ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter is before me pursuant to S.C. Code Ann. §§ 1-23-310 et seq. (1986 & Supp.
1998) and 25 S.C. Code Ann. Regs. 61-72.201 (Supp. 1998) upon the request of Petitioner Carolina
Water Service, Inc. ("CWS") for a contested case hearing. Respondent South Carolina Department
of Health and Environmental Control ("DHEC") seeks an order from this tribunal finding CWS
liable for violation of an October 30, 1993 Consent Order signed by the parties and alleged violations
of the South Carolina Pollution Control Act, S.C. Code Ann. § 48-1-10 et seq. (1987 & Supp. 1998).
After notice to the parties, a final hearing before the Administrative Law Judge Division was
conducted on November 19, 1998. Upon review of the relevant and probative evidence and the
applicable law, I find and conclude that CWS committed the alleged violations. I further find and
conclude that the appropriate penalty under the circumstances of this case is a fine of One Hundred
Nine Thousand, One Hundred Dollars ($109,100). A portion of this penalty may be suspended upon
presentation to DHEC, within fifteen (15) days of the date of this Order, of a written agreement
between Petitioner and Georgetown County Water & Sewer District for interconnection of
Petitioner's wastewater treatment facility with the regional sewer system.
BACKGROUND
This case was transmitted to the Administrative Law Judge Division on October 24, 1994,
upon CWS's request for a contested case hearing. The request followed DHEC's September 29,
1994 Administrative Order imposing a $305,500 penalty for failure to comply with a prior Consent
Order signed by both parties and for numerous alleged violations of the Pollution Control Act. The
Consent Order, dated October 30, 1993, required CWS to close out its wastewater treatment facility
within a certain period of time and to properly operate its facility under the terms of its NPDES
permit until connected to the regional sewer system. The Consent Order also required CWS to
contract with the Georgetown County Water & Sewer District for connection to the regional public
sewer system and diversion of effluent to the regional collection system.
On December 12, 1995, this tribunal stayed proceedings in this case pending the outcome
of a declaratory judgment action filed by CWS in state circuit court. That action was voluntarily
dismissed without prejudice and the parties resumed proceedings before this tribunal in May, 1997.
On September 26, 1997, CWS filed a motion to dismiss under Rule 12(b)(7), SCRCP, asserting that
the Georgetown County Water & Sewer District ("District"), the City of Georgetown ("City"), and
Waccamaw Regional Planning and Development Council ("Waccamaw") were necessary parties to
this case and that DHEC's failure to include them required dismissal of the September 29, 1994
Administrative Order. CWS requested alternative relief by way of joinder pursuant to Rule 19,
SCRCP. On March 31, 1998, CWS filed a motion to join the South Carolina Public Service
Commission ("PSC") as an additional party. On July 8, 1998, this tribunal issued an Order denying
the motion to dismiss and the motion for joinder.
DISCUSSION
The scope of this contested case is very limited. The issues are: (1) Whether CWS has
violated the terms of the 1993 Consent Order or violated any terms of the NPDES permit; and, if so,
(2) what remedy or sanction is appropriate under the circumstances. Any evidence offered which
has no probative value on those issues is irrelevant.
Section 208 of the Federal Clean Water Act authorizes an area-wide management plan for
water quality control in problem areas and gives planning authority to designated agencies within
each identified area. The area in which CWS's wastewater treatment facility is located is governed
by the Waccamaw Regional Planning and Development Council. The Section 208 plan for this
region was finalized in 1988 and includes the incorporation of CWS's facility into the regional sewer
system, which directs the effluent to the City's treatment facility.
DHEC regulations prohibit the issuance of a water pollution control permit for any discharge
inconsistent with a Section 208 plan. 24 S.C. Code Ann. Regs. 61-9.122.4(g) (Supp. 1998). The
CWS sewer system discharges effluent into Whites Creek, which empties into the Sampit River,
rather than a public sewer system. Accordingly, in 1988, DHEC included in CWS's NPDES permit
the condition that CWS connect to the regional sewer system and cease discharge into receiving
waters within 90 days of receiving notice of the regional system's availability for interconnection.
In 1990, the regional system, owned by Georgetown County Water & Sewer District,(1) became
available for interconnection.
CWS Violations
After CWS's delay in complying with the 1988 permit conditions, DHEC began an
enforcement proceeding resulting in the 1993 Consent Order, requiring a contract with the District
for interconnection within a certain time frame. After CWS's delay in complying with the Consent
Order, DHEC initiated this enforcement action, resulting in Administrative Order 94-055-W. The
Administrative Order cites CWS for violation of the Pollution Control Act for: (1) discharging
wastewater into the environment without being in compliance with a permit issued by DHEC;
(2) violating permit conditions; and (3) failing to connect its wastewater treatment facility to the
regional sewer system in accordance with the Section 208 plan.
CWS argues that the District's wholesale rate for interconnection prevents CWS from
complying with the 1993 Consent Order. CWS asserts that the District's rate is confiscatory and that
the resulting rate CWS would be required to charge its customers would not be affordable. CWS
asserts that the customer rate might not be approved by the PSC, which regulates the rates of private
utility companies. In that case, CWS would have to absorb the cost of connecting to the regional
system.
