ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter is before me pursuant to S.C. Code Ann. §§ 1-23-310 et seq. (1986 & Supp. 2000) and 25 S.C. Code Ann.
Regs. 61-72.201 (Supp. 2000) upon the request of Petitioner Carolina Water Service, Inc. ("CWS") for a contested case
hearing. Respondent South Carolina Department of Health and Environmental Control ("the Department") seeks an order
from this tribunal finding CWS liable for alleged violations of the South Carolina Pollution Control Act, S.C. Code Ann.
§§ 48-1-10 et seq. (1987 & Supp. 2000) and National Pollution Discharge Elimination System (NPDES) permit
SC0030350, and imposing penalties in the amount of $40,000.
After notice to the parties, a final hearing before the Administrative Law Judge Division was conducted on August 29,
2001. Upon review of the relevant and probative evidence and the applicable law, I find and conclude that CWS
committed technical violations of the Pollution Control Act. I further find and conclude that under the circumstances of
this case, it is inappropriate to impose a penalty for these technical violations. (1)
BACKGROUND AND DISCUSSION
CWS's request for a contested case hearing followed the issuance of the Department's April 9, 2001 Administrative Order
01-100-W imposing a $40,000 penalty for alleged violations of the Pollution Control Act and National Pollution Discharge
Elimination System (NPDES) permit SC0030350, in connection with CWS's waste disposal system serving the Teal on the
Ashley subdivision in Dorchester County, South Carolina. The Department's Administrative Order cites CWS for failure
to comply with the discharge limits for biochemical oxygen demand (BOD) and total residual chlorine (TRC) as required in
CWS's NPDES permit.
CWS admits that there were technical violations and challenges only the imposition of the penalty. CWS contends that the
issue of the propriety of the penalty is governed by Consent Order 93-63-W, dated November 23, 1993, which required
CWS to "properly operate and maintain [its] waste disposal system so as to maximize treatment capabilities[,]" and to
either connect to the regional sewer system or upgrade the subdivision's waste treatment system. (2)
CWS explains that its
system has been historically unable to meet the effluent limitations required under its permit, and that the Department
acknowledged this fact when it executed Consent Order 93-63-W. Thus, CWS argues that because it has complied with the
Consent Order's mandate to maximize treatment capabilities, the imposition of a penalty for technical violations of its
permitted discharge limits is unfair. I must agree with CWS.
The evidence establishes that Department representatives were aware that the facility was not designed to meet the
standards set forth in CWS's NPDES permit. The Consent Order serves as an official recognition of that fact. As admitted
by the Department, the purpose of the mandate to maximize treatment capabilities was to require CWS to do the best that it
could with the facilities in place at that time.
John Richard Bryan, a regional manager for CWS, testified that it was impossible for the facility as originally designed to
meet the permit limits for total residual chlorine without de-chlorination technology, which would require an upgrade to the
facility. He further testified that based on data collected since the time that Consent Order 93-63-W was issued up to and
through the time that Administrative Order 01-100-W was issued, CWS maximized the treatment capabilities of its facility.
CWS's expert witness, Robert Burgin, Jr., a professional engineer, confirmed Mr. Bryan's testimony in this regard. Mr.
Burgin stated that given the original design of the facility and the information collected in the discharge monitoring reports,
CWS has maximized the treatment capabilities of the facility during the period in question. Because CWS has complied in
good faith with the mandate to maximize treatment capabilities, the Department's imposition of a penalty for technical
permit violations violates the spirit of the Consent Order.
CWS also argues that the Department is at least partially responsible for the NPDES violations because of its delay in
responding to CWS's request for a permit to upgrade the facility. CWS presented convincing evidence establishing that the
request for an upgrade permit had been misplaced. On January 11, 1996, CWS submitted to the Department its plans and
specifications for upgrading its facility. (Petitioner's Exhibits 11 & 33). On February 12, 1996, the Department's
environmental engineering associate, George Bryan, sent a letter to CWS's engineer, Robert Burgin, Jr., requesting
additional information. (Petitioner's Exhibit 32). On February 19, 1996, Mr. Burgin hand-delivered to the Department a
written response to Mr. Bryan's request for additional information. (Petitioner's Exhibit 120). However, the Department
took no further action on CWS's pending request for an upgrade permit. Later, the Department stated that it never received
the February 19, 1996 letter from Mr. Burgin. The Department's Director of the Water Facilities Permitting Division,
Jeffrey deBessonet, testified at the hearing that the reason that the upgrade permit had not yet been issued to CWS was
because the Department did not have the information requested by George Bryan which was necessary to issue the permit.
