South Carolina              
Administrative Law Court
Edgar A. Brown building 1205 Pendleton St., Suite 224 Columbia, SC 29201 Voice: (803) 734-0550

SC Administrative Law Court Decisions

CAPTION:
SCDHEC vs. Tin Products, Inc.et al.

AGENCY:
South Carolina Department of Health and Environmental Control

PARTIES:
Petitioner:
South Carolina Department of Health and Environmental Control

Respondent:
Tin Products, Inc.

Intervenors: J. Gray Macaulay, Jane Macaulay, Dr. Ginger Macaulay, Clayton Macaulay, and Neill Macaulay

Intervenors:
Bill Irwin, Mark Irwin, and Rena Irwin
 
DOCKET NUMBER:
00-ALJ-07-0353-CC

APPEARANCES:
Samuel L. Finklea, III, and Elizabeth G. Howard for Petitioner South Carolina Department of Health and Environmental Control

Charles Sanford for Respondent Tin Products, Inc.

Ellison D. Smith, IV, and William P. Walker, Jr., for Intervenors J. Gray Macaulay et al.

Grahame E. Holmes for Intervenors Bill Irwin et al.
 

ORDERS:

FINAL ORDER AND DECISION

Background:



This matter comes before the Division on appeal by Tin Products, Inc., (Tin Products) of an administrative order issued by the South Carolina Department of Health and Environmental Control (DHEC). In accordance with the Rules of Procedure, Administrative Law Judge Division, DHEC has the burden of proof and is named as the Petitioner in this matter. J. Grey Macaulay, et al. and Bill Irwin, et al. filed timely petitions for leave to intervene, alleging independent interests which could not be adequately represented by any other party; accordingly, the court granted their motions and they were admitted as parties to this action.

Issues for Decision:

On June 6, 2000, DHEC issued Administrative Order 00-112, W, HW; 12-W, HW (the Order) alleging that Tin Products violated the South Carolina Pollution Control Act, the South Carolina Hazardous Waste Management Act and regulations promulgated thereto. As a result of the violations, DHEC assessed a civil penalty of $4,048,100.00.

The appeal of the Order raised the following issues for decision: Whether DHEC appropriately determined that Tin Products constructed waste water treatment facilities without a permit, whether Tin Products operated the facilities without a permit and whether the penalty as assessed was appropriate; whether DHEC appropriately found that Tin Products allowed its waste water facilities to be operated by an unlicensed individual and if the assessed penalty was appropriate; whether Tin Products improperly disposed of solid wastes from the Tin Products facility; whether Tin Products failed to manage properly hazardous waste generated and stored at its facility; whether Tin Products allowed wastes to be discharged from its facility other than in accordance with a permit and without taking proper steps to remediate the effects of such discharges; whether the penalty assessed under the Hazardous Waste Management Act was appropriately assessed; whether Tin Products caused an unauthorized release into the environment of organotin compounds and dibutyl ether and whether the discharges caused damage to the environment; and whether the penalty assessed for the discharge and damage was justified. Also at issue is whether the penalty assessed against Tin Products can be apportioned among neighboring landowners such as the Macaulays.

Tin Products denied the factual allegations and argued further that the allegations, even if proven, did not justify a civil penalty in the amount assessed. The Macaulays argued that any monetary penalty assessed against Tin Products should be directed to restore lost natural resources in and around Red Bank Creek and to compensate property owners impacted by the loss of those resources; in the alternative, the Macaulays argued that the civil penalty assessed by DHEC should be reduced. The contested case hearing in this matter was held on June 27, 28, 29, and July 2, 2001. All parties were present for the hearing and were represented by counsel.



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:

General Findings

1. Notice of the time, date, place, and subject matter of the hearing was sent to all parties in a timely manner.

2. Tin Products was founded in 1994. It owns and operates a chemical manufacturing

facility in Lexington County, South Carolina. Tin Products began manufacturing stannic chloride in 1995. DHEC Exhibits 6; 41. In 1999, Tin Products added two additional manufacturing lines: tributyl tin (TBT) and tetraoctyl tin (TOT). The class of tin compounds that includes TBT and TOT



was referred to at the hearing and in various documents as organotins. The class consists of butyltins, and in addition to TBT and TOT, also includes dibutyl tin and monobutyl tin.

Regulatory Background

3. The Lexington County Joint Municipal Water and Sewer Commission (LCJMW&SC) owns and operates a sewer system in Lexington County, South Carolina, including the Two Notch Road Wastewater Treatment Plant. As a publicly owned treatment works subject to the requirements of an NPDES permit, LCJMW&SC regulates industrial dischargers into its system, such as Tin Products, by issuing industrial user permits which set limitations on discharges into the LCJMW&SC system. If an industry on the system cannot meet the limits, the industry must pretreat its waste water.

4. In 1994 LCJMW&SC granted Tin Products an Industrial Waste Permit ("Waste Permit"), that was amended from time to time. Under the Waste Permit, Tin Products discharged sanitary waste, stormwater, and treated process waste water to the Two Notch Road Waste Water Treatment Plant owned by LCJMW&SC, until February 2000. The Waste Permit in force at the time of the Administrative Order and the hearing was received into evidence as DHEC Exhibit 5.

5. In accordance with the Waste Permit, the waste from Tin Products traveled from a

gravity sewer line owned and operated by Tin Products to the Tin Products lift station. Once the wet well at the lift station reached a certain level, the waste was pumped through a force main and traveled down Bonhomme Richard Road to the collection system owned and operated by LCJMW&SC. From the collection station the waste went to the Two Notch Road plant for treatment. The Two Notch Road facility then discharged into Red Bank Creek.



6. The Waste Permit required Tin Products to install and to operate an industrial pretreatment system. The Waste Permit also required Tin Products to submit the plans for the pretreatment system to DHEC before operation and construction. Finally, Tin Products was required to submit construction plans to DHEC before the pretreatment system could be built. By reviewing the plans, DHEC insures that the proposed waste water system is designed to meet the limits that have been established in the local industrial permit. Separate permits are required for both construction and operation of the components of the pretreatment system.

