ORDERS:
SETTLEMENT AGREEMENT AND CONSENT ORDER
The above-referenced
matter is before the Administrative Law Court (“ALC”) on the Petitioner INVISTA
S.à r.l.’s (“INVISTA”) requests for contested case review of: (1) the Respondent
South Carolina Department of Health and Environment Control’s (the “Department”
or “DHEC”) May 23, 2006 execution of an agreement with the Central Midlands
Council of Governments (“CMCOG”), the Santee-Lynches Regional Council of
Governments (“SLRCOG”), Palmetto Utilities, Richland County, City of Camden and
Kershaw County (the “Wateree Agreement”); and (2) the Department’s decisions to
approve and certify to the U.S. Environmental Protection Agency the Amended Water
Quality Management Plans, pursuant to Section 208 of the Federal Clean Water
Act (“Section 208 Plans”), proposed by the CMCOG and the SLRCOG. The parties,
as referenced herein, are Petitioner INVISTA, Respondent DHEC, Respondent Kershaw County (“Kershaw”), and Respondent WeylChem US, Inc. (formerly Elgin Fine
Chemicals, Inc. and formerly Clariant LSM (America), Inc.) (“WeylChem”).
In its Agency
Information Sheet and Notice of Appearance for contested case Docket # 06-ALJ-07-0579-CC, filed on July 17, 2006, DHEC listed all known parties to the May 23, 2006 Agreement as parties to the appeal. The Administrative Law Court directed letters to all listed potential parties requiring
potential parties to file a Prehearing Statement if they wished to be made a party
to the contested case. On September 11, 2006, pursuant to the Notice of
Appearance filed by Kershaw County, the Court issued an Order to amend the case
caption to include Kershaw County as a respondent in the matter. On September 26, 2006, the Court granted WeylChem’s Motion to Intervene and ordered a second
amendment to the case caption. By Order dated November 13, 2006 the Court consolidated a second appeal with the first appeal under the original docket
number.
WHEREAS, DHEC’s
position in this matter is that a model developed by DHEC indicates the
cumulative ultimate oxygen demand (“UOD”) load on the Upper Wateree River must be reduced to meet the water quality standard for dissolved oxygen.
INVISTA’s position is that DHEC’s model is technically flawed, the predicted
outcomes of the model are not substantiated, and, therefore, no UOD reductions
are scientifically supported.
WHEREAS, in order to
resolve this matter by way of compromise, and with no admission of law or fact
by any of the parties, the parties hereby agree, pursuant to S.C.Code Ann. §
1-23-320(F), to settle these matters under the following terms and conditions:
1. Pursuant to
Rule 9 of the Rules of Procedure for the ALC, these actions are hereby
dismissed, without prejudice.
2. The parties
understand and agree that this Settlement Agreement and Consent Order and the
dismissal of these actions shall not affect the terms and conditions or
implementation of the Wateree Agreement (including the 31%/69% UOD allocation
among dischargers to the Upper Wateree River referenced in the Wateree
Agreement), except as to the parties as specifically provided herein.
3. The parties
further understand and agree that the Wateree Agreement does not set individual
wasteload (either UOD or phosphorous) allocations binding on INVISTA or WeylChem.
4. The parties
further understand and agree that the Wateree Agreement does not mandate that
the Department modify National Pollutant Discharge Elimination System (“NPDES”)
permits for the Upper Wateree River (as defined in the Wateree Agreement) to
reduce pollutant loading down to a cumulative UOD load of 11,024 pounds per day
impacting dissolved oxygen to meet the water quality standard for dissolved
oxygen. The reference to this load reduction in the preamble of the Wateree
Agreement is simply a statement of DHEC’s technical analysis of UOD loading in
the Upper Wateree River at the time the Department signed the Wateree
Agreement. Since that time, the Department has determined that the cumulative
UOD load for the Upper Wateree River should be 12,600 pounds per day.
5. As set forth
in DHEC staff’s July 2008 proposed Wateree River UOD allocation, DHEC agrees to
recommend and provide for daily UOD load limits of the following for INVISTA,
Kershaw and WeylChem in these dischargers’ respective NPDES renewal permits:
INVISTA = 3,645 pounds
per day
Kershaw = 1,219 pounds
per day
WeylChem = 743 pounds
per day
DHEC shall document the technical
basis of this reduction as part of INVISTA’s, WeylChem’s and Kershaw’s NPDES
permit renewal processes, generally as indicated in DHEC staff’s July 2008
proposed Wateree River UOD allocation.
6. If, in the
future, WeylChem ceases discharging its wastewater to the Upper Wateree River
directly and instead begins discharging its wastewater to Kershaw’s wastewater
treatment facility, WeylChem’s daily UOD load of 743 pounds per day may be
transferred to Kershaw giving Kershaw a total daily UOD load of 1,962 pounds
per day, consistent with state and federal law and regulations.