CWS maintains that the Department's action has prevented it from making the upgrades necessary to achieve compliance
with its permitted discharge limits, and therefore, CWS should not be penalized for the resulting violations. CWS cites Midlands Utility, Inc. v. South Carolina Department of Health and Environmental Control, 313 S.C. 210, 437 S.E.2d 120
(Ct. App. 1993), in support of its position that it should not be penalized for noncompliance with its permitted discharge
limits. In that case, the South Carolina Court of Appeals held that the City of Columbia was the primary cause of several of
Midlands' effluent discharge violations. Midlands Utility could not meet pollution standards until connected to the City of
Columbia or after extensive upgrade, and the City had refused to deal with Midlands Utility on a wholesale basis, insisting
on acquiring title to Midlands Utility's systems. The City also refused to compensate Midlands Utility for the value of its
systems. The Court concluded that under these circumstances, a penalty assessment against Midlands for the associated
effluent violations was inappropriate. See Midlands Utility, Inc. v. South Carolina Department of Health and
Environmental Control, 437 S.E.2d at 121 (Ct. App. 1993).
In the present case, there was a breakdown in communications concerning the processing of CWS's upgrade permit
application. Within a week of receiving the Department's request for additional information concerning upgrade plans and
specifications, Mr. Burgin hand-delivered the requested information to the Department. The fact that the letter never
reached the appropriate individual within the agency following Mr. Burgin's hand delivery was beyond the control of CWS.
Therefore, to penalize CWS for such circumstances would be fundamentally unfair.
FINDINGS OF FACT
By a preponderance of the evidence, I find the following facts:
1. Carolina Water Service, Inc. owns and operates the Teal on the Ashley wastewater treatment facility ("WWTF") in the
Teal on the Ashley subdivision in Dorchester County, South Carolina.
2. CWS's sewer system discharges effluent into the Ashley River.
3. The Department issued NPDES Permit No. SC0030350 to CWS with an effective date of September 1, 1988 to allow
the discharge of effluent to the environment in compliance with the requirements, terms and conditions of the permit. The
Teal on the Ashley WWTF was not originally designed to meet the effluent limits set forth in NPDES Permit No.
SC0030350.
4. NPDES permit # 0030350 was reissued on August 17, 1995, with an effective date of October 1, 1995. The effluent
limits in the reissued permit are more strict than those in the original permit.
5. The WWTF was identified by the Area-wide Waste Treatment Management Plan ("Section 208 Plan"), 33 U.S.C. §
1288, to interconnect with the regional sewer system.
6. The schedule of compliance in NPDES Permit No. SC0030350 contains the following provision:
In accordance with the Area Wide 208 Water Quality Management Plan, this facility is considered a temporary treatment
facility that must be closed out. Upon notification by the Department that such regional sewerage system is available (as
determined by the Department), the permittee shall have 90 days to connect to the regional sewerage system and cease
discharge from this facility.
7. As of the date of the contested case hearing in this matter, the regional system was not yet available for interconnection.
8. CWS and the Department entered into Consent Order 93-63-W, effective November 23, 1993.
9. Consent Order 93-63-W contained the following ordering provisions:
[CWS] shall:
1. Immediately begin and continue to properly operate and maintain the waste disposal system so as to maximize treatment
capabilities.
As admitted by the Department, the purpose of this provision was to require CWS to do the best that it could with the
facilities in place at that time. In the Consent Order, the Department implicitly acknowledged that the facility could not
meet the permit limits then in effect.
10. Consent Order 93-63-W also contained the additional ordering provisions:
[CWS] shall:
. . .
2. Select one of the following options:
- Within sixty (60) days of issuance of the Order, submit to the Department a [preliminary
engineering report], to include a compliance schedule, for connection to the regional sewer. Upon
Department approval of the [preliminary engineering report] and its schedule, the [preliminary
engineering report] will become an enforceable part of the Order
- Upgrade the Subdivision's waste treatment system in accordance with the following schedule:
- Submit plans and specifications to the Department within ninety (90) days of Department approval of the
[preliminary engineering report] which was submitted to the Department in August 1992.
- Begin construction within ninety (90) days of Department approval of the plans and specifications.
- Complete construction and comply with the final effluent limits of NPDES Permit #SC0030350 within one
hundred eighty (180) days after beginning construction.