7. To apply for a construction permit, an industry must provide the Waste Permit, the

plans and specifications and a report indicating how the industry intends to meet the limits of the Waste Permit. Once construction is complete, the responsible engineer certifies to DHEC that everything was built in accordance with approved plans and specifications, and DHEC conducts a final inspection. DHEC then issues an authorization to begin operation of the pretreatment system. The industry cannot operate the system without DHEC authorization. The final authorization confirms that the system as built will meet the limits of the Waste Permit.

8. In 1994, DHEC granted Tin Products its first permit to construct the pretreatment

system. (Construction Permits numbered 17,768-IW and 17,769-IW, DHEC Exhibits 31 and 33). The proposed system consisted of a collection system, including an eight-inch gravity sewer line with five manholes and a pump station with a force main to take sewage from Tin Products to the LCJMW&SC facility, as well as a pH adjustment system. The pH adjustment system was necessary because Tin Products had submitted information which identified "tin" as one of the constituents of its waste stream. Once the pretreatment system was built, DHEC allowed it to operate under two



operating permits (DHEC Exhibits 32 and 34). The Construction Permit required the operator of the system to hold a grade D certificate.

9. In 1996 the pretreatment system was upgraded to include a more sophisticated metals

removal unit (Construction Permit number 17,992-IW, DHEC Exhibit 35). The Construction Permit for the upgraded system required that the operator of the system hold a grade B certificate. The upgraded system was allowed to operate on October 4, 1996. (DHEC Exhibit 36). Tin Products employed two certified operators who held a B level certificate: James Goldman and Melanie Purvis. 10. In late 1997 Tin Products sought to add a sludge dewatering system and DHEC approved the construction permit application, which became Construction Permit number 18,222-IW. (DHEC Exhibit 39). Tin Products submitted a proposed layout to DHEC in connection with the dewatering system. The layout included one filter press and one chemical feed pump. See DHEC Exhibit 38.

11. Construction Permit 18,222 included a number of requirements: (1) the sludge generated as a result of the new process was required to be properly disposed of in accordance with a Letter of Acceptance from Laidlaw Environmental Management; (2) routine daily treatment plant inspections were required to be performed by a certified operator of the appropriate grade (Grade B); and (3) Tin Products was required to develop and implement a Best Management Practices Plan no later than six months after the approval of the Construction Permit. See DHEC Exhibit 39. The Permit was also limited to waste water from the manufacture of stannic chloride and stated that approval from DHEC was needed "to process chemicals other than stannic chloride." Id. Construction Permit 18,222 did not supersede permit 17,992, but applied in addition to the earlier permit.

12. Although Tin Products had applied for and had received three previous operating permits, and despite the fact that each Construction Permit included the admonition that the "system cannot be placed into operation until final approval is granted," Tin Products never requested an operating permit and no permit was issued for the sludge dewatering system.

13. In 1998, Tin Products requested that a previous Construction Permit (17,992) be amended to increase the flow of waste water to the LCJMW&SC system. (DHEC Exhibit 7). Tin Products contended that the increase in flow was necessary because of the daily washdown of the process area. In the Engineering Report describing the process, Tin Products informed DHEC that no process waste water "will be discharged for treatment through the pretreatment system." Exhibit 7 at 11. Tin Products also assured DHEC that "the addition of contaminants, other than those previously identified, is not anticipated." Id. The request did not seek to change anything about the physical layout of the pretreatment plant.

14. Tin Products failed to identify to LCJMW&SC that organotins as a class of compounds or any of the precursors or intermediate products of TBT or TOT would be a possible constituent of its waste water.

15. The request to increase the flow of uncontaminated water was granted by letter amendment to Construction Permit 17,992 (DHEC Exhibit 40). The letter amendment did not change any of the special conditions in Construction Permits 17,992 and 18,222 and the conditions set forth in Permit 18,222 remained in effect.

The Unauthorized Discharges

16. DHEC demonstrated that despite Tin Products' assertion that no process waste water

would enter the pretreatment system, Tin Products released organotins and dibutyl ether in February 2000 into the LCJMW&SC Two Notch Road plant and from that system into Red Bank Creek, through Crystal Lake and to other waters. In the course of inspections of the Tin Products site after the release to Red Bank Creek, DHEC also discovered other releases by sampling stained and discolored soils on Tin Products property and adjacent to Tin Products facilities. The evidence presented by DHEC concerning the source of the release of organotins into the Two Notch Road plant and ultimately into Red Bank Creek and downstream waters, including Crystal Lake, was uncontroverted.

17. DHEC introduced ample evidence regarding Tin Products' discharge of waste water

containing organotins to the LCJMW&SC system. Steve Mann, the LCJMW&SC Operations Manager, learned of an upset at the Two Notch Road plant on February 13, 2000. During his investigation, Mann traced a foul odor from the Two Notch road plant to Tin Products. Tin Products' Assistant Plant Manager, Melanie Purvis, stated to Mann that the odor was dibutyl ether. I find that Ms. Purvis was employed by Tin Products as the assistant plant manager and plant engineer, was responsible for ensuring proper operation of the facility, was designated as the responsible individual for making reports to DHEC, and in connection with this specific incident, was the individual holding the key to the lift station enclosure; her statements are admissible under Rule 801(d)(2), S.C.R. Evid. Ms. Purvis confirmed that dibutyl ether was in the sewer line and the lift station when she and Mann pulled the number two manhole cover and opened the lid to the lift station. Ms. Purvis further confirmed the contamination in a letter she sent to the LCJMW&SC on February 17, 2000 (DHEC Exhibit 4).

18. Organotins and dibutyl ether, chemicals used nowhere else on the LCJW&SC system, were traced from the Two Notch Road plant back to the Tin Products plant; the chemicals were found in the sewer lines and in the lift station through which Tin Products discharged its waste water

to the sewer. The material from the lift station was later tested and high concentrations (above acute toxicity and chronic toxicity) of TBT were detected. See DHEC Exhibit 17.

