ORDERS:
19.Although DHEC claims that the Petitioners’ permits must be subject to the TMDL
because the TMDL has been approved by the EPA, the requirement that DHEC have approval of its
TMDL from the EPA, pursuant to federal law, does not negate the requirement that DHEC
promulgate the TMDL, a rule, pursuant to state law.
20.Because the TMDL was not promulgated as a regulation under the South Carolina
Code, it does not have the force or effect of law. S.C. Code Ann. § 1-23-10(4) (Supp. 2002).
Consequently, DHEC is not authorized to rely on the TMDL to establish permit limits.
Flow Limits
21.Under the SCPCA, DHEC is charged with the responsibility of insuring that the waters
of the State are as free of pollutants as possible. “[W]here an administrative agency such as DHEC
is acting for the protection of the health of the environment, the delegation of authority to that agency
should be construed liberally.” City of Rock Hill v. DHEC, 302 S.C. 161, 165, 394 S.E.2d 327, 330
(1990). Although DHEC is charged with this responsibility, however, DHEC nevertheless is
possessed of only those powers expressly conferred or necessarily implied for it to effectively fulfill
its duties. See Captain’s Quarters Motor Inn, Inc. v. Coastal Council, 306 S.C. 488, 413 S.E.2d 13
(1991). Powers may not be implied to DHEC which enlarge its statutory authority or which liberalize
the policy underlying the statute under which it was created. Beard-Laney, Inc. v. Darby, 213 S.C.
380, 49 S.E.2d 564 (1948).
22.DHEC lacks any express statutory or regulatory authority authorizing the imposition
of permit limits for flow. Rather, DHEC relies on its discretionary authority in 24 S.C. Code Ann.
Regs. 61-9 122.44 (d)(1)(i) (Supp. 2002) to impose limits based on an analysis of reasonable potential
for excursion of an in-stream standard. Here, there is no evidence to support the potential for an
excursion of an in-stream standard as a result of flow.
23.DHEC’s regulations speak to flow as a component of design in 25 S.C. Code Ann.
Reg. 61-67 and as relates to land application permits. However, DHEC’s regulations regarding
surface water discharge permits are silent as to flow. DHEC does not have the authority to impose
weekly and monthly flow limits on Petitioners’ permits. DHEC has abused its discretion in its
determination that a reasonable potential exists for water quality violations as a result of flows from
Petitioners’ facilities.
Whole Effluent Toxicity Testing
24.DHEC has discretion under R. 61-9 122.44(d)(ii) to assess reasonable potential and
impose permit conditions requiring toxicity testing. Thus, DHEC has express authority to require
such testing. The testing requirements imposed on the permits by DHEC are a reasonable exercise
of its discretion and are not arbitrary or capricious.
Amicus Brief
25.On May 29, 2003, the South Carolina Coastal Conservation League (“League”) filed
a Motion for Leave to file an Amicus Brief, with an attached proposed Amicus Brief, concerning
these cases.
26.This is a contested case proceeding, governed by the rules of the ALJD, and in
particular, Part II of the Rules of Procedure for the ALJD. These rules do not provide for the filing
of amicus curiae briefs. Therefore, this tribunal will not consider the proposed Amicus Brief filed by
the League, and the League’s Motion is denied.
Writ of Mandamus
27.On September 9, 2003, Petitioners filed a Writ of Mandamus with this tribunal,
seeking an Order directing DHEC to proceed with its review of CPW’s Preliminary Engineering
Report and NPDES permit application for the expansion of the Daniel Island waste water treatment
plant. According to CPW’s Writ of Mandamus and DHEC’s response thereto, filed September 17,
2003, DHEC has refused to process the permit application for the Daniel Island expansion until
CPW’s instant appeal of Daniel Island’s Permit No. SC0047074, effective April 1, 2003, is resolved.
28.The instant Final Order and Decision resolves CPW’s appeal of Daniel Island’s Permit
No. SC0047074, thus rendering CPW’s Writ of Mandamus moot. See Mathis v. S.C. State Highway
Dep’t, 260 S.C. 344, 346, 195 S.E.2d 713, 715 (1973) (An issue is moot when a “judgment, if
rendered, will have no practical legal effect upon the existing controversy.”)
ORDER
For the foregoing reasons,
IT IS HEREBY ORDERED that Petitioners’ NPDES permits which are the subject of this
contested case hearing shall be granted pursuant to the terms set forth by DHEC with the following
modifications:
1.DHEC shall remove any effluent limits in Petitioners’ permits which are based upon
the TMDL, which has not been promulgated as a regulation in accordance with S. C. Code Sec. 1-23-110 et seq. (1986 & Supp. 2002);
and
2.DHEC shall modify Petitioners’ permits to remove the monthly and weekly average
flow limits. Instead, Petitioners shall continue to monitor and report flow levels to DHEC in
accordance with the flow monitoring requirements in their permits.
IT IS FURTHER ORDERED that the League’s Motion for Leave to File Amicus Brief is
denied.
IT IS FURTHER ORDERED that CPW’s Writ of Mandamus is dismissed as moot.
AND IT IS SO ORDERED.