7. The parties
further understand and agree that INVISTA, Kershaw and WeylChem (and other
dischargers) may conduct additional testing or modeling of the Upper Wateree River and present those results to DHEC for DHEC’s consideration. If
additional testing or modeling of the Upper Wateree River indicates, to the
satisfaction of DHEC, that DHEC’s reduction of UOD loading to the River is too
large, DHEC shall make the appropriate adjustments in these parties’ (and other
dischargers’) permits. DHEC’s adjustments in these parties’ (and other
dischargers’) permits are subject to the public process described in paragraph
10 below and EPA review, and are subject to challenge by INVISTA, Kershaw and WeylChem
and other dischargers.
8. The parties
further understand and agree that the any references to, reductions in, and
limits on phosphorous discharges to the Upper Wateree River in the Wateree
Agreement do not apply to and are not binding on INVISTA or WeylChem. INVISTA
and WeylChem agree, however, not to oppose the transfer of 43 pounds per day of
phosphorous from Palmetto to Kershaw set forth in paragraph 16 of the Wateree
Agreement. Notwithstanding the above, if DHEC conducts a total maximum daily
load (TMDL) or similar analysis or modeling of phosphorus on the Upper Wateree
River and concludes that phosphorous loads to the river must be limited or
reduced, all parties, including Kershaw, INVISTA and WeylChem, reserve their
rights to, and may, contest any and all limitations, reductions, allocations, transfers,
and actions by DHEC or any private party with respect to phosphorous loading to
the Wateree River, and any limits on such loading.
9. This
Settlement Agreement and Consent Order does not alter or otherwise affect any
of the following: (1) DHEC’s regulatory authority regarding the NPDES program
or any other delegated regulatory programs; (2) the SLRCOG’s or the CMCOG’s
chartered or delegated authority; (3) INVISTA’s, Kershaw’s and WeylChem’s rights
to challenge: (a) any terms or conditions of their respective NPDES renewal
permits; (b) any terms or conditions of NPDES permits of any other dischargers to
the Upper Wateree River; and (c) any future adjustments to UOD loading in the
Upper Wateree River by the SLRCOG, CMCOG or DHEC (except that INVISTA, Kershaw
and WeylChem shall not challenge: (i) the agreed upon daily UOD load limits
set forth in paragraph 5 herein; and (ii) the possible future transfer of WeylChem’s
daily UOD load limit to Kershaw set forth in paragraph 6 herein).
10. The parties
recognize that the NPDES permit process is a public process and that INVISTA’s,
Kershaw’s and WeylChem’s respective renewal permits will subject to public
comment and EPA review. This Settlement Agreement and Consent Order in no way
limits or restricts DHEC’s right and obligation to receive and evaluate public
comment on these dischargers’ NPDES permits. If, through the public process or
otherwise, DHEC concludes that the UOD allocations set forth in paragraph 5
above are not appropriate and changes those allocations, or that the possible
future transfer of WeylChem’s daily UOD load limit to Kershaw set forth in
paragraph 6 above is not appropriate, this Settlement Agreement and Consent
Order is no longer valid and INVISTA is granted leave to refile these actions
that are dismissed without prejudice by virtue of this Settlement Agreement and
Consent Order.
11. Upon good
cause shown, any of the parties to this Settlement Agreement and Consent Order
may agree to and move this Court to alter or amend the provisions of this
Settlement Agreement and Consent Order.
AND IT IS SO ORDERED.
______________________________
John
D. McLeod, Judge
S.C.
Administrative Law Court
Columbia, South Carolina
December 15, 2008
CONSENTED AND AGREED TO BY THE PARTIES:
_____________________________________
Steven D. Weber
Parker Poe Adams & Bernstein
LLP
Three Wachovia Center
401 S. Tryon Street, Ste. 3000
Charlotte, North Carolina 28202
Attorneys for Petitioner INVISTA
S.à r.l.
________________________________
Jacquelyn S. Dickman
Office of the General Counsel
SC Department of Health and
Environmental Control
2600 Bull Street
Columbia, South Carolina 29201-1708
Attorney for Respondent Department of
Health and Environmental Control
_________________________________
J. Kennedy DuBose, Jr.
DuBose-Robinson, PC
935 Broad Street
Post Office Drawer 39
Camden, South Carolina 29021
Attorney for Respondent Kershaw County
_________________________________
Elizabeth B. Partlow
Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
1320 Main Street, Suite 600
Columbia, South Carolina 29201-3266
Attorneys for Respondent WeylChem US, Inc.
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