19. Organotins and dibutyl ether traveled from Tin Products through the LCJMW&SC

sewer system to the Two Notch Road treatment plant. A sample from the LCJMW&SC waste water treatment plant contained organotins. See DHEC Exhibit 17. Tin Products was taken off the LCJMW&SC line on February 16, 2000.

20. The contaminants flowed through the LCJMW&SC plant and proceeded into Red Bank Creek and Crystal Lake. Analytical results confirmed the presence of organotins in Red Bank Creek, in Crystal Lake, in the sediments of both water bodies, and in fish. The concentrations of tributyl tin in Crystal Lake (at 3.66 ppb) exceeded EPA water quality standards by seven times. Burdick Testimony at 21-22; DHEC Exhibit 17. John Rodgers, Ph.D., Director of the Clemson Institute of Environmental Toxicology, testified that the "concentrations of organotins in the water in Red Bank Creek were as high as I've seen reported anywhere." Transcript, Day Two, at 154.

21. The Waste Permit did not allow the discharge of dibutyl ether, TBT or TOT. None of the three constituents were identified in a Waste Questionnaire provided to LCJMW&SC from Tin Products. See DHEC Exhibit 6. The Material Safety Data Sheets regarding TOT and TBT (on file at Tin Products), indicate "aquatic sensitivity" to these materials. See DHEC Exhibit 16.

The Effect of the Unauthorized Release

22. The effluent from Tin Products to the LCJMW&SC plant was highly toxic. The biological treatment which the Two Notch Road plant should have provided was interrupted by a toxic substance which killed the microorganisms. Attempts to revive the plant with new biological matter were not successful. The Two Notch Road plant shut down on February 29, 2000, and the flow was diverted to another wastewater treatment plant. Transcript, Day One, at 57-58. As of the date of the hearing, the Two Notch Road plant had not been restarted.

23. The release of organotins destroyed life along Red Bank Creek and downstream. DHEC responded to a fish kill report shortly after the release. On February 15, 2000, Brad Martin, employed with the DHEC aquatic biology section in the fishery department, observed more than 500 dead fish in and around Crystal Lake. Mr. Martin saw only three live fish, which he described as "gasping for air." Transcript, Day One, at 156. As Mr. Martin walked up and down the dam at Crystal Lake, he saw numerous dead fish. He saw dead fish coming over the spillway "over into the creek, down lying in the roads and flowing on down below the rocks."Id. at 155. He also saw dead fish lying all along the dam and along the opposite edge of the pond. Id. at 156. See also DHEC Exhibit 8. Fish tissue that was analyzed contained levels of dibutyl tin.

24. As a result of the release at Tin Products, DHEC conducted a macroinvertebrate assessment of six stations along Red Bank Creek and Congaree Creek on February 24 and 25, 2000. See DHEC Exhibit 12. A macroinvertebrate study is conducted to assess the general health of a stream, by going above and below a discharge point and examining the aquatic macroinvertebrates. In general, the study indicated that the release "severely impaired" the macroinvertebrates at the site. DHEC Exhibit 9.

25. The DHEC study indicated that upstream from the discharge was a diverse and abundant aquatic macroinvertebrate community. The study also confirmed that the stream 100 meters below the discharge point was almost void of life. Many dead and dying macroinvertebrates were found at this site. Red Bank Creek below Crystal Lake was also found to be severely impaired; many dead fish were observed in the stream and hundreds of dead macroinvertebrates were seen.

26. LCJMW&SC retained Glenda Swearingen of Swearingen Ecology Associates- United States, Inc. (SEAUS), to investigate the upset caused by Tin Products. SEAUS conducts toxicity tests of Ceriodaphnia dubia (sometimes referred to as the water flea). The water samples collected at Red Bank Creek by Ms. Swearingen were acutely toxic to the water flea. See DHEC Exhibit 15 at 4. In the Red Bank Creek samples collected by DHEC, all of the tested species died when exposed to the contaminated water. DHEC Exhibit 13.

27. DHEC became concerned about the public's exposure to organotins in the water and issued an Emergency Order on February 28, 2000, which prohibited swimming or fishing in Red Bank Creek. See DHEC Exhibit 25. The Emergency Order was lifted on January 22, 2001, but an advisory limiting fish consumption from the affected areas to no more than one meal per week, and advising against direct body contact with the waters from Crystal Lake and Red Bank Creek upstream from the lake to Highway 6 remained in effect.

28. Dr. John Rodgers conducted a site visit at DHEC's request on June 22, 2001, many months after the release. Rodgers walked the area from Tin Products downstream as the waste water would move to the Two Notch Road plant, then downstream to Red Bank Creek, Crystal Lake, Durham Pond and to the Cayce Water Intake, all as shown on DHEC Exhibit 1. He was "shocked and surprised at the lack of life in [Red Bank Creek]." Transcript, Day Two, at 146. He was "surprised at the paucity of life . . . in Crystal Lake." Id. He testified that the "trend is from no life to life as you move down that continuum." Id. at 148. Dr. Rodgers stated that he would have "expected to have seen a large population of fish in [Crystal Lake] had it been . . . normal." Id. at 149.

29. Dr. Rodgers was qualified as an expert in the fields of aquatic toxicology, the response of aquatic organisms to toxic substances and other environmental stressors. He testified that organotins are "very potent. . . ." Transcript, Day Two, at 141. Dr. Rodgers was retained to provide insight and advice regarding the meaning and connection between certain concentrations of organotins in Red Bank Creek and downstream areas and the adverse effects that were observed along with those concentrations. He found, based on a systematic review of the available information, the scientific literature, the site visit and all of the data and information he gathered along the way, that the "organotins in conjunction with other materials that were associated with those organotins have adversely impacted the aquatic life, in Red Bank Creek as well as downstream areas." Id. at 151-52. Rodgers concluded that the concentrations of organotins were high enough to cause acute mortality in aquatic organisms, and that "concentrations of organotin in the fish tissues were significant . . . in that they clearly illustrated a gross exposure." Id. at 155-157.

