ORDERS:
ORDER
II. STATEMENT OF THE CASE
This matter is before the Administrative Law Judge Division
pursuant to a challenge to the proposed National
Pollutant Discharge Elimination System ("NPDES") permit (No.
SC0000868) sought from the South Carolina Department
of Health and Environmental Control (DHEC) by International Paper
Company's (International Paper's) Georgetown Mill.
Petitioner League of Women Voters of Georgetown County (the
"League") requested a contested case hearing challenging
the permit's discharge limitation for 2, 3, 7, 8 TCDD (dioxin) on
several grounds. Subsequently, by consent of the
parties, the Sierra Club intervened in the action, alleging the
same defects in the permit conditions. Prior to the
hearing, both the League and the Sierra Club (collectively
"Petitioners") stipulated that the sole issue to be raised in
the contested case hearing was whether the dioxin discharge limit
of 27 parts per quadrillion ("ppq") was properly
derived. Specifically, the Petitioners alleged that DHEC was
required to calculate a technology-based limit using the
permit writer's best professional judgment (BPJ) of best
available technology (BAT), compare that number with the
water quality-based limit of 27 ppq already computed, and include
the more stringent of the two numbers as the
discharge limit in the permit.
The contested case hearing was held on June 12, 1995, at the
Administrative Law Judge Division offices in
Columbia, South Carolina. Notice of the date, time, place, and
nature of the hearing was timely given to all parties.
For the reasons set forth below, NPDES Permit No. SC0000868
is issued as proposed. Any issues raised in the
proceedings or hearing of this case but not addressed in 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).
III. STIPULATIONS
Prior to the hearing, the parties agreed to the following
stipulations:
1. The League raised the issue on appeal in its comments
on the NPDES permit, thereby preserving the
issue for this appeal.
2. The parties agree that Guidance Documents prepared by
the United States Environmental Protection
Agency (EPA) can be used in any briefing associated with the
hearing without being introduced into evidence at the
hearing.
3. The permit at issue is NPDES permit No. SC0000868,
International Paper's Exhibit #17.
4. The effective dates of that proposed permit are from
October 1, 1993 through September 30, 1998.
5. The dioxin limit is the only issue on appeal in the
contested case hearing.
6. The dioxin limit of 27 ppq, which is the limit in the
proposed permit at issue, is based on water
quality criteria set by the South Carolina Department of Health
and Environmental Control (DHEC), and approved by
EPA.
7. EPA expressed no objection to the 27 ppq dioxin limit
contained in the proposed permit.
8. The proposed permit provides that the dioxin limit can
be changed, and is subject to change, if one
or more of the following events occur:
a. If the State of South Carolina changes its water
quality criteria;
b. If EPA promulgates a final national effluent
guideline for dioxin;
c. Upon renewal of the
permit (NPDES permits are renewable every
5 years); and
d. If a fish advisory is reissued for consumption of
fish within the Sampit River.
9. The Petitioners have standing to pursue this appeal.
IV. EVIDENCE OF THE CASE
A. Significant Exhibits
The permit at issue in this hearing (proposed NPDES Permit
No. SC0000868) was submitted as International
Paper Exhibit ("IP Exh.") 17. After a complete review of the
draft permit, EPA had no objections to the proposed
permit conditions. (IP Exh. 14). In addition to the 27 ppq
dioxin discharge limitation, the permit contains a
"Reopener Clause" which requires that the permit be modified, or
alternatively revoked and reissued, if necessary (1)
to comply with any new applicable effluent standards or
limitations promulgated under the Clean Water Act; or (2) to
comply with any adjustment in the State's water quality criteria
for dioxin.
As required by regulations, DHEC staff reviewed the
significant comments received on the draft permit, and
drafted a "Responsiveness Summary" with regard to the issues
raised during the public comment period. (IP Exh. 16).
This summary addressed the specific issue on appeal in this
matter:
5. The draft doesn't address zero discharge. BAT can
achieve much lower dioxin levels, why
isn't it required? (BAT and water quality limits)
Best available technology (BAT) requirements of the
Clean Water Act (CWA) do not
apply to water-quality based limits. BAT requirements
of the CWA apply only to
technology-based limits. These may be either effluent
limitation guideline or
Best Professional Judgment (BPJ) - based limits.
Currently, effluent limitation
guidelines do not call for regulation of dioxin. Such
limits are proposed to be
issued by U.S. EPA in September 1995. BPJ is used in
those cases where an
effluent limitation guideline has not been promulgated
for the industry or
pollutant under consideration and where a water quality
standard is not more
restrictive. The South Carolina water quality standard
is quite restrictive here;
therefore, establishment of BPJ-based limits at a lower
concentration is
inappropriate based on the information available to the
Department.
