ORDERS:
DECISION AND ORDER
STATEMENT OF THE CASE
On July 5, 1994, Friends of the Earth, Inc. and Citizens
Local Environmental Action Network Inc. ("Petitioners"
or "FOE"), filed a Petition for Administrative Review,
challenging the amendment of a National Pollutant Discharge
Elimination System ("NPDES") permit (No. SC0040517), issued by
the Respondent South Carolina Department of Health and
Environmental Control ("DHEC") to the Respondent Laidlaw
Environmental Services ("TOC"), Inc. This amended permit is
referred to as the "1994 Permit." (TOC Exhibit # 21, hereinafter
TOC 21). The decision by DHEC to amend TOC's permit
is set forth in Public Notice No. 94-199-D, dated June 22, 1994.
(TOC 29).
Petitioners alleged that the daily maximum limit for
mercury
in the 1994 Permit violated the general "anti-backsliding" rule
because the limit was slightly higher than the limit in TOC's
prior permit ("1986 Permit"). (TOC 20).
Respondents DHEC and TOC countered, however, that one or more of
the many exceptions to anti-backsliding, found both
in the Clean Water Act ("CWA") and in the South Carolina NPDES
regulations, allow for such an increase.
Pursuant to S.C. Code Ann. 1-23-310 et seq. (Supp.
1995),
an initial contested case hearing was held before
me at the Administrative Law Judge Division (the "Division" or
the "ALJD") offices in Columbia, South Carolina on March
14, 1995. After brief opening statements by Petitioners and
Respondents, Petitioners rested without calling any witnesses,
informing the Court that they were relying on a number of
documents as well as a pretrial brief faxed to the Court and
the Respondents on March 14, 1995. Prior to the presentation of
their evidence, Respondents moved for dismissal pursuant
to Rule 41(b) of the South Carolina Rules of Civil Procedure.
The hearing was adjourned to allow Respondents time to file
briefs in support of their Rule 41(b) Motions and to allow the
Division to rule on those motions. Petitioners also moved
for Summary Judgment.
After careful consideration of all motions, briefs, reply
briefs and pre-filed exhibits, by Order dated June 28,
1995, the Court denied all motions. The Court denied
Respondents' Rule 41(b) Motions, finding that Petitioners had
satisfied their burden of proof by showing that backsliding had
occurred, since the daily maximum limit for mercury in
the 1994 Permit was higher than the final limit in the 1986
Permit. The Court ruled that Respondents had the burden
to show that at least one of the exceptions to anti-backsliding
applies. Petitioners' Motion for Summary Judgment was
denied because it was procedurally improper. By this Order, the
Court also admitted into evidence Petitioners' Exhibits
1, 6, 11, 12, 13, and 14.
The hearing resumed at the Division offices in Columbia,
South Carolina on September 12, 1995, and continued
through September 14, 1995. All of Respondents' exhibits, to
which Petitioners had not filed written objections, were
deemed admitted (TOC's Exhibits 4-17, 19-24, 27-32, 34-40, 42-43,
45-46 and DHEC's Exhibits 1-17, 19). DHEC's Exhibits
18, 20-23 were also admitted through testimony during the
hearing. TOC's Exhibit 18, which is the same as DHEC's Exhibit
18, was admitted through testimony during the hearing.
Respondents presented their evidence through a number of
witnesses and exhibits. Respondents also stipulated that the
following exceptions to anti-backsliding apply to the daily
maximum limit for mercury in the 1994 Permit:
1) 33 U.S.C.A. 1342(o)(1) [CWA
402(o)(1)].
2) 33 U.S.C.A. 1342(o)(2)(A) [CWA
402(o)(2)(A)].
3) 33 U.S.C.A. 1342(o)(2)(B)(i) [CWA
402(o)(2)(B)(i)].
4) 33 U.S.C.A. 1342(o)(2)(E) [CWA
402(o)(2)(E)].
5) S.C. Code Regs. 61-9.122.62(d)(1).
6) S.C. Code Regs. 61-9.122.62(d)(2).
7) S.C. Code Regs. 61-9.122.62(d)(3).
8) S.C. Code Regs. 61-9.122.62(d)(15).
9) S.C. Code Regs. 61-9.122.62(d)(16).
As rebuttal evidence, Petitioners submitted Exhibits 16
and
16a at the conclusion of Respondents' presentations,
which the Court admitted into evidence by Order dated October 24,
1995.
As explained below, Respondents have shown that at least
one
of the exceptions to anti-backsliding applies to
the daily maximum limit for mercury in the 1994 Permit;
therefore, the Petition is denied. The 1994 Permit shall be
immediately reissued to Respondent TOC with an effective date
being the date of this Order and an expiration date five
years hence. Any issues raised in the proceeding or hearing of
this case but not addressed by this Order are deemed
denied. ALJD Rule 29(B). Further, the filing of a motion for
reconsideration is not a prerequisite to any party filing a
notice of appeal of this Order. ALJD Rule 29(C).
All previous Orders of this Court in this case are
incorporated herein by reference, and become a part of the
Order of this Court.
SUMMARY OF THE EVIDENCE
A. Background Facts
In 1986, after Laidlaw purchased the Roebuck facility
from
another company, DHEC issued a NPDES permit to TOC,
which allowed it to discharge wastewater effluent into the North
Tyger River. The 1986 Permit was issued on December
15, 1986, had an effective date of January 1, 1987, and was set
to expire on December 31, 1991. (TOC 20). The 1986
Permit had an interim daily maximum limit for mercury of 0.010
mg/l (10 parts per billion (ppb)). (TOC 20, p.2). The daily
maximum limit for mercury was then supposed to decrease to 0.0013
mg/l (1.3 ppb) on January 1, 1988. (TOC 20, p.3).
There was no monthly average limit for mercury in the 1986
Permit.
TOC timely submitted an application to renew its NPDES
permit prior to the expiration date (September 31, 1991)
of the 1986 Permit. (DHEC 23). After reviewing this
application, DHEC issued, on June 29, 1993, Public Notice No.
93-118-R for the proposed reissuance of TOC's NPDES Permit ("1993
Permit"). (TOC 37). The 1993 Permit was issued on July 30,
1993, was to become effective on September 1, 1995, and would
have expired on September 30, 1997. Prior to becoming
effective, however, TOC timely appealed the conditions of the
1993 Permit and requested an adjudicatory hearing because
limits in the permit had been calculated incorrectly. No other
parties challenged the issuance of the 1993 Permit.
After settlement discussions with TOC, DHEC agreed to
reissue the permit (1994 Permit), using the correct
methodology (i.e., applying the Environmental Protection Agency's
("EPA"s) Gold Book criteria as specified in S.C. Regs.
61-68(E)(7)(a) (Supp. 1995)) for calculating the discharge
limits. On June 22, 1994, DHEC issued Public Notice No.
94-199-D, which set forth the new and corrected permit limits for
a number of constituents, including mercury. The 1994 Permit
included a monthly average limit for mercury of 1.25 ppb, which
was missing in the 1993 Permit. In addition, the daily
maximum limit for mercury was recalculated using EPA's Gold Book
criteria to be the lesser of 249 ppb (for protection
of aquatic life) or 200 ppb (for protection of human health);
however, DHEC set a much lower limit of 10 ppb based on
TOC's previously demonstrated ability to achieve such a limit.
(Transcript, p. 303, 312, hereinafter TR 303, 312) (TOC 20
at p.2 and Rationale; see also TOC 14).
As stated above, Petitioners challenged the 1994 Permit
because the daily maximum limit for mercury was higher
than it had been in the 1986 Permit. Since the 1993 and 1994
Permits have never gone into effect, TOC has been
attempting to operate under the 1.3 ppb daily maximum limit for
mercury imposed by the 1986 Permit, pending the
resolution of this case and the issuance of this Order.
The issue then is whether DHEC's decision to raise the
daily
maximum limit for mercury to 10 ppb in the 1994
Permit now satisfies any one of the statutory or regulatory
exceptions to the general prohibition against backsliding.
Backsliding is defined as allowing a less stringent limit
in
a subsequent permit than was allowed in a previous
permit. Anti-backsliding policy prevents setting less stringent
limits in a permit than the comparable effluent limitations
established by a previous permit, except as allowed in certain
statutory and regulatory exceptions. These exceptions, their
availability, and DHEC's application of them, are at the heart of
this matter.
B. Witness Testimony
On September 12, 1995, two TOC witnesses testified. The
first witness, Mr. Robert G. Gross, was qualified as an
expert in the field of wastewater permitting and wastewater
treatment. Robert Gross, the former Bureau Chief for DHEC's
Bureau of Water Pollution Control, provided the Court a general
background regarding the NPDES program, its development
in South Carolina, and
the development of the anti-backsliding regulations and statute.
Robert Gross also testified about which anti-backsliding
exceptions, based on his review of the record, apply in this
case.
Mr. Dale E. Fentress, the plant manager for the TOC
facility
in Roebuck, South Carolina, then testified. Mr.
Fentress discussed the numerous technologies (E.g., the Lancey
System, the Carbon Absorption Units, the Microfiltration
Unit, and the Ion Exchange Unit) TOC has tested and installed
since 1986, when it purchased the facility from another
company, in its attempt to comply with the 1.3 ppb daily maximum
limit for mercury from the 1986 Permit. Mr. Fentress
also discussed the additional measures, such as restrictions in
feed rates of mercury-containing wastes and occasional
facility shut-downs, TOC has taken in attempts to comply with the
1.3 ppb daily maximum limit for mercury.
On September 13, 1995, five DHEC witnesses testified.
The
first to testify was Mr. Marion F. Sadler, Jr., the
Director of DHEC's Industrial and Agricultural Wastewater
Division. Mr. Sadler was also qualified as an expert in NPDES
permitting and in the administration of DHEC's NPDES permitting
program as it applies South Carolina and federal law.
Mr. Sadler testified generally about DHEC's NPDES permitting
program and its implementation in South Carolina. He also
testified about the main statutory exception to anti-backsliding
found at section 402(o)(1) of the CWA and about South
Carolina's antidegradation policy. He further described how
discharge limits are derived, and briefly discussed monitoring
and indicated that each permit is sent to EPA for their approval.
