ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before the Administrative Law Judge Division (ALJD or Division) pursuant to Article 1, § 22 of the
South Carolina Constitution; the South Carolina Administrative Procedures Act, S.C. Code Ann. §§ 1-23-310 et seq. (1986
& Supp. 2000); South Carolina Department of Health and Environmental Control (DHEC or Department) Regulation 61-72, 25 S.C. Code Ann. Regs. 61-72 (Supp. 2000); and ALJD Rule 1 upon request by Macalloy Corporation (Macalloy or
Petitioner) for a contested case hearing. Macalloy challenges a decision by which DHEC staff refused to rescind a
Consumption Advisory limiting the consumption of shrimp and crab harvested from Shipyard Creek in North Charleston,
South Carolina. Macalloy also requests the issuance of an Order requiring DHEC to remove Shipyard Creek from the
"303(d) list" which DHEC has published under § 303(d) of the Federal Clean Water Act, 33 U.S.C.A. § 1313(d) (2001).
After notice to all parties, a hearing was held on July 18, 2001.
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
1. Introduction
This matter is directly related to the facts and issues in a previous proceeding involving Macalloy and DHEC before the
ALJD as Docket No. 99-ALJ-07-0444-CC. Many of the background facts were established in that proceeding and
reflected in my Final Order and Decision, dated May 19, 2000, in that proceeding. The record in this case includes the full
record of that prior proceeding (Pet. Ex. 1), including the transcript of the evidence (References to the transcript in Docket
No. 99-ALJ-07-0444-CC will be made as "TR. I at ____"; references to the transcript in this Docket No. 01-ALJ-07-0099-CC will be made as "TR. II at ____"). The record in this proceeding also includes the Final Order and Decision in Docket
No. 99-07-ALJ-0444-CC (Pet. Ex. 2), which is incorporated by reference.
2. Docket No. 99-07-ALJ-0444-CC
For many years, Macalloy operated a ferrochromium alloy smelting facility located adjacent to Shipyard Creek.
Ferrochromium is a raw material used to produce stainless steel. The facility ceased operations in July 1998. Tr. I at 12-13. Macalloy is presently in the process of responding to historical contamination at the facility.
In April 1998, DHEC issued an Emergency Order banning all harvesting or collection of shrimp and crab from the mouth
of Shipyard Creek to its headwaters. The Emergency Order specifically cited elevated levels of chromium in shrimp,
crabs, and oysters as the basis for its action. Pet. Ex. 2 at 2.
In response to DHEC's Emergency Order, Macalloy employed scientific consultants, who conducted studies which
concluded that the chromium levels in the sediments and in the shrimp and crabs in Shipyard Creek did not pose a threat to
public health because the type of chromium present in the shrimp and crabs is trivalent chromium, which is not toxic
unless consumed in extremely large quantities. Id. Macalloy then unsuccessfully requested DHEC to rescind the
Emergency Order.
Thereafter, Macalloy initiated a proceeding in the Administrative Law Judge Division for review of DHEC's refusal to
rescind the Emergency Order. After a hearing on March 14, 2000, I issued a Final Order and Decision that contained the
following Findings of Fact:
1. The uncontradicted expert testimony and evidence presented by Macalloy establishes that the vast majority, if not all, of
the chromium in the sediments and shellfish of Shipyard Creek is trivalent chromium.
2. Trivalent chromium is an essential nutrient which occurs in nature and is routinely consumed by humans. It is not toxic
unless consumed in extremely large amounts.
3. Based on the EPA reference dose
(1)
for trivalent chromium, there is no danger to public health from consuming shellfish
harvested from Shipyard Creek, even assuming the high consumption levels associated with subsistence fishermen. (2)
4. Even making the conservative assumption that up to 16% of the chromium could be hexavalent chromium, consumption
of the chromium by a subsistence fisherman would still be far below the adjusted EPA reference dose and would not pose a
threat to public health.
Pet. Ex. No. 2 at 3.
