SC Administrative Law Court Decisions

A consolidated hearing in the above-captioned three cases was held before me on July 31, 2001. Docket Numbers 99-ALJ-07-0450-CC and 99-ALJ-07-0653-CC are both appeals filed by Carolina Water Service, Inc. (Carolina Water) contesting two separate decisions made by the Department of Health and Environmental Control (DHEC or Department) to deny Carolina Water's requests for major NPDES permit modifications. This Court issued a Final Order and Decision in this matter on December 5, 2001. Subsequently, both the Petitioner and Respondent made Motions for Reconsideration requesting that this Court reconsider various aspects of the Decision in this case. After reviewing the party's arguments, I hereby issue this Amended Final Order and Decision.

Docket Number 00-ALJ-07-0144-CC is a contested case in which Carolina Water appeals the Department's issuance of Administrative Order 00-039-W. The Administrative Order alleged that Carolina Water violated the Pollution Control Act, S.C. Code Ann. §§ 48-1-10 et seq. (1987 & Supp. 1999) and the Water Pollution Control Permits Regulations, 24 S.C. Code Ann. Regs. 61-9 (Supp. 1999), by exceeding its permit discharge limits and by failing to connect to the regional sewer system as required by its NPDES permit. The Administrative Order assessed a civil penalty in the amount of fourteen thousand dollars ($14,000.00) and ordered Carolina Water, inter alia, to connect its I-20 Wastewater Treatment Plant (I-20 Plant) to the regional sewer system by September 15, 2000. Carolina Water asserts that due to outside forces beyond its control, it could not connect to the regional sewer lines. Specifically, Carolina Water argues that its refusal to connect to the regional system is justified because it cannot agree on an acceptable wholesale sewer rate with the Town of Lexington (Town). Carolina Water further argues that the wholesale sewer rates presented to it by the Town would not be approved by the Public Service Commission (PSC) and that if Carolina Water entered into a connection agreement without PSC approval, it could potentially suffer the economic hardship of not being able to pass the costs of those rates along to its customers.

Having observed the witnesses and exhibits presented at the hearing and closely passed upon their credibility, taking into account the burden of persuasion by the parties, I make the following Findings of Fact by a preponderance of the evidence:

1. Notice of the date, time, place and nature of the hearing was timely given to all parties.

2. Carolina Water is a private utility company which owns and operates the I-20 Plant in Lexington County, South Carolina. In November of 1994, the Department issued NPDES Permit No. SC0035564 to Carolina Water allowing the I-20 Plant to discharge treated wastewater into the lower Saluda River. This permit became effective on January 1, 1995. The terms of NPDES Permit No. SC0035564 require that Carolina Water eliminate the discharge of treated wastewater from its I-20 Plant by connecting to regional sewer lines.

A 1993 Amendment to the Central Midlands Regional Council of Government's (COG) Water Quality Management Plan (208 Plan) called for the I-20 Plant and other wastewater facilities in the 12 and 14-Mile Creek Basins to connect to the regional sewer system when it was operational. Therefore, pursuant to its NPDES permit and the 1993 Amendment, Carolina Water was required to connect its sewer system to the regional sewer system ninety (90) days after that system was operational and, thereafter, it was to terminate its wastewater treatment facility. At the time of issuance of the permit, DHEC was informed that the connection agreement would have to be approved by the South Carolina Public Service Commission.

The regional sewer system to which Carolina Water must connect is owned and operated by the Town. The 1993 Amendment to the 208 Plan provided that DHEC would work cooperatively with the designated management agencies to see that the concerns of the private utilities and the public were taken into account in determining the best and most timely means, including phasing, to implement the plan. In particular, under the 208 Plan, existing customers were to be treated fairly and reasonably and were not to be charged tap or capital contribution fees, including debt service on the cost of the regional system. Among its duties, the Town was to be responsible for negotiating agreements related to the regional system. However, the Town of Lexington and Carolina Water have not entered into such an agreement. Therefore, Carolina Water has not presented a connection agreement to the PSC for its approval. ⁽¹⁾

3. Carolina Water did not inform the Department until June 1999 that it was experiencing difficulties obtaining rates and charges from the Town.

4. The Town began construction of the regional system in 1996. Carolina Water timely filed its plans and specifications on November 19, 1996 with DHEC for the connection of its I-20 sewer system to the regional system in accordance with the schedule of compliance in its NPDES permit. The plans and specifications were approved by DHEC on April 28, 1998.

