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:
The Cardinal Companies, L.P. vs. SCDHEC

AGENCY:
South Carolina Department of Health and Environmental Control

PARTIES:
Petitioner:
The Cardinal Companies, L.P.

Respondent:
South Carolina Department of Health and Environmental Control
 
DOCKET NUMBER:
00-ALJ-07-0527-CC

APPEARANCES:
Steven J. Pugh, Frederick A. Crawford, and Steve W. Hamm
Richardson, Plowden, Carpenter & Robinson, P.A.
Attorneys for Petitioner, The Cardinal Companies, L.P.


Samuel L. Finklea, III and Elizabeth G. Howard
Attorneys for Respondent, South Carolina
Department of Health and Environmental Control
 

ORDERS:

FINAL ORDER AND DECISION

This matter comes before the Administrative Law Judge Division upon request by The Cardinal Companies, L.P. (Cardinal) for an administrative review of an emergency order issued pursuant to S.C. Code Ann. §48-1-290 by South Carolina Department of Health and Environmental Control (DHEC or the Department) on September 15, 2000. The order mandated that Petitioner cease all operations of its facilities until the conditions in the Emergency Order are met. The issues before this tribunal are (1) whether conditions or operations at the facility on or about September 15, 2000, constituted an emergency requiring immediate action to protect the public health or property to justify the issuance of the emergency order and (2) whether an emergency currently exists to justify the continued enforcement of the Emergency Order.

FACTUAL BACKGROUND AND FINDINGS OF FACT

Having carefully considered all testimony, exhibits, and arguments presented at the hearing in this case and taking into account the credibility and accuracy of the evidence, I find the following.



A. Factual Background

For the past 49 years, Cardinal has operated manufacturing facilities at 2010 South Beltline Drive, Columbia, SC 29202, including facilities which manufactured tins for industrial applications. Cardinal has been a pretreatment discharger of industrial wastes into the Metro Wastewater Treatment Plant operated by the City of Columbia (the City) for approximately 20 years. During the spring of 2000, DHEC expressed concerns regarding Cardinal's waste practices and the results of some toxicity testing done relating to the City's Metro plant. The City gave Cardinal a satisfactory rating in a Pretreatment Compliance Inspection conducted in February. Cardinal has been cooperative with DHEC and the City of Columbia in addressing mounting concerns over the presence of organotins in wastewater.

On September 7, 2000, Cardinal and the City entered into an agreement: this agreement provided that Cardinal would segregate all organotin effluent for testing and would not discharge any detectable limits of organotins but could continue to discharge other effluent including "storm water runoff and non-contact process water." (1) Both the City and Cardinal have installed cut-off valves on the discharge line to the Metro Plant.

On September 11, 2000, Swearingen Ecology Associates-United States, Inc. (SEAUS) released the final version of its report on "Organotin Source Evaluation at the City of Columbia's Metro Wastewater Treatment Plant," which indicated elevated levels of tributyltin in the Congaree River below Cardinal's discharge and in the City Metro facility. The report also found that Cardinal is the only upstream discharger which produces tin.

On September 15, 2000, DHEC issued an Emergency Order mandating: (1) the orderly shut down of all Cardinal processes within 48 hours, (2) a report to DHEC ensuring adequate pretreatment before release, (3) independent safety audits on all processes by experts approved by DHEC, and (4) a chemical inventory within 72 hours, among other requirements. Cardinal has made good faith efforts to comply with the Emergency Order and has submitted independent audits of some lines to DHEC for review to enable it to reopen.



B. Findings of Fact

1. In February 2000, an organotin discharge was responsible for shutting down the Lexington wastewater facility and causing a massive fish kill in Red Bank Creek. Thus, the catastrophic effects of toxic levels of organotins on aquatic life and wastewater facilities are undisputed.

2. The City Metro wastewater treatment facility is the largest in the State, processing 60 million gallons of treated wastewater per day. Should the plant be rendered inoperative, there are no available alternatives. The Congaree River, into which the City Metro facility discharges, also provides the assimilative capacity for the Cayce and East Richland facilities. The Congaree Swamp is 10 miles downstream of the City Metro effluent. Thus, tributyltin discharges could destroy sensitive ecosystems and affect the assimilative capacity of the Congaree, creating wide ranging detrimental effects.

3. The SEAUS report sampled all the upstream industries which City Metro services. The SEAUS report identified Cardinal as the only industry showing significant levels of organotins and hence the only source discharging into the City Metro plant. Organotins were also identified in samples from the Congaree River, downstream of Cardinal, and accumulations at all points sampled in the City Metro wastewater treatment facility.