Mr. Sadler further described the process the Department
follows upon receipt of an application, including the
208 planning process which is coordinated with local Councils of
Governments ("COG"s), as well as providing a description
of the various COG's throughout the state and their roles in the
NPDES permitting process. This process is required by
208 of the Clean Water Act. (Tr. pp. 206-209). Mr Sadler also
explained acute and chronic toxicity values and their
meaning in the permitting process. Mr. Sadler described the
agency's handling of permits as inclusive of many sections
of the agency, and not limited to review in any one particular
division. The TOC permit involved input from a number
of DHEC sections, including the various divisions involved in
water quality analysis and 208 planning, waste load allocation,
as well as from the appropriate COG and EPA.
Ms. Salley C. Knowles, the Director of DHEC's Division of
Water Quality, testified next. Ms. Knowles explained that,
based on available watershed information and in accordance with
approved DHEC practices, the existing and classified uses
of the North Tyger River are being achieved and that the water
quality standards for mercury are being attained in the
North Tyger River. She also testified that there is a station
located on the Tyger River downstream from the confluence
with the North Tyger, and indicated that the downstream point is
representative of water quality upstream. She also
testified that the North Tyger River is classified as fresh
water, suitable for primary contact recreation, which is
swimming;
secondary contact; which is boating, suitable for drinking water
after conventional treatment, and suitable for industrial
and agricultural uses; also suitable for fishing and suitable for
the survival and propagation of a balanced indigenous
aquatic community. She also discussed the "305-D report" and
stated that if a water body does not appear on the 303-D
list, then the water quality standards are being attained. The
North Tyger River does not appear on this list.
Ms. Francile Shelley, the writer of the 1994 Permit,
testified next. Ms. Shelley explained how she calculated the
proper permit limits for mercury in the 1994 Permit and explained
why she chose 10 ppb as a daily maximum limit for
mercury rather than the permissible limits of 200 or 249 ppb.
Ms. Shelley testified about which exceptions to anti-backsliding
apply in this case. Ms. Shelley also explained her rationale
document, which accompanied the 1994 Permit
and which contains her calculations and her analysis of
backsliding issues. In addition, Ms. Shelley explained how DHEC
converts EPA's Gold Book criteria into monthly average and daily
maximum permit limits.
Edward Younginer, Section Manager, of the water quality
monitoring section at DHEC, testified about the fish
tissue study conducted by DHEC at points in the North Tyger above
and below TOC's discharge, and in the Middle Tyger.
All of the fish tissue analyzed were below the DHEC detection
level for mercury.
Mr. Andrew Yasinsac, Jr., the Manager of DHEC's
Industrial
Wastewater Section, was the final witness to testify
on September 13, 1995. Mr. Yasinsac initially explained DHEC's
concern about TOC's ability to develop technology that
could achieve a 1.3 ppb daily maximum limit for mercury. He then
testified about which anti-backsliding exceptions
apply in this case. In addition, Mr. Yasinsac explained that a
"rationale" document is not required by DHEC regulation
and pointed out the minimal requirements of a fact sheet, which
is required by DHEC regulation. He also testified
regarding his supervision of Ms. Shelley and his opinions as to
the applicable exceptions to anti-backsliding. He testified
about his involvement in the TOC permit decision, and his
concurrence with the permit writer's determinations.
On September 14, 1995, the final TOC witness, Dr. Sam C.
White, testified. Dr. White was qualified as an expert
in wastewater treatment and wastewater permitting. Dr. White
explained mistakes with the 1993 permit, leading to TOC's
appeal of that permit. Dr. White also explained how permit
limits are calculated and how EPA's Gold Book Criteria are
converted into daily maximum and monthly average permit limits.
In addition, Dr. White explained the differences
between inorganic and organic mercury and how these different
types of mercury are used to calculate acute (short-term)
and chronic (long-term) impacts, and how those impacts are used
to develop permit limits. Furthermore, Dr. White
explained how the water quality standards for mercury are being
attained in the North Tyger River based on the years
of biological data obtained from the river.
DISCUSSION
The NPDES program was created in 1972 by the CWA. 33
U.S.C.A. 1251 et seq. (1986 and Supp. 1995). Section
402 of the CWA required point source dischargers to have a
federal permit to discharge pollutants into waters of the
United States. (TR 206). This federal program was delegated to
South Carolina in 1975. (TR 206). One of the overly
optimistic goals of the CWA was to reach zero discharge of
pollutants by the year 1985. (TR 206, 261-262). EPA interpreted
this broad goal in a practical sense by allowing discharges, but
only in amounts that would not cause adverse impact to
aquatic life and human health, and which would not interfere with
existing uses of the water body. (TR 261-2). The CWA
instructed EPA and the delegated states to control such
discharges by issuing NPDES permits with technology-based or
water quality-based limits. The permits are also required to
address the acute (short-term) and chronic (long-term)
impacts of the discharge on the receiving water body. This is
accomplished by a daily maximum permit limit (to control
the acute impact) and a monthly average permit limit (to control
the chronic impact) of a particular discharge. In
addition, EPA promulgated "anti-backsliding" regulations. (TOC 44
at 49 Fed. Reg. 38019 (1984)). Backsliding means the
issuing of a permit with less stringent limits than the limits
imposed by a previous permit. (TR 23). Anti-backsliding,
therefore, refers to the general prohibition against backsliding
found in EPA or South Carolina regulations. 40 CFR
122.44(l) (1994) and S.C. Code Regs. 61-9.122.44(l) (Supp.
1995). In addition, the 1987 Amendments to the CWA specifically
added an anti-backsliding provision, which is found at section
402(o). 33 U.S.C.A. 1342(o) (Supp. 1995). Despite this
general prohibition, however, there are a number of exceptions to
anti-backsliding or cases in which backsliding is allowed.
Exceptions are found in both the applicable regulations and in
the CWA.
Since different exceptions apply depending on the type of
permit limit involved, it is first necessary to determine
whether the daily maximum limit for mercury is water
quality-based or technology-based. The permit limit which is the
subject of this proceeding is water quality-based. As can be
seen from the rationale attached to the 1994 Permit, the
water quality-based calculations for the acute protection of
aquatic life and human health result in daily maximum limits
of 200 ppb and 249 ppb respectively. (TOC 21). Even though the
current daily maximum limit of 1.3 ppb and the proposed
limit of 10 ppb are much more stringent than these calculated
limits, these limits are still considered water quality-based.
(TR 19, 487). As Marion Sadler, Jr. testified at the hearing,
once water-quality-based limits are calculated, the
most restrictive limit is used. (TR 207-208). When a permit is
being reissued, however, the permit writer must also
consider backsliding issues. (TR 208). Here, the permit writer
determined that TOC had been able to and should be able
to meet a more stringent limit of 10 ppb based on the technology
that had been installed by the facility. (TR 303, 312).
Although only one exception is necessary to uphold DHEC's
decision to raise the daily maximum limit for mercury
from 1.3 ppb to 10 ppb in the 1994 Permit, all of the following
exceptions justify DHEC's decision in this case. The
statutory exceptions are addressed first, followed by the
exceptions found in the South Carolina regulations.
1. Statutory Exceptions
a. Section 402(o)(1) of the Clean Water Act
The main statutory exception that applies in this case is
found in the second sentence of section 402(o)(1) of
the CWA. The second sentence to section 402(o)(1) states:
In the case of effluent limitations established on the
basis
of section 1311(b)(1)(c) or section 1313(d)
or (e) of this title, a permit may not be renewed, reissued,
or modified to contain effluent limitation
which are less stringent than the comparable limitations in
the previous permit except in compliance
with section 1313(d)(4) of this title.
33 U.S.C.A. 1342(o)(1) (Supp. 1995) (emphasis added). The term
"section 1311(b)(1)(c) or section 1313(d) or (e)" refers
to limits based on water quality rather than technology, and,
therefore, this sentence applies to the daily maximum limit
for mercury, which is water quality-based. (TR 25, 220). Despite
Petitioners' contention at the hearing, there is
overwhelming authority that section 402(o)(1) is a stand-alone
exception to anti-backsliding. E.g. In the matter of: City
of Tulsa, Oklahoma, 1990 NPDES Lexis 3 (March 28, 1990) and 1991
NPDES Lexis 1 (January 31, 1991); DHEC 16 (chart); TOC
1 at p.20837; TOC 24 at p.60893; See also Petitioners'
Pre-hearing Brief, March 13, 1995, pp. 4-5,7; Petitioners'
Memorandum of Points and Authorities in Support of their Motion
for Summary Judgment, April 11, 1995, p.2. (TR 220-227,
395). Thus, we must look to 33 U.S.C.A. 1313(d)(4) (Supp. 1995)
to apply this exception.
Section 1313(d)(4), entitled "Limitations on revision of
certain effluent limitations," is divided into two paragraphs,
(A) and (B). Paragraph (B) applies in this case because the
water quality standard for mercury is being attained in the
North Tyger River. (TR 487-492, 286, 46-48). As Dr. Sam White
explained, the in-stream indigenous biological community
has not been adversely impacted in the North Tyger River. (TR
490-491) (See TOC 8, 18, and 38). Therefore, according
to S.C. Code Regs. 61-68(E)(7)(c) (Supp. 1995), the water quality
standard for mercury is being attained in the North Tyger
River. For example, since an in-stream concentration of mercury
is considered chronically toxic at 0.012 ppb, which is
below the detection limit of 0.25 ppb, "the criterion is not
considered violated if . . . the in-stream indigenous biological
community is not adversely impacted." Regs. 61-68(E)(7)(c)(1)
(TOC 7). The same standard applies to acute toxicity values
for mercury under Regs. 61-68(E)(7)(c)(2). (TR 491-492). For
these reasons, section 1313(d)(4)(B) will apply.
The pertinent part of section 1313(d)(4)(B) states that:
. . . any water quality standard established under this
section, or any other permitting standard may
be revised only if such revision is subject to and
consistent with the antidegradation policy established
under this section.