The Final Order and Decision concluded that the Department acted without sufficient consideration of the facts and
without an adequate scientific basis to establish a danger to public health as required by S.C. Code Ann. § 44-1-140
(1976). Furthermore, the Final Order and Decision concluded that (1) the Department exceeded its statutory authority
under Section 44-1-140 by refusing to revoke the Emergency Order in light of substantial scientific evidence
demonstrating that there was no danger to public health from consumption of shellfish harvested in Shipyard Creek; (2) the
Department acted in an arbitrary and capricious manner and abused its discretion in refusing to revoke the Emergency
Order in light of substantial scientific evidence presented to the Department demonstrating that there was no danger to
public health from consumption of shellfish harvested in Shipyard Creek; (3) the evidence presented at the hearing led to
the "the inescapable conclusion that the Department's refusal to lift the ban on harvesting shellfish and crab . . . was
unreasonable in light of the scientific evidence presented by [Macalloy];" (4) the Department's conclusion from the data
was contrary to the accepted and prevailing scientific literature; and (5) Macalloy's experts were "exceedingly persuasive"
in their testimony regarding the lack of danger to human health. Pet. Ex. No. 2 at 14-16.
The Department did not seek either administrative review or judicial review of the Final Order and Decision.
3. Docket No. 01-ALJ-07-0099-CC
After the matter in Docket No. 99-ALJ-07-0444-CC had been heard, but before publication of my Final Order and
Decision, DHEC issued an Administrative Order on May 9, 2000. The Administrative Order rescinded the Emergency
Order banning harvesting of shrimp and crab from Shipyard Creek. However, the Administrative Order stated that the
Department simultaneously intended to issue separately a Consumption Advisory for Shipyard Creek. Pet. Ex. No. 16.
The Department cited no additional evidence or scientific studies or data to justify the issuance of the Consumption
Advisory, notwithstanding the evidence in the record of Docket No. 99-ALJ-07-0444-CC, and the subsequent findings and
conclusions of this tribunal's May 19, 2000 Final Order and Decision, that there was no danger to public health from the
consumption of shellfish harvested in Shipyard Creek.
By letters dated August 15, 2000, and December 4, 2000, Macalloy requested that the Department rescind the
Consumption Advisory on the grounds that it contradicted the evidence in Docket No. 99-ALJ-07-0444-CC and the
findings and conclusions in the May 19, 2000 Final Order and Decision. By letter dated January 22, 2001 (Pet. Ex. No. 3),
the Department refused to rescind the Consumption Advisory. The Department concluded that it required additional data
to determine if it could rescind the Consumption Advisory. Specifically, the Department stated that the rescission should
not occur because monitoring data showed the presence of chromium in Shipyard Creek and shellfish tissue, chromium
was to be retained as a chemical of concern for further study, and "no additional data concerning the presence and
speciation of chromium in shrimp or crab tissue was presented." Id.
On February 5, 2001, Macalloy filed a Motion for Rule to Show Cause in the ALJD seeking issuance of a rule requiring
the Department to show cause why the ALJD should not issue an order requiring the Department to rescind its shellfish
advisory and require the Department to comply with the May 19, 2000 Final Decision and Order. By Order dated and filed
February 14, 2001, the Division denied Macalloy's Motion for Rule to Show Cause.
Thereafter, the Department published its annual Fish Consumption Advisory for 2001 in which it listed Shipyard Creek
and recommended a limited consumption for shrimp and crabs. Pet. Ex. No. 7. In addition, DHEC included Shipyard
Creek on its list of impaired bodies of water in South Carolina pursuant to Section 303(d) of the Clean Water Act.
On February 20, 2001, Macalloy filed its Petition for Review of DHEC's refusal to remove the Consumption Advisory for
Shipyard Creek and to remove Shipyard Creek from the "303(d) list."
B. Findings of Fact
The scientific evidence in this proceeding is substantially similar to much of the evidence that I heard in Docket No. 99-ALJ-07-0444-CC. Compare Tr. I with Tr. II. Indeed, the testimony of Macalloy's three expert witnesses in this
proceeding updates and closely parallels the evidence they presented in the prior case, and their opinions and conclusions
here represent a confirmation of the opinions and conclusions they offered, and which I found persuasive, in that case. Tr.
