ORDERS:
FINAL ORDER AND DECISION
I. Statement of the Case
This matter is a contested case pursuant to S.C. Code Ann. §§ 1-23-310 et seq. (Rev. 1986 & Supp. 1999) and 25 S.C. Code Ann.
Regs. 61-72.201 (Supp. 1999). Petitioner, Bush River Utilities, Inc. (Bush River) was charged by Respondent, Department of Health
and Environmental Control (DHEC) with violating its NPDES permit and with violating the South Carolina Pollution Control Act,
S.C. Code Ann. §§ 48-1-10 et seq. (Rev. 1987 & Supp. 1999). For the alleged violations, DHEC seeks penalties totaling $37,000.
After considering the evidence, arguments, and written briefs filed following the hearing, I find that Bush River committed all of the
alleged violations except one. However, due to mitigating factors, the penalty imposed is $17,000.
II. Issues
- Did Bush River violate the terms of its NPDES permit or violate any provision of the South Carolina Pollution Control Act?
- Is DHEC barred from bringing an enforcement action based on alleged violations occurring before DHEC's March, 1999
inspection of the facility?
- Is DHEC estopped from enforcing a provision of Bush River's NPDES permit which requires a leachate surface water collection
system?
- If Bush River violated the terms of its NPDES permit or any provision of the South Carolina Pollution Control Act, what are the
appropriate penalties?
III. Analysis
A. Violations
1. Positions of Parties
DHEC asserts a number of violations have been committed by Bush River. The allegations include charges of a breach of Bush
River's NPDES permit along with violations of S.C. Code Ann. § 48-1-110(d) (Supp. 1999) and 24 S.C. Code Ann. Regs. 61-9.122.41 (Supp. 1999). These violations argue that Bush River exceeded the effluent discharge limits for biochemical oxygen
demand, dissolved oxygen, fecal coliform bacteria, pH and flow, and that Bush River allowed the improper operation and
maintenance of Bush River's wastewater treatment facility (DHEC Administrative Order 00-018-W, page 5).
Further, DHEC asserts Bush River violated S.C. Code Ann. § 48-1-90(a) (Rev. 1987) and 24 S.C. Code Ann. Regs. 61-9.503.24
(Supp. 1999). These allegations argue that Bush River made unauthorized discharges of biosolids and that Bush River failed to
comply with the permit requirement to equip its sludge storage site with a leachate surface water collection system. (Administrative
Order 00-018-W, page 5).
Bush River denies the charges. It argues that the effluent sample measurements reported in its 1998 discharge monitoring reports
should not be considered violations of its NPDES permit since the amounts of biochemical oxygen demand which exceeded the
discharge limit were statistically insignificant. In addition, Bush River argues that DHEC failed to show any discharge of biosolids
into the waters of the State. Finally, Bush River argues that DHEC failed to prove its allegations of improper operation and
maintenance.
2. Findings of Facts
I find by a preponderance of the evidence, the following facts:
A. NPDES Permit
Bush Rivers owns and operates a wastewater treatment facility in Lexington County under NPDES Permit Number SC0032743. The
permit allows Bush River to discharge treated wastewater into the Saluda River in compliance with the permit's requirements. The
permit sets discharge limits for the following effluent characteristics: biochemical oxygen demand (BOD), total suspended solids
(TSS), fecal coliform bacteria, total residual chlorine (TRC), dissolved oxygen (DO), and pH. The permit requires Bush River to
regularly monitor these characteristics through sampling and to submit discharge monitoring reports (DMR) to DHEC. Bush River's
method of measuring the characteristics of a sample follows the protocols published by the American Public Health Association. A
margin of error can be expected from employing these protocols, such that a reading between 22 milligrams per liter (mg/l) and 38
mg/l could indicate an actual level of 30 mg/l.
In 1996, DHEC issued a supplement to the permit granting a Distribution and Marketing of Sludge Program Approval. This approval
allowed Bush River to distribute pasteurized wastewater sludge to farmers for agricultural use. The pasteurization process mixes
wastewater sludge with calcium oxide, or "quick lime," to achieve a chemical reaction. The chemical reaction produces an internal
temperature of 158 degrees Fahrenheit and raises the mixture's pH level to above 12, a level hostile to microorganism life. After
mixing, the pasteurized sludge moves to a concrete trough and then to a concrete pad. The material remains on the concrete pad for
two to three days for curing. When the curing process results in a material that contains no free water, the material is then placed on a
large clay pad for further drying. The material is then pulverized and screened before being distributed.