1313(d)(4)(B). In South Carolina, the antidegradation policy
is set forth in S.C. Code Regs. 61-68(D) (Supp. 1995). (TR
47-48, 230). Paragraph 61-68(D)(2) of this regulation applies
here. (TR 50, 230). Paragraph (2) states:
Where surface water quality exceeds levels necessary to
support propagation of fish, shellfish, and
wildlife, and recreation in and on the water, that quality
shall be maintained and protected unless the
Department finds, after governmental coordination and public
participation, that allowing lower water
quality is necessary to important economic or social
development in the areas where the waters are
located. In allowing such lower water quality, water
quality adequate to fully protect existing uses shall
be maintained . . ..
Regs. 61-68(D)(2). This paragraph applies because the water
quality of the North Tyger River "exceeds levels necessary
to support propagation of fish, shellfish, and wildlife, and
recreation in and on the water." (TR 50, 230, 286).
Petitioners, however, over-emphasize the phrase
"necessary
to important economic and social development,"
contending that DHEC needed to make a specific finding in 1994
that a 10 ppb daily maximum limit for mercury was
necessary to important economic and social development. As
Marion Sadler explained, this "finding" had been made when
the 1986 Permit was originally issued to TOC with an interim
daily maximum limit for mercury of 10 ppb. (TR 241-242).
In fact, the Appalachian Council of Governments ("ACOG") had
already determined that operation of this facility with daily
maximum limits of 20 ppb (under the prior owner) was consistent
with its 208 Plan (TOC 36). (TR 270-277). Marion Sadler
explained that a 208 Plan, which is required by section 208(b) of
the CWA, is used by local communities or regional entities,
such as ACOG, for planning and developing areawide waste
treatment and water usage. 33 U.S.C.A. 1281(b) (Supp. 1995)
(TR 208-210, 213-214). Marion Sadler also explained that no
NPDES permit can be issued unless it is consistent with the
area's 208 Plan. (TR 209). For new facilities requesting a NPDES
permit, ACOG conducts an economic and social impact
analysis to determine whether the facility should be added to the
208 Plan and whether the permit should be allowed;
however, for existing facilities requesting NPDES permit
renewals, ACOG determines whether the renewal is consistent with
its 208 Plan. (TR 210, 271-272).
In this case, pursuant to the Memorandum of Agreement
between ACOG and DHEC (TOC 22), ACOG was notified
of TOC's permit reissuance and was given the opportunity to seek
additional information or comment upon the reissued
permit. (TR 230, 235) (See TOC 23). As Marion Sadler explained,
ACOG was involved and notified early in the process. (TR
233). ACOG had approved the reissuance of TOC's NPDES permit on
August 19, 1991, after TOC had applied for a reissuance
and well before either of the 1993 or 1994 Permits had been
issued. (TOC 23). Thus, the specific permit limits for mercury
in the 1993 and 1994 Permits were irrelevant to ACOG because it
had already determined that a NPDES permit for the TOC
facility was necessary to important economic and social
development in the area and it determined that a reissued permit
(regardless of the specific permit limits) was consistent with
its 208 Plan. (TOC 23). As Marion Sadler further explained,
according to EPA, the phrase "important economic or social
development" is merely "intended to convey a general
concept," and does not have the significance Petitioners attempt
to imply. (TR 243-244, 272) (TOC 42, p.8). Petitioners
contend that DHEC should have made a specific written finding
that 10 ppb was necessary to important social and
economic development. The Court finds, however, that by
following its established procedures for coordinating with ACOG
under the 208 Planning process, DHEC has in fact made a finding
sufficient to satisfy this requirement.
Respondent DHEC satisfied the remaining requirements of
intergovernmental coordination by notifying EPA Region
IV in Atlanta, Georgia, and the other governmental agencies on
DHEC's mailing list, including the Greenville County Council,
the South Carolina Department of Natural Resources, the United
States Forest Service, the South Carolina Wildlife
Federation, the South Carolina Department of Commerce, the United
States Fish and Wildlife Service, the South Carolina
Department of Parks, Recreation, & Tourism, and the South
Carolina Department of Transportation, of the proposed
reissuance of TOC's NPDES permit. (TR 230-232) (TOC 15). These
parties, thus, were on notice of the reissued permit, could
have requested additional information, and were permitted to
comment upon any term, limit, or condition in either of
the proposed permits of 1993 or 1994, if they had so desired.
EPA received a draft of the 1994 Permit pursuant to the
Memorandum of Agreement between EPA and DHEC, and, according to a
February 1, 1994, letter from James Scarbrough
to Marion Sadler (TOC 16), had no objections to the proposed
daily maximum limit of 10 ppb for mercury. (TR 246-247).
DHEC satisfied the remaining requirements of public
participation by notifying individuals on DHEC's mailing list
of the proposed permit reissuance with the revised permit limits.
(TR 230-232). The parties on the mailing list would have
received a copy of the public notices sent out for the 1993 and
1994 Permits. (TR 235-236) (DHEC 3, 15). Upon request,
parties would have received a copy of the 1992 Fact Sheet (DHEC
21) and the rationale to the 1994 Permit (DHEC 13 or
TOC 21). (TR 412-413). Marion Sadler also pointed out that
anyone can request to be on DHEC's mailing list. (TR 232).
In fact, one of the Petitioners' attorneys, Jimmy S. Chandler,
Jr., is on the mailing list. (TR 231-232) (TOC 15).
In addition, Respondent DHEC published the 1993 and 1994
notices (DHEC 3 and TOC 29) in local newspapers. (TR
233-234). The 1994 Public Notice specifically mentions that the
1993 Permit had been challenged by TOC and that, as
a result of that challenge, permit limits for a number of metals
had been modified. (TOC 29). The specific daily maximum
and monthly average permit limits for mercury are listed in this
public notice. (TOC 29) (TR 233-235).
Marion Sadler also explained that the general methods of
public notice are found at S.C. Code Regs. 61-9.124.10(c)
(Supp. 1995). (TR 236-239). DHEC complied with this regulatory
requirement by posting "...four signs that are
approximately 25 x 30, laminated, in the area at prominent
locations, such as bridges where they may cross the receiving
stream, downstream from the discharge point. If there's a
residential area where there will be a lot of citizens concerned,
at a stop light." (TR 239). Thus, Respondent DHEC satisfied the
intergovernmental coordination and public participation
requirements required under Regs. 61-68(D)(2).
The remaining antidegradation requirement of Regs.
61-68(D)(2) is that the revised limit adequately protect
existing uses of the North Tyger River. Allowing a daily maximum
permit limit of 10 ppb will still adequately protect these
existing uses. The North Tyger River is classified as
"freshwater." (TR 285) (TOC 6). As such, its existing and
classified
uses are "...primary and secondary contact recreation and as a
source for drinking water supply after conventional
treatment. . . . Suitable for fishing and the survival and
propagation of a balanced indigenous aquatic community of fauna
and flora. Suitable also for industrial and agricultural uses."
S.C. Code Regs. 61-68(G)(3) (Supp. 1995). (SeeTR 285). These
uses are currently being achieved. (TR 286). A 10 ppb daily
maximum limit for mercury will also maintain these uses,
since any limit below 200 ppb would be considered protective of
human health and any limit below 249 ppb would be
considered protective of aquatic life. (TR 249, 488).
One additional requirement that must be met before the
statutory exception under section 402(o)(1) can apply
is the limitation under section 402(o)(3) of the CWA. Section
402(o)(3) states:
In no event may a permit with respect to which paragraph
(1)
applies be renewed, reissued, or modified
to contain an effluent limitation which is less stringent
than required by effluent guidelines in effect
at the time the permit is renewed, reissued, or modified.
In no event may such a permit to discharge
into waters be renewed, reissued, or modified to contain a
less stringent effluent limitation if the
implementation of such limitation would result in a
violation of a water quality standard under section
1313 of this title applicable to such waters.
33 U.S.C.A. 1342(o)(3) (Supp. 1995). The first sentence does
not apply in this case because there are no effluent
guidelines for TOC's type of facility. (TR 72, 91-93, 396). The
second sentence does apply and is satisfied because the daily
maximum limit of 10 ppb is well below the 200 ppb limit, which is
protective of human health, and below the 249 ppb
limit, which is protective of aquatic life. (TR 93, 249-250,
396-397).
Since all the requirements of section 402(o)(1) have been
met, this anti-backsliding exception justifies DHEC's
determination to issue the 1994 Permit with a daily maximum limit
of 10 ppb.
b. Section 402(o)(2)(A) of the Clean Water Act
Section 402(o)(2) of the CWA lists additional
anti-backsliding exceptions that apply in this case. The first
applicable exception under section 402(o)(2) is paragraph (A).
Paragraph (A) states that a permit may be reissued with
a less stringent effluent limitation if:
material and substantial alterations or additions to the
permitted facility occurred after permit
issuance which justify the application of a less stringent
effluent limitation.
33 U.S.C.A. 1342(o)(2)(A) (Supp. 1995). Francile Shelley and
Robert Gross testified that the addition of an effluent diffuser
by TOC satisfied this requirement and justified raising the daily
maximum limit for mercury to 10 ppb.
As Robert Gross testified, an effluent diffuser is a pipe
with holes that is placed in the river so that the effluent
mixes almost instantaneously with the receiving stream. (TR
28-29). Such a diffuser "helps the effluent mix very rapidly
with the stream, as opposed to coming in from a pipe at the bank
where it would slowly blend with the stream." (TR 97).
This type of diffuser lessens the acute or short-term impact of
mercury entering the stream and justifies the slightly
higher daily maximum limit for mercury. Francile Shelley, the
writer of the 1994 Permit, testified specifically that the
effluent diffuser satisfied the "material and substantial"
requirement of paragraph (A). (TR 354-359). In addition, Ms.
Shelley stated in the rationale to the 1994 Permit (TOC 21) that
"[a]n in-stream diffuser has been installed which would
lower the impact of any spiking effect of the daily maximum." (TR
355-356).