30. Dr. Rodgers also opined that the levels found in Red Bank Creek and the downstream

areas "were well in excess of concentrations required to cause lethality, death and that concentrations that were measured subsequently and in subsequent sampling were concentrations to still cause concern for chronic mortality [failed reproduction and failure to grow]." Transcript, Day Two, at 158. According to Rodgers, the amount of material that would have been discharged to reach these concentrations would have been "quite a bit" or, more specifically "more than a truckload." Id. at 158-59.

31. Dr. Rodgers' opinion did not change when challenged about the relative lack of dibutyl and tributyl tin in some samples. Dr. Rodgers testified concerning the mechanisms by which organotins are converted from one form to another in the environment and the characteristics of the different test methods used. Dr. Rodgers expressed his opinion that upon consideration of all of the foregoing, he saw no inconsistencies which led him to doubt the validity of the analytical result, and he further concluded that there is no doubt that tributyl tin has been found in Red Bank Creek, in Crystal Lake, and in fish taken from both water bodies.

The Multimedia Inspection

32. DHEC conducted a multimedia inspection at Tin Products on March 15 and 16, 2000, after the release. Participating in the inspection were seven DHEC staff members, including Tracey Wilkes, waste water evaluator at DHEC's Central Midlands office; Susan Turner, a current DHEC employee and former DHEC hazardous waste inspector; and Steve Burdick, of the DHEC Waste Assessment Section of the Division of Land and Waste Management. Assisting DHEC staff were Tin Products' employees, Melanie Purvis, Plant Engineer and James Goldman, President.

33. At the inspection, Ms. Purvis provided Ms. Wilkes with a current schematic of the Tin Products' pretreatment facility dated February 20, 2000 (DHEC Exhibit 41). The February schematic had never been submitted to DHEC. Ms. Wilkes compared the February schematic to the plan that had been filed with Construction Permit 18,222. Ms. Wilkes also looked at the actual pretreatment facility at Tin Products, although it was disconnected at the time.

34. The new plan included items not in the plan submitted with the Construction Permit. Tin Products had altered the pretreatment facility by adding two metering pumps and a filter press. See DHEC Exhibit 45. Before the release, Tin Products operated the unpermitted additions to the pretreatment facility.

35. In addition to the filter press and the pumps, the February plan showed that water from the TBT/TOT area (where tetrabutyl tin and tetraoctyl tin were manufactured) was introduced into the pretreatment facility and a 3000 gallon tank was referenced, although the plan filed with Construction Permit 18,222 had not been amended to reflect this change. The TBT/TOT area was connected to the wastewater treatment section by piping and to the 3000 gallon storage tank. Ms. Purvis told Mr. Burdick that the tank was connected, so that water could be "shuttled back and forth" to a sump adjacent to the 3000 gallon tank. This information was confirmed in the Operation and Maintenance Manual, dated January 20, 2000, that Tin Products gave to Ms. Wilkes during the inspection. The Manual states that waste water is pumped from the TBT/TOT hold tank into the sump at the pretreatment unit.

36. During the March 2000 inspection, the process waste water in the 3000-gallon tank was sampled and substantial levels of organotins were present. Substantial levels were also found in the pretreatment facility, although no schematic or application had ever suggested that TBT or TOT would be part of the system.

37. Ms. Wilkes also verified that Tin Products was using the pretreatment system as outlined in its Construction Permit 18,222, although a final operating permit had not been granted.

38. Because Tin Products did not apply for a construction permit before it altered the system, DHEC had no opportunity to impose additional requirements based on those alterations. The special conditions in Construction Permit 18,222 were included based on information provided by Tin Products to DHEC at that time (late 1997).

39. Also as part of the March inspection, Ms. Wilkes reviewed the Operator's Log Book, maintained by Tin Products. See DHEC Exhibit 46. The log book contains multiple entries beginning in June of 1995 and ending on February 15, 2000. Although the two certified operators at Tin Products were Melanie Purvis and James Goldman, the log book contains notations apparently entered by many different people. However, the only testimony presented by DHEC regarding the entries in the log book was that the person with the initials "GM," who made various entries in the book, was not a licensed operator, and that only a licensed operator should make entries in the operator's log book. Although Tin Products undoubtedly used an uncertified operator at times, no evidence was offered concerning the other entries in the book, or how many times an unlicensed operator performed duties which should have been performed only by a licensed operator.

40. Ms. Wilkes requested an updated Best Management Practices Plan as required under Construction Permit 18,222 and Tin Products could not provide one. Tin Products had not updated the Best Management Practices Plan since the TBT/TOT process was added in 1999.

41. During the March inspection, Ms. Wilkes also reviewed the Tin Products laboratory and documents relating to sampling, where she found additional violations. Melanie Purvis confirmed documents demonstrating that Tin Products collected and analyzed for effluent wastewater pH and temperature, although Tin Products was not certified by the DHEC Laboratory Certification Section to analyze for reportable parameters. Ms. Wilkes also learned that composite samples (including those for Biochemical Oxygen Demand) were not being properly preserved.

42. During the March 2000 inspection, Ms. Wilkes also attempted to confirm that the sludge generated by the pretreatment system was being disposed of in accordance with Construction Permit 18,222. Because sludge may contain chemical, biological, or organic materials, some of which can be hazardous or toxic, preapproval is required to ensure that it is disposed of in a manner that will not create a public health or environmental problem. By reviewing manifests of sludge hauling and disposal records provided by Tin Products, Wilkes determined that Tin Products had failed to obtain approval to change its sludge disposal location. Pursuant to Construction Permit 18,222, Tin Products was required to send its sludge to the Pinewood facility owned by Laidlaw. However, the manifests showed that Richland County landfill received Tin Products' sludge on January 19, 2000, and that sludge was taken twice in October of 1998 to the Northeast Sanitary Landfill. See DHEC Exhibit 41. When asked about the change in disposal, Ms. Purvis stated that she did not think the sludge needed to go to Pinewood Laidlaw.

43. Based on Tin Products' generation of hazardous wastes, Susan Turner conducted a hazardous waste inspection during the March 2000 visit to the site. Ms. Turner identified a number of areas of the plant site, and a number of containers in which hazardous wastes were stored, which did not meet applicable requirements of the regulation. Ms. Turner observed unlabeled hazardous waste containers, labeled hazardous waste containers which were stored in areas of the plant not identified for such storage, drums in the approved storage area which were not stored properly, and drums which were open or corroded. Ms. Turner documented these observations with photographs. See DHEC Exhibit 29-A through 29-T.