The Department issued a permit to operate the regional sewer system to the Town of Lexington on April 7, 1999. The Department thereafter notified Carolina Water, by letter dated April 21, 1999, that the permit to operate the regional sewer system had been issued. Under the NPDES permit's schedule of compliance, Carolina Water was to connect to the regional system ninety (90) days after that system was operational - on or about July 21, 1999. Nevertheless, Carolina Water did not connect to the regional system within that ninety (90) day time period.

5. The Department contends that though the COG Board granted Carolina Water a written conformance certification from September 23, 1999 to November 22, 1999, and from December 9, 1999 through December 31, 1999, Carolina Water was in violation of its compliance schedule during the following periods: July 22, 1999 through September 22, 1999, and November 23 through December 8, 1999. The COG has been designated by the Governor, pursuant to 33 U.S.C.A. § 1288, as the planning agency responsible for developing area-wide waste management plans for Lexington, Richland, Newberry and Fairfield Counties. The COG entered into a Memorandum of Agreement (MOA) with the Department in May 1998. This MOA states that it is the responsibility of the COG to render conformance opinions as to whether a permittee's proposed activity is in conformance with the regional 208 Plan.

On June 9, 1999, the COG staff issued a conformance opinion that the re-issuance of an NPDES permit to Carolina Water's I-20 Plant would not be in conformance with the 208 Plan. Carolina Water appealed the COG staff's nonconformance certification alleging that the regional system was in fact not available and that it could not enter into a connection agreement without PSC approval. At the COG's Environmental Planning Advisory Committee (EPAC) meeting on September 22, 1999, the Town's rate consultant acknowledged that the rates proposed by the Town since March 1999 had been speculative because the Town did not have all the cost figures it needed to establish a fair and reasonable rate. He also acknowledged, that he had "now been given more clear instructions from the Mayor and Council" to allocate the costs so as "to be fair to Carolina Water." Therefore, EPAC recommended that the COG reverse the staff's decision and hold Carolina Water in conformance for a period of sixty (60) days to allow the parties to conclude their negotiations. On September 23, 1999, the COG Board reversed the staff's decision and held Carolina Water in conformance for sixty (60) additional days.

The COG Board did not meet again until December 9, 1999, at which time the Board voted to continue to hold Carolina Water in conformance until February 24, 2000. Therefore, a few days elapsed in November and December 1999 in which the Board had not issued Carolina Water a formal declaration of compliance. However, that lapse resulted from the COG's deferral of its November meeting due to the annual convention of the S.C. Association of Regional Councils. ⁽²⁾ Nevertheless, at its next meeting on December 9, 1999, the COG Board voted to extend its certification that Carolina Water was in conformance with the 208 Plan until February 24, 2000. Though there were periods in which the COG Board had not issued a formal declaration of compliance, the COG considered Carolina Water to have been in conformance with the 208 Plan during that entire time period.

6. Carolina Water's NPDES Permit No. SC0035564 for its I-20 Plant was scheduled to expire on September 30, 1999. A complete application requesting re-issuance of the NPDES permit was timely filed with DHEC on March 24, 1999. Afterwards, Carolina Water submitted a "Major Modification Request" to the Department on July 14, 1999, asking that the compliance schedule section of its NPDES permit be modified to allow Carolina Water additional time to interconnect its lines with the regional system. This request was amended and resubmitted in August 1999. Carolina Water's request stated that it needed more time to connect because it had been unable to obtain a formal offer of wholesale sewer rates and charges from the Town. Jeffrey deBessonet, Director of DHEC's Water Facilities Permitting Division, denied Carolina Water's request in a letter dated August 17, 1999.

On August 24, 1999, Carolina Water submitted another "Major Modification Request" to the Department asking that the compliance schedule section of its permit be extended to allow it additional time to connect to the regional system. Mr. deBessonet again denied Carolina Water's request by a letter dated December 2, 1999.

7. Carolina Water contends that major modification of its permit is justified because the regional system was not available due to events beyond its control. These events that Carolina Water claims were beyond its control are:

(a) Carolina Water could not connect to the regional system without an agreement with the Town and the Town had refused to offer it a connection agreement;

(b) Carolina Water could not enter into a connection agreement until it was first approved by the S.C. Public Service Commission as required by 26 S.C. Code Ann. Regs. 103-541 (Supp. 1999); and

(c) Carolina Water needed to construct the connection to the regional system, all of which is required by the schedule of compliance contained in the NPDES permit.