B. 1998 Discharge Monitoring Reports
Bush River's 1998 DMR's showed three instances in which the BOD level exceeded the permit limit of 30 mg/l. The highest reading
from these samples was 34 mg/l. In January, 1999, after receiving Bush River's 1998 DMR's, DHEC notified Bush River that it was
in violation of its NPDES permit since Bush River had exceeded the discharge limits. Bush River responded in writing by stating that
the 1998 instances of exceeding the BOD discharge limits were statistically insignificant. DHEC took no further enforcement action
at that time.
C. Inspections
In early 1999, DHEC received a complaint alleging that Bush River was removing trees from its property and that heavy truck traffic
was entering and leaving the facility. In response, on March 2, 1999, DHEC conducted a field inspection of Bush River's facility.
The inspection noted Bush River's spreading of biosolids from its lime pasteurization process. Also the inspection noted that the
facility was losing solids through its effluent discharge to the river, and that solids were being deposited to the ground a short distance
before entering the river. As a result of the inspection, DHEC scheduled a complete operations and maintenance inspection for
March 4, 1999.
On March 4, 1999, an operations and maintenance inspection was made of Bush River's facility. During this inspection, an effluent
discharge line was leaking and solids were present on the ground below the leak. Sludge from the lime stabilization unit had been
allowed to reach the adjacent creek bank and allowed to enter the adjoining creek which leads to the Saluda River. At several
locations along the creek biosolids had been allowed to go over the bank and were in contact with the water in the bottom of the
creek. These biosolids reached this area as a result of Bush River's piling and loading of the pasteurized sludge.
The chlorine contact chamber contained approximately one foot of sludge. Such an accumulation gave rise to a concern of potential
future problems with pH, DO and chlorine values since old sludge will produce ammonia which will combine with chlorine, reducing
the effectiveness of the kill of fecal bacteria. Generally, no more than one or two inches of sludge should be in the bottom of the
contact chamber.
The inspection established that the post chlorination sample revealed an insufficient level of chlorine in the contact chamber for a
proper kill of bacteria. Further, the DO level of 4.9 was not within discharge limits which requires a minimum of 5.0 mg/l. In
addition, the facility's fence only covered the facility on three of four sides, leaving unfenced the area where sludge was being spread.
Finally, the inspection established that a small section of the lagoon wall had collapsed.
At the conclusion of the inspection, Bush River was advised that it must stop the spreading of biosolids on its clay pad, but was
required to continue to remove solids from the facility. In compliance, Bush River ceased operating its biosolids project and made
plans to take sludge from the facility to a landfill. While Bush River had the choice of continuing the biosolids project by installing a
leachate collection system and replacing the clay pad with a concrete pad, Bush River believed that a leachate collection system was
unnecessary. Unnecessary, since no free water remained in the pasteurized sludge once it was transferred to the clay pad.
Acting on its belief that a leachate collection system was unnecessary, Bush River requested DHEC to remove from its permit the
requirement for a leachate collection system. Further, until Bush River could make all the necessary arrangements for transfer of the
solids to a landfill, Bush River suspended removal of solids from the facility. Not removing solids caused a build up of solids in the
chlorine contact chamber, affecting pH and DO levels in the effluent.
On March 8 and 9, 1999, DHEC took samples from the creek adjacent to the clay pad. The samples showed 40 fecal colonies per 100
milliliters and 1,400 fecal colonies per 100 milliliters, respectively. Additional samples taken on April 5 and 6, 1999 from the
facility's effluent discharge showed 90,000 fecal colonies per 100 milliliters and 160,000 fecal colonies per 100 milliliters,
respectively. Bush River's permit discharge limits are set at 400 colonies per 100 ml.
On April 14, 1999, a follow-up inspection of the facility was conducted. During this inspection, the level of DO was an insufficient
4.5 mg/l. Further, while the permitted level of pH requires a range of 6.0 to 9.0 Standard Units (SU), the inspection found an
insufficient pH level of 4.31 SU. Finally, an insufficient level of chlorine in the contact chamber led to an inappropriate kill of fecal
bacteria as well as a build up of solids in the contact chamber.
