ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter is before the South Carolina Administrative Law Judge Division pursuant to the Petitioner's
Petition for Administrative Review dated June 7, 2000 of the Respondent's denial of a septic tank for
domestic wastewater. This matter was transmitted to the Division on June 13, 2000, and assigned to the
undersigned judge on June 21, 2000. A scheduling conference was held on July 31, 2000. A hearing on the
merits was scheduled for September 26, 2000. This hearing was continued until November 27, 2000, due to
pending settlement negotiations between the parties. This matter was further continued at the request of the
Petitioner due to pending settlement negotiations. This matter was heard on the merits on January 3 and
January 5, 2001. On October 6, 2000, the County of Lexington, South Carolina, filed a Motion to Intervene.
I granted this Motion at the hearing.
FINDINGS OF FACT
Having observed the testimony of the witnesses and exhibits presented by the parties at the hearing and
closely passed upon their credibility, I make the following Findings of Fact by a preponderance of the
evidence:
- Notice of the time, date, place, and subject matter of the hearing was sent to all parties in a timely manner.
- The Petitioner operates a chemical manufacturing facility in Lexington County, South Carolina.
- The Petitioner does not have access to public sewer for its domestic wastewater discharge.
- On March 6, 2000, the Respondent granted approval to the Petitioner to pump and haul water from the
containment structures based on the Respondent's understanding that no waste water would be generated
from production processes and that the only water involved would be stormwater which enters the
containment structures. On March 17, 2000, the Respondent ordered the Petitioner to shut down its
process operations because it determined that the Petitioner did not have the ability to maintain separation
of the process water from the wastewater.
- On April 11, 2000, the Petitioner filed an application for an individual sewage treatment and disposal
system, or septic tank, permit for this facility. The application, as amended, stated that the septic tank
would serve a total of fifty (50) employees operating in two (2) twelve (12) hour shifts.
- On May 18, 2000, the Respondent denied the Petitioner's application citing two reasons: (1) the soil on the
property is not suitable for the installation of a septic tank, and (2) it is impossible for the Petitioner to
guarantee that no toxic chemicals will accidentally enter the septic tank system.
- The Petitioner is located in the Lakeland (LAB) soil series which is described in the Soil Survey for
Lexington County as excessively drained soils formed in deep beds of marine sands. Lakeland soils are
medium grained sands with permeabilities ranging from six to twenty inches per hour.
- Tin Products proposes to install and operate a septic system only for the collection, treatment and disposal
of sanitary sewage from bathrooms, sanitary sinks, and showers on site. All non-domestic wastewater
used in the process is collected and used in another manufacturing process at the facility that requires the
use of water as a raw material.
- Tin Products has prepared plans and specifications for a septic tank that meet the regulatory criteria under
the Septic Tank Regulations. The plans and specifications prepared by Tin Products are fully protective of
the public health and the environment.
- The installation of new piping for a septic tank system will eliminate the possibility of sewage being
contaminated by residual organotins remaining in existing piping from a release of organotin compounds
which occurred at the facility in February, 2000.
- To protect against the occurrence of a trace concentration of an organotin compound entering into the
septic system and leaving the tank untreated, Tin Products will use a backstop measure of collecting and
analyzing the effluent prior to final discharge to the drain field.
- Under Tin Products' proposed plan, all septic sewage effluent will be collected in a collection tank after
treatment in the septic tank, but prior to discharge in the drain field. Once a collection tank is filled to
design capacity, the flow of septic sewage to that tank will be stopped and shifted to a second collection
tank. The contents of the first tank will be sampled and analyzed for butyltin compounds. If no butyltin
compounds are detected, the contents of the collection tank will be discharged to the drain field at a rate
that will allow for optimum biological treatment of the liquid effluent.
- Under Tin Products' proposed plan, if any butyltin compounds are detected, the contents of the collection
tank will be treated with an oxidizing agent to eliminate the presence of the butlytin compound, After
oxidation treatment, the contents of the tank will be re-sampled and re-analyzed to determine whether any
detectable levels of butyltin remain. Only after successive rounds of treatment and analysis demonstrate
that no detectible levels of butyltin remain will the contents of the collection tank be discharged.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude the following as a matter of law:
- S.C. Code Ann. § 1-23-600 (Supp. 2000) grants jurisdiction to the South Carolina Administrative
Law Judge Division to hear contested cases under the Administrative Procedures Act.