In order for this exception to apply, the requirements of
section 402(o)(3) must also be met. (DHEC 16, chart).
As previously mentioned, these requirements have been met because
the 10 ppb daily maximum limit is well below the
200 ppb limit, which is protective of human health, and below the
249 ppb limit, which is protective of aquatic life. (TR
93, 249-250, 396-397). For these reasons,
the anti-backsliding exception under section 402(o)(2)(A) of the
CWA justifies DHEC's determination in this case.
c. Section 402(o)(2)(B)(i) of the Clean Water Act
The second applicable exception under section 402(o)(2) of
the CWA is paragraph (B)(i). Paragraph (B)(i) states
that a permit may be reissued with a less stringent effluent
limitation if:
information is available which was not available at the
time
of permit issuance (other than revised
regulations, guidance, or test methods) and which would have
justified the application of less stringent
effluent limitations at the time of permit issuance.
33 U.S.C.A. 1342(o)(2)(B)(i) (Supp. 1995). Francile Shelley,
Andrew Yasinsac, Dr. Sam White, and Robert Gross testified
that TOC's historical performance data and discharge monitoring
reports (DMRs) revealed that the wastewater treatment
technology TOC had installed was unable to consistently achieve
the 1.3 ppb daily maximum limit for mercury, as set
forth in the 1986 Permit. In addition, the RMT fish tissue
study, the DHEC fish tissue study, the macroinvertebrate
assessments, and the 96-hour flow through bioassays all provided
new information, which was unavailable in 1986, and
which supports DHEC's decision to raise the daily maximum limit
for mercury to 10 ppb.
Andrew Yasinsac, the Manager of DHEC's Industrial
Wastewater
Division, testified that DHEC included a "reopener"
clause on page 19 of 19 in the 1986 Permit because DHEC was not
sure if the wastewater treatment technology that was
going to be installed by TOC would be able to meet the 1.3 ppb
limit for mercury. (TR 386-387). Although this reopener
clause was never exercised by TOC, it does indicate that DHEC was
unsure in 1986, whether the technology even existed
to achieve a daily maximum limit for mercury of 1.3 ppb. (See TOC
20, p. 4 of 19, 3rd paragraph).
As can be seen from the chart of mercury discharges
between
September 1992 and September 1993 (DHEC 9),
TOC was unable to achieve the 1.3 ppb daily maximum limit for
mercury on a consistent basis. Although compliance with
the 1.3 ppb limit improved after this date, this improvement was
due to increased monitoring, occasional facility
shutdowns, and a greatly restricted feed rate of
mercury-containing waste into the incinerator. (TR 182-183) (See
also
TOC 27, p.2, paragraph 2). Nevertheless, TOC has been unable to
comply with the 1.3 ppb limit one hundred percent of
the time. (TR 183) (See Petitioners' Exhibit 16, hereinafter FOE
16).
The chart of mercury in the incinerator feed from
September
1992 to September 1993 (DHEC 8) shows how much
TOC has had to restrict the input of mercury-containing waste
into the incinerator, a fraction of the amount permitted
under its Resource Conservation and Recovery Act (RCRA) operating
permit. Dr. Sam White also pointed out to DHEC in
his October 5, 1993, letter to Andrew Yasinsac, that "even at
this de minimis level of mercury in the feed, the permit limit
was still exceeded three or four times during the year." (TOC 27,
p.3). Dr. White stated further that "[t]hose exceedances
also illustrate that when trying to meet a limit this stringent,
the slightest operational or sampling perturbation, unrelated
to overall treatment system performance, can result in a permit
violation." (TOC 27, p.3).
DHEC relied upon this new information in determining that
the daily maximum limit for mercury should be raised
to at least 10 ppb. (TR 320-322, 392, 424-425). In the
rationale, Francile Shelley stated that "[p]revious permit limits
for Daily Maximum were 10 [ppb] and 20 [ppb] at normal feed
rates. Feed rates were altered in order to reach imposed
limits of [1.3 ppb]." (TOC 21) (emphasis added) (See also TR
359-361).
DHEC also relied upon the macroinvertebrate assessments
that
were performed two times per year between 1986
and 1994, and the 96-hour flow-through bioassays that were also
performed during this same time period. (TR 391-392,
422-424) (TOC 38). These studies and assessments showed that
prior mercury discharge limits as high as 20 ppb had no
adverse impact on the indigenous biological community. (TR 30-33,
490-491).
The fish tissue studies performed by RMT (an
environmental
consulting firm hired by TOC) (TOC 8) and by DHEC
(TOC 18) further support DHEC's decision to raise the limit to 10
ppb. Both studies showed levels of mercury in the
sampled fish well below the Food and Drug Administration (FDA)
action level of 1.00 milligram per kilogram (mg/kg) of fish
tissue examined. In fact, the DHEC fish study showed no mercury
above its detection limit of 0.25 mg/kg, less than one
quarter of the level necessary to trigger the FDA action level.
As Dr. White pointed out at the hearing:
. . . we have 10 years of data on macroinvertebrate
studies
in these locations not somewhere else but
immediately downstream of [TOC's] outfall, as well as 96
hour toxicity testing over that same period,
that have demonstrated that the indigenous biological
community is not adversely affected. And, of
course, that's still in addition to the fish tissue studies
that have been brought in as new data. All
of these are new data that are available since the 1986
Permit was issued.
(TR 490-491).
As previously mentioned, the limitation of section
402(o)(3)
is satisfied in this case. Therefore, according to this
new information available to DHEC, DHEC's determination to raise
the daily maximum limit for mercury to 10 ppb is
justified based on section 402(o)(2)(B)(i).
d. Section 402(o)(2)(E) of the Clean Water Act
The third applicable exception under section 402(o)(2) of
the CWA is paragraph (E). Paragraph (E) states, in
pertinent part, that a permit may be reissued with a less
stringent effluent limitation if:
the permittee has installed the treatment facilities
required to meet the effluent limitations in the
previous permit and has properly operated and maintained the
facilities but has nevertheless been
unable to achieve the previous effluent limitation, in which
case the limitations in the . . . reissued
. . . permit may reflect the level of pollution control
actually achieved (but shall not be less stringent
than required by effluent guidelines in effect at the time
of permit . . . reissuance . . .).
33 U.S.C.A. 1342(o)(2)(E) (Supp. 1995). Francile Shelley,
Andrew Yasinsac, Dale Fentress, and Robert Gross testified that
this exception applies because TOC had installed the treatment
technology that was believed would successfully remove
mercury from TOC's wastewater to levels below 1.3 ppb. Yet,
despite proper operation and maintenance, this treatment
technology has proven unsuccessful at the operating conditions
and feed rates for which it was designed.
Initially, Robert Gross explained that the purpose of
paragraph (E) is to allow backsliding to a reasonable and
achievable limit if the treatment technology contemplated by DHEC
does not, by itself, sufficiently remove enough mercury
to meet the stringent 1.3 ppb daily maximum limit. (TR 45, 110,
116-118). However, before this exception can be applied,
it is first necessary to review the treatment technologies
installed and tested by TOC in an attempt to meet the 1.3 ppb
limit.
Dale Fentress, the TOC facility manager, testified about
the
numerous treatment technologies TOC has tested and
installed since 1986. (TR 174-185) (See TOC 45). For example, in
1986, TOC operated a carbon absorption unit, which was
unable to remove mercury to levels as low as 1.3 ppb.
(TR 175). Dual carbon absorption units were installed in 1989,
but these also proved unable to remove mercury to levels
as low as 1.3 ppb. (FOE 16, TOC 45).
The Lancey System, which is a sulfide
precipitation-filtration technology, was installed in March of
1991. The
Lancey System included a Flow Equalization Tank, followed by two
pH Adjustment Tanks, a Sulfide Addition Tank, and a
Retention Tank. (TR 176-177) (TOC 45). After the Retention Tank,
the Lancey System included Lancey Sorption Filters
followed by a Final pH Adjustment Tank. (TR 177) (TOC 45). TOC
chose the Lancey System from a number of alternatives
because it had been proven successful in bench scale tests, and
because the manufacturer had guaranteed that it would
reduce mercury to levels below 1.3 ppb. (TR 178). However, as
Dale Fentress explained, the Lancey System proved
successful at removing all metals from TOC's wastewater, except
for mercury. (TR 177, 179).
For this reason, TOC then installed, in July of 1992, a
set
of Carbon Absorption Units between the Lancey Filters
and the Final pH Adjustment Tank. (TR 179). However, even with
the addition of the Carbon Absorption Units to the
Lancey System, TOC was unable to meet the 1.3 ppb limit one
hundred percent of the time. (TR 181).
Therefore, in April of 1993, TOC also installed a
Microfiltration Unit and Ion Exchange Vessels in an attempt to
reduce the mercury in its effluent even further. (TR 182) (TOC
45). However, TOC subsequently determined that the
Microfiltration Unit and Ion Exchange Vessels "were useless in
removing mercury" at such low levels. (TR 182).
Historically, TOC has made minor progress with its
treatment
technology through trial and error, by making minor
adjustments to its operating procedures, and by trying other
types of "chemical treatment technologies." (TR 182-183).
However, in order to come into relative compliance with the
permit limit of 1.3 ppb, TOC has been forced to reduce the
feed rate of mercury-containing waste into its incinerator and,
thus, into its wastewater treatment system. As additional
precaution against having mercury violations, TOC has elected to
"monitor [its] effluent for mercury around the clock,
taking samples about once every four hours." (TR 184). If the
mercury levels are high or rising, TOC diverts its wastewater
and attempts to correct the problem. If the problem cannot be
determined or corrected, then TOC shuts down the
facility. (TR 184).