Carolina Water requested that the final compliance date contained in the NPDES permit be modified to allow for the continued operation of the wastewater treatment facility under the existing permit until such time as: (a) a connection agreement was provided by the Town; (b) an application was made for approval of the connection agreement to the PSC and such approval was obtained; (c) the connection agreement was executed; and (d) construction of the connection was completed.

Mr. deBessonet testified that the reasons for the Department's denial of the requests for major modification were as follows:

(a) Carolina Water waited too long to make the request. It should have been made in 1998. In fact, Carolina Water's NPDES permit expired before the Department completed its review;

(b) Carolina Water could have sold its system but did not; and

(c) Carolina Water could have been "softer" in its negotiations with the Town of Lexington by taking "bad" bulk service rates or purchase agreements to the PSC and gotten a denial from the PSC.

8. The regulations relating to the filing of a major modification request do not provide for a specific time in which it must be filed except that it must be filed prior to the expiration of the permit. Therefore, although it was filed after the date Carolina Water was approved for connection to the regional system, Carolina Water nonetheless properly filed its request. Moreover, Carolina Water did not make the request more expeditiously because it was attempting to resolve the issue by negotiating a contract with the Town.

Additionally, in order to connect to the regional line, Carolina Water must enter into a connection agreement with the Town. An agreement between the parties must necessarily include terms setting forth a bulk wholesale sewer rate and other charges. In fact, a connection agreement is required in order to submit it to the PSC for approval as required by South Carolina law. In 1996, Carolina Water began contacting the Town to determine the rates to be proposed by the Town and the terms of the connection agreement. These contacts to determine the proposed rates and supporting data and terms of the connection agreement continued from 1996 until September 17, 1999 when the Town finally provided Carolina Water with firm rates. The Town did eventually provide Carolina Water with a connection agreement in October 1999.

Carolina Water argues that the execution of a contract was not under its control. However, once the Town made an offer, Carolina Water certainly could have taken the Town's proposal to the PSC for its consideration. In taking that step, Carolina Water could have argued the inadequacies of the proposal. Therefore, though the terms of the Town's proposal and the timing of when the Town finally provided Carolina Water with firm rates were not under Carolina Water's control, the necessary step to seek PSC approval and thereby further the ultimate goal of connecting to the regional system once those rates were provided was under Carolina Water's control.

Carolina Water estimates that it would take approximately four (4) to six (6) months of construction to implement the interconnection to the regional lines. This construction could have, and should have, begun before it was necessary for Carolina Water to connect to the regional system. However, to date, Carolina Water has not yet begun the construction work to connect the I-20 Plant to the regional system and is not in a position to connect upon PSC approval of a service agreement.

9. Carolina Water, as required by the terms of its NPDES permit, submitted "Discharge Monitoring Reports" (DMRs) to the Department covering the time period from January 1, 1997 through March 31, 1999. These DMRs revealed that Carolina Water exceeded its permitted discharge limits for biochemical oxygen demand (BOD), fecal coliform bacteria, and flow during the following months:

(a) BOD - August 1997; February, June, November, and December 1998; and March 1999;

(b) Fecal Coliform - January and July 1997; May, June and September 1998; and June 1999; and

(c) Flow - January, February and March 1998.

In the Department's Administrative Order, it also found that:

Results from the Department's Bureau of Water routine ambient data assessment indicate aquatic life impairment caused by high levels of copper and zinc and partial recreational impairment caused by high levels of fecal coliform bacteria in the Saluda River at the USGS gauging station (S-298) located one half mile below I-20 which is downstream from the Respondent's [Carolina Water's] discharge.

The Department assessed a civil penalty of ten thousand dollars ($10,000.00) against Carolina Water for the various discharge violations.

However, the Department did not establish that Carolina Water discharged any cooper or zinc into the Saluda River. Moreover, there was no evidence that Carolina Water's excessive discharge on the above dates resulted in any impairment to the aquatic life in the Saluda River. In fact, the Department introduced no evidence as to the date on which the Bureau of Water's routine ambient data assessment was taken which indicated partial recreational impairment due to fecal coliform, or that such date corresponded with any of the dates shown of the violations of effluent limits for fecal coliform by Carolina Water's wastewater treatment facility. Furthermore, I find that the impact of pond turnover during El Nino rain events is a mitigating factor in considering the proper penalty to access.