- S.C. Code Ann. § 44-1-140 (Supp. 2000) provides that: "[T]he Department of Health and
Environmental Control may make, adopt, promulgate and enforce reasonable rules and regulations
from time to time requiring and providing: (11) For the regulation of the methods of disposition of .
. . sewage."
- The specific statutory and regulatory provisions giving rise to the controversy are S.C. Code Ann. §
48-1-10, et seq. and the regulations for Individual Sewage Treatment and Disposal Systems, see 24A S.C. Code Ann. Regs. 61-56.
- The Administrative Law Judge has the legal authority to impose conditions on a septic tank permit
to the extent necessary to protect the public health and the environment. See ALJD Rule 52. Such
relief may include amended or supplemental permit conditions. There is nothing in the Septic Tank
Regulations that prohibits the establishment of any special or additional conditions.
- At the hearing, DHEC maintained that its regulation on land application permits, see 24A S.C.
Code Ann. Regs. 61-9.505 (the "Land Application Regulations"), apply. However, the Land
Application Regulations specifically exclude septic systems from coverage. See 24A S.C. Code
Ann. Regs. 61-9.505.3(e). DHEC clearly believed that Tin Products' application for a septic tank
was covered by the Septic Tank Regulations. DHEC's statement that both the Septic Tank
Regulations and the Land Application Regulations apply is inconsistent with the clear language of
the exclusions provided for in the Land Application Regulations. The Septic Tank Regulations
control over the Land Application Regulations because they are more specific than the Land
Application Regulations, and each regulation establishes differing and conflicting standards. Where
two separate regulatory schemes establish differing and conflicting standards, the more specific of
the two schemes will control. See Wilder v. State Highway Dept., 228 S.C. 448, 454, 90 S.E.2d
635, 638 (1955). The Septic Tank Regulations establish much more specific requirements than the
Land Application Regulations for the septic tank system proposed by Tin Products. The Septic
Tank Regulations address, in very specific and standardized detail, the design, construction, and
operating standards for the very type of system proposed by Tin Products. S.C. Code Ann. Regs.
61-56. The Land Application Regulations establish only broadly-worded, general standards for land
application systems. S.C. Code Ann. Regs. 61-9.503.
ORDER
Based upon the Foregoing Findings of Fact and Conclusions of Law, it is hereby
ORDERED that the South Carolina Department of Health and Environmental Control issue a septic tank
permit to Tin Products, Inc., subject to the following conditions:
Tin Products, Inc., shall
- install entirely new piping for the septic tank system;
- reroute the piping of sanitary sinks in the manufacturing areas from the sanitary sewer system to the
industrial water reuse system;
- reinforce existing work practice procedures and employee training that would include the following:
- use of the personal protective equipment (PPE) such as disposable rubber gloves, disposable rubber suits,
and rubber boots to prevent skin exposure by process-related materials,
- training in the proper use of PPE,
- training in the use of laboratory sinks, safety showers, and eye washes (all of which are routed to the water
reuse system rather than the sanitarry sewage system) to wash chemical residues from the body in the
event skin exposures occur,
- posting of appropriate signage in the bathrooms of the office buildings and guard shacks notifying
employees that process-related materials are not to be washed off in sanitary sinks,
- outfitting the safety shower in the tetrabutyl tin/tetraoctyl tin manufacturing area with a privacy curtain to
encourage use in the event of inadvertent skin exposure,
- establish a series of collection tanks downstream from the septic treatment system and prior to discharge
into the drain field that would capture all septic system effluent prior to final discharge;
- analyze the septic system effluent for the presence of organotins and discharge if such analyses show no
presence of organotins; and
- treat collected effluent and re-analyze prior to final discharge if organotins are detected in a batch of
effluent.
AND IT IS SO ORDERED.
____________________________________
CAROLYN C. MATTHEWS
Administrative Law Judge
July 24, 2001
Columbia, South Carolina |