Dale Fentress also explained that DHEC had been involved
in
the process of developing and approving the
treatment technologies that were installed. (TR 178, 181). All
parties, including the manufacturer of the Lancey System
believed, initially, that the treatment technology would be
sufficient to meet the 1.3 ppb limit. (TR 178). Further, Dale
Fentress explained that the treatment technologies have been
maintained and operated properly, which is an additional
requirement of this exception. (TR 183-184). For example,
consultants from Lancey came to the TOC facility several times
"to observe [TOC's] operation of the system to make sure [TOC
was] doing everything correctly." (TR 183). Francile Shelley and Andrew Yasinsac were well aware of
the
steps TOC had taken to minimize the amount of
mercury in its effluent. (TR 312-314, 319-321, 361-363, 393-394,
424-425). However, since the Lancey System and Carbon
Absorption Units were unable to remove mercury to levels below
1.3 ppb by themselves, DHEC agreed to increase the daily
maximum limit for mercury to 10 ppb in the 1994 Permit. The 10
ppb limit was based on DHEC's expectation that TOC
could meet such a limit with the technology installed. (TR
312-314, 319-321).
Although DHEC was not required by regulation to
articulate
the reason for its decision, DHEC's decision is
reflected to an extent in the rationale document attached to the
1994 Permit. (TR 397-398, 319). The pertinent part of
paragraph 3 of the rationale, entitled "Anti-backsliding,"
states:
Previous permit limits for Daily Maximum were 10 [ppb]
and
20 [ppb] at normal feed rates. Feed rates
were altered in order to reach imposed limits of [1.3 ppb].
An increased level of technology was also
applied in treating the effluent.
* * *
Conclusion: Daily maximum limitation of 10 [ppb] is
appropriate.
(TOC 21).
When asked to explain what this portion of the rationale
meant, Francile Shelley stated:
this goes back to the Lancey System and the
microfiltration.
All of the things that we had anticipated
earlier that they could do, all of the treatment that we had
anticipated that they could install, they
had pretty much done it. They applied what appeared to be
state-of-the-art treatment. They'd done
everything that we had anticipated that they could in that
direction when the lower limits were
applied, and it wasn't working. It couldn't bring them, by treatment alone, into compliance with those
limits.
(TR 319) (emphasis added). In explaining why a limit of 10 ppb
was chosen in the 1994 Permit, Ms. Shelley stated, "we
issued a modified permit that may reflect the level of pollutant
control actually achieved, but which is why we went to
the 10 rather than the 250 or 200." (TR 320-321).
Petitioners contend that forcing TOC to restrict the feed
rate of mercury-containing waste into the incinerator
is an acceptable means of operating the facility and that such an
activity defeats the paragraph (E) exception. If the
Court were to accept Petitioners' argument then paragraph (E)
would never apply to any facility because, as Francile
Shelley stated at the hearing, any facility "can meet anything if
they close up shop, and that's not the point of our
regulations." (TR 313; see also TR 362).
The final requirement of paragraph (E), that the chosen
permit limit not be less stringent than required by
effluent guidelines in effect at the time of permit reissuance,
does not apply in this case because, as stated previously,
there are no effluent guidelines for TOC's type of facility. (TR
72, 91-93, 396). Thus, this requirement is satisfied. In
addition, the requirements of section 402(o)(3) are satisfied, as
previously discussed.
Dr. White summed this exception up succinctly in his
October
5, 1993, letter to Andrew Yasinsac, by stating that
TOC's "extreme feed rate restriction has not yielded data that
define the ability of the treatment system to remove
mercury, but only illustrates that the recent 'compliance' was an
artifact of strictly controlling the influent." (TOC 27,
p.3). Thus, since TOC has shown an ability to achieve a limit of
10 ppb without severely restricting its feed rate, 10 ppb
is the proper daily maximum limit for mercury with this
technology installed.
2. Regulatory Exceptions
As previously mentioned, there are a number of exceptions
to
anti-backsliding in the South Carolina regulations
that also apply in this case. The first three discussed below
are nearly identical to the three applicable exceptions found
in section 402(o)(2) of the CWA. The last two exceptions
discussed below are unique to the South Carolina regulations, but
are nevertheless applicable in this case.
As stated previously, the anti-backsliding regulation is
found in Regs. 61-9.122.44, entitled "Establishing
limitations, standards, and other permit conditions." (TR 70-71)
(TOC 11). Subsection (l) applies in this case because the
1994 Permit is a reissuance of the 1986 Permit originally issued
to TOC. (TR 74). Subsection (l) has two paragraphs, (1)
and (2). Paragraph (l)(2), however, does not apply in this case
because the daily maximum limit for mercury is a water
quality-based rather than a technology-based limit. (TR 72-73).
Paragraph (l)(1) states:
Except as provided in paragraph (l)(2) of this section
when
a permit is renewed or reissued, interim
effluent limitations, standards or conditions must be at
least as stringent as the final effluent
limitations, standards, or conditions in the previous permit (unless) the circumstances on which the
previous permit was based have materially and substantially
changed since the time the permit was
issued and would constitute cause for permit modification
or
revocation and reissuance under 122.62).
S.C. Code Regs. 61-9.122.44(l)(1) (Supp. 1995) (emphasis added).
Since paragraph (l)(2) does not apply here, backsliding
will only be allowed under South Carolina regulations if the
conditions of the parenthetical are met. In other words, if
one of the causes for permit modification or revocation and
reissuance under Regs. 61-9.122.62 is met, then backsliding
is also permissible upon permit reissuance. (TR 73-79) (See also
TOC 44 at 49 Fed. Reg. 38020 (1984) (ground for modifying
permit applies to reissuance through Regs. 61-9.122.44(l)). As
Robert Gross explained,
if this were a continuing permit, if we were in the
middle
of a five year term, let's say, and the
permittee came in and requested a modification and could
justify a modification, then that same cause
for modification of a continuing permit would be the same
cause for reissuing the permit when it
expires with a higher limit. . . . In other words, . . . if
you can modify it to a higher limit during its
term, then you can reissue it at its renewal with a higher
level.
(TR 74).
The causes for permit modification are found in S.C. Code
Regs. 61-9.122.62(d) (Supp. 1995), entitled "Causes for
modification." As previously mentioned, DHEC and TOC stipulated
prior to the hearing that the following regulatory
exceptions apply in this case: Regs. 61-9.122.62(d)(1), (2), (3),
(15), and (16). Each of these exceptions, which are
addressed in non-chronological order, are applicable in this case
for the reasons that follow:
a. S.C. Code Regs. 61-9.122.62(d)(1) (Supp. 1995)
Regulation 61-9.122.62(d)(1) is basically the same as the
statutory exception found in section 402(o)(2)(A) of the
CWA. Paragraph (d)(1), by incorporation through the
parenthetical in Regs. 61-9.122.44(l)(1), states that a permit
may
be reissued with a less stringent permit limitation when:
[t]here are material and substantial alterations or
additions to the permitted facility or activity
(including a change or changes in the permittee's sludge use
or disposal practice) which occurred after
[the previous] permit issuance which justify the application
of permit conditions that are different or
absent in the existing permit.
Regs. 61-9.122.62(d)(1). For the reasons previously discussed
above for the statutory exception in section 402(o)(2)(A),
this regulatory exception applies.
b. S.C. Code Regs. 61-9.122.62(d)(2) (Supp. 1995)
Regulation 61-9.122.62(d)(2) is basically the same as the
statutory exception found in section 402(o)(2)(B)(i) of
the CWA. The pertinent part of paragraph (d)(2), by
incorporation through the parenthetical in regulation
61-9.122.44(l)(1),
states that a permit may be reissued with a less stringent permit
limitation when:
[t]he Department has received new information. Permits
may
be [reissued] for this cause only if the
information was not available at the time of [the previous]
permit issuance (other than revised
regulations, guidance, or test methods) and would have
justified the application of different permit
conditions at the time of [the previous permit's] issuance.
Regs. 61-9.122.62(d)(2). For the reasons previously discussed
above for the statutory exception in section 402(o)(2)(B)(i),
this regulatory exception applies.
c. S.C. Code Regs. 61-9.122.62(d)(16) (Supp. 1995)
Despite slightly different wording, Regs.
61-9.122.62(d)(16)
is basically the same as the statutory exception found
in section 402(o)(2)(E) of the CWA. Paragraph (d)(16), by
incorporation through the parenthetical in regulation
61-9.122.44(l)(1), states that a permit may be reissued with a
less stringent permit limitation when:
. . . the discharger has installed the treatment
technology
considered by the permit writer in setting
effluent limitations imposed under 402(a)(1) of the CWA and
has properly operated and maintained the
facilities but nevertheless has been unable to achieve those
effluent limitations. In this case, the
limitations in the [reissued] permit may reflect the level
of pollutant control actually achieved (but
shall not be less stringent than required by a subsequently
promulgated effluent limitation guideline).
S.C. Code Regs. 61-9.122.62(d)(16). For the reasons previously
discussed above for the statutory exception in section
402(o)(2)(E), this regulatory exception applies.
d. S.C. Code Regs. 61-9.122.62(d)(15) (Supp. 1995)
An additional regulatory exception that applies in this
case
is found at Regs. 61-9.122.62(d)(15). Paragraph
(d)(15), by incorporation through the parenthetical in regulation
61-9.122.44(l)(1), states that a permit may be reissued
with a less stringent permit limitation:
[t]o correct technical mistakes, such as errors in
calculation, or mistaken interpretations of law made
in determining permit conditions.
Regs. 61-9.122.62(d)(15). Francile Shelley, Andrew Yasinsac, Dr.
Sam White, and Robert Gross testified about the technical
mistakes that the DHEC permit writer, Hock Chong (no longer with
DHEC), had made when he drafted the 1993 Permit.
The revisions in the 1994 Permit were intended to correct these
mistakes.
Dr. Sam White pointed out these technical mistakes to
DHEC
in his October 5, 1993, letter to Andrew Yasinsac
after TOC appealed the 1993 Permit. (TOC 27 at pp. 2-3). The
first mistake was that the 1993 Permit had a proposed daily
maximum limit for mercury, but no monthly average limit. (TR 302,
309, 457-460). However, according to S.C. Code Regs.
61-9.122.45(d) (Supp. 1995) (TOC 11 at p.85), all permit effluent
limitations for continuous dischargers shall be, unless
impracticable, stated as daily maximum and monthly average
limits. (TR 85-86, 457).