44. Steve Burdick and Susan Turner also obtained samples of stained soils and other liquids during the inspection. Sampling from various points around the facility confirmed that other releases of organotins had occurred. See DHEC Exhibit 20. Mr. Burdick noted the contaminated soils on a map marked as a portion of DHEC's Exhibit 16. Mr. Burdick testified from photographs of the stained soils, marked as DHEC's Exhibit 19.

Calculation of Civil Penalties

45. DHEC presented two witnesses to testify concerning calculation of the civil penalties assessed by the Administrative Order. Both witnesses testified that they calculated penalties by starting from the applicable statutory authority, by assessing for each violation the extent of deviation from the requirements and the potential for harm, by consulting a matrix to determine the appropriate range of penalties for each such violation and subsequently assigning a dollar value to each violation, and by determining how many times each violation occurred. See DHEC Exhibits 48, 50, and 51. Both witnesses also testified that the individual penalty amounts were reviewed for consistency with penalties assessed for like violations committed by other facilities, which in some cases resulted in a penalty higher than that provisionally determined by the witness. Transcript, Day Four, at 9-13, 26-27, 67-68, 91-93, 102-103.

46. The Administrative Order assessed a penalty of $47,500.00 for violations of the Hazardous Waste Management Act and $60,000.00 for violations of the Pollution Control Act arising from discharges to the soil at the Tin Products facility. The Order further assessed a penalty of $3,940,600.00 for violations of the Pollution Control Act arising from discharges to LCJMW&SC and Red Bank Creek.

Hazardous Waste Penalty Calculation

47. The Hazardous Waste penalty for container management was deemed by DHEC to be a major deviation from the regulations with a major potential for harm. DHEC concluded that Tin Products engaged in "gross mismanagement of hazardous waste containers. . . ." DHEC Exhibit 46. DHEC also based the penalty on the "inherent dangers of mismanaging the hazardous waste containers and obvious carelessness with which they were managed . . . ." Id. DHEC concluded that the containers posed a "substantial risk of exposure to humans or other environmental receptors." Id. The assessed penalty for this violation was $ 22,500.

48. The failure to make hazardous waste determinations was also deemed by DHEC to be a major deviation from applicable regulations (because of the large number of containers that could not be identified) and pose a major potential for harm (the risk of commingling incompatible containers). DHEC Exhibit 46. The assessed penalty was $25,000.

49. Under the Pollution Control Act, penalties were assessed for the contaminated soils at Tin Products. DHEC determined that the contamination was a major deviation because it demonstrated Tin Products' "obvious indifference as to whether chemicals were released into the environment or not. . ." DHEC Exhibit 46. DHEC found the contamination posed a major potential for harm because of the "facility's inability to identify the spilled chemicals and what threats they may pose to the environment as well as the facility's history of discharges to the environment and the detrimental affects that have resulted." Id. Each spill was assessed a penalty of $10,000 (six spills were found).

Bureau of Water Penalty Calculation

50. The Bureau of Water assessed separate penalties for unauthorized discharges and the harm caused by them, for laboratory issues and waste water pretreatment issues. DHEC Exhibit 50. Robin Foy, Manager of the Water Pollution Enforcement Section, testified concerning the method used to compute the penalty at issue. The Bureau of Water used its penalty calculation guide to ascertain the penalty based on the referral package submitted by the DHEC District Office. See DHEC Exhibit 41.

51. The first component of the penalty assessed by the Bureau of Water, in the amount of $57,600, was for the economic benefit to Tin Products of failing to use a certified operator to run the pretreatment system. DHEC Exhibit 50. DHEC determined that Tin Products had failed to use a certified operator for at least two years, so the penalty was based on the salary for an appropriately certified operator for the two year statutory limitations period. Id. Although Tin Products undoubtedly used uncertified operators for the pretreatment facility at times, I find that the evidence and testimony submitted by DHEC at the hearing failed to establish that this violation had indeed occurred every week for 104 weeks. Tin Products' log book for the pretreatment facility contains numerous entries; however, the only testimony at the hearing concerning these entries was that the individual with the initials "GM," whose entries appear in the log book, was not a certified operator. No testimony was offered concerning the certification status of the other individuals whose names or initials appear in the log book, or how many times an uncertified operator performed duties at the facility.

52. The second component of the penalty considers the gravity of the deviation: whether moderate or major in potential risk of harm and deviation from the applicable law. Once the gravity level was decided by DHEC staff, the penalty was assessed based on a matrix formula. DHEC Exhibit 51. The penalty multiplier that is taken from the matrix is set out in DHEC Exhibit 50.

53. DHEC determined that Tin Products' failure to obtain a construction permit for a portion of the pretreatment facility had a moderate potential for harm but was a major deviation from applicable law. That determination led to a one-time penalty that was 40-50 % of the statutory maximum penalty (of $10,000). DHEC Exhibit 51. The penalty for this violation was $5,000.

54. DHEC concluded that Tin Products' operation of the sludge dewatering system without final approval had a major potential for harm and was a moderate deviation from applicable law. DHEC Exhibit 50; Transcript, Day Four, at 77. According to the matrix a penalty could be imposed that was 80 to 100% of the statutory maximum of $10,000. DHEC Exhibit 51. Because the equipment had been used for at least one year, a penalty of $8,000 per violation was assessed on a weekly basis at 52 weeks, for a total penalty of $364,000.

55. Tin Products was also penalized for its operation of the elements of the pretreatment system not covered by Construction Permit 18,222. This was deemed to pose a major potential for harm and constitute a major deviation from applicable law. Transcript, Day Four, at 78. Because Tin Products had operated the equipment for at least one year, the penalty was calculated on a weekly basis for 52 weeks, in the amount of $520,000. Id. Mr. Foy stated that each day of operation could have resulted in a daily penalty, but that he elected to consider each week of unpermitted operation a separate violation. Id. at 82.

