ORDERS:
CONSENT ORDER OF DISMISSAL
This contested case comes before the undersigned by way of an agency transmittal from the South Carolina Department of Health and
Environmental Control (Department) requesting a hearing because of Petitioner International Paper Company's appeal of the issuance
of Administrative Order 2000-038-W. Prior to a hearing being held, the parties reached an agreement resolving this matter without
the need for a hearing. Consent Order 00-223-W, dated October 16, 2000, is attached and incorporated into this Order by reference.
Accordingly, by and with the consent of the parties, it is ordered and agreed that this contested case is dismissed.
AND IT IS SO ORDERED.
______________________________
JOHN D. GEATHERS
Administrative Law Judge
Post Office Box 11667
Columbia, South Carolina 29211-1667
October 31, 2000
Columbia, South Carolina
WE SO MOVE AND CONSENT:
___________________________________
Brad A. De Vore
Womble, Carlyle, Sandridge & Rice, L.L.C.
3300 One First Union Center
301 South College Street
Charlotte, NC 28202-6025
(704)331-4900
Attorney for Petitioner
International Paper Company
____________________________________
M. Shawn Harmon
Staff Counsel
South Carolina Department of Health
And Environmental Control
2600 Bull Street
Columbia, SC 29201-1708
(803)898-3368
Attorney for Respondent
South Carolina Dept. of Health & Environmental Control
October 19, 2000
Columbia, South Carolina
THE STATE OF SOUTH CAROLINA
BEFORE THE DEPARTMENT OF HEALTH AND ENVIRONMENTAL CONTROL
______________________________________________________________________________
IN RE: INTERNATIONAL PAPER COMPANY
MARION COUNTY
______________________________________________________________________________
CONSENT ORDER
00-223-W
______________________________________________________________________________
International Paper Company owns and previously operated the International Paper - Masonite facility (Subject Property) located in Sellers,
South Carolina.
This Consent Order is entered into by the South Carolina Department of Health and Environmental Control (Department) and International
Paper (Respondent) with respect to the assessment and remediation of the Subject Property.
IN THE INTEREST OF RESOLVING THIS MATTER without delay, the Respondent agrees to the entrance of this Consent Order, but
neither agrees nor disagrees with the Findings of Fact or the Conclusions of Law; and therefore, agrees that this Order shall be deemed an
admission of fact and law only as necessary for enforcement of this Order by the Department or subsequent actions relating to the Respondent by
the Department.
FINDINGS OF FACT
1. The Subject Property, with appurtenances, has been utilized for the manufacture of medium density fiberboard. The Respondent currently
owns the property. Previously, the facility was owned by Celotex and operated under the name Celotex. The primary features of the Subject
Property include the manufacturing building, a wastewater treatment plant consisting of three lagoons, an inactive 6-acre spray irrigation field, a
27-acre spray irrigation field discontinued from use in 1998, and an unused 35-acre spray irrigation field.
2. Sources of contamination identified at the Subject Property include: both the 6-acre and 27-acre spray irrigation fields. Investigations
confirmed that nitrate-nitrogen was detected in the groundwater. Also, soils have been impacted by organic nitrogen. The source of the problem
has been corrected.
3. The Respondent initiated a hydrogeological investigation in the 1980's. Subsequent investigations through 1998 were completed to
determine the extent of the groundwater and soil impacts both on-site and off-site. Computer modeling of the situation has determined that the
Subject Property will be remediated in approximately six (6) to ten (10) years.
4. The Department and the Respondent are entering this Order in order to remediate the Subject Property by monitored natural attenuation.
CONCLUSIONS OF LAW
Based upon the above Findings of Fact, the Department reaches the following conclusions of law:
1. The Pollution Control Act, S.C. Code Ann. §48-1-50 (1987), gives the Department the authority to hold hearings, issue orders and conduct
studies and investigations to abate, control, and prevent pollution.
2. As established by South Carolina Water Classifications and Standards, 24 S.C. CodeRegs. 61-68 H.4 (1998), it is the policy of the Department
that all ground waters of the State shall be protected, to the extent possible, to a quality consistent with the use associated with the classes
described therein.
3. As established by the Pollution Control Act, S.C. Code Ann. §48-1-50 (1987), the Department may encourage voluntary cooperation by
persons, or affected groups in restoration and preservation of a reasonable degree of purity of air and water.
4. A violation of the Pollution Control Act, S.C. Code Ann. §48-1-110(d) (1987), and South Carolina Water Classifications and Standards, 24
S.C. Code Regs, 61-9.122.41(a) (1998), has occurred in that two (2) permitted spray irrigation fields were overloaded, causing excessive
nitrogen levels to leach to the water table and contaminate the surficial aquifer.