CWS also contends that it should be allowed to connect directly to the City's treatment
facility without going through the regional system. CWS argues that Waccamaw's interpretation of
the Section 208 plan, which requires connection to the District's line, is erroneous. Essentially,
CWS would have this tribunal re-open the 1993 Consent Order, which acknowledges that CWS was
identified by the Section 208 plan for interconnection with the regional system. CWS, however,
does not assert that it was a victim of fraud or duress when it signed the Consent Order. Further, in
its Petition for Review, CWS adopts the findings of Administrative Order No. 94-055-W, which also
acknowledge the identification of CWS for interconnection to the regional system in the Section 208
plan.
In any event, in these enforcement proceedings, this tribunal has no authority to reopen the
1993 Consent Order or the Section 208 plan affecting CWS. There have been no allegations or
evidence of fraud, duress or any similar ground for granting relief from the Consent Order. CWS
chose to sign the Consent Order and it must now comply with it. The wholesale rates quoted by the
District to CWS do not affect the determination of the cited violations in this case. Rather, any
perceived financial hardship as a result of compliance with the Consent Order is relevant to the
appropriate amount of the penalty to impose.
CWS also contends that it effectively complied with the Consent Order by tendering its
system to the District. CWS cites City of Columbia v. Board of Health and Environmental Control,
292 S.C. 199, 355 S.E.2d 536 (1987), in support of its position that it should not be penalized for
noncompliance with the Consent Order. In that case, DHEC issued a Rule to Show Cause directed
to Midlands Utility (a private utility), the City of Columbia and Richland County, to show cause why
DHEC should not take action to require compliance with the Pollution Control Act, the Federal
Clean Water Act, and the section 208/201 plan.(2) Pursuant to the Section 208 plan, Midlands Utility
was to connect to Columbia's trunk line, which was constructed with EPA grant funds pursuant to
the Section 201 plan. Columbia had the option of providing the connection on a wholesale basis or
through acquisition of Midlands Utility's treatment facility. Columbia refused to deal with Midlands
Utility on a wholesale basis, insisting on acquiring title to Midlands Utility's systems. Columbia
also refused to compensate Midlands Utility for the value of its systems. Midlands Utility refused
to transfer title without compensation. Under these circumstances, it was necessary for DHEC to
take enforcement action against the City of Columbia. The South Carolina Supreme Court held that
if Columbia planned to acquire Midlands Utility's systems, it was required to follow the procedures
set forth in the Uniform Relocation Assistance and Real Property Acquisition Policies Act. City of
Columbia, 355 S.E.2d at 538 (1987).
In a connected case, the South Carolina Court of Appeals held that because Midlands Utility
could not meet pollution standards until connected to the City of Columbia or after extensive
upgrade, the City was the primary cause of several of Midlands' effluent discharge violations. The
Court concluded that a penalty assessment against Midlands for these violations was inappropriate. See Midlands Utility, Inc. v. South Carolina Department of Health and Environmental Control, 437
S.E.2d at 121 (Ct. App. 1993).
The facts in the instant case are distinguishable from City of Columbia and Midlands Utility.
The District is willing to provide wholesale service to connect CWS to the City's treatment facility
at rates comparable to those of other bulk service customers. A representative of the District testified
that if CWS could eliminate its infiltration and inflow problems, the resulting rates should
approximate those charged to the District's other bulk rate customer. This was confirmed by
testimony of a representative of the PSC. Further, CWS is not being pressured to transfer title to its
facility without compensation in violation of federal law, as was Midlands Utility in City of
Columbia. In fact, the District has declined to accept title to the CWS facility due to its condition.
Under all of these circumstances, the District's position is not so unreasonable as to be considered
the cause of CWS's noncompliance with the Consent Order or NPDES violations.
CWS also argues that DHEC is responsible for many of the NPDES violations because it
denied requests to upgrade the facility. The credible evidence, however, shows that all of the cited
violations were independent of CWS's ability to upgrade and that the facility was designed to meet
the standards to which DHEC held the facility when properly operated and maintained.
Penalty
Under the circumstances of this case, a $305,500 penalty is excessive. CWS negotiated with
the District in an attempt to reach an agreement for connection of its wastewater treatment facility.
After perceiving the quoted wholesale rates to be unaffordable, CWS offered to sell its facility to the
District. After a representative of the District inspected the CWS facility, it concluded that its poor
condition would render it a liability to the District. For this reason, the District declined to purchase
the facility, and even refused to take title to the facility when CWS offered to convey it to the District
at no cost. As a result, CWS perceived itself to be in a position of financial hardship, as it was
unlikely that any significant rate increase to its own customers would be approved by the PSC. This
is a mitigating factor that may be taken into consideration in determining an appropriate penalty. See Midlands Utility, Inc. v. South Carolina Department of Health and Environmental Control, 301 S.C.
224, 391 S.E.2d 535 (1989). Further, DHEC concedes that all but two of the NPDES violations cited
in its Administrative Order occurred prior to the execution of the 1993 Consent Order. This is an
additional mitigating factor.
CWS argues that the Consent Order was an accord barring consideration of any previous
violations. Nothing in the Consent Order, however, references the pardon of previous NPDES
violations. DHEC's failure to bring enforcement action on violations predating the Consent Order
does not justify the avoidance of a penalty for them. See Midlands Utility, Inc. v. South Carolina
Department of Health and Environmental Control, 301 S.C 224, 391 S.E.2d 535 (1989); see also Midlands Utility, Inc. v. South Carolina Department of Health and Environmental Control, 298 S.C
66, 378 S.E.2d 256 (1989) (a party claiming estoppel against a public body must show a lack of
knowledge and means of knowledge of the truth as