56. Tin Products' failure to use a certified laboratory for temperature and pH readings was deemed to pose a moderate potential for harm with a major extent of deviation from regulatory requirements, for a per-violation penalty of $5,000. Transcript, Day Four, at 78; DHEC Exhibit 50. The penalty was assessed based on the statute of limitations of two years, because the violations had continued for at least that length of time. DHEC Exhibit 50; Transcript, Day Four, at 79. The penalty was assessed on a weekly basis for two years, at $520,000. However, the laboratory reports containing the temperature and pH readings were submitted by Tin Products on a monthly basis. Transcript, Day Four, at 120.

57. The failure to properly preserve samples was designated a moderate-moderate violation. A penalty of $76,000 was assessed using a monthly multiplier for 24 months (rather than weekly or daily), because the sampling period was monthly. Transcript, Day Four, at 79.

58. Tin Products had not updated its Best Management Practices Plan to include the TBT/TOT manufacturing process. A Best Management Practices Plan is designed to identify and control the discharge of significant amounts of oils and hazardous and toxic substances and states how spills will be avoided or managed if they do occur. The Best Management Practices Plan "is a plan required in the construction permit to be ... to address spill prevention and reaction to incidents that occur and as changes are made through the processes, manufacturing processes and whatnot, or as new equipment is added, then these plans are to be updated to identify the new situations." Transcript, Day Four, at 80. An updated Best Management Practices Plan could have prevented the release that caused the environmental damage, which is why its lack was deemed to have created a major potential for harm and a major deviation from the law. The penalty assessed for Tin Products' failure to update its plan was $10,000 per week for one year, or $520,000.

59. Sludge disposal at a place other than Laidlaw was deemed a major-major violation. Tin Products was penalized $10,000 for each of the three times it sent sludge to a landfill. Transcript, Day Four, at 81.

60. Operating the pretreatment facility using a non-certified operator was deemed by DHEC to create a major potential for harm because an untrained person operating the system "leaves open the potential for all kinds of things to happen, it's the reason certified operators are required, so we've got trained personnel handling the equipment to prevent things from going astray. This was a major potential for harm." Transcript, Day Four, at 81. Because there was a certified operator some of the time, it was considered a moderate extent of deviation from the regulatory requirements. DHEC determined that Tin Products had failed to use a certified operator for at least a two year period. Therefore, DHEC calculated the penalty over 104 weeks, for a total of $728,000. Id. Although Tin Products undoubtedly used uncertified operators for the pretreatment facility, I find that the evidence and testimony submitted by DHEC at the hearing failed to establish that this violation had indeed occurred every week for 104 weeks. Tin Products' log book for the pretreatment facility contains numerous entries; however, the only testimony at the hearing concerning these entries was that the individual with the initials "GM," whose entries appear in the log book, was not a certified operator. No testimony was offered concerning the certification status of the other individuals whose names or initials appear in the log book, or how many times an uncertified operator performed duties at the facility.

61. Tin Products was also penalized for the unauthorized discharge of waste (UAD). Transcript, Day Four, at 81. This portion of the penalty was imposed because "there was a catastrophic environmental impact to the aquatic life in the Red Bank Creek basin and there were potential human health threats associated with the public water supply downstream." Id. at 84. DHEC determined that this violation had a major potential for harm and was a major deviation from the law, because, if a number of the other requirements had been met, the release could have been avoided. Id. The imposed penalty was $150,000, assessing the statutory maximum for each of 15 days of violation, from February 2, 2000, when DHEC believed the unauthorized release began, until February 16, 2000, when Tin Products was taken off the LCJMW&SC system.

62. Environmental impact was the next item in the penalty calculation. The penalty was assessed because of violations of water quality standards based on monitoring in the Red Bank basin. The $10,000 daily penalty ran from February 11, 2000, through May 17, 2000, or 97 days, for a total of $970,000. Transcript, Day Four, at 83-84. The impact was designated a major-major violation because of the potential for harm (the human health risks associated with public water supply and the catastrophic impacts to the aquatic life). Id. The extent of deviation was major, because it appeared the releases had gone on for some period of time and Tin Products had not taken the proper procedures to avoid a release. Id.

The Intervenors' Position

63. The Intervenors seek reimbursement or compensation for damages to their property and ask that any penalties levied against Tin Products be used to restore their property and Red Bank Creek. While I am sympathetic to their situation, I conclude that the only issue properly before me is whether Tin Products violated the Pollution Control Act and the Hazardous Waste Management Act, and the amount of the penalty which should be imposed for any such violations. Accordingly, the relief the Intervenors seek is beyond the jurisdiction of this Division to grant; any such claims can, and should, be brought in another forum.



CONCLUSIONS OF LAW

General Conclusions

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.

2. The standard of proof in administrative proceedings is a preponderance of the evidence. Anonymous v. State Bd. of Medical Examiners, 329 S.C. 371, 496 S.E.2d 17 (1998).

3. The burden of proof is upon DHEC to demonstrate that Tin Products violated the South Carolina Pollution Control Act, the South Carolina Hazardous Waste Management Act, and supporting regulations. Likewise, the burden is on DHEC to prove that the fines assessed pursuant to the Administrative Order were appropriate. See 2 Am.Jur.2d Administrative Law § 360 (1994) (generally, the burden of proof is on the party asserting the affirmative in an adjudicatory administrative proceeding).

4. An agency decision must be reached utilizing reasoned judgment and must be based upon adequate determining principles and a rational basis. Deese v. S.C. State Bd. of Dentistry, 286 S.C. 182,332 S.E.2d 539 (Ct. App. 1985).

5. The trier of fact must weigh and pass upon the credibility of evidence presented. See S.C. Cable Television Ass'n v. Southern Bell Tel. and Tel. Co., 308 S.C. 216, 417 S.E.2d 586 (1992). The trial judge who observes a witness is in the best position to judge the witness' demeanor and veracity and evaluate his testimony. See, e.g., McAlister v. Patterson, 278 S.C. 481, 299 S.E.2d 322 (1982).