The second mistake made by Hock Chong was to use EPA's
four-day average for national criteria to calculate
the daily maximum limit for mercury. The proper approach would
have been to use EPA's one-hour average value for
national criteria to calculate the daily maximum limit for
mercury, as required by South Carolina regulations. (TR 324,
457-460). Specifically, the pertinent part of Regs.
61-68(E)(7)(a) states:
(a) Application of National criteria to protect aquatic
life
in South Carolina
(1) The not to be exceeded value for the national
criteria published in 1980 or the one-hour
average value for national criteria published in 1985 or
later shall be used as an acute toxicity number
for calculating effluent limitations.
(2) The 24-hour average for national criteria published
in 1980 or the four-day average for
national criteria published in 1985 or later shall be used
as a chronic toxicity number for calculating
effluent limitations.
Regs. 61-68(E)(7)(a) (emphasis added). Thus, the daily maximum
limit for mercury in the 1993 Permit should have been
calculated using EPA's one-hour average value for national
criteria published in 1985. Similarly, the monthly average limit
for mercury should have been calculated using EPA's four-day
average for national criteria published in 1985. (TR 459-460,
306-307).
EPA's one-hour average value for national criteria for
mercury (2.4 ug/L) and four-day average for national
criteria (0.012 ug/L) are published in EPA's Gold Book. (TOC 4 at
the 4th unnumbered page of text). As Dr. White
explained, these values are the suggested maximum in-stream
concentrations for mercury. In order to calculate permit
limits, the permit writer calculates the quantity of mercury
allowed in a facility's effluent, based on the volume of water
discharged by the facility to the stream and based on the volume
of water in the stream during a drought, which is the
7Q10 value. (TR 461-469).
As can be seen from the rationale to the 1993 Permit (TOC
20), Hock Chong improperly applied the 0.012 ug/L
value into his calculation of a daily maximum limit for mercury.
On the other hand, as can be seen from the rationale
to the 1994 Permit (TOC 21), Francile Shelley correctly applied
both of EPA's numbers in calculating the monthly average
and daily maximum limits for mercury for the protection of
aquatic life. These calculations result in suggested mercury
limits for the protection of aquatic life of 1.25 ppb monthly
average and 249 ppb daily maximum.
Petitioners questioned Francile Shelley and Robert Gross
about EPA's four-day average and asked why DHEC had
not calculated whether the proposed daily maximum limit of 10 ppb
would exceed EPA's four-day average. (TR 122-123,
329-335). As Francile Shelley explained, DHEC does apply EPA's
four-day average number, which is designed to protect
aquatic life from the chronic effects of mercury, but only after
converting it into a monthly average permit limit. (TR
307). This is how DHEC applies EPA's water quality criteria for
every permit NPDES permit it issues. (TR 123, 334). Ms.
Shelley explained during cross examination that she "based all
[her] calculations on the E.P.A. standards as [the permit
writers are] told to apply them." (TR 334). In addition, it
should be noted that EPA not only approved DHEC's Regs. 61-68,
which explains how to apply EPA's four-day and one-hour criteria,
but also approved the 1994 Permit, which applied these
criteria. (TR 61, 246-247) (TOC 16).
e. S.C. Code Regs. 61-9.122.62(d)(3) (Supp. 1995)
An additional regulatory exception applicable in this case
is found at Regs. 61-9.122.62(d)(3). The pertinent part
of paragraph (d)(3), by incorporation through the parenthetical
in Regs. 61-9.122.44(l)(1), states that a permit may be
reissued with a less stringent permit limitation if:
[t]he standards or regulations on which the [previous]
permit was based have been changed by
promulgation of amended standards or regulations or by
judicial decision after the [previous] permit
was issued.
Regs. 61-9.122.62(d)(3). As previously discussed with regard to
the regulatory exception under Regs. 61-9.122.62(d)(15),
Regs. 61-68(E)(7)(a), which became effective in 1990, explained
for the first time how EPA's one-hour and four-day
criteria were to be applied to NPDES permits in South Carolina.
This regulation was not available when DHEC issued the
1986 Permit, but was available when the 1993 and 1994 Permits
were issued. (TR 83-84, 323, 366, 392-393). The
application of the exception under paragraph (d)(3) hinges not
upon the date EPA established its Gold Book criteria (1985),
but upon the date in which DHEC promulgated regulations, which
explained how to apply this criteria to NPDES permits
in South Carolina (1990). (TR 84).
Petitioners questioned a number of witnesses about the
second part of paragraph (d)(3), which states that
"[p]ermits may be modified during their terms for this cause,
only as follows . . ." Regs. 61-9.122.62(d)(3) (emphasis
added). (TR 138-141, 364-368, 427-430). This phrase is followed
by three subparagraphs which deal separately with (i)
amended standards or regulations, (ii) judicial decisions, and
(iii) modified State certifications. Petitioners' focus upon
this second part of paragraph (d)(3), however, is misplaced and
irrelevant. The second part of paragraph (d)(3) applies
specifically to permits being modified or revoked and reissued
during their terms, but is meaningless in the context of
permits which expire normally and are reissued.
Unfortunately, Regs. 61-9.122.44(l)(1)'s incorporation of
the causes of modification found in Regs. 61-9.122.62(d)
saves several pages of space in the regulations, but makes
interpretation of section 122.62(d), as it applies to reissued
permits, somewhat difficult. For example, as previously
addressed above, the exceptions found in paragraphs (d)(1),
(d)(2),
and (d)(16) all required slight modifications (parentheticals [
]) for them to make sense in the context of reissued permits.
The necessity to modify paragraph (d)(3) in the context of
reissued permits, however, is even more pronounced.
South Carolina basically adopted EPA's anti-backsliding
regulations verbatim (TR 76-77); however, it also adopted
the inherent problems created by Regs. 61-9.122.44(l)(1)'s
incorporation by reference of Regs. 61-9.122.62. EPA's
regulatory history of the anti-backsliding exceptions of Regs.
61-9.122.44(l) and Regs. 61-9.122.62(d) makes clear that
Regs. 61-9.122.62(d), when applied for the purposes of
modification or revocation and reissuance of a permit during its
term, was intended to be read narrowly for the protection of the
permit holder (i.e., to keep EPA from frivolously
reopening or modifying permits during their term). 45 Fed. Reg.
33290, 33314-5 (1980). This was especially true when it
came to applying paragraph (d)(3) in the context of permit
modifications or revocations and reissuances. EPA added the
second part of paragraph (d)(3) "to provide permittees with
maximum certainty and protection from regulatory change
during the terms of their permits." Id. (emphasis added). This
protection, however, is meaningless in the context of a
reissued permit. When a permit is reissued, EPA contemplates
that it will incorporate new regulations that affect its
terms and conditions.
In this case, Hock Chong, the writer of the 1993 Permit,
failed to apply the new Regs. 61-68(E)(7)(a) when he
calculated the permit limits for mercury in the reissued permit.
(TR 309, 324). As Andrew Yasinsac explained, Hock Chong
mistakenly believed that the prohibition against backsliding
prevented him from applying this regulation. (TR 393). Regs.
61-68(E)(7)(a) was promulgated in 1990, and became effective upon
its publication in the South Carolina State Register
on April 27, 1990. 14 S.C. State Reg. (No. 5) 276 (1990). Thus,
this regulation was not available when the 1986 Permit was
issued, but should have been applied when the permit was reissued
in 1993.
Since the second part of paragraph (d)(3) was intended
only
to protect permittees from agency-initiated
modifications or revocations based upon new regulations, it would
be illogical to apply the requirements of the second part
of paragraph (d)(3) in this case.
PROCEDURAL AND EVIDENTIARY MATTERS
A. The Scope of This Proceeding
Petitioners have contended that the only evidence the
Court
may properly consider in support of DHEC's decision
to issue the 1994 permit was the staff "rationale" document.
(TOC 21). Petitioners cite several United States Supreme
Court decisions, which hold that in a judicial appeal from a
final agency action, the court may not consider "post hoc
rationalizations" in support of the agency decision. The present
matter, however, is not a judicial appeal from a final
agency action and the Division is not sitting as an appellate
court. "Therefore, the authorities cited by Petitioners
therefore do not govern this present proceeding.
S.C. Code Regs. 61-72 (Supp. 1995) (Procedures for DHEC
Contested Cases) previously provided for an internal
agency review rather prior to any final agency action. Regulation
61-72(101)(A) defined "adjudicatory hearing" as a trial-type
proceeding "as part of administrative review of a staff decision
including a contested case as defined by the
Administrative Procedures Act." This outline of procedures for
handling the adjudicatory process of a contested case
hearing arising at DHEC became effective on April 23, 1993. The
scheme was that the initial staff decision could be
reviewed by the Board (the "Board"). However, the Board could
designate a hearing officer to conduct the contested case
hearing and submit to the Board report. The report could be
reviewed by the Board upon request of any party (which
would include DHEC itself). If no such request was made, the
report was adopted as the final decision of DHEC. The Board
also had the right, on its own motion, to review the hearing
officer's determination.
The Division was created by Act No. 181 of 1993,
popularly
known as "The Restructuring Act," effective July 1,
1993. S.C. Code Ann. 1-23-600 (Supp. 1995) provides that an
administrative law judge (ALJ) of the Division shall preside
over all hearings of contested cases as defined in section
1-23-310 (Supp. 1995) involving the departments of the
executive branch of government. DHEC is a department within the
executive branch in South Carolina. Further, S.C. Code
Ann. 1-23-610(A) (Supp. 1995) provides for quasi-judicial
review of any final decision of an ALJ of cases involving a
department governed by a board upon appeal filed within thirty
days of receipt of the final decision and order of the ALJ.
S.C. Code Ann. 1-23-610(D) (Supp. 1995) provides that
the
review of the ALJ's order must be confined to the
record. No new facts or evidence can be developed at the
appellate level. The "substantial evidence" rule is the standard
on review. The review mirrors the limitations applicable to the
circuit court's review as set forth in the APA. (S.C. Code
Ann. 1-23-380(A)(6)).