4. DHEC samples collected on September 20 from Cardinal's storm water reservoir showed elevated levels of all butyl organotins. (2) Samples were also taken from the Intertape property, immediately adjacent to Cardinal, on September 25 from the upper and lower site ponds when DHEC responded to a fish kill after heavy rains. Data revealed small levels of monobutyl tin and dibutyl tin in all samples, a small level of tetraoctyl tin in one sample, but no detectable levels of any other type of tin. Intertape does not utilize or produce organotins in its manufacturing processes.

5. The City Metro plant has recently failed some toxicity tests, though the causes are unknown. Just prior to the Lexington incident, the wastewater treatment plant there had begun failing toxicity tests.

6. On September 7, 8, and 11, the City conducted additional sampling of Cardinal's discharge to the Metro plant. While the results indicated lower levels of organotins than those found in the September 11 SEAUS Report, the levels present were still significant in at least two instances.

DISCUSSION AND CONCLUSIONS OF LAW

Based upon the Findings of Fact, I conclude the following as a matter of law.

A. Discussion

Organotins are chemical compounds consisting of one to four carbon based groups attached to a tin atom. (3) Due to the molecular structure and interactions with other ions, tributyltin is the most toxic form to aquatic life. (4) Tributyltin readily adhers to "sediments and suspended solids and can persist there." (5) Hence, its presence in a wastewater treatment plant would be problematic for the continued viability of the processes necessary to the processing of wastewater, creating accumulations over time. "Tributyltin (TBT) has been used primarily in antifouling paints due to its effectiveness as a biocide while dibutyltin and monobutyltin are found in the aquatic environment mainly due to their use as PVC stabilizers and as degradation products of TBT. . . . TBT has been referred to as 'perhaps the most toxic chemical that has ever been deliberately introduced into the aquatic environment.'" (6) Though no federal or state regulations currently specifically address the discharge of organotins, EPA has issued a draft regulation discussing the effects of organotins, especially tributyltin (TBT), on marine biodiversity and recommending low discharge criteria for organotins. (7) While organotins have been present in water for years, the severe damage caused by elevated levels in chemical spills has only recently been fully realized. The Red Bank Creek fish kill and Lexington wastewater treatment plant kill has only recently alerted DHEC and EPA to the catastrophic effects of tributyltin on human health and the environment. Thus, organotins, especially tributyltin (TBT) pose a substantial environmental threat as well as a human health risk.

In issuing an emergency order, a government agency must fully explain its course of inquiry, its analysis and its reasoning to establish a rational basis for its decision. See Trinity American Corp. v. U.S. Envt'l Protection Agency, 150 F.3d 389, 394 (4th Cir. 1998). The Court of Appeals of the Fourth Circuit in Trinity has addressed the U.S. Environmental Protection Agency's decision to issue an emergency order under the Safe Drinking Water Act and stated that:

we recognize that the Safe Drinking Water Act, like most environmental statutes, is complex and requires sophisticated evaluation of complicated data. Accordingly, we "do[] not sit as a scientific body, meticulously reviewing all data under a laboratory microscope." [Natural Resource Defense Council v. U.S. Environmental Protection Agency, 16 F.3d 1395, 1401 (4th Cir. 1993); Natural Resource Defense Council U.S. Environmental Protection Agency, 824 F.2d 1211, 1216 (D.C. Cir. 1987)] ("it is not for the judicial branch to undertake comparative evaluations of conflicting scientific evidence"). Rather, if [the U.S. Environmental Protection Agency] "fully and ably explain[s] its course of inquiry, its analysis, and its reasoning" sufficiently enough for us to discern a rational connection between "its decision-making process and its ultimate decision," we will not disturb EPA's action.



Trinity American Corp. v. U.S. Envt'l Protection Agency, 150 F.3d 389, 394 (4th Cir. 1998). The Agreement with the City Metro plant is not dispositive of this case because our Supreme Court has held that even though DHEC does not directly regulate dischargers into publicly owned treatment works, DHEC does retain ultimate regulatory authority insofar as the indirect discharge may have wider ranging effects, through the City Metro effluent or otherwise. See Midlands Utility, Inc. v. South Carolina Dept. of Health and Env. Control, 301 S.C. 224, 227, 391 S.E.2d 535, 537 (1989).Because DHEC has made independent safety audits a condition of reopening processes under the Emergency Order, DHEC must review the audits expeditiously and with all deliberate speed, recognizing the extreme nature of the Emergency Order and the continuing economic impact on Cardinal. Therefore, DHEC is ordered to work overtime including weekends if necessary to determine whether an emergency continues to exist.