3. Conclusions of Law
Based on the foregoing Findings of Fact, I conclude the following as a matter of law:
A. Applicable Law
DHEC is authorized to take all necessary or appropriate actions to secure for South Carolina the benefits of the Federal Water
Pollution Control Act and any other federal and state acts concerning water pollution control. S.C. Code Ann. Sec. 48-1-50(17) (Rev.
1987). To that end, a prohibition exists on discharging organic or inorganic matter into the environment unless done so in compliance
with a permit issued by DHEC S.C. Code Ann. § 48-1-90(a) (Rev. 1987).
One permit issued by DHEC that allows discharges into the environment is the National Pollutant Discharge Elimination System
(NPDES). See 24 S.C. Code Ann. Regs. 61-9 (Supp. 1999). In carrying out the NPDES permit program, DHEC acts to protect the
health and welfare of the public by insuring the waters of South Carolina are as free of pollutants as possible. DHEC's authority in
this area is construed liberally. City of Columbia v. Board of Health and Environmental Control, 292 S.C. 199, 355 S.E.2d 536
(S.C. 1987).
One aspect of DHEC's authority in this area is the right to impose penalties if the facility is operated in violation of the conditions of
the discharge permit. S.C. Code Ann. § 48-1-110(d) (Supp. 1999); S.C. Code Ann. § 48-1-50(11) (Rev. 1987). In particular,
Regulation 61-9 sets forth specific demands which are applicable to all NPDES permits issued by DHEC. Among others the permit
holder must comply with all conditions of the permit and properly operate and maintain the facility. See 24 S.C. Code Ann. Regs.
61-9.122.41(a) & (e) (Supp. 1999).
More specifically, Regs. 61-9.122.41(a) states that the permittee must comply with all conditions of the permit and that any permit
noncompliance constitutes a violation of the Pollution Control Act, is grounds for enforcement action, and subjects the permittee to
civil penalties under S.C. Code Ann. § 48-1-330 (Rev. 1987). In addition, Regs. 61-9.122.41(e) requires the permittee, at all times, to
properly operate and maintain in good working order, and operate as efficiently as possible, all facilities and systems of treatment and
control which are used by the permittee to achieve compliance with the permit. For the instant case, the regulatory provision
specifically addressing the handling of sewage sludge which is in dispute in this case is 24 S.C. Code Ann. Regs. 61-9.503.24(g)(1)
(Supp. 1999). That regulation requires that run-off from an active sewage sludge unit shall be collected and shall be disposed in
accordance with the NPDES permit requirements and any other applicable requirements.
B. Law applied to facts
1. Effluent violations
Bush River argues that for the effluent sample measurements reported in its 1998 DMR's, the amounts which exceed the discharge
limits should not be considered violations of its NPDES permit since the amounts of excess are statistically insignificant. .
Bush River's argument does not deny that the effluent samples provide a measurement of discharge that exceeds the discharge limits
allowed under the permit. Rather, Bush River seeks to show that the samples are not persuasive evidence of a violation since the
margin of error for the method of measurement employed by Bush River could just as easily show the discharge did not exceed the
discharge limits. Given the facts of this case, I must disagree with Bush River's analysis.
While there is an accepted margin of error for the method of measurement employed by Bush River, that margin of error simply
addresses the level of confidence one can have in the result. Indeed, the margin of error does not rule out the possibility that the
reading taken by Bush River accurately reflects the level of the characteristic being tested. In other words, the margin of error
argument cannot be used to conclude that there was no violation of the permit limit. Rather, the margin of error must be considered
with other facts of this case to decide if a violation is shown. Here the evidence is persuasive in showing that a violation occurred.
Numerous other measurements suggest the sample measurements are persuasive evidence of exceeding the discharge limits. For
example, for the alleged BOD violations post-dating the March 4, 1999 inspection, Bush River employee Keith Parnell admitted these
violations. Parnell also admitted the alleged violation of the permitted limit for flow. Additionally, the March 4 and April 14
inspections revealed violations of the permitted discharge limits for DO and pH. Further, the results from samples taken on April 5
and 6 from Bush River's effluent discharge revealed that Bush River had exceeded its permitted discharge limit for fecal coliform
bacteria.