Accordingly, the contested case is heard by an ALJ
utilizing
the Rules of Procedures established by the Division.
See S.C. Code Ann. 1-23-650 (Supp. 1995), ALJD Temporary
Operating Procedures effective June 20, 1994, and permanent
ALJD Rules of Procedure effective May 3, 1995. The final
agency decision is that set forth in the ALJ's final order and
decision, excepting when that order and decision is appealed
pursuant to section 1-23-610(A). The Board may then,
sitting as an appellate tribunal, subject to the review
limitations in section 1-23-610(D), issue the final agency
decision.
Ultimate judicial appellate review is provided for by S.C. Code
Ann. 1-23-610(A) and (C) (Supp. 1995).
No authority has been presented by Petitioners which
limits
the power of the Division in the present proceeding
to receive evidence on the propriety of increasing TOC's mercury
limit to 10 ppb, whether or not such evidence was
specifically articulated or referenced as part of DHEC's
decision. Therefore, the Court is not foreclosed from receiving
and considering all relevant evidence on this issue.
B. The Effect of the Rule 30(b)(6) Deposition of DHEC
During the direct examination of DHEC's witness, Francile
Shelley, Petitioners objected to testimony they
considered to be contrary to the testimony of Andrew Yasinsac in
a SCRCP 30(b)(6) deposition of DHEC, contending that
this deposition was binding on DHEC. (TR 314-319, 327). The
Court overruled the Petitioners' objection on the ground that
the deposition did not bar DHEC from introducing additional
pertinent evidence, but could be considered for impeachment
purposes.
The Court's ruling with respect to Petitioners' Rule
30(b)(6) position is supported by several decisions applying
the identical federal rule. In W.R. Grace & Co. v. Viskase
Corp., 1991 WL 211647 (N.D.Ill., Oct. 15, 1991), defendant moved
to exclude evidence contrary to Grace's admissions made during a
Rule 30(b)(6) deposition, arguing that such deposition
bound the party as a matter of law and that for this reason the
parties should be barred from introducing any evidence
contrary to the statements made in the Rule 30(b)(6) deposition.
The court noted the following:
It is true that a corporation is "bound" by its Rule
30(b)(6) testimony, in the same sense that any
individual deposed under Rule 30(b)(1) would be "bound" by
his or her testimony. All this means is
that the witness has committed to a position at a particular
point in time. It does not mean that the
witness has made a judicial admission that formally and
finally decides an issue. Deposition testimony
is simply evidence, nothing more. Evidence may be explained
or contradicted. Judicial admissions, on
the other hand, may not be contradicted. Brown & Root, Inc.
v. American Home Assur. Co., 353 F.2d
113 (5th Cir. 1965), cert. denied, 384 U.S. 943 (1966).
Petitioners ignore the differences between
evidentiary testimony and judicial admissions.
If a Grace trial witness makes a statement that contradicts
a position previously taken in a Rule
30(b)(6) deposition, then Petitioners may impeach that
witness with the prior inconsistent statement.
Petitioner's motion is denied.
A similar issue was considered in Otis Engineering
Corporation v. Trade & Development Corporation, 1994 WL 90332
(E.D.LA.), where defendant moved to bar plaintiff from materially
offering its Rule 30(b)(6) testimony or from presenting
contrary expert evidence at trial. The court refused to grant
this relief and made the following pertinent comment:
After considering the arguments of counsel and the
applicable law, the court finds that Defendant's
motion is not warranted. If Otis, or any party, attempts to
materially alter a Rule 30(b)(6) deposition,
the opposing party has the ability and the responsibility to
cross-examine and impeach the witness
using the different, but sworn to, prior testimony. The
trier of fact then determines which, if any, of
the testimony to credit. Because the court finds that it is
more appropriate for the trier of fact to
decide the credibility of witnesses as opposed to the court
preventing a witness from changing her prior
testimony.
Likewise, in New England Adolescent Research Institute,
Inc.
v. Massachusetts Industrial Finance Agency, 162 F.R.D.
410 (D.MA. 1995), the court refused to prohibit the defendant
either from presenting evidence relating to unanswered Rule
30(b)(6) questions, or alternatively, to compel it to designate a
more knowledgeable Rule 30(b)(6) witness. Although the
court noted that defendant could have done a better job in
preparing the designated witness for the deposition, it refused
to foreclose Defendant from relying on other evidence.
In the present matter, it appears that during the Rule
30(b)(6) deposition of Marion Sadler, the witness disclaimed
knowledge of several of the designated areas set forth in the
deposition notice. DHEC then designated another witness,
Andrew Yasinsac, who was subsequently deposed by Petitioners.
Clearly, Petitioners cannot claim surprise by virtue of the
testimony of Andrew Yasinsac and Francile Shelley, having been on
notice for some time that DHEC intended to rely on
them in support of its position. The Court as sole fact finder
has given appropriate consideration to the impeachment
and credibility issues with respect to any discrepancies between
the Rule 30(b)(6) deposition of Andrew Yasinsac and the
evidence or testimony presented by DHEC at the hearing.
FINDINGS OF FACT
After consideration and review of all the testimony, the
evidence admitted into the record, and judging the
credibility of the witnesses, by a preponderance of the evidence,
I make the following findings of fact:
1. This Division has personal and subject matter jurisdiction
over the parties and issues presented.
2. Notice of the date, time, place, and nature of the hearing
was timely given to all parties.
3. Laidlaw TOC is a licensed and permitted facility located in
Roebuck, South Carolina.
4. On July 5, 1994, Petitioners timely filed a Petition for
Administrative Review, challenging the amendment of NPDES
Permit No. SC0040517, issued by Respondent DHEC to Respondent
TOC.
5. DHEC first issued a NPDES permit to TOC in 1986. This
permit, which authorized TOC to discharge wastewater
effluent into the North Tyger River, had an effective date of
January 1, 1987, and was set to expire on December 31, 1991.
This permit was based on water quality considerations.
6. The 1986 Permit had an interim daily maximum limit for
mercury of 10 ppb and no monthly average limit for
mercury.
7. In 1986, TOC's wastewater treatment technology consisted of
a carbon absorption unit, which was unable to
remove mercury to levels as low as 1.3 ppb.
8. Between 1988 and 1989, the daily maximum limit for mercury
decreased to 1.3 ppb. There was still no monthly
average limit for mercury in the 1986 Permit.
9. In 1989, TOC upgraded its wastewater treatment technology to
include dual carbon absorption units, but these
also proved unable to remove mercury to levels as low as 1.3 ppb.
10. In March of 1991, TOC installed new wastewater treatment
technology, called the Lancey System. The Lancey
System is a sulfide precipitation-filtration technology,
consisting of a Flow Equalization Tank, followed by two pH
Adjustment Tanks, a Sulfide Addition Tank, a Retention
Tank, Lancey Sorption Filters, and a Final pH Adjustment Tank.
The Lancey System proved successful at removing all
metals from TOC's wastewater, except for mercury.
11. On June 28, 1991, TOC timely submitted an application to
renew its NPDES permit.
12. In July of 1992, TOC installed a set of Carbon Absorption
Units between the Lancey Filters and the Final pH
Adjustment Tank. However, even with the addition of the Carbon
Absorption Units, TOC was unable to meet the 1.3 ppb
limit one hundred percent of the time.
13. Since installation of the advanced treatment systems in
1992, Laidlaw (TOC) has had an consistent record of
compliance with their mercury limits.
14. In April of 1993, TOC also installed a Microfiltration Unit
and Ion Exchange Vessels in an attempt to reduce the
mercury in its effluent even further. However, TOC subsequently
determined that the Microfiltration Unit and Ion
Exchange Vessels were useless in removing mercury at such low
levels.
15. In order to come into relative compliance with the daily
maximum limit for mercury of 1.3 ppb in 1986 Permit
limit, TOC has been forced to reduce the feed rate of
mercury-containing waste into its incinerator and, thus, into its
wastewater treatment system. In addition, TOC has elected to
monitor its effluent almost continuously, and has been
forced to shut down operation of the facility on occasion.
16. After reviewing TOC's application, DHEC issued, on June 29,
1993, Public Notice No. 93-118-R for the proposed
reissuance of TOC's NPDES Permit ("1993 Permit").
17. The 1993 Permit was issued on July 30, 1993, was to become
effective on September 1, 1995, and would have
expired on September 30, 1997.
18. The 1993 Permit had a daily maximum limit for mercury of
1.25 ppb and no monthly average limit for mercury.
19. Prior to becoming effective, TOC appealed the conditions of
the 1993 Permit and requested an adjudicatory
hearing. No other parties challenged the issuance of the 1993
Permit.
20. After settlement discussions with TOC, DHEC agreed to
reissue TOC's permit, ("1994 Permit"), with revised permit
limits, including the inclusion of monthly average limits as well
as daily maximum limits.
21. The 1993 permit and 1994 draft permit were both water
quality permits.
22. On June 22, 1994, DHEC issued Public Notice No. 94-199-D,
which set forth the revised permit limits for a
number of constituents, including mercury.
23. The 1994 Permit had a monthly average limit for mercury of
1.25 ppb and a daily maximum limit of 10 ppb.
24. TOC has been attempting to operate under the 1.3 ppb daily
maximum limit for mercury in the 1986 Permit,
pending the resolution of this case and the issuance of this
Order.
25. DHEC has been involved in the process of developing and
approving the treatment technologies that have been
installed by TOC.
26. DHEC, TOC, and the manufacturer of the Lancey System
believed, initially, that the treatment technology would
be sufficient to meet the 1.3 ppb limit.
27. TOC has properly operated and maintained the treatment
technologies its has installed.
28. The fish tissue studies performed by RMT and by DHEC both
showed levels of mercury in the sampled fish well
below the Food and Drug Administration (FDA) action level of 1.00
milligram per kilogram (mg/kg) of fish tissue examined.
In fact, the DHEC fish study showed no mercury above its
detection limit of 0.25 mg/kg, less than one quarter of the level
necessary to trigger the FDA action level.