B. Summary of Testimony
The Industrial Wastewater Section of DHEC's Bureau of Water
Pollution Control, drafted the permit at issue in
this case. In writing the permit, Gerald Slice reviewed the
national effluent guidelines based on BAT for the Pulp and
Paper Industry, and incorporated the applicable provisions of
those regulations into the Georgetown Mill permit
conditions. At the time the permit was issued (August 19, 1993),
however, the national standards for the industry did
not contain a specific discharge limit for dioxin.
Slice next reviewed state water quality standards that were
applicable to dioxin discharges. South Carolina
adopted, and the United States Environmental Protection Agency
(EPA) approved, a state water quality criteria of 1.2
ppq. Slice testified that he calculated the permit limit for
International Paper by multiplying this ambient state
water quality criteria by a dilution factor of 22.5, which was determined through computer
modeling. Slice then applied the resulting number
(27 ppq) as the "end-of-pipe" effluent discharge limitation
included in the permit.
Slice also testified that he reviewed and evaluated a
multitude of information, in addition to the national
effluent standards and state water quality criteria, when he was
writing NPDES Permit No. SC0000868. Specifically, he
looked at toxicological information on dioxin from EPA and other
sources. Slice also reviewed effluent data submitted
by International Paper, as well as fish tissue studies and
similar reports performed in the area of the Sampit River
where the International Paper plant is located. He reviewed
effluent data and waste treatment technologies used in
numerous paper mills across the country, including the well known
"104 Mill Study," and the follow-up to that study,
regarding dioxin discharges from pulp and paper mills. Finally,
Slice evaluated what other paper mills in South
Carolina and throughout the United States were doing with regard
to reducing or eliminating dioxin from their
discharge. He determined that International Paper was on average
with or better than other paper mills using the
same process. Based on this information, Slice testified that,
if he had calculated a formal BPJ/BAT limit for the
Georgetown Mill, he would have arrived at a dioxin discharge
level in excess of 27 ppq. According to Slice, nothing in
the information he reviewed would support a discharge limit of
less than 27 ppq.
In addition to the testimony of the permit writer, Dr.
Christopher Teaf, a toxicologist, testified that the 27
ppq discharge limitation for dioxin proposed by the DHEC staff
was protective of human health and the environment.
Dr. Teaf reviewed dioxin data from the International Paper and
DHEC files, reviewed general information available to
the scientific community on dioxin toxicology, and toured the
Georgetown facility and the surrounding area along the
Sampit River. He testified that his review of the records
indicated that the environmental conditions in the Sampit
River have improved dramatically in recent years as the result of
International Paper's improvements in dioxin
reduction. Dr. Teaf emphasized that the available fish tissue
data showed that, from 1987 to 1989, the dioxin
concentration in fish tissue samples taken from the Sampit River
area decreased by a factor of six. By 1991, the fish
tissue levels were at or below the advisory level of seven parts
per trillion ("ppt"). Based on this information, the
original fish advisory issued in June of 1989 was lifted in
October of 1992.
V. FINDINGS OF FACT
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. DHEC issued NPDES Permit No. SC0000868 to International
Paper's Georgetown Mill on August 19,
1993.
4. A water quality-based discharge limit of 27 ppq for
dioxin was included in the permit.
5. In its comments on the draft permit, EPA expressed no
objection to the 27 ppq dioxin discharge
limit.
6. DHEC calculated this "end-of-pipe" discharge limitation
of 27 ppq by multiplying the ambient state
water quality criteria of 1.2 ppq by a dilution factor determined
through computer modeling.
7. The 1.2 ppq water quality criteria for dioxin was
adopted by the State of South Carolina and
approved by EPA. 25 S.C. Code Ann. Regs. 61-68, Appendix 2
(Supp. 1994).
8. The national effluent guidelines for the Pulp and Paper
Industry category
(40 C.F.R. Part 430) do not currently contain discharge
limitations for dioxin, but EPA is in the process of evaluating
and establishing such national guidelines. See 58 Fed. Reg.
66078 (Dec. 17, 1993) (Proposed Rules).
9. DHEC did not undertake a formal BPJ/BAT analysis in
determining the dioxin limit in the NPDES
permit.
10. DHEC did, however, on an informal basis, examine the
requirements of a formal BPJ/BAT analysis
and concluded that a formal analysis was not necessary.