This tribunal is not dissociated from the community, nor does it operate in a legal vacuum. Accordingly, this tribunal recognizes the import of the issues to both parties and the magnitude of the potential impact upon Petitioner's business interests, as well as that upon the community, the public health, and the environment. (8) Nonetheless, this decision is based on the record developed in this case, as applied to the broad statutory discretion which the General Assembly has vested in DHEC to respond to emergency situations. This tribunal respects the charge with which the legislature has entrusted DHEC. (9) Like the Court of Appeals of the Fourth Circuit in Trinity American Corp. v. U.S. EPA, 150 F.3d 389, 394 (4th Cir. 1998), this tribunal does not consider itself "a scientific body, meticulously reviewing all data under a laboratory microscope." Here, it is sufficient that there is enough scientific evidence to provide a rational basis for the Emergency Order.

B. Conclusions of Law

1. The Administrative Law Judge Division has subject matter jurisdiction in this case pursuant to Article I §22 of the South Carolina Constitution; the South Carolina Administrative Procedures Act, S.C. Code Ann. §§1-23-310 et seq. (1986 & Supp. 1999); DHEC Regulation 61-72, 25 S.C. Code Ann. Regs. 61-72 (Supp. 1999); and Rule 1, South Carolina Administrative Law Judge Division Rules.

2. DHEC is authorized by law to issue Emergency Orders, such as the one dated September 15, 2000, if "the Department finds that an emergency exists requiring immediate action to protect the public health or property." S.C. Code Ann. §48-1-290 (1976). Section 48-1-290 provides:

Emergency Orders. Whenever the Department finds that an emergency exists requiring immediate action to protect the public health or property, the Department, with concurrent notice to the Governor, may without notice or hearing issue an order reciting the existence of such an emergency and requiring that such action be taken as the Department deems necessary to meet the emergency. Such order shall be effective immediately. Any person to whom such order is directed shall comply therewith immediately, but on application to the Department or by direction of the Governor shall be afforded a hearing within forty-eight hours. On the basis of such hearing the Department shall continue such order in effect, revoke it, or modify it. Regardless of whether a hearing is held, the Department shall revoke all emergency orders as soon as conditions or operations change to the extent that an emergency no longer exists.

(Emphasis added.)



In addition, Section 44-56-50 provides in part:



Notwithstanding any other provision of this chapter, the director, upon receipt of information that the storage, transportation, treatment, or disposal of any waste may present an imminent and substantial hazard to the health of persons or to the environment, may take such action as he determines to be necessary to protect the health of persons or the environment. S.C. Code Ann. §44-56-50 (1976 & 1999 Supp.) (Emphasis added.)



3. In enforcement of administrative orders, including Emergency Orders, DHEC has the burden of proof. ALJD Rule 29(B). In the present case, DHEC must prove that an emergency existed on September 15, 2000, necessitating the complete shut down of Cardinal to protect the public health and that an emergency continued to exist, justifying DHEC's refusal to lift the Emergency Order. Section 48-1-290 clearly contemplates that emergency orders that issue without hearing or other procedural protections are sometimes necessary but imposes on the agency a continuing duty to assess the circumstances and lift the order once the emergency has ceased. DHEC must prove the emergency by a preponderance of the evidence. See Anonymous v. State Board of Medical Examiners, 329 S.C. 371, 769 S.E.2d 17 (1998) (setting forth the standard of proof as a preponderance of the evidence). (10)



4. The Emergency Order was initially justified on September 15 because thorough scientific testing conclusively reveals significantly elevated levels of organotins, including tributyltin, at Cardinal, at the adjacent Intertape ponds, in the City Metro wastewater treatment facility, and in the Congaree River downstream of Cardinal. The statute does not require a specific flashpoint in time to provide the basis for issuing an Emergency Order. Rather, in construing §48-1-290 in conjunction with §44-56-60, it is apparent that substantial latitude has been entrusted to DHEC by the General Assembly to determine what circumstances present an emergency situation.