29. TOC's macroinvertebrate assessments, that were performed two
times per year between 1986 and 1994, and 96-hour flow-through
bioassays, that were also performed during this same time period,
showed that prior mercury discharge
limits as high as 20 ppb had no adverse impact on the indigenous
biological community in the North Tyger River
downstream from TOC's facility.
30. The water quality standard for mercury is being attained in
the North Tyger River.
31. The water quality of the North Tyger River exceeds levels
necessary to support propagation of fish, shellfish, and
wildlife, and recreation in and on the water.
32. With regard to the 1994 Permit, all requirements of the
permitting process were done in accordance with DHEC
regulations.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude as
a
matter of law, the following:
1. The Administrative Law Judge Division has subject matter
jurisdiction in this action pursuant to S.C. Code Ann.
1-23-600 et seq. and 1-23-310 et seq. (1986 and Supp.
1994).
2. On July 5, 1994, Petitioners timely filed a Petition for
Administrative Review, challenging the amendment of a
NPDES permit (No. SC0040517), issued by DHEC to TOC.
3. DHEC properly transmitted this case to the Division by
Agency Transmittal Form, dated July 11, 1994.
4. In accordance with S.C. Code Ann. 1-23-570 (Supp. 1993),
the Honorable Marvin F. Kittrell, Chief Administrative
Law Judge, was assigned to preside in this matter.
5. The Rules of Procedure for the Administrative Law Judge
Division, dated May 26, 1995, are applicable in this case.
6. S.C. Code Regs. 61-72 (Supp. 1995), promulgated with an
effective date of April 23, 1993, set forth the procedures
or rules for hearing contested cases prior to the passage of S.C.
Acts No. 181. Effective July 1, 1993, the ALJD was created
and has by Administrative Order and through promulgation
established its own Rules of Procedure, which are applicable
for all contested cases subject to its jurisdiction. The ALJD
Rules of Procedure supplant the DHEC rules, promulgated as
Regs. 61-72.
7. Regulation 61-72(101)(A) defines "adjudicatory hearing" as a
trial-type proceeding "as part of administrative
review of a staff decision including a contested case as defined
by the Administrative Procedures Act."
8. The definition of "contested case" in the Rules of Procedure
for the Administrative Law Judge Division (p.1) is
"a proceeding, including but not limited to . . . licensing, in
which the legal rights, duties and privileges of a party are
required by law to be determined by an agency after an
opportunity for a hearing."
9. The Administrative Law Judge Division is a state agency.
See S.C. Code Ann. 1-23-310(1) (Supp. 1995).
10. The Division's final order and decision, which includes
findings of fact and conclusions of law, is subject to review
by the DHEC Board upon request of a party. The review of the
ALJ's order must be confined to the record. S.C. Code Ann.
1-23-610(A) (Supp. 1995).
11. The final agency decision is the final order and decision of
an ALJ unless the case is appealed. See S.C. Code
Ann. 1-23-610(A) (Supp. 1995). S.C. Code Regs. 61-72, Part
VIII Board Review, Section 805 has been superseded and is
now inapplicable.
12. No authority has been presented which limits the power of
the Division to receive evidence on the propriety of
increasing TOC's mercury limit to 10 ppb, whether or not such
evidence was specifically articulated or referenced as part
of DHEC's decision. Therefore, the Division is not foreclosed
from receiving and considering all relevant evidence on this
issue.
13. DHEC's Rule 30(b)(6) deposition does not bar DHEC from
introducing additional pertinent evidence on which
anti-backsliding exceptions apply in this case.
14. Anti-backsliding is an issue in this case because the daily
maximum limit for mercury was 1.3 ppb in TOC's 1986
Permit and was raised to 10 ppb in TOC's 1994 Permit.
15. DHEC's decision to impose a 10 ppb daily maximum permit
limit for mercury in the 1994 Permit is justified if
one or more of the regulatory or statutory exceptions to
anti-backsliding applies.
16. The daily maximum limit for mercury in the 1994 Permit is
water quality-based.
17. South Carolina's anti-backsliding regulation is located at
S.C. Code Regs. 61-9.122.44(l).
18. S.C. Code Regs. 61-9.122.44(l)(1) applies to water
quality-based permit limits.
19. S.C. Code Regs. 61-9.122.44(l)(1) incorporates S.C. Code
Regs. 61-9.122.62 (Supp. 1995) (causes for modification)
by reference. Thus, the regulatory exceptions to
anti-backsliding for water quality-based permit limits are found
in Regs.
61-9.122.62.
20. The 1987 Amendments to the Clean Water Act added statutory
provisions at 33 U.S.C.A. 1342(o) (Supp. 1995)
(section 402(o) of the Clean Water Act), which address
anti-backsliding.
21. Section 402(o)(1) of the Clean Water Act sets forth a
separate and independent exception to anti-backsliding.
22. The stand-alone exception in the second sentence of section
402(o)(1) of the Clean Water Act applies to water-quality-based
permit limits so long as the requirements of 33 U.S.C.A.
1313(d)(4) (Supp. 1995) are satisfied.
23. The water quality standard for mercury is being attained in
the North Tyger River.
24. Section 1313(d)(4)(B) applies in this case, because the
water quality standard for mercury is being attained in
the North Tyger River.
25. The requirements of section 1313(d)(4)(B) are satisfied if
the requirements of South Carolina's antidegradation
policy are met.
26. South Carolina's antidegradation policy is set forth in S.C.
Code Regs. 61-68(D) (Supp. 1995).
27. Paragraph (2) of Regs. 61-68(D) applies in this case because
the water quality of the North Tyger River exceeds
levels necessary to support propagation of fish, shellfish, and
wildlife, and recreation in and on the water.
28. DHEC satisfied the antidegradation requirements under Regs.
61-68(D)(2) in this case.
29. The limitations of Section 402(o)(3) are satisfied in this
case. The first sentence of section 402(o)(3) does not
apply here because there are no effluent guidelines for TOC's
type of industry. The second sentence of section 402(o)(3)
is satisfied because a daily maximum limit for mercury of 10 ppb
is well below the allowable water quality standards
applicable to the North Tyger River.
30. Section 402(o)(2) of the Clean Water Act lists a number of
additional exceptions to anti-backsliding.
31. Section 402(o)(2)(A) applies in this case because the
addition of an effluent diffuser is a material and substantial
alteration or addition which justifies DHEC's decision to
increase the daily maximum permit limit for mercury to 10
ppb.
32. Section 402(o)(2)(B)(i) applies in this case because of the
new information DHEC had available in 1994, that was
unavailable in 1986, regarding TOC's ability to meet a daily
maximum limit for mercury of 1.3 ppb and due to years of
macroinvertebrate assessments, 96-hour flow through bioassays,
and several fish tissue studies, all of which showed that
prior discharges of 20 ppb and 10 ppb had no adverse impact on
the local biological community. This justifies DHEC's
decision to increase the daily maximum permit limit for mercury
to 10 ppb.
33. Section 402(o)(2)(E) applies in this case because TOC
installed state-of-the-art treatment technology that all
parties believed would be able to reduce mercury to levels below
1.3 ppb, but which when properly operated and
maintained was unable to achieve such limits during normal
operating conditions and feed rates. DHEC determined that
TOC had been able to and should be able to achieve a daily
maximum limit for mercury of 10 ppb. This justifies DHEC's
decision to increase the daily maximum permit limit for mercury
to 10 ppb.
34. The regulatory exception found at S.C. Code Regs.
61-9.122.62(d)(1) (Supp. 1995) applies for the same reasons
discussed for the exception under Section 402(o)(2)(A) of the
Clean Water Act. This justifies DHEC's decision to increase
the daily maximum permit limit for mercury to 10 ppb.
35. The regulatory exception found at S.C. Code Regs.
61-9.122.62(d)(2) (Supp. 1995) applies for the same reasons
discussed for the exception under Section 402(o)(2)(B)(i) of the
Clean Water Act. This justifies DHEC's decision to increase
the daily maximum permit limit for mercury to 10 ppb.
36. The regulatory exception found at S.C. Code Regs.
61-9.122.62(d)(16) (Supp. 1995) applies for the same reasons
discussed for the exception under Section 402(o)(2)(E) of the
Clean Water Act. This justifies DHEC's decision to increase
the daily maximum permit limit for mercury to 10 ppb.
37. The regulatory exception found at S.C. Code Regs.
61-9.122.62(d)(15) (Supp. 1995) applies in this case because
of two technical errors that were made in the 1993 Permit: (1)
there should have been permit limits for mercury for both
daily maximum and monthly average; (2) the mercury permit limit
for daily maximum should have been calculated using
EPA's one-hour average criteria rather than EPA's four-hour
average criteria based on Regs. 61-68(E)(7)(a)(1) and (2).
This justifies DHEC's decision to increase the daily maximum
permit limit for mercury to 10 ppb.
38. In accordance with its standard operating procedures and
based on Regs. 61-68(E)(7)(a)(1), DHEC properly
applied EPA's one-hour average criteria, which is designed to
protect aquatic life from the acute effects of mercury, by
converting it into a daily maximum permit limit.
39. In accordance with its standard operating procedures and
based on Regs. 61-68(E)(7)(a)(2), DHEC properly
applied EPA's four-day average criteria, which is designed to
protect aquatic life from the chronic effects of mercury,
by converting it into a monthly average permit limit.
40. The regulatory exception found at S.C. Code Regs.
61-9.122.62(d)(3) (Supp. 1995) applies in this case because Regs.
61-68(E)(7)(a) became effective in 1990, but was not used to
calculate the proper permit limits in the 1993 Permit.
41. The second sentence of Regs. 61-9.122.62(d)(3) is irrelevant
to this case because we are dealing with a reissued
permit rather than a permit modification or revocation and
reissuance.
ORDER
THEREFORE IT IS ORDERED that Permit No. SC 0040517 be
issued
as proposed by the Department with an
effective date being the date of this Order and an expiration
date five years hence.
AND IT IS SO ORDERED.
Marvin F. Kittrell
Chief Judge
Columbia, South Carolina
January 25, 1996 |