II at 40-72 (Proctor), 73-85 (Teaf), and 86-94 (Nichols). The record here reflects no additional scientific evidence or data
from DHEC, although DHEC did offer testimony concerning its review of scientific literature relative to certain issues in
this proceeding.
In light of the similarity of the evidence of record in both proceedings and upon full review of the entire record, I make the
following findings of fact, some of which coincide with findings of fact that I made in the Final Order and Decision in
Docket No. 99-ALJ-07-0444-CC and for which I find no basis for modification or rescission:
1. The preponderance of the evidence establishes that the vast majority, if not all, of the chromium in the sediments and
shellfish in Shipyard Creek is trivalent chromium.
2. Trivalent chromium is an essential nutrient that occurs in nature and is routinely consumed by humans. Trivalent
chromium is not toxic unless consumed in extremely large amounts.
3. Based on the EPA reference dose for trivalent chromium, which is appropriate for use in this proceeding as it was in
Docket No. 99-ALJ-07-0444-CC, there is no danger to public health from the consumption of shrimp and crabs from
Shipyard Creek, even assuming the high consumption levels associated with subsistence fisherman, and even assuming
conservatively that 16% of the chromium could be hexavalent chromium.
4. DHEC's assumption that 100% of the chromium present in the sediments and shellfish in Shipyard Creek exists in the
hexavalent form is unreasonable in light of the overwhelming weight of the evidence to the contrary.
DISCUSSION AND CONCLUSIONS OF LAW
The issue in this proceeding is whether the levels of chromium in shrimp and crab in Shipyard Creek pose a "danger to
public life and health" sufficient to justify DHEC's advisory that consumption of shrimp and crabs should be limited, as
the Department directed in its Consumption Advisory in May 2000. If the facts do not support the existence of such
"danger," the Consumption Advisory is without a legal basis and the Department should rescind the Consumption
Advisory and remove Shipyard Creek from the "303(d) list."
In this case, as in Docket No. 99-ALJ-07-0444-CC, the principal issue with respect to the existence of a danger to public
health is the form of chromium present in the shrimp and crabs. The Final Order and Decision in Docket No. 99-ALJ-07-0444-CC found as a matter of fact that the vast majority, if not all, of the chromium in the sediments and shellfish in
Shipyard Creek is trivalent chromium. Pet. Ex. No. 2 at 3. Although DHEC apparently does not, and did not, agree with
that finding of fact (Tr. II at 182-86 and 233-34), there is simply no evidence in this record which contradicts, or even
supports a qualification of, that finding. Indeed, the evidence that Macalloy's expert witnesses, all of whom testified in the
previous proceeding, presented in this proceeding confirms and reinforces that fact. While there was evidence of the
presence of hexavalent chromium in the discharges at Macalloy Outfall 002 and Outfall 004, no evidence was presented to
contradict the overwhelming scientific evidence establishing that this substance in the water column would have been
rapidly reduced to trivalent chromium by the conditions of Shipyard Creek and the digestive processes of shellfish.
Ms. Deborah Proctor, a principal with the consulting company, Exponent, reiterated her previous opinion that the vast
majority of chromium in the sediments and biota in Shipyard Creek exists as trivalent chromium. Tr. II at 42. She
testified that, upon review of additional data since her previous testimony (Pet. Ex. No. 10), she had not changed her
opinion. Tr. II at 43. Ms. Proctor presented her analysis of additional data concerning the presence of chromium and
manganese. Id. at 43-50. She reviewed recently collected sediment samples as well as previous ones. Her analysis of
those samples showed "considerable levels of trivalent chromium, manganese consistently measured and yet, no
hexavalent chromium, which is entirely consistent with the chemistry of chromium that we would expect in Shipyard
Creek sediments." Id. at 45.
Ms. Proctor examined data concerning manganese in the sediments of Shipyard Creek to address the concern that DHEC
expressed about the levels of manganese identified in a prior study. Pet. Ex. No. 3. (3) The presence of highly oxidized
forms of manganese in some environments and in some circumstances can react with trivalent chromium to produce
hexavalent chromium (Tr. II at 46), the more toxic form of chromium. However, forms of manganese appearing in a
highly reducing environment such as the sediments in Shipyard Creek, which contain considerable organic material and
where the pH is neutral or basic, will be unable to react with trivalent chromium to produce hexavalent chromium. Those
existing conditions in Shipyard Creek create exactly the opposite environment of that which would produce hexavalent
chromium. Id. at 47, 52-54, and 68.