Based on the foregoing, I conclude that Bush River violated S.C. Code Ann. § 48-1-110(d) (Supp. 1999) and 24 S.C. Code Ann.
Regs. 61-9.122.41(a) (Supp. 1999) by violating the discharge limitations of its NPDES permit.
2. Failure to Contain Leachate
Regs. 61-9.503.24(g)(1) requires that run-off from an active sewage sludge unit shall be collected and shall be disposed in accordance
with the NPDES permit requirements and any other applicable requirements.
The evidence here shows that Bush River's permit requires the installation of a leachate collection system and that Bush River has not
installed such a system. Further, Bush River employee Keith Parnell admitted that Bush River's failure to install a leachate collection
system was a technical violation of its permit. Therefore, I conclude that Bush River violated S.C. Code Ann. § 48-1-110(d) (Supp.
1999), 24 S.C. Code Ann. Regs. 61-9.122.41(a) (Supp. 1999) and 24 S.C. Code Ann. Regs. 61-9.503.24(g)(1) (Supp. 1999) by
violating the permit requirement to equip its sludge storage site with a leachate surface water collection system.
3. Unauthorized discharges
It is unlawful for any person to discharge into the environment organic or inorganic matter except in compliance with a permit issued
by DHEC. S.C. Code Ann. § 48-1-90(a) (Rev. 1987).
During the March 4, 1999 inspection, several locations along the creek adjacent to the facility contained pasteurized sludge that had
been allowed to go over the bank to make contact with the water in the bottom of the creek. These discharges were not authorized by
Bush River's NPDES permit or otherwise. Therefore, I conclude that Bush River violated S.C. Code Ann. § 48-1-90(a) (Rev. 1987)
by allowing the discharge of its pasteurized sludge into the adjoining creek without authorization.
4. Operation and maintenance
Regs. 61-9.122.41(e) requires the permittee, at all times, to properly operate and maintain in good working order, and operate as
efficiently as possible, all facilities and systems of treatment and control which are used by the permittee to achieve compliance with
the permit.
a. Leak in Pipe and Solids on Ground
During the March 2 and March 4 inspections, a deposit of solids was on the ground below Bush River's effluent discharge pipe a
short distance before entering the river. During the March 4 inspection, a leaking of the effluent discharge pipe occurred in the same
location. At that time an insufficient amount of chlorine was in the contact chamber so that an ineffective kill of bacteria resulted,
the leak was not harmless. Further, even if the effluent that leaked onto the ground had been properly treated, the evidence shows that
the only appropriate release into the environment would be dispersion in the river where it can be diluted and not the leaking onto the
ground in concentrated form.
Based on the foregoing, I conclude that Bush River violated S.C. Code Ann. § 48-1-110(d) (Supp. 1999) and 24 S.C. Code Ann.
Regs. 61-9.122.41(e) (Supp. 1999) by failing to properly operate and maintain in good working order its effluent discharge pipe.
b. Chlorine Contact Chamber
During both the March 4 and April 14 inspections, an insufficient level of chlorine was in the contact chamber for a proper kill of
bacteria. Further, during the March 4, 1999 inspection, the chlorine contact chamber contained approximately one foot of sludge,
indicating potential future problems with pH, DO and chlorine values. Likely, the old sludge would produce ammonia combining
with chlorine so as to reduce the effectiveness of the kill of fecal bacteria. Normally, no more than one or two inches of sludge
should be in the chamber.
Because of the possible problems with pH, DO and chlorine values, the amount of sludge found in the chamber was not harmless
since it could interfere with Bush River's compliance with permitted discharge limits. Therefore, I conclude that Bush River violated
S.C. Code Ann. § 48-1-110(d) (Supp. 1999) and 24 S.C. Code Ann. Regs. 61-9.122.41(e) (Supp. 1999) by failing to operate and
maintain in good working order its chlorine contact chamber.
c. Lagoon Wall
The evidence shows that the lagoon wall was cosmetic only. Witnesses for DHEC admitted that the only resulting harm was one of
aesthetics. In fact, no sewage in the lagoon escaped and the wall had nothing to do with treatment or retention time.
Based on the foregoing, I conclude that the collapse of the lagoon wall does not constitute a violation of the requirement of Regs.
61-9.122.41(e) to properly operate and maintain in good working order all facilities and systems of treatment and control.