6. Each fine must be analyzed individually to determine if it is appropriate under the circumstances. Midlands Utility, Inc. v. S.C. Dept. of Health and Envtl. Control, 313 S.C. 210, 437 S.E.2d 120 (1993). Further, in assigning a penalty, the fact finder must give effect to the purposes for which fines are assessed, which is to deter such conduct in the future. Id.

7. In administrative proceedings involving DHEC, the administrative law judge is the fact-finder. Brown v. S.C. Dept. of Health and Envtl. Control, ___ S.C. ___, 560 S.E.2d 410 (2002). Acting as the fact-finder, it is the prerogative of the administrative law judge "to impose the appropriate penalty based on the facts presented." Walker v. S.C. ABC Comm'n, 305 S.C. 209, 211 S.E.2d 633, 634 (1991).

Pollution Control Act Violations

8. S.C. Code Ann. § 48-1-330 (1987) authorizes civil penalties of up to $10,000 per day

for violations of the Pollution Control Act, regulations promulgated thereunder, or permits issued by the Department of Health and Environmental Control.



Unauthorized Discharge and Environmental Impact

9. S.C. Code Ann. § 48-1-90 (1987 & Supp. 1999) forbids discharge of pollutants to the environment of the State except as in accordance with a permit issued by the Department of Health and Environmental Control. Tin Products violated the Pollution Control Act, S.C. Code Ann. § 48-1-90(a)(Supp. 1999), when it unlawfully discharged wastes into the environment. Tin Products violated the Pollution Control Act, S.C. Code Ann. § 48-1-90(b)(Supp. 1999), because it unlawfully discharged organic matter, indirectly through the Two Notch Road treatment plant, into waters of the State to the extent that fish and aquatic animals were damaged and/or destroyed.

10. Discharges of organotins and dibutyl ether, not authorized by the Waste Permit issued to Tin Products by the Lexington County Joint Municipal Water and Sewer Commission, are violations of 24 S.C. Code Ann. Regs. 61-9 and the Pollution Control Act. I find and conclude that the fine of $150,000 assessed by DHEC against Tin Products for unauthorized discharge is supported by the evidence.

11. Discharges of organotins into Red Bank Creek and Crystal Lake caused violations of water quality standards and the consequent impairment of aquatic life in those water bodies. Discharges which cause violations of water quality standards are violations of S.C. Code Ann. §§48-1-90 and 48-1-100 (1987 & Supp. 1999). I find and conclude that the fine of $970,000 assessed by DHEC against Tin Products for the environmental impact resulting from the discharges of organotins is supported by the evidence.











Failure to Obtain Permit, Operation without a Permit, and Operation without Final Approval



12. S.C. Code Ann. §48-1-100 (1987) requires that "[a]ny person ... desiring to ...increase the quantity of discharge from existing outlets or sources, for the discharge of ... industrial wastes ... into the waters ... of the State, shall first make an application to the Department [of Health and Environmental Control] for a permit to construct and a permit to discharge from such source."

13. S.C. Code Ann. § 48-1-110 (1987) prohibits construction, installation, or operation

of a disposal system or source of contaminants, or changes, additions, or extensions to existing disposal systems, without prior approval from the Department of Health and Environmental Control.

a) Tin Products violated the Pollution Control Act, S.C. Code Ann. §48-1-110(a)(2) (Supp.

2000) and Water Pollution Control Permits, 24 S.C. Code Ann. Regs. 61-9.122.21(a)(2) (2000), because it installed additions to its pretreatment system without a permit to construct. I find and conclude that the fine of $5,000 assessed by DHEC for this violation is supported by the evidence.

b) Tin Products violated the Pollution Control Act, S.C. Code Ann. §48-1-110(a)(3) (Supp.

2000) and Water Pollution Control Permits, 24 S.C. Code Ann. Regs. 61-9.122.21(a)(2) (2000), when it operated permitted and unpermitted additions to its pretreatment system without final approval. I find and conclude that the fine of $364,000 assessed by DHEC for operation of the sludge dewatering system without final approval, and the fine of $520,000 assessed by DHEC for operation of unpermitted components of the pretreatment system without approval are supported by the evidence.

Operation of Facility without a Certified Operator

14. Operation of the waste water pretreatment system by an individual who does not hold the appropriate operator's certification is a violation of 24 S.C. Code Ann. Regs.61-9.122.41(a) (1998). Tin Products undoubtedly violated this regulation when it allowed a non-certified operator to operate the pretreatment system at times. However, as detailed in the Findings of Fact, the evidence concerning this violation did not establish by a preponderance that an uncertified operator indeed operated the pretreatment system for 104 weeks, and was insufficient to enable this Court to determine the true extent of the violation. Thus, I conclude that the fine of $728,000 for this violation cannot be sustained. Likewise, the fine of $57,600 for the economic benefit component of this violation cannot be sustained.

Failure to Contain Spills

15. Failure to contain spills and failure to remove soil contaminated by spills is aviolation of the Pollution Control Act. Carolina Chemicals v. DHEC, 351 S.E.2d 575 (S.C. 1986). I find and conclude that the fine of $60,000 assessed by DHEC for the six distinct spills at the Tin Products facility is supported by the evidence.

Use of Uncertified Laboratory

16. Tin Products is required by its permits to submit monitoring reports to DHEC. The submission of reports which include monitoring results from an uncertified laboratory is a violation of the Pollution Control Act. 25A S.C. Code Ann. Regs. 61-81.E. Tin Products also violated Water Pollution Control Permits, 24 S.C. Code Ann. Regs. 61-9.122.41(j)(4) (2000) and State Environmental Laboratory Certification Standards, 24A S.C. Code Ann. Regs. 61-81.E.(2), when it did not analyze field samples according to 40 CFR Part 136. Although I conclude that these violations have been proven, the fine assessed for these violations should be modified. Although the laboratory reports in question were submitted on a monthly basis, DHEC staff chose to assess a fine of $5,000 per violation on a weekly basis for 104 weeks, resulting in a total fine of $520,000. A method for computing a fine for these violations which is supported by the evidence is to assess a fine of $5,000 per violation on a monthly basis for 104 weeks. I therefore conclude that an appropriate fine for these violations is $120,000.