Specifically, the DHEC staff reviewed and evaluated the
equipment, facilities, and processes employed by International
Paper's Georgetown Mill; analyzed the various types of
control techniques and process changes used or considered by
other mills; and considered the environmental impacts
of the various milling operations.
11. The DHEC staff was aware that, as described in
Stipulation #8, the permit numbers will be changed
should the river conditions worsen or if EPA or the State of
South Carolina change the effluent limits or water quality
criteria during the life of the permit.
IV. 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. S.C. Code Ann. 48-1-50 (1987) authorizes DHEC to take
all necessary or appropriate action to
secure for South Carolina the benefits of the Federal Water
Pollution Control Act, and any other federal and state acts
concerning water pollution control.
3. S.C. Code Ann. 48-1-140 (1987) grants DHEC the
authority to revise or modify NPDES permits in
South Carolina.
4. S.C. Code Ann. 48-1-30 provides the authority for
DHEC to promulgate regulations carrying out
the provisions of Chapter 1 of Title 48 of the 1976 Code.
5. S.C. Code Ann. Regs. 61-9 (Supp. 1994) were promulgated
by DHEC as the applicable regulations
governing the NPDES permit program of the State.
6. South Carolina, as a state authorized by EPA to
implement the NPDES program, is responsible for
issuing permits
for the discharge of any pollutant, or a combination of
pollutants, ... upon the
condition that such discharge will meet either (A) all
applicable requirements
under Sections 1311, 1312, 1316, 1317, 1318, and 1343
of this title, or (B) prior to
the taking of necessary implementing actions relating
to all such requirements,
such conditions as the Administrator determines are
necessary to carry out the
provisions of this chapter.
33 U.S.C. 1342(a)(1).
7. The authority to issue permits on a temporary or
case-by-case basis under Section 1342(a)(1)(B) is
known as the "best professional judgment" (BPJ) of the permit
writer. Natural Resources Defense Council v. United
States Environmental Protection Agency, 859 F.2d 156, 200 (D.C.
Cir. 1988).
8. For purposes of this hearing, only two types of
discharge restrictions were applicable: technology-based limits
(Section 1311) and water quality-based limits (Section 1312).
9. The dioxin "end-of-pipe" effluent discharge limit in
International Paper's NPDES permit (27 ppq) is
a scientific derivation of the human health based in-stream state
water quality criteria of 1.2 ppq. As such, the 27
ppq is a water-quality based limitation. See 33 U.S.C.
1312.
10. The 1.2 ppq ambient water quality criteria for dioxin,
found at 25 S.C. Code Ann. Regs. 61-68,
Appendix 2 (Supp. 1994), was adopted by the South Carolina
General Assembly and approved by EPA.
11. The national effluent guidelines for the Pulp and Paper
Industry (40 C.F.R. Part 430) contain
technology-based discharge limitations (33 U.S.C. 1311) based
on BAT, which are potentially applicable to that
industry.
12. All provisions of 40 C.F.R. Part 430 that were
applicable to the Georgetown Mill were included in the
proposed permit.
13. The existing effluent guidelines for the Pulp and Paper
Industry do not contain a discharge
limitation for dioxin, but EPA is currently evaluating and
establishing a national guideline for a dioxin discharge limit.
See 58 Fed. Reg. 66078 (Dec. 17, 1993).
14. Because EPA is in the process of developing a national
effluent guideline for dioxin discharges from
pulp and paper mills and the state has an existing water-quality
criteria for dioxin, it is not unreasonable, arbitrary,
or capricious for DHEC not to undertake a formal BPJ/BAT analysis
in determining the dioxin discharge limitation for
this permit. Natural Resources Defense Counsel v. Environmental
Protection Agency, 863 F.2d 1420 (9th Cir. 1988).
15. When the national limit for dioxin is promulgated as a
final rule, if the limit is less than 27 ppq,
then the reopener clause in International Paper's proposed NPDES
permit requires that the permit be modified to
include the newer, more stringent limitation.
16. The terms of International Paper's proposed NPDES
permit are also subject to change if any of the
following occur: the State revises its water quality criteria;
renewal of the permit upon its current expiration date; or
a fish consumption advisory due to dioxin levels is reissued for
the Sampit River.
17. DHEC's analysis and establishment of the 27 ppq dioxin
discharge limit contained in the proposed
NPDES permit is proper and fulfills DHEC's review and issuance of
the permit.
IT IS THEREFORE ORDERED that DHEC issue International
Paper's NPDES Permit No. SC0000868 as proposed.
AND IT IS SO ORDERED.
STEPHEN P. BATES
ADMINISTRATIVE LAW JUDGE
Columbia, South Carolina
November 17, 1995 |