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

SC Administrative Law Court Decisions

CAPTION:
Friends of the Earth, Inc., et al vs. SCDHEC, et al

AGENCY:
South Carolina Department of Health and Environmental Control

PARTIES:
Petitioner:
Friends of the Earth, Inc. and Citizens Local Environmental Action Network, Inc.


Respondent:
Laidlaw Environmental Services (TOC), Inc. and South Carolina Department of Health and Environmental Control

In Re:
NPDES Permit No. SC 0040517; NPDES Permit Modification Determination
Public Notice dated June 22, 1994
Public Notice No. 94-199-D
 
DOCKET NUMBER:
94-ALJ-07-0151-CC

APPEARANCES:
For the Petitioners:

Bruce J. Terris, Esquire
Linda C. Schneider, Esquire
James S. Chandler, Jr., Esquire

For the Respondent/Laidlaw Environmental Services (TOC), Inc.:

Ralph M. Mellom, Esquire
Paul R. Hibbard, Esquire
Jack D. Todd, Esquire

For the Respondent/South Carolina Department of Health and Environmental Control:

Cheryl H. Bullard, Esquire
Samuel L. Finklea, III, Esquire
 

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


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