B. Violations prior to March, 1999
1. Positions of Parties
Bush River argues that no enforcement action should be permitted on the effluent violations revealed in its 1998 DMR's. Bush River
reasons that DHEC's failure to take any immediate enforcement action on these violations barred DHEC from including them in its
enforcement action on violations found during the March and April, 1999 inspections. DHEC maintains that any violations
documented in its records may be included in an enforcement action.
2. Findings of Fact
I find by a preponderance of the evidence, the following facts:
Bush River's 1998 DMR's showed three instances in which BOD exceeded the permit limit of 30 mg/l. The highest reading from
these samples was 34 mg/l. In January, 1999, after receiving Bush River's 1998 DMR's, DHEC notified Bush River that it was in
violation of its NPDES permit due to instances of exceeding its discharge limits. Bush River sent a written response to DHEC stating
that the 1998 instances of exceeding the BOD discharge limits were statistically insignificant. After DHEC received Bush River's
response, it took no further enforcement action at that time.
Following a field inspection on March 2, 1999, two operations and maintenance inspections on March 4, 1999 and April 14, 1999,
and an enforcement conference, DHEC issued Administrative Order 00-018-W imposing $37,000 in penalties for Bush River's
alleged violations of its NPDES permit and the South Carolina Pollution Control Act. The scope of the Administrative Order
included the violations revealed in Bush River's 1998 DMR's.
3. Conclusions of Law
Based on the foregoing Findings of Fact, I conclude the following as a matter of law:
The failure to bring immediate enforcement action on violations does not justify the avoidance of a penalty for them. See Midlands
Utility, Inc. v. South Carolina Department of Health and Environmental Control, 301 S.C. 224, 391 S.E.2d 535 (1989); see also Midlands Utility, Inc. v. South Carolina Department of Health and Environmental Control, 298 S.C 66, 378 S.E.2d 256 (1989) (a
party claiming estoppel against a public body must show a lack of knowledge and means of knowledge of the truth as to the facts in
question, justifiable reliance upon the conduct of the party estopped and a prejudicial change in position).
Nothing in the record shows DHEC's pardon of the 1998 effluent violations. Therefore, a penalty must be imposed for these
violations. See Midlands Utility, Inc. v. South Carolina Department of Health and Environmental Control, 301 S.C 224, 391
S.E.2d 535 (1989).
C. Estoppel
1. Positions of Parties
Bush River argues that DHEC is estopped from seeking a penalty relating to Bush River's lack of a leachate collection system.
DHEC disagrees and argues that Bush River does not meet the test of estoppel because (1) Bush River had knowledge, or at least the
means of knowledge, of the permit requirement of a leachate collection system; and (2) any reliance of Bush River on any
representation, or lack thereof, of a DHEC employee was not justified.
2. Findings of Facts
I find by a preponderance of the evidence the following facts:
In 1996, DHEC issued as a supplement to Bush River's NPDES permit granting a Distribution and Marketing of Sludge Program
Approval. This supplement allowed Bush River to distribute pasteurized wastewater sludge to farmers for agricultural use. Prior to
installing the necessary equipment for this program, Bush River advised DHEC employees how the system would be operated.
DHEC employees visited the facility and saw the operation of the system prior to the March, 1999 inspection. During these visits, no
representative of DHEC advised Bush River that it must use a concrete pad instead of a clay pad to complete the drying process or
that it must equip its sludge storage site with a leachate surface water collection system. In 1997 and 1998, Bush River submitted to
DHEC reports detailing the operation of the system. These reports specifically indicated that after the pasteurized sludge had been
allowed to dry on concrete pads and it was determined that the sludge mix contained no free water, it was placed on a large clay pad
for further drying. Until March, 1999, DHEC expressed no concern over Bush River's lack of a leachate collection system.
3. Conclusions of Law
Based on the foregoing Findings of Fact, I conclude the following as a matter of law:
A party claiming estoppel against a public body must show: (1) a lack of knowledge and the means of knowledge of the truth as to
the facts in question; (2) justifiable reliance upon the conduct of the party estopped; and (3) a prejudicial change in position. Midlands Utility, Inc. v. South Carolina Department of Health and Environmental Control, 298 S.C. 66, 378 S.E.2d 256 (1989).