5. A violation of the South Carolina Water Classifications and Standards, 24 S.C. Code Regs. 61-68 H.9 (1998), has occurred in that
groundwater quality at the Subject Property has not been maintained in accordance with Class GB standards.
6. The Pollution Control Act, S.C. Code Ann. §48-1-330 (1987) provides a civil penalty not to exceed ten thousand dollars ($10,000.00) per day
of violation for any person violating the Act or any rule, regulation, permit, permit condition, final determination, or order of the Department.
NOW, THEREFORE, IT IS CONSENTED TO AND AGREED that the Respondent shall accomplish the requirements detailed below:
1. A groundwater monitoring program will be established to ensure that the groundwater contaminant plume(s) does not increase in size or
adversely affect any receptor.
2. The groundwater monitoring program shall consist of onsite monitoring well #'s 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21,
22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34D, 35D, 36D, 37, and of offsite monitoring wells PMW-1 through PMW-4 and CMW-1 through
CMW-4.
3. This Order shall terminate when:
a. contaminate levels in all monitoring wells included in the Monitored Natural Attenuation Program, as a result of two consecutive sampling
events and confirmed within 30 days, ahve attenuated to the Class GB standard of 10 mg/L or less; or
b. contaminant levels at wells CMW 1 through CMW4 or MW 37, as a result of two consecutive sampling events and confirmed within 30 days,
are reported to exceed the Class GB standard of 10 mg/L; or
c. ten years have passed since the execution of this Order.
4. In accordance with the December 1998 report titled, "Natural Attenuation of Nitrate-Nitrogen Impacts on a Localized Shallow Ground Water
Flow System at the Masonite Corporation Marion Plant in Sellers, SC," and with monitoring well approvals dated April 9, 1999, and June 23,
1999, initiate a monitoring program as follows. Perform semi-annual sampling of monitoring wells in which nitrate levels have historically
exceeded the Class GB quality standard of 10 mg/L. These wells are #'s 5, 6, 7, 11, 12, 17, 18, 23, 28, 29, 30, 32, and 33. Downgradient offsite
monitoring wells PMW-1 through PMW-4, CMW-1 through CMW-4, and cross-gradient on-site monitoring well MW-37, shall also be sampled
semi-annually. Monitoring wells in which nitrate levels have historically been less than 10 mg/L may be sampled biennially. These wells are
#'s 4, 8, 9, 10, 14, 15, 16, 19, 20, 21, 22, 31, 34D, 35D, and 36D. The monitoring wells on the unused 35-acre sprayfield expansion, i.e., #'s 13,
24, 25, 26, and 27 shall be sampled once, coinciding with the first sampling event required by this Order, to establish background data. The
analytical parameter list consists of nitrate-nitrogen, ammonia, water table elevation, and field measurements for specific conductance, water
temperature, and pH.
5. To gauge the performance of the monitored natural attenuation program, baseline concentrations of nitrate shall be established in monitoring
wells where nitrate has historically exceeded that Class GB standard of 10 mg/L, as listed in the preceding paragraph. The baseline nitrate
concentrations shall be determined by the average of those detected during the eight (8) most recent rounds of quarterly compliance monitoring
immediately preceding this Order. Note: for well 18, the baseline shall be 10 mg/L; for wells 32 and 33, the baseline shall be the average of the
two (2) previous sampling events prior to this Order.
6. Monitoring reports shall be submitted to the Department by June 30 and December 31 of each year for the duration of the approved monitored
natural attenuation program. These reports shall contain tabulated monitoring results, laboratory certificates of analyses, and interpretation of
data as appropriate, e.g., isoconcentration maps, potentiometric maps, signed chain of custody forms.
7. To ensure that the approved monitored natural attenuation program is functioning as modeled, submit an evaluation report to the Department
every three (3) years. This report shall contain comparisons of groundwater analytical data to the model output confirming continued favorable
conditions. Any deviations from the model output should be reported.
8. By mutual agreement, the sampling locations, sampling frequency, and analytical parameters specified in this Order can be modified after an
adequate reference database has been established.
9. The Department is to be informed within fifteen (15) working days of the Respondent's receipt of laboratory results of any contaminant
concentrations exceeding groundwater standards at the compliance boundary monitoring wells and/or contaminant concentrations detected over
the course of two (2) consecutive sampling events at concentrations greater than the baseline values as per paragraph five (5) of this Order.
10. This Order will not be used as acceptance for other contaminants present, or potentially present, in the aquifers beneath the referenced site
other than for those compounds addressed in this Order. This Order shall not be used as acceptance for introducing any additional compounds
onto the surface or into the subsurface environment.