11. On January 11, 1996, CWS submitted to the Department its plans and specifications for upgrading its facility.
(Petitioner's Exhibits 11 & 33). On February 12, 1996, the Department's environmental engineering associate, George
Bryan, sent a letter to CWS's engineer, Robert Burgin, Jr., requesting additional information. (Petitioner's Exhibit 32). On
February 19, 1996, Mr. Burgin hand-delivered to the Department a written response to Mr. Bryan's request for additional
information. (Petitioner's Exhibit 120). However, the Department took no further action on CWS's pending request for an
upgrade permit. Later, the Department stated that it never received the February 19, 1996 letter from Mr. Burgin.
12. The upgrade permit has not yet been issued to CWS because the information hand-delivered by Robert Burgin,
Jr. on February 19, 1996 was misplaced.
13. Between February 26, 1998, and May 5, 1999, the Department conducted the following Compliance Sampling
Inspections (CSI's) and Operation and Maintenance (O&M) inspections which noted the following:
O&M 02/26/98 unsatisfactory TRC exceeded permit limit
CSI 08/19/98 noncompliance TRC, BOD exceeded permit limit
O&M 11/09/98 unsatisfactory TRC exceeded permit limit
CSI 01/26/99 noncompliance TRC, BOD exceeded permit limit
O&M 05/05/99 unsatisfactory TRC exceeded permit limit
14. Between April 1998, and January 2001, self-monitoring Discharge Monitoring Reports compiled by CWS
revealed the following violations of NPDES permit standards:
BOD: April, May, June, August, September, October, November and December 1998; January, February, March, May,
June, July, October, November and December 1999; January, February, March, April, May, June, July, August, September,
October, November and December 2000; January 2001;
TRC: April, May, June, July, August, September, October, November and December 1998; January, February, March,
April, May, June, July, August, September, October, November and December 1999; January, February, March, April,
May, June, July, August, September, October, November and December 2000; January 2001; and
Flow: November 1999 and August 2000.
15. The Department's enforcement officer, Heather Stafford, issued Notices of Violation to CWS on October 22, 1998,
May 14, 1999 and December 20, 1999. Ms. Stafford gave no consideration to the 1993 Consent Order when she issued the
Notices of Violation. Ms. Stafford admitted that she does not know anything about the design capabilities of the WWTF
and she did not check the Department's records to determine those capabilities.
16. On April 9, 2001, the Department issued Administrative Order 01-100-W citing CWS for violation of the Pollution
Control Act in failing to comply with the discharge limits for BOD and TRC as required in its NPDES permit. Ms. Stafford
admitted that she did not take into consideration CWS's efforts to obtain a permit to upgrade its facility when she prepared
the Administrative Order. Prior to preparing the Administrative Order, Ms. Stafford was not aware that in January, 1996,
CWS had submitted to the Department plans and specifications for upgrading its facility.
17. The Administrative Order seeks to impose a $40,000 penalty for the NPDES violations.
18. From the time that Consent Order 93-63-W was issued up to and through the time that Administrative Order 01-100-W
was issued, CWS maximized the treatment capabilities of the WWTF.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude, as a matter of law:
1. The Administrative Law Judge Division has subject matter jurisdiction of this case pursuant to S.C. Code Ann. §§ 1-23-310 et seq. (1986 & Supp. 2000) and 25 S.C. Code Ann. Regs. 61-72.201 (Supp. 2000).
2. The standard of proof in administrative proceedings is a preponderance of the evidence. Anonymous v. State Board of
Medical Examiners, 329 S.C. 371, 496 S.E.2d 17 (1998); 25 S.C. Code Ann. Regs. 61-72.702(B) (Supp. 2000).
3. Section 208 of the Federal Clean Water Act authorizes an area-wide management plan for water quality control in
problem areas and gives planning authority to designated agencies within each identified area. 33 U.S.C. § 1288.
4. The Department is prohibited from issuing a water pollution control permit for any discharge inconsistent with a Section
208 plan. 24 S.C. Code Ann. Regs. 61-9.122.4(g) (Supp. 2000).
5. South Carolina Code Ann. § 48-1-110(d) (Supp. 2000) provides that it shall be unlawful for any person to operate an
approved waste disposal facility in violation of the conditions of the permit to discharge.
6. South Carolina Code Ann. § 48-1-90 (Rev. 1987) provides that it shall be unlawful for any person, directly or indirectly,
to discharge into the environment of the State organic or inorganic matter, except as in compliance with a permit issued by
the Department.
7. The burden of proof is on the Department to demonstrate that CWS violated its NPDES permit, the South Carolina
Pollution Control Act and the regulations promulgated thereunder. 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).