1. The Administrative Law Judge Division has jurisdiction over this matter pursuant to S.C. Code Ann. §§ 1-23-310 et seq. (1986 & Supp. 1999).

2. The Department has the authority and the duty to regulate the discharge of pollutants through the Pollution Control Act, S.C. Code Ann. §§ 48-1-10 et seq. (1987 & Supp. 1999).

3. In weighing the evidence and deciding a contested case on the merits, the Administrative Law Judge must make findings of fact and conclusions of law by a preponderance of the evidence. Anonymous (M-156-90) v. State Board of Medical Examiners, 329 S.C. 371, 496 S.E.2d 17 (1998).

4. 26 S.C. Code Ann. Regs. 103-541 (Supp. 1999) provides that a wastewater treatment facility may not enter into a contract which would impact its ability to provide sewer service without first obtaining the approval of the S.C. Public Service Commission.

5. S.C. Code Ann. § 48-1-110(d) (Supp. 1999) provides that it is unlawful for a waste disposal facility to violate the conditions of its discharge permit. The Department argues that Carolina Water violated Section 48-1-110(d) by failing to connect its wastewater treatment facility to the regional sewer system in accordance with the compliance schedule of its NPDES permit. Furthermore, the Department contends Carolina Water violated 24 S.C. Code Ann. Regs. 61-9.122.47(e) (Supp. 1999) of the Water Pollution Control Permits Regulations in that it failed to eliminate the discharge by connection to the regional sewer system as required by its NPDES permit.

Carolina Water's NPDES permit mandated that it connect to the regional sewer system within ninety (90) days after the permit to operate the regional sewer system was issued. The Department issued a permit to operate the regional sewer system on April 7, 1999, and Carolina Water was notified by the Department on April 21, 1999 that the permit to operate had been issued. Therefore, the Department contends that Carolina Water should have completed the connection by July 21, 1999. To the contrary, Carolina Water argues it was not in violation of the 208 Plan, and therefore not in violation of its NPDES permit, because the regional system was not available for connection. Carolina Water further argues that since the COG determined that it was in conformance with the 208 Plan, the Department improperly cited it for violating its NPDES permit's schedule of compliance. Although Carolina Water has not connected to the regional sewer system, the COG has determined that it is in conformance with the 208 Plan because the system was not available for connection by Carolina Water.

Here, the Department delegated its authority to make such determinations to the Central Midlands COG. The Central Midlands COG entered into a Memorandum of Agreement with the Department in May 1998. This MOA states that it is the responsibility of the COG to render conformance opinions as to whether a permittee's proposed activity is in conformance with the regional 208 Plan. In this case, the COG held that Carolina Water was in conformance with the 208 Plan because the regional system was not available for connection. The COG issued that decision pursuant to its Memorandum of Agreement with DHEC that granted it the authority to determine permit conformance issues. ⁽³⁾ See 40 C.F.R. §§ 130.6(e) & (f); 40 C.F.R. § 130.12(a). I find that the COG's decision is binding upon the Department.

The Department further contends that though the COG Board granted Carolina Water a written conformance certification from September 23, 1999 to November 22, 1999, and from December 9, 1999 through February 24, 2000, Carolina Water was in violation of its compliance schedule during the following periods: July 22, 1999 through September 22, 1999, and November 23 through December 8, 1999. However, the COG determined that Carolina Water was in conformance with the 208 Plan because the regional system was not available for connection. Therefore, I find that Carolina Water was and has been in conformance with the 208 Plan at least as late as June 2000. Moreover, if Carolina Water was in conformance with the permit under the 208 Plan after December 8, 1999, it is only logical that it was previously in compliance with the 208 Plan during the lapses of time set forth above and thereby it could not be in violation of its NPDES permit.

6. Carolina Water argues that it has not been able to connect to the regional system because it could not agree on an acceptable wholesale rate with the Town of Lexington and that the proposed rates offered to it by the Town would never be approved by the PSC. However, Carolina Water has known since 1994 that it was required to eliminate its discharge ninety (90) days after the permit to operate the regional system was issued. I find that Carolina Water should have submitted whatever contract it could negotiate with the Town and thereafter submitted that contract to the PSC in order to have at least attempted to reach an acceptable and timely agreement.