Failure to Preserve Samples

17. Tin Products violated Water Pollution Control Permits, 24 S.C. Code Ann. Regs.61-9.122.41(j)(4) (2000), when it stored samples without properly preserving them. I find and conclude that the fine of $76,000 assessed by DHEC for this violation is supported by the evidence.

Failure to Update Best Management Practices Plan

18. Tin Products violated Water Pollution Control Permits, 24 S.C. Code Ann. Regs.61-9.122.43(k) (2000), because it did not upgrade its Best Management Practices Plan to include pretreatment system upgrades and new manufacturing processes that used toxic pollutants. I find and conclude that the fine of $520,000 assessed by DHEC for this violation is supported by the evidence.

Disposal of Sludge at Unapproved Facility

19. Tin Products violated Water Pollution Control Permits, 24 S.C. Code Ann. Regs. 61-9.504.22 (2000), because its waste disposal records indicate that on three (3) occasions industrial sludge was transported to unapproved disposal sites. I find and conclude that the $30,000 fine assessed by DHEC for these three separate violations is supported by the evidence.



Hazardous Waste Violations

20. S.C. Code Ann. § 44-56-140 (1976) authorizes civil penalties of up to $25,000 per

day for violations of the Hazardous Waste Management Act, regulations promulgated thereunder, or permits issued by the Department of Health and Environmental Control.

21. S.C. Code Ann. § 44-56-60 (Supp. 2000) forbids construction, substantial alteration,

or operation of a hazardous waste treatment, storage, or disposal facility without a permit from the Department.

22. S.C. Code Ann. § 44-56-130 (Supp. 2000) forbids generation, storage, transportation

or disposal of hazardous waste in a manner which does not comply with applicable regulations. 25 S.C. Code Ann. R.61-79 (Supp. 2000) imposes requirements for labeling, containment and storage of hazardous waste. Regulation 61-79 also requires generators of solid waste to determine whether wastes are hazardous wastes; failure to characterize wastes may result in improper management of such wastes. Specifically, I find the following violations:

a. Tin Products violated the South Carolina Hazardous Waste Management Regulations, 25 S.C. Code Ann. Regs. 61-79.265.35, made applicable by R.61-79.262.34(a)(2), in that it failed to maintain adequate aisle space to allow the unobstructed movement of personnel, fire protection equipment, spill control equipment, and decontamination equipment to any area of facility operation in an emergency.

b. Tin Products violated the South Carolina Hazardous Waste Management Regulations, 25 S.C. Code Ann. Regs.61-79.262.34(a)(1)(I), made applicable by R.61-79.265.173(c)(d), in that each container containing hazardous waste was not permanently and legibly marked with the words "Hazardous Waste-federal laws prohibit improper storage or disposal" and each container was not appropriately labeled with an EPA Hazardous Waste Number.



c. Tin Products violated the South Carolina Hazardous Waste Management Regulations, 25 S.C. Code Ann. Regs. 61-79.262.34(a)(2), in that it accumulated hazardous waste on site in the less than 90 days storage area without having a permit or interim status and it did not provide the date upon which each period of accumulation began clearly marked and visible for inspection on each container.

d. Tin Products violated the South Carolina Hazardous Waste Management Regulations, S.C. Code Ann. Regs. 61-79.265.173(d), made applicable by 262.34(a)(1) in that a container holding hazardous waste was opened, handled, or stored in a manner which could have ruptured the container or caused it to leak.

e. Tin Products violated the South Carolina Hazardous Waste Management Regulations, S.C. Code Ann. Regs. 61-79.265.174 and 265.15(d), made applicable by R.61-79.262.34(a)(4), in that it failed to inspect areas where containers are stored, at least weekly, looking for leaks and for deterioration caused by corrosion or other factors. Tin Products failed to properly record inspections in an inspection log or summary.

f. Tin Products violated the South Carolina Hazardous Waste Management Regulations, S.C. Code Ann. Regs. 61-79.262.34(c)(1)(I), in that it accumulated as much as 55 gallons of hazardous waste in containers at or near a point(s) of generation where wastes initially accumulate, which is under the control of the operator of the process generating the waste without a permit or interim status.

g. Tin Products violated the South Carolina Hazardous Waste Management Regulations, S.C. Code Ann. Regs. 61-79.262.11, in that as a generator of solid waste, as defined in



R.61-79.261.2, it failed to accurately determine if certain waste constituted a hazardous waste.

17. I find and conclude that the fine of $22,500 assessed by DHEC for Tin Products' mismanagement of waste containers and the fine of $25,000 assessed by DHEC for failure to make hazardous waste determinations are supported by the evidence.



Disposition of the Penalties

18. Penalties assessed pursuant to the Pollution Control Act must be split between Lexington County, the county in which the violations occurred (S.C. Code Ann. Section 48-1-330 (1987)), and the South Carolina General Fund. Act No. 387 of 2001, Section 72 - X90 - GENERAL AND TEMPORARY. Penalties assessed pursuant to the Hazardous Waste Management Act must be deposited in the South Carolina General Fund.

  • The South Carolina Environmental Emergency Fund, established by S.C. Code Ann.

§ 48-2-310 et seq. has no relevance to the instant action and does not limit any penalty which might be assessed against Tin Products.



ORDER

THEREFORE, IT IS HEREBY ORDERED that Administrative Order 00-112-W, HW; 00-12-HW, W, is affirmed in its entirety as to the violations committed by Tin Products. However, based upon the evidence presented in the case, the penalty provisions of the Order are modified as set forth above, resulting in a total civil penalty of Two Million Eight Hundred Sixty-Two Thousand Five Hundred Dollars ($2,862,500). The motions of intervenors to direct the disbursement of the penalty to intervenors and others similarly situated along Red Bank Creek are DENIED.

AND IT IS SO ORDERED.



_____________________________________

CAROLYN C. MATTHEWS

Administrative Law Judge





May 7, 2002

Columbia, South Carolina


Brown Bldg.

 

 

 

 

 

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