A governmental body is not immune from the estoppel doctrine where its officers or agents act within the proper scope of their
authority, but "[t]he public cannot be estopped ... by the unauthorized or erroneous conduct or statements of its officers or agents
which have been relied on by a third party to his detriment." Service Management, Inc. v. State Health and Human Services
Finance Commission, 298 S.C. 234, 379 S.E.2d 442 (Ct. App. 1989). Where the parties' actions are governed by unequivocal
language in a written document, an agency employee's erroneous construction of the document does not change its explicit terms and
the State is not bound by the erroneous act of its employee. Service Management, Inc., 379 S.E.2d at 444.
In this case, the terms of Bush River's permit require the installation of a leachate collection system. Therefore, Bush River was
charged with notice of this requirement. Further, DHEC's extended failure to communicate with Bush River concerning this
requirement, despite Bush River's good faith efforts to keep DHEC apprized of its existing operations, does not bar the State from the
due exercise of its police power. Rather, these circumstances are more appropriately considered as a mitigating factor in determining
the amount of the penalty to be imposed.
D. Penalties
1. Positions of Parties
Bush River argues that the penalties assessed by DHEC for the alleged violations are excessive. With the exception of a $1,000
reduction in the penalty for operation and maintenance violations, DHEC defends its original calculation of penalties for the
violations.
2. Findings of Fact
I find by a preponderance of the evidence, the following facts:
A. DHEC's calculation of penalties
Following an enforcement conference with Bush River, DHEC issued Administrative Order 00-018-W imposing $37,000 in penalties
for Bush River's alleged violations of its NPDES permit and the South Carolina Pollution Control Act. DHEC calculated the
penalties, attributing ten thousand dollars to Bush River's alleged unauthorized discharge of biosolids, ten thousand dollars to the
failure to comply with the permit requirement to contain leachate, seven thousand dollars to improper operation and maintenance of
the facility, five thousand dollars to the BOD effluent violations, and five thousand dollars to the DO effluent violations. (1)
DHEC based the penalties for each violation on the potential for harm and the extent of the deviation. For the unauthorized discharge
of biosolids, DHEC determined the potential for harm to be major, reasoning that the biosolids entered the waters of the state, and the
extent of deviation to be major due to multiple occurrences. For the failure to install a leachate collection system, DHEC determined
the potential for harm to be major, reasoning that it caused the unauthorized discharge of biosolids, and the extent of deviation to be
major due to DHEC's discovery of the violation, rather than Bush River's reporting of the violation.
For improper operation and maintenance, DHEC determined the potential for harm to be major, reasoning that it caused an
unauthorized discharge of solids as well as effluent violations, and the extent of deviation to be moderate, noting only two
unsatisfactory inspections. For the BOD and DO effluent violations, DHEC determined the potential for harm to be moderate, noting
that the values reported on the DMR's "were not forty percent or more of the limit," and the extent of deviation to be major due to
four or more violations within the past twelve months.
B. Mitigating factors
1. Effluent violations
a. BOD
Bush River's 1998 DMR's showed three instances in which BOD exceeded the permit limit of 30 mg/l. The highest reading from
these samples was 34 mg/l. Bush River's method of measuring the characteristics of a sample follows the protocols published by the
American Public Health Association. A margin of error can be expected from employing these protocols, such that a reading between
22 mg/l and 38 mg/l could indicate an actual level of 30 mg/l. Further, DHEC's failure to bring immediate enforcement action serves
as an additional mitigating factor in determining the appropriate amount of penalty for these violations.
For violations post-dating March 4, 1999, Bush River had considerable difficulty in meeting permit limits for BOD due to necessary
changes at the facility to comply with DHEC's requirement to cease spreading biosolids on the clay pad. As a result of this
requirement, Bush River ceased operating its biosolids project and made plans to take sludge from the facility to a landfill. Until
Bush River could make all the necessary arrangements for transfer of the solids to a landfill, Bush River suspended removal of solids
from the facility.
b. DO
The evidence presented no mitigating factors for this violation.
2. Unauthorized Discharges
DHEC failed to show the nature of the impact that Bush River's discharges of pasteurized sludge could have on the waters of the
State. Therefore, DHEC's determination that these violations' potential for harm was major is without evidentiary support.