Ms. Proctor also reviewed her prior examination of the data concerning biota from Shipyard Creek. Tr. II at 48-50. She
referred to the analysis conducted by the Trace Element Research Laboratory (TERL) at Texas A&M University (Id.),
which the Final Order and Decision in Docket No. 99-ALJ-07-0444-CC thoroughly described. Pet. Ex. No. 2 at 5-6. Ms.
Proctor also presented the results of the sampling and analysis which EnSafe conducted in 2000. Tr. II at 48-50. As Ms.
Proctor described, both of those studies measured "total chromium" (i.e., not speciated to determine whether the form of
chromium in the tissue was trivalent or hexavalent) reflecting the impossibility to make a differentiation between the forms
of chromium present in the tissue. Id. at 48. DHEC itself had previously recognized the practical difficulties in attempting
to make that differentiation. Pet. Ex. No. 2 at 15; Tr. I at 163-64.
Based on her analysis and evidence in this case and in the prior proceeding, Ms. Proctor concluded that "we would not
expect hexavalent chromium to be in the sediments and we also would not expect hexavalent chromium to be in the biota."
Tr. II at 51. Those conclusions are consistent with the conclusions she reached in Docket No. 99-ALJ-07-0444-CC. Pet.
Ex. No. 2 at 9-10.
Macalloy's expert in toxicology and human health assessment, Dr. Christopher Teaf, testified in this proceeding as he had
in Docket No. 99-ALJ-07-0444-CC. Pet. Ex. No. 2 at 10-12. Dr. Teaf stated his agreement with the finding of fact in the
May 19, 2000 Final Order and Decision that the vast majority, if not all, of the chromium in Shipyard Creek was in the
trivalent form. Tr. II at 75. Dr. Teaf summarized his prior testimony and offered evidence on several additional points. Id. at 76-84. He testified that the levels of manganese in Shipyard Creek were "a thousand times lower" than the single
erroneous on-site sample cited by the Department. He also stated that the presence of iron in elevated levels, the elevated
levels of organic matter, the presence of hydrogen sulfide, the neutral or slightly basic pH in Shipyard Creek, and the form
of manganese all contribute to create a "huge reduction condition" which drives the equilibrium toward trivalent
chromium. Id. at 76-80. He also testified that the crabs and shrimp have additional reducing capacity in the processes
occurring in their gastro-intestinal tracts. Id. at 80-82; Pet. Ex. No. 13. Based on his scientific analysis of the conditions in
Shipyard Creek, Dr. Teaf testified that a person would have to consume between ten and fifty pounds of crab a day to
reach a level of concern from the perspective of human health, even assuming 100% bioavailability. Tr. II at 81.
Similarly, he concluded that a person would have to consume in a range of three to 21 pounds of shrimp per day to create a
concern. Id. at 82. Both of the cited ingestion rates far exceed the assumed daily consumption rates published by the EPA
and the USDA for shellfish in the diet. Id. Dr. Teaf offered the expert opinion that there is no evidence to support a
conclusion that there is any chromium-related danger from the consumption of shrimp and crab from Shipyard Creek. Id.
at 84.
Macalloy also presented the expert testimony of Mr. David Nichols, a principal in Kestrel Management Services. Tr. II at
86-94. Mr. Nichols described his scientific analysis of manganese concentrations in the sediments of Shipyard Creek. Id.
at 88-92. Based on that analysis, he concluded that the levels of manganese in Shipyard Creek are "essentially identical"
to those in the Cooper River generally and that they are "typical of most environments." Id. at 90-92. He offered his
expert opinion that the levels of manganese in Shipyard Creek are not elevated. Id. at 92.
Macalloy presented the testimony of Sally Knowles, Assistant Chief of DHEC's Bureau of Water, who is ultimately
responsible for the decision to include a body of water on the "303(d) list" for failure to meet State water quality standards.