The Fourth Circuit drew a critical distinction in Trinity, pointing out that "only the 'risk of harm' must be 'imminent', not the actual emergency to justify agency action. "Rather, EPA must demonstrate the 'imminent likelihood' that the public may consume contaminated water unless prompt action is taken to 'prevent' a 'potential hazard from occurring.'" Trinity at 399. In light of the data in the SEAUS Report released on September 11, this tribunal cannot say that DHEC's decision to issue an Emergency Order on September 15 was arbitrary and capricious or without any rational basis. See Deese v. S.C. State Board of Dentistry, 286 S.C. 182, 332 S.E.2d 539 (Ct. App. 1985) (a decision is arbitrary and capricious if it is without rational basis, is based alone on one's will and not upon any course of reasoning in exercise of judgment, is made at pleasure without determining principles, or as governed by no fixed rules or standards). The Department's action in declaring that an emergency existed was proper considering: (1) the undisputed catastrophic public health effects a release of organotins into the environment could cause, (2) Cardinal's use of organotins in their production processes with the concomitant potential for organotin discharge, and (3) the detection of the presence of elevated levels of organotins in Cardinal's effluent discharge, in the City Metro plant's discharge, and in the Congaree River, with Cardinal being identified as the source.

5. While Cardinal has clearly been cooperative with DHEC in good faith efforts to comply, it is evident that the consultants have not completed all of the testing required under terms of the Emergency Order. Therefore, the Emergency Order continues to be justified. DHEC is ordered to continue to review Cardinal's submission with all deliberate speed to satisfy itself that the conditions constituting the Emergency no longer exist, as required by §48-1-290.

6. Cardinal's requested relief included an injunction prohibiting DHEC from "taking any action which would have the effect of shutting down any production processes at Cardinal's facility and from further interfering with Cardinal's lawful operations." (11) This tribunal refuses to enjoin DHEC from issuing any further Emergency Orders or imposing such conditions on Cardinal's operation as it finds necessary to protect the environment and the public health.

ORDER

Based on the foregoing Findings of Fact and Conclusions of Law, IT IS HEREBY ORDERED that the Emergency Order dated September 15, 2000, shall remain in effect. DHEC is ordered to review the independent audits with all deliberate speed and to lift the Emergency Order as soon as it has reliable scientific data that the conditions constituting the emergency no longer exist. DHEC shall allow Cardinal to restart processes as soon as each is proved to present no imminent and substantial danger to the public health or to the environment.

AND IT IS SO ORDERED.





______________________________

JOHN D. GEATHERS

Administrative Law Judge

Post Office Box 11667

Columbia, South Carolina 29211-1667



November 2, 2000

Columbia, South Carolina

1. Petitioner's Exhibit B at 2.

2. Respondent's Exhibit 20.

3. Respondent's Exhibit 21. EPA, Ambient Aquatic Life Water Quality Criteria: Tributyltin (Draft), 62 Fed. Reg. 42,554 (Aug. 7, 1997) at 1.

4. Id.

5. Id.

6. Respondent's Exhibit 7 at 3 (SEAUS Report).

7. "The freshwater quality criteria for tributyltin is: Criteria Maximum Concentration (CMC)=0.46 ppb and the Criteria Continuous Concentration (CCC)=0.063 ppb. . . . The CMC corresponds to the highest in stream concentration of a toxicant to which an organism can be exposed to for a brief period of time, while the CCC relates to the highest concentration of a toxicant which organisms can be exposed to indefinitely without causing an unacceptable effect. . . ." Respondent's Exhibit 7, SEAUS Report at 3-4, citing Respondent's Exhibit 21. EPA, Ambient Aquatic Life Water Quality Criteria: Tributyltin (Draft), 62 Fed. Reg. 42,554 (Aug. 7, 1997) at 31.

8. Like their federal corollaries, the South Carolina statutes are intended to protect the environment and the public health. Purely economic harm cannot outweigh the "imminent and irreversible" harm to the public health that an uncontrolled release of organotins could pose. Hence, DHEC's proactive stance is justified. See Bragg v. Robertson, 54 F.Supp.2d 635, 645 (S.D.W.Va. 1999).

9. Likewise, the Fourth Circuit has been hesitant to overturn EPA's emergency decisions. Because South Carolina has a program in which EPA has delegated primary enforcement of environmental and health laws to DHEC, this tribunal should grant them similar latitude.

10. The preponderance of the evidence means "[t]he greater weight of the evidence" or "superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other." Black's Law Dictionary 1201 (7th ed. 1999). "The preponderance of the evidence means such evidence as, when considered and compared with that opposed to it, has more convincing force and produces in the mind the belief that what is sought to be proved is more likely true than not true." Alex Sanders, Deborah Neese & John S. Nichols, Trial Handbook for South Carolina Lawyers §9:5 Quantum of Evidence in Civil Cases (1994), citing Frazier v. Frazier, 228 S.C. 149, 89 S.E.2d 225 (1955).

11. Petition for Administrative Review at 5.


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