Therefore, on one hand, the evidence simply did not establish that the delay in reaching an agreement was solely attributable to Carolina Water. On the other hand, Carolina Water never even presented any rates to the PSC for its final approval. Carolina Water's argument that the PSC would not have approved the proposed rates offered by the Town lacks credibility.

S.C. Code Ann. § 48-1-330 (1987 & Supp. 1999) provides for a maximum penalty of up to ten thousand dollars ($10,000.00) per day for violations of the Pollution Control Act. I find that since the COG has found Carolina Water in compliance with the 208 Plan, the Department improperly assessed a penalty against Carolina Water for violating the schedule of compliance. Even if the Department has the authority to impose a civil penalty for this violation, I find that under the facts of this case a penalty against Carolina Water for violating the schedule of compliance is not appropriate.

7. The Department is the state agency charged with the responsibility of issuing NPDES permits to allow treatment facilities to discharge treated wastewater. S.C. Code Ann. § 48-1-50(5) (1987 & Supp. 1999). Additionally, the Department may not issue an NPDES permit which is in conflict with an approved 208 Plan. See 33 U.S.C.A. § 1288(e); 24 S.C. Code Ann. Regs. 61-9.122.4(g) (Supp. 1999). Specifically, Section 122.4 (g) provides that the Department may not issue a permit:

For any discharge inconsistent with a plan or plan amendment approved under section 208(b) of CWA, unless the Department finds such variance necessary to protect the public health, safety, and welfare.

Furthermore, 24 S.C. Code Ann. Regs. 61-9.122.62(d)(4) (Supp. 1999) provides that a compliance schedule within an NPDES permit may be modified if: "[t]he Department determines good cause exists for modification of a compliance schedule or terms and conditions of a permit, such as an act of God, strike, flood, or materials shortage or other events over which the permittee has little or no control and for which there is no reasonably available remedy." (emphasis added). A filing of a request for a major modification is timely if it is filed prior to the expiration of the permit. Id.

The Department argues that it has the authority under Regulation 61-9.122.4(g) to make determinations regarding whether a discharger is acting in conformance with the 208 Plan. ⁽⁴⁾ The Department also contends that good cause does not exist for modification of a compliance schedule pursuant to Regulation 61-9.122.62(d)(4).

Carolina Water argues that it should have been given a permit modification because its ability to connect to the regional system was entirely dependant on the Town offering it a suitable wholesale rate. This situation is a quagmire created by the existing circumstances of negotiating an acceptable contract for all parties. The Department properly seeks to insure that Carolina Water connects to the regional system as soon as possible. Carolina Water is seeking to insure that any contract negotiated protects the interest of its customers, passes the scrutiny of the PSC, and also maintains the profitability of its company. Added into that equation is the interest of the Town which is, presumably, negotiating a contract that is in the best interest of its citizens.

I find that under these circumstances Carolina Water did not have significant control over obtaining an acceptable rate from the Town. Furthermore, Carolina Water made significant efforts to comply with the NPDES permit conditions. It timely prepared its plans and drawings for the connection to the regional system, it submitted these to DHEC timely and had them approved by 1998. It repeatedly contacted the Town to obtain data necessary for it to submit a connection agreement to the PSC for approval. It even went to the extent of filing FOIA requests with the Town to obtain the needed data. Moreover, 26 S.C. Code Ann. Regs. 103-541(Supp. 1999) provides that:

No utility shall execute or enter into any agreement or contract with any person, firm, partnership, or corporation or any agency of the Federal, State or local government which would impact, pertain to, or effect said utility's fitness, willingness, or ability to provide sewer service, including but not limited to the collection or treatment of said sewerage, without first submitting said contract in form to the Commission and obtaining approval of the Commission.

Therefore, South Carolina law required that Carolina Water submit a connection agreement to the PSC in order to obtain approval before any actual connection was made.

Nevertheless, Carolina Water could have begun negotiations with the Town earlier and submitted its own proposals to the Town rather than waiting to receive them. Furthermore, Carolina Water could have presented a negotiated contract to the PSC for its final approval. Therefore, though there was an "available remedy," the timing of when that remedy was "reasonable" is nebulous. The COG which is the designated authority to make determinations concerning the Central Midlands when faced with this dilemma has repeatedly extended the time for Carolina Water to connect to the regional system. Consequently, I find that the Department was not justified in its denial of Carolina Water's requests for major modifications of its permit compliance schedule. However, I find that the major modification is only warranted under the conditions set forth below.