Ms. Knowles described the general process for listing a body of water. Tr. II at 96-99. Because of the existence of the
Consumption Advisory, Shipyard Creek appears on the current "303(d) list" for 2000-2002. Id. at 100; Pet. Ex. No. 8.
Macalloy's Vice-President of Engineering, Tim Nelson, testified with respect to the adverse effects of listing Shipyard
Creek on the "303(d) list." Tr. II at 25-27. Mr. Nelson described the negative impression that the public has formed from
the imposition of the Consumption Advisory, notwithstanding the scientific evidence that consumption of shrimp and crabs
is not a cause for concern. He also testified that including Shipyard Creek on the "303(d) list" causes Macalloy to incur
additional expenses for treatment facilities to comply with discharge permit conditions and for on-going remedial actions.
Moreover, the listing of Shipyard Creek acts as a deterrent to potential purchasers of the site. Id. at 26.
The Final Order and Decision in Docket No. 99-ALJ-07-0444-CC stated that "DHEC offered no scientific evidence during
the hearing to contradict the expert testimony presented by Macalloy that the chromium present in the sediments and
shellfish in Shipyard Creek is trivalent chromium and that the consumption of even substantial quantities of shellfish from
Shipyard Creek would not pose a danger to public health." Pet. Ex. No. 2 at 12. In this proceeding, DHEC's witnesses
conceded that the Department had not conducted any studies or relied on any additional empirical data to support the
Consumption Advisory and its limitation on the consumption of shrimp and crabs from Shipyard Creek. Tr. II at 171-72,
174-75, and 228. Instead, the Department relied on three factors: first, the fact that existing monitoring data showed the
presence of chromium in the sediments and shellfish tissue in Shipyard Creek (Pet. Ex. 3 at 1); second, its determination
that there were extremely elevated levels of manganese on the site which could have been discharged with stormwater to
Shipyard Creek (Id.); and, third, a review of certain scientific literature concerning the "environmental fate and toxicology
of chromium." Pet. Ex. No. 3, App. 2.
In its decision to issue the Consumption Advisory, DHEC relied on the same two conservative assumptions it used to
publish the original harvesting ban: first, that all of the chromium in the tissue of shrimp and crabs was in the hexavalent
form; and, second, that there was 100% bioavailability of that chromium to humans from consumption of the shrimp and
crabs. Tr. II at 175-76. DHEC's environmental toxicologist, Tracy Shelley, indicated that it is
common for public health practitioners to make conservative assumptions when there is a perceived inadequacy in the
amount or type of data available to them. Id. at 139-140, 145-146. Ms. Shelly admitted that "[m]ost public health
practitioners in public health agencies tend to be a little overly conservative." Id. at 140.
This tribunal certainly does not dispute the reasonableness, and indeed the necessity, of conservative assumptions, in the
absence of valid scientific evidence to the contrary, when the amount or type of data necessary for a public health decision is lacking. However, in this proceeding, as in Docket No. 99-ALJ-07-0444-CC, there exists clear and convincing scientific
evidence to obviate the need for the assumptions that DHEC made in determining whether to issue the Consumption
Advisory.
DHEC's first assumption contradicts the express finding of fact in the Final Order and Decision in the prior proceeding
that the vast majority, if not all, of the chromium in the sediments and shellfish in Shipyard Creek is in the trivalent form.
Pet. Ex. No. 2 at 3. That finding is based on the preponderance of the scientific evidence presented in that proceeding and
is consistent with the conclusions of the FDA and EPA that total chromium in shrimp and other biota exists in the trivalent
form. Tr. II at 70. Macalloy's scientific evidence in both the prior proceeding and the current case, again refutes
conclusively DHEC's assumption. Furthermore, even assuming 100% bioavailability of chromium in the tissue, the
evidence establishes that there is no danger to the public health from consumption of shellfish from Shipyard Creek. Tr. II
at 81-82; Pet. Ex. No. 13.