_______________________________
C. Dukes Scott
Administrative Law Judge
September 23, 2003
Columbia, South Carolina 19. Although DHEC claims that the Petitioners’ permits must be subject to the TMDL
because the TMDL has been approved by the EPA, the requirement that DHEC have approval of its
TMDL from the EPA, pursuant to federal law, does not negate the requirement that DHEC
promulgate the TMDL, a rule, pursuant to state law.
20. Because the TMDL was not promulgated as a regulation under the South Carolina
Code, it does not have the force or effect of law. S.C. Code Ann. § 1-23-10(4) (Supp. 2002).
Consequently, DHEC is not authorized to rely on the TMDL to establish permit limits.
Flow Limits
21. Under the SCPCA, DHEC is charged with the responsibility of insuring that the waters
of the State are as free of pollutants as possible. “[W]here an administrative agency such as DHEC
is acting for the protection of the health of the environment, the delegation of authority to that agency
should be construed liberally.” City of Rock Hill v. DHEC, 302 S.C. 161, 165, 394 S.E.2d 327, 330
(1990). Although DHEC is charged with this responsibility, however, DHEC nevertheless is
possessed of only those powers expressly conferred or necessarily implied for it to effectively fulfill
its duties. See Captain’s Quarters Motor Inn, Inc. v. Coastal Council, 306 S.C. 488, 413 S.E.2d 13
(1991). Powers may not be implied to DHEC which enlarge its statutory authority or which liberalize
the policy underlying the statute under which it was created. Beard-Laney, Inc. v. Darby, 213 S.C.
380, 49 S.E.2d 564 (1948).
22. DHEC lacks any express statutory or regulatory authority authorizing the imposition
of permit limits for flow. Rather, DHEC relies on its discretionary authority in 24 S.C. Code Ann.
Regs. 61-9 122.44 (d)(1)(i) (Supp. 2002) to impose limits based on an analysis of reasonable potential
for excursion of an in-stream standard. Here, there is no evidence to support the potential for an
excursion of an in-stream standard as a result of flow.
23. DHEC’s regulations speak to flow as a component of design in 25 S.C. Code Ann.
Reg. 61-67 and as relates to land application permits. However, DHEC’s regulations regarding
surface water discharge permits are silent as to flow. DHEC does not have the authority to impose
weekly and monthly flow limits on Petitioners’ permits. DHEC has abused its discretion in its
determination that a reasonable potential exists for water quality violations as a result of flows from
Petitioners’ facilities.
Whole Effluent Toxicity Testing
24. DHEC has discretion under R. 61-9 122.44(d)(ii) to assess reasonable potential and
impose permit conditions requiring toxicity testing. Thus, DHEC has express authority to require
such testing. The testing requirements imposed on the permits by DHEC are a reasonable exercise
of its discretion and are not arbitrary or capricious.
Amicus Brief
25. On May 29, 2003, the South Carolina Coastal Conservation League (“League”) filed
a Motion for Leave to file an Amicus Brief, with an attached proposed Amicus Brief, concerning
these cases.
26. This is a contested case proceeding, governed by the rules of the ALJD, and in
particular, Part II of the Rules of Procedure for the ALJD. These rules do not provide for the filing
of amicus curiae briefs. Therefore, this tribunal will not consider the proposed Amicus Brief filed by
the League, and the League’s Motion is denied.
Writ of Mandamus
27. On September 9, 2003, Petitioners filed a Writ of Mandamus with this tribunal,
seeking an Order directing DHEC to proceed with its review of CPW’s Preliminary Engineering
Report and NPDES permit application for the expansion of the Daniel Island waste water treatment
plant. According to CPW’s Writ of Mandamus and DHEC’s response thereto, filed September 17,
2003, DHEC has refused to process the permit application for the Daniel Island expansion until
CPW’s instant appeal of Daniel Island’s Permit No. SC0047074, effective April 1, 2003, is resolved.
28. The instant Final Order and Decision resolves CPW’s appeal of Daniel Island’s Permit
No. SC0047074, thus rendering CPW’s Writ of Mandamus moot. See Mathis v. S.C. State Highway
Dep’t, 260 S.C. 344, 346, 195 S.E.2d 713, 715 (1973) (An issue is moot when a “judgment, if
rendered, will have no practical legal effect upon the existing controversy.”)
ORDER
For the foregoing reasons,
IT IS HEREBY ORDERED that Petitioners’ NPDES permits which are the subject of this
contested case hearing shall be granted pursuant to the terms set forth by DHEC with the following
modifications:
1. DHEC shall remove any effluent limits in Petitioners’ permits which are based upon
the TMDL, which has not been promulgated as a regulation in accordance with S. C. Code Sec. 1-23-110 et seq. (1986 & Supp. 2002);
and
2. DHEC shall modify Petitioners’ permits to remove the monthly and weekly average
flow limits. Instead, Petitioners shall continue to monitor and report flow levels to DHEC in
accordance with the flow monitoring requirements in their permits.
IT IS FURTHER ORDERED that the League’s Motion for Leave to File Amicus Brief is
denied.
IT IS FURTHER ORDERED that CPW’s Writ of Mandamus is dismissed as moot.
AND IT IS SO ORDERED.
_______________________________
C. Dukes Scott
Administrative Law Judge
September 23, 2003
Columbia, South Carolina |