11. All deadlines set forth in this Order may be modified or otherwise amended by written agreement of both parties.
12. The Parties agree to the tolling of all Time-Based Defenses applicable to the environmental contamination that is the subject of this Order as
of February 22, 2000. "Time-Based Defenses" include, but are not limited to, applicable statute of limitations or repose or other time-based
defense or claim, resulting from the deferral in filing or commencing of a legal action during the effective period of this Order. For purposes of
this paragraph 12 of this Order, the "effective period of this Order" shall be from February 22, 2000, through the date this Order is terminated
pursuant to the termination provisions set forth in paragraph 3 on page 4 of this Order or on pages 8 and 9 of this Order. It is the intention of
each Party that the time period during the effective period of this Order shall not be considered in computing the time in which any Time-Based
Defenses or any claims or suits should have been brought in any action that either Party may file against the other. Each Party expressly waives
and agrees not to assert any Time-Based Defenses to claims brought by the other, based upon delay in commencing suit or meeting conditions
precedent to the filing of a suit or other legal proceeding during the effective period of this Order.
13. Within thirty (30) days of the execution of this Order, pay to the Department a civil penalty in the amount of twenty-five thousand dollars
($25,000.00).
PURSUANT TO THIS ORDER, all requirement to be submitted to the Department shall be addressed as follows:
J. Robin Foy
Bureau of Water - Water Pollution Enforcement Section
S.C. Department of Health and Environmental Control
2600 Bull Street
Columbia, S.C. 29201
IT IS FURTHER AGREED that if any event occurs which causes or may cause a delay in meeting any of the above scheduled dates for
completion of any specified activity, notify the Department in writing at least one (1) week before the scheduled date, describing in detail the
anticipated length of the delay, the precise cause or causes of delay, if ascertainable, the measures taken or to be taken to prevent or minimize the
delay, and the timetable by which those measures will be implemented.
The Department shall provide written notice when practicable that a specified extension of time has been granted or that no extension has been
granted. An extension shall be granted for any scheduled activity delayed by an event of force majeure, which shall mean any event arising from
causes beyond the control of the Respondent that causes a delay in or prevents the performance of any of the conditions under this Consent
Order including, but not limited to: a) acts of God, fire, war, insurrection, civil disturbance, explosion; b) adverse weather condition that could
not be reasonably anticipated causing unusual delay in transportation and/or field work activities; c) restraint by court order or order of public
authority; d) inability to obtain, after exercise of reasonable diligence and timely submittal of all applicable applications, any necessary
authorizations, approvals, permits, or licenses due to action or inaction of any governmental agency or authority; and e) delays caused by
compliance with applicable statutes or regulations governing contracting, procurement or acquisition procedures, despite the exercise of
reasonable diligence by the Respondent.
Events which are not force majeure include by example, but are not limited to, unanticipated or increased costs of performance, changed
economic circumstances, normal precipitation events, or any person's failure to exercise due diligence in obtaining governmental permits or
fulfilling contractual duties. Such determination will be made in the sole discretion of the Department. Any extension shall be incorporated by
reference as an enforceable part of this Consent Order and thereafter be referred to as an attachment to the Consent Order.
Upon receipt of any submission required under this Order, the Department shall expeditiously review and notify the Respondent whether the
submission is approved. If the submission is unacceptable the notification will specify the reasons why approval cannot be granted. The
Respondent shall submit a revised report within thirty (30) of receipt of written notification of disapproval by the Department of within a
reasonable additional period as may be requested by the Respondent and agreed to in writing by the Department. The Department shall
expeditiously review and notify the Respondent whether the revised report is approved. If the revised report is unacceptable the notification will
specify the reasons why approval cannot be granted. If Respondent fails to submit a second revised report within thirty (30) days of receipt of
written notification of disapproval of the revised report by the Department or within a reasonable additional period as may be requested by the
Respondent and agreed to in writing by the Department, this Order shall terminate. Upon Department approval of submittals and schedules
contemplated in this Order, such submittals and schedules shall become an enforceable part of this Order.
IT IS FURTHER AGREED that failure to comply with the deadlines in the approved Work Plan, Final Work Plan or any extension approved
by the Department may be considered a violation of the provisions of this Order.
Failure to comply with any provision of this Order shall be grounds for further enforcement action.
THE SOUTH CAROLINA DEPARTMENT OF
HEALTH AND ENVIRONMENTAL CONTROL
_____________________________________________ DATE:_______________________
Douglas E. Bryant
Commissioner
_____________________________________________ DATE:________________________
Alton C. Boozer
Bureau of Water
WE CONSENT:
_____________________________________________ DATE:_________________________
International Paper
___________________________________________ DATE:________________________
Valerie A. Betterton
Water Enforcement Division
___________________________________________ DATE:__________________________
Attorney for Department |