The DHEC witnesses admitted they were not qualified to give an opinion that fecal coliform found in the creek indicated an impact
from Bush River's biosolids entering the creek. Further, DHEC's witnesses admitted that there was no definite connection between
the discharge of biosolids into the creek and water sample results showing elevated levels of fecal coliform bacteria. Indeed, the
evidence shows that the biosolids that entered the creek had been through the lime pasteurization process and that there were likely
other sources of fecal coliform bacteria in the area. Therefore, it is unlikely that Bush River's discharge of these biosolids into the
creek caused elevated levels of bacteria.
Further, DHEC did not test the water in the creek for pH. Due to the high pH level of the sludge during the pasteurization process,
there is obviously a legitimate concern regarding the impact that the dried pasteurized sludge would have on the creek. However,
DHEC presented neither scientific evidence establishing the likely pH level of the sludge as it entered the creek nor pH test results
from creek samples. Therefore, no persuasive evidence exists upon which to base a finding that the discharges' potential for harm
was major.
3. Improper operation and maintenance
a. Leak in Pipe
The evidence presented no mitigating factors for this violation. Bush River employee Keith Parnell testified that there was no
operational significance to the pipe leak and the resulting deposit of solids on the ground below, as the effluent at that point had
already been treated and was approaching the point of discharge into the river. The inspections, however, showed an insufficient
amount of chlorine in the contact chamber to effect a proper kill of bacteria. Therefore, it is unlikely that the solids that leaked from
the pipe were properly treated. Further, even if the effluent that leaked onto the ground had been properly treated, the evidence shows
that the only appropriate release into the environment would be dispersion in the river where the solids can be diluted, rather than
leaking onto the ground in concentrated form.
b. Chlorine Contact Chamber
The evidence presented no mitigating factors for this violation.
4. Failure to Install Leachate Collection System
Prior to installing the necessary equipment for its sludge distribution program, Bush River advised DHEC employees how the system
would be operated. DHEC employees visited the facility and saw the operation of the system prior to the March, 1999 inspection.
During these visits, no representative of DHEC advised Bush River that it must use a concrete pad instead of a clay pad to complete
the drying process or that it must equip its sludge storage site with a leachate surface water collection system.
Further, in 1997 and 1998, Bush River submitted to DHEC reports detailing the operation of the system. These reports specifically
indicated that after the pasteurized sludge had been allowed to dry on concrete pads and it was determined that the sludge mix
contained no free water, it was placed on a large clay pad for further drying. At this stage, the material formed a crust so that rain
water could not penetrate it, but would merely run off. Based on these facts, Bush River holds the belief that a leachate collection
system is not necessary, and thus, has requested that DHEC remove from its permit the requirement for such a system.
Notably, DHEC failed to prove that Bush River's failure to install a leachate collection system caused the unauthorized discharge of
biosolids into the adjoining creek as was concluded by DHEC in its penalty calculation. Rather, the evidence shows that the biosolids
found along the creek bank were residual from Bush River's piling and loading of the material. Therefore, DHEC's determination
that this violation's potential for harm was major lacks persuasive evidentiary support.
3. Conclusions of Law
Based on the foregoing Findings of Fact, I conclude the following as a matter of law:
A. Applicable law
Penalties are authorized by S.C. Code Ann. § 48-1-330 (Rev. 1987). That section provides that any person violating any provisions
of the Pollution Control Act or any regulation or permit shall be subject to a penalty not to exceed ten thousand dollars per day of
such violation. While § 48-1-330 does not require a showing of harm to the environment as a prerequisite to liability (see Midlands
Utility, Inc. v. South Carolina Department of Health and Environmental Control, 298 S.C. 66, 378 S.E.2d 256 (1989), where the
potential for harm exists, the imposition of a penalty is necessary to deter future violations. See Midlands Utility, Inc. v. South
Carolina Department of Health and Environmental Control, 313 S.C. 210, 437 S.E.2d 120 (1993).
