ml for fecal coliform shall be used as a monthly average number for calculating permit effluent limitations and the stated value of 43/100 ml for fecal coliform shall be used as a daily maximum number for calculating permit effluent limitations.”

DHEC has a regulatory duty to calculate fecal coliform daily maximum limits using a value of 43/100. The undisputed expert testimony is that this calculation was not done. It is further undisputed that if this calculation were done, and IOP was given credit for the 10% exceedance allowed in the standard, the derived limits would be less restrictive than the 43/100 value imposed in the permit.

ORDER

Based on these findings of fact and conclusions of law it is, hereby, ORDERED, that:

1. DHEC lacks the statutory and regulatory authority to impose flow limits on Petitioners’ permits. The Department is hereby ordered to remove the flow limits from Petitioners’ permits, but may still require that Petitioners monitor and report flow.

2. Petitioner Town of Sullivans Island’s NPDES permit for its discharge to Cove Creek shall be modified to substitute fecal coliform limits for Class SB waters in lieu of the current limits for SFH waters.

3. The IOP NPDES permit for its discharge into the Intracoastal Waterway shall include either (1) the ten percent provision from the water quality standard or (2) a limit calculated using the daily maximum value of 43 mpn adjusted to reflect the ten percent allowance in accordance with S. C. Code Reg. 61-68(E)(14)(c)(8).

4. NPDES Permit No. SC0043583 (IOP) and Permit No. SC0020052 (Sullivans Island) are remanded to DHEC for modification consistent with items 1 through 3 above.

AND IT IS SO ORDERED.

____________________________

Carolyn C. Matthews

Administrative Law Court

October 8, 2008

Columbia, South Carolina