8. 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's demeanor and veracity and evaluate his testimony. See, e.g., McAlister v. Patterson, 278
S.C. 481, 299 S.E.2d 322 (1982).
9. 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. South Carolina ABC Comm'n, 305 S.C. 209, 211 S.E.2d 633, 634 (1991).
10. Each fine must be analyzed individually to determine if it is appropriate under the circumstances. Midlands Utility, Inc.
v. South Carolina Department of Health and Environmental Control, 313 S.C. 210, 437 S.E.2d 120 (Ct. App. 1993). In
assessing a penalty, the fact finder "should give effect to the major purpose of a civil penalty -- deterrence." Id.
11. Generally, a violation of the Pollution Control Act requires the imposition of a civil penalty. See S.C. Code Ann. § 48-1-330 (Rev. 1987). However, a penalty assessment is inappropriate for violations primarily caused by a third party and
which are beyond the control of the technical violator. See Midlands Utility, Inc. v. South Carolina Department of Health
and Environmental Control, 313 S.C. 210, 437 S.E.2d 120 (Ct. App. 1993).
12. CWS violated S.C. Code Ann. § 48-1-110(d) (Supp. 2000) by violating the conditions of its NPDES permit in failing to
comply with the discharge limits for BOD and TRC.
13. CWS violated S.C. Code Ann. § 48-1-90 (Rev. 1987) by discharging wastewater into the environment without being in
compliance with a permit issued by the Department.
14. CWS has complied in good faith with the mandate of Consent Order 93-63-W to maximize treatment capabilities, and
CWS has attempted in good faith to obtain an upgrade permit from the Department. Therefore, no penalty is warranted in
this case.
15. Any motions or issues raised in these proceedings, but not addressed in this Order are deemed denied pursuant to ALJD
Rule 29(C).
ORDER
IT IS THEREFORE ORDERED that the Department's imposition of a $40,000 penalty against Petitioner is reversed.
IT IS FURTHER ORDERED that the parties shall have forty-five (45) days from the date of this Order in which to
resolve any issues pertaining to Petitioner's most recent Preliminary Engineering Report (PER). Thereafter, the Petitioner
shall proceed expeditiously and in accordance with the applicable regulations in applying for a construction permit to
upgrade its facility, and the Department shall then take immediate action on Petitioner's application.
AND IT IS SO ORDERED.
____________________________________
C. DUKES SCOTT
ADMINISTRATIVE LAW JUDGE
November 29, 2001
Columbia, South Carolina
1. At the August 29 hearing, upon the conclusion of all of the testimony, counsel for CWS made a motion for a directed
verdict as to the penalty sought by the Department. This tribunal took the motion under advisement. Due to this tribunal's
decision based on a review of all of the evidence presented, the motion for directed verdict is denied as unnecessary.
On November 21, 2001, counsel for CWS filed a Motion to Supplement the Record to add to its Exhibit Number 132 a
revised Preliminary Engineering Report which was submitted to the Department on November 11, 2001. This revised
Preliminary Engineering Report supplements Exhibit Number 132, which is a Preliminary Engineering Report previously
submitted to the Department on August 14, 2001. Because the granting of this motion would have no effect on the
outcome of this case, the motion is denied as unnecessary.
2. The requirement that CWS connect to the regional sewer system stems from Section 208 of the Federal Clean Water Act,
which authorizes an area-wide management plan for water quality control in problem areas and gives planning authority to
designated agencies within each identified area. The area in which the Teal on the Ashley wastewater treatment facility is
located is governed by the Berkeley-Charleston-Dorchester Council of Governments. The Section 208 plan for this region
includes the incorporation of CWS's facility into the regional sewer system.
The Department's regulations prohibit the issuance of a water pollution control permit for any discharge inconsistent with a
Section 208 plan. 24 S.C. Code Ann. Regs. 61-9.122.4(g) (Supp. 2000). The CWS sewer system discharges effluent into
the Ashley River rather than a public sewer system. Accordingly, the Department included in CWS's NPDES permit the
condition that CWS connect to the regional sewer system and cease discharge into receiving waters within 90 days of
receiving notice of the regional system's availability for interconnection. In the 1993 Consent Order, the Department
acknowledged that the regional system was not yet available for interconnection, and thus it gave CWS the option to
upgrade its facility in the meantime. The evidence indicates that, as of the date of the contested case hearing in this matter,
the regional system is still unavailable for interconnection. |