DHEC's rejection of Macalloy's request to rescind the Consumption Advisory stated that the materials in the literature
review that the Department conducted did not state "unequivocally that chromium in an environment like that of Shipyard
Creek will transform to and remain in the trivalent state, or that hexavalent chromium will be converted 100% to the
trivalent state." Pet. Ex. No. 3 at 1. Macalloy's witnesses Proctor and Teaf criticized DHEC's reliance on the materials
used in its review. Tr. II at 55-57 and 83. Those witnesses characterized the materials as outdated (id. at 55), irrelevant to
the environmental conditions in Shipyard Creek (id. at 56), incomplete and non-representative of the scientific literature,
and self-contradictory (id. at 83). Moreover, the review itself was described as "somewhat unsophisticated [and] showing
just a general lack of understanding . . .." Id. at 56.
DHEC's witness, Tracy Shelley, who conducted the literature review and summarized it, acknowledged that she was not an
expert on chromium. Tr. II at 151. She further admitted that twenty-seven of the sources she reviewed were secondary
sources (id. at 203-04) for which she did not review the original work. Id. at 205. The documents to which Ms. Shelley
referred in her testimony (id. at 146-59) were not admitted into evidence and are not a part of the record of this proceeding.
DHEC witnesses stated the need for additional data to enable the Department to evaluate whether the Consumption
Advisory should be rescinded and whether the previous Final Order and Decision is scientifically based. Tr. II at 187-91
and 225-26. For example, Ms. Shelley indicated that a re-evaluation of the Consumption Advisory would require
speciated tissue data. Id. at 139-40. However, in Docket No. 99-ALJ-07-0444-CC, the evidence of Macalloy and DHEC
itself recognized that speciation was technically extremely difficult and that the laboratory analytical process would result
in conversion of hexavalent chromium, if any, into trivalent chromium. Pet. Ex. No. 2 at 15. DHEC's insistence on more
information to fill "data gaps" is similar to the testimony it presented previously in support of its refusal to rescind the
prohibition on shellfish harvesting in Shipyard Creek. For the reasons described in this Final Order and Decision and in
the Final Order and Decision in Docket No. 99-ALJ-07-0444-CC, that insistence on more data is unconvincing.
Conclusions of Law
1. The Administrative Law Judge Division has subject matter jurisdiction in this case pursuant to Article 1, § 22 of the
South Carolina Constitution; the South Carolina Administrative Procedures Act, S.C. Code Ann. §§ 1-23-310 et seq. (1986
& Supp. 2000); DHEC Regulation 61-72, 25 S.C. Code Ann. Regs. 61-72 (Supp. 2000); and ALJD Rule 1.
2. DHEC is authorized by law to issue orders if there is a "danger to the public life and health." S.C. Code Ann. § 44-1-140 (1976). Implicit within this authority is the power to issue advisories when fishing or shellfish harvesting poses a
health risk to the public.
3. In civil cases, generally, the burden of proof rests upon the party who asserts the affirmative of an issue. 29 Am. Jur. 2d Evidence § 127 (1994); 2 Am Jur. 2d Administrative Law § 360 (1994); Alex Sanders & John S. Nichols, Trial Handbook
for South Carolina Lawyers § 9:3, at 366 (2d ed. 2001). In the present case, Macalloy claims that DHEC's refusal to
rescind the Consumption Advisory for shrimp and crab in Shipyard Creek was arbitrary and capricious and that DHEC's
refusal to lift the Consumption Advisory exceeded its statutory authority. Therefore, Macalloy asserts the affirmative of
the issue. Accordingly, by a preponderance of the evidence, Macalloy must prove that DHEC's refusal to rescind the
Consumption Advisory and remove Shipyard Creek from the "303(d) list" was arbitrary and capricious or that DHEC's
refusal to rescind the Consumption Advisory exceeded its statutory authority. See Anonymous v. State Bd. of Med.