In deciding what fine should be imposed, each situation must be analyzed individually to determine if it is appropriate under the
circumstances. Midlands Utility, Inc. v. South Carolina Department of Health and Environmental Control, 313 S.C. 210, 437
S.E.2d 120 (1993). Indeed, acting as the fact-finder, the administrative law judge is "to impose the appropriate penalty based on the
facts presented." Walker v. South Carolina ABC Comm'n, 305 S.C. 209, 211 S.E.2d 633, 634 (1991). In assessing a penalty, the
fact finder "should give effect to the major purpose of a civil penalty -- deterrence." Id. In all events, where mitigating factors are
present, a reduced penalty is justified. See Midlands Utility, Inc. v. South Carolina Department of Health and Environmental
Control, 301 S.C. 224, 391 S.E.2d 535 (1989).
B. Law applied to facts
No violation of an NPDES permit or the Pollution Control Act is a matter to be taken lightly. However, many of the violations in this
case involve significant mitigating factors which warrant a substantial reduction in the penalties assessed by DHEC.
1. Effluent Violations
An accepted margin of error exists for the method of measurement employed by Bush River so that a reading between 22 mg/l and 38
mg/l for BOD could indicate an actual level of 30 mg/l. Of the three BOD violations found in Bush River's 1998 DMR's, the highest
reading was 34 mg/l. Because the readings for these three BOD measurements were within an acceptable margin of error, and
because DHEC failed to bring immediate enforcement action on these violations, I conclude that the penalty for these violations
should be nominal. Further, the evidence shows that Bush River's difficulty in meeting BOD limitations after the March 4, 1999
inspection was caused by Bush River's efforts to comply with a directive of DHEC. Therefore, as the finder of fact, I conclude that
the penalty for Bush River's BOD violations should be $1,000.
Because the evidence presented no mitigating factors for the DO violations, I conclude that the penalty for these violations should
remain at $5,000.
2. Unauthorized Discharge
The evidence supports multiple occurrences of this violation. DHEC's inspection found unauthorized discharges of biosolids into the
creek in several locations. Therefore, DHEC's determination that the extent of deviation for these violations was major is a proper
one. However, DHEC's determination that these violations' potential for harm was major lacks persuasive evidentiary support.
Therefore, I conclude that the penalty for this violation should be $5,000.
3. Improper Operation and Maintenance
The evidence presented no mitigating factors for the leak in the effluent discharge pipe or the problems with the chlorine contact
chamber. However, it is undisputed that the collapsed lagoon wall for which Bush River was penalized was cosmetic only. Because
the collapsed lagoon wall does not constitute a violation, I conclude that the penalty for Bush River's operation and maintenance
violations should be $5,000.
4. Failure to Install Leachate Collection System
DHEC's determination that this violation's potential for harm was major was based on the unsupported assumption that Bush River's
failure to install a leachate collection system caused the unauthorized discharge of solids into the creek. Rather, the evidence shows
that the biosolids found along the creek bank were residual from the piling and loading of the material.
Likewise, DHEC's determination that Bush River's extent of deviation was major was based on the erroneous assumption that Bush
River did not report the lack of a leachate collection system before DHEC discovered it. The evidence shows that Bush River advised
DHEC employees how its system would be operated before installing the equipment for it. Further, DHEC employees visited the
facility and saw the operation of the system prior to the March, 1999 inspection. Moreover, in 1997 and 1998, Bush River submitted
to DHEC detailed reports on the operation of the system. Therefore, Bush River placed DHEC on notice of its lack of a leachate
collection system well before the March, 1999 inspection.
Bush River should not be excused for failing to carefully read the language in its permit which requires the leachate containment
system. However, DHEC's failure to acknowledge the violation for years cannot be ignored when considering mitigating factors for
purposes of setting a penalty amount. Especially troubling is DHEC's failure to communicate the violation to Bush River when Bush
River first advised DHEC how its system would be operated prior to making the financial commitment of installing equipment.
Based on all of these mitigating factors, I conclude that the penalty for this violation should be $1,000.
Based on the foregoing, I conclude that the appropriate total penalty is $17,000.
IV. Order
Based upon the Findings of Fact and Conclusions of Law, it is hereby ordered:
Within thirty (30) days of the date of this Order, Bush River Utilities, Inc. shall pay a total penalty of $17,000 to DHEC for violations
of its NPDES permit and the South Carolina Pollution Control Act.
AND IT IS SO ORDERED.
RAY N. STEVENS
Administrative Law Judge
Dated: October 9, 2000
Columbia, South Carolina
1. DHEC did not assess a penalty for the less serious effluent violations of pH, fecal coliform bacteria and flow. |