8. 24 S.C. Code Ann. Regs. 61-9.122.4 (Supp. 1999) provides that any permit noncompliance constitutes a violation of the Pollution Control Act and the Clean Water Act and is grounds for enforcement action against the permittee. Carolina Water violated the Pollution Control Act, the Clean Water Act and the specific terms of its NPDES permit by:

(a) Discharging excessive amounts of BOD during the months of August 1997, February 1998, June 1998, November 1998, December 1998 and March 1999 in violation of the permit conditions;

(b) Discharging excessive amounts of fecal coliform during January 1997, July 1997, May 1998, June 1998, September 1998 and June 1999 in violation of the permit conditions; and

(c) The occurrence of flow violations during January 1998, February 1998, and March 1998.

Therefore, I find that Carolina Water violated S.C. Code Ann. § 48-1-110(d) (Supp. 1999) in failing to meet specified NPDES permit standards.

The Department imposed a penalty of ten thousand dollars ($10,000.00) against Carolina Water for the various discharge violations. Inherent in and fundamental to the powers of an Administrative Law Judge, as the trier of fact in contested cases under the Administrative Procedures Act, is the authority to decide the appropriate sanction when such is disputed. Walker v. South Carolina ABC Comm'n, 305 S.C. 209, 407 S.E. 2d 633 (1991). The Administrative Law Judge, as fact-finder, must impose a penalty based on the facts presented at the contested case hearing. To that end, an Administrative Law Judge must consider relevant evidence presented in mitigation. Mitigation is defined as a lessening to any extent, great or small. It may be anything between the limits of complete remission on one hand and a denial of any relief on the other. In a legal sense, it necessarily implies the exercise of the judgment of the court as to what is proper under the facts of the particular case. 58 C.J.S. Mitigation p. 834, 835 (1948).

In the present case, although Carolina Water violated provisions of Section 48-1-110(d), the Department did not prove all the facts presumably supporting its implemented penalty. Based upon the actual violations proven by the Department and taking into consideration the mitigating circumstances, I conclude that the proper civil penalty for exceeding these discharge limits for BOD, fecal coliform, and flow is five thousand dollars ($5,000.00).

Based upon the above Findings of Fact and Conclusions of Law, it is hereby ORDERED that:

1. Carolina Water pay to the Department a civil penalty in the amount of five thousand dollars ($5,000.00) within thirty (30) days of the date of this Order.

• Carolina Water shall confer with the Town of Lexington and submit the resulting proposed connection agreement to the PSC for approval within sixty (60) days from the date of this Order. Under the terms of this Order, Carolina Water shall have an on-going obligation to negotiate an agreement and to continue to seek an agreement between Carolina Water and the Town of Lexington that will be approved by the PSC;

• Within ninety (90) days of the receipt of the final PSC Order approving a connection agreement between Carolina Water and the Town of Lexington, Carolina Water is to submit a Preliminary Engineering Report (PER) to DHEC for connection to the Regional system;

• Within thirty (30) days of receipt of written approval of the PER from the Department, Carolina Water is to submit plans and specifications for the approved facilities;

• Within sixty (60) days of receipt of written approval of the plans and specifications from the Department, Carolina Water will begin construction of the facilities approved by the Department;

• Within one hundred eighty (180) days of the receipt of the Department's construction permit, Carolina Water will complete construction of the facility;

• Within five (5) days of completion of construction, Carolina Water will begin discharging its waste into the Regional System;

• If the PCS does not approve of the Petitioner's connection agreement, NPDES Permit No. SC0035564 shall expire one hundred eighty (180) days after the issuance of the final PSC Order.

AND IT IS SO ORDERED.

____________________________

Ralph King Anderson, III

Administrative Law Judge

February 25, 2002

Columbia, South Carolina

1. Carolina Water filed an application with the PSC for approval of a connection agreement but later withdrew its application and thus a final hearing before the Commission was never held.

2. Although the COG Board did not meet again until December 9, 1999, EPAC again voted on November 17 , 1999 to continue to hold Carolina Water in conformance while negotiations with the Town proceeded.

3. The COG decision was not appealed by DHEC.

4. See findings under "Violation of Schedule of Compliance" heading.