Exam'rs, 329 S.C. 371, 769 S.E.2d 17 (1998) (setting forth standard of proof in administrative hearings as a preponderance
of the evidence). (4)
4. The weight and credibility assigned to evidence presented at the hearing of a matter is within the province of the trier of
fact. See S.C. Cable Television Ass'n v. S. Bell Tel. & Tel. Co., 308 S.C. 216, 417 S.E.2d 586 (1992). Furthermore, a
trial judge who observes a witness is in the better position to judge the witness's demeanor and veracity and evaluate his or
her testimony. See McAlister v. Patterson, 278 S.C. 481, 299 S.E.2d 322 (1982); Peay v. Peay, 260 S.C. 108, 194 S.E.2d
392 (1973); Mann v. Walker, 285 S.C. 194, 328 S.E.2d 659 (Ct. App. 1985); Marshall v. Marshall, 282 S.C. 534, 320
S.E.2d 44 (Ct. App. 1984).
5. "The qualification of a witness as an expert in a particular field is within the sound discretion of the trial judge." Smoak
v. Liebherr-America Inc., 281 S.C. 420, 422, 315 S.E.2d 116, 118 (1984); S.C. Dep't of Highways and Pub. Transp. v.
Manning, 283 S.C. 394, 323 S.E.2d 775 (1984). Where the expert's testimony is based upon facts sufficient to form the
basis for an opinion, the trier of fact determines its probative weight. Berkeley Electric Coop. v. S.C. Pub. Serv. Comm'n,
304 S.C. 15, 402 S.E.2d 674 (1991); Smoak, supra. Further, a trier of fact is not compelled to accept an expert's
testimony, but may give it the weight and credibility he determines it deserves. Florence County Dep't of Soc. Servs. v.
Ward, 310 S.C. 69, 425 S.E.2d 61 (1992); Greyhound Lines v. S.C. Pub. Serv. Comm'n, 274 S.C. 161, 262 S.E.2d 18
(1980). The trier of fact may also accept one expert's testimony over that of another. S.C. Cable Television Ass'n, supra.
6. In issuing an order like the Consumption Advisory, 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 Prot.
Agency, 150 F.3d 389 (4th Cir. 1998) (reviewing the issuance of an emergency order). The Court of Appeals of the Fourth
Circuit in Trinity addressed the EPA's decision to issue an emergency order under the Safe Drinking Water Act and stated
that:
we recognize that the 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." Rather, if the EPA "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, 150 F.3d at 395 (citations omitted).
7. DHEC's refusal to lift the Advisory on consumption of shrimp and crab was made without sufficient consideration of
the facts, and DHEC has failed to demonstrate an adequate scientific basis to establish a danger to public health from that
consumption as required by Section 44-1-140. In the absence of valid scientific evidence to the contrary, it is reasonable
and necessary to make conservative assumptions when the amount or type of data necessary for a public health decision is
lacking. However, in this proceeding, as in Docket No. 99-ALJ-07-0444-CC, there exists clear and convincing scientific
evidence to obviate the need for the assumptions that DHEC made in determining whether to issue the Consumption
Advisory.
8. DHEC exceeded its statutory authority by refusing to rescind the Consumption Advisory in light of substantial scientific
evidence demonstrating that there was no danger to public health from consumption of shellfish in Shipyard Creek.
9. DHEC acted in an arbitrary and capricious manner and abused its discretion in refusing to rescind the Consumption
Advisory in light of substantial scientific evidence presented to DHEC demonstrating that there was no danger to public
health from consumption of shellfish in Shipyard Creek. See Deese v. S.C. State Bd. of Dentistry,, 286 S.C. 182, 184-85,
332 S.E.2d 539, 541 (Ct. App. 1985) ("A decision is arbitrary and capricious if it is without a rational basis, is based alone
on one's will and not upon any course of reasoning and exercise of judgment, is made at pleasure, without adequate
determining principles, or is governed by no fixed rules or standards.").
10. This tribunal respects the charge with which the General Assembly has entrusted DHEC, including protecting the
environment and the public health and welfare. Like the Fourth Circuit Court of Appeals in Trinity, this tribunal does not
consider itself "a scientific body, meticulously reviewing all data under a laboratory microscope." 150 F.3d at 395.
Nonetheless, the evidence leads to the inescapable conclusion that DHEC's refusal to rescind the Advisory on consumption
of shrimp and crab was unreasonable in light of the scientific evidence presented by Macalloy in this proceeding and in
Docket No. 99-ALJ-07-0444-CC.
11. DHEC's conclusions from the data are contrary to the accepted and prevailing scientific literature.
12. In general, "expert opinion evidence is to be considered or weighed by the triers of the facts like any other testimony or
evidence; the triers of facts cannot and are not required to arbitrarily or lightly disregard, or capriciously reject, the
testimony of skilled witnesses, and make an unsupported finding contrary to the opinion." 32A C.J.S. Evidence § 727
(1955). Furthermore, "expert testimony is essential in cases which involve a subject of special technical science, skill, or
occupation of which the members of the jury or the trial court are not presumed to be specially informed." 32A C.J.S. Evidence § 729 (1955). For example, the Supreme Court of South Carolina has stated, in medical practice cases, that "the
plaintiff must use expert testimony . . . unless the subject matter lies within the ambit of common knowledge and
experience, so that no special learning is needed to evaluate the conduct of the defendant." Pederson v. Gould, 288 S.C.
141, 143, 341 S.E.2d 633, 634 (1986).
In the present case, this tribunal again finds the testimony of Macalloy's experts exceedingly persuasive. In contrast,
DHEC relied on a conservative assumption that contradicts the convincing scientific evidence presented to DHEC. DHEC
conducted no additional scientific studies and undertook only a selected review of scientific literature. While this tribunal
is cognizant of DHEC's intentions to take conservative actions in its role to protect the public health, it cannot ignore the
education and experience of Macalloy's experts or the logical conclusions reached by those experts.
13. The final decision of an Administrative Law Judge in cases involving an agency that is governed by a board or
commission authorized to exercise the sovereignty of the state is initially appealed back to the board or commission of the
agency from which the case arose. S.C. Code Ann. § 1-23-610(A) (Supp. 2000). Hence, a party wishing to file an appeal
must do so with the agency from which the case originated. On appeal, the scope of review is limited as follows:
[t]he scope of review of final ALJ decisions is essentially identical to the scope of review established in section 1-23-380.
This scope of review applies to the circuit court or the applicable board or commission. Under S.C. Code Ann. § 1-23-610(D), the reviewing tribunal may affirm the decision or remand the case for further proceedings, or it may reverse or
modify the decision if the substantive rights of the petitioner have been prejudiced because the finding, conclusion, or
decision is:
a. in violation of constitutional or statutory provisions;
b. in excess of the statutory authority of the agency;
c. made upon unlawful procedure;
d. affected by other error of law;
e. clearly erroneous in view of the reliable, probative and
substantial evidence on the whole record; or
f. arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.
Jean H. Toal, Shahin Vafai & Robert A. Muckenfuss, Appellate Practice in South Carolina 56-57 (1999) (citing S.C. Code
Ann. § 1-23-610(D) (Supp. 2000)) (emphasis added).
ORDER
Based on the foregoing Findings of Fact and Conclusions of Law,
IT IS HEREBY ORDERED that the May 9, 2000 Consumption Advisory be REVOKED, and that Shipyard Creek be
immediately removed from DHEC's "303(d) list."
AND IT IS SO ORDERED.
_____________________________ John D. Geathers
Administrative Law Judge
October 30, 2001
Columbia South Carolina
1.
0 EPA sets reference doses that are essentially the safe doses of certain chemicals for oral exposure.
2.
0
Subsistence fishermen are persons who consume fish or shellfish as their total source of protein and who may fish in the same water bodies on a
regular basis. They are assumed to eat about 170 grams a day of fish which is approximately 140 pounds per year of fish or shellfish. Tr. I at 127.
3.
0 DHEC's assumption that the sediments in Shipyard Creek contained "elevated" levels of manganese at the Macalloy site was based on a 1994
study. Pet. Ex. No. 3. However, based on the actual monitoring data and the explanation of Macalloy's witness, Tim Nelson, it is clear that the
1994 study upon which DHEC relied erroneously confused magnesium with manganese. Tr. II at 20-24. While there were elevated levels of magnesium, the levels of manganese were generally within acceptable levels, and those levels have generally decreased over time.
Id.
4.
0 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."
Sanders & Nichols, supra, § 9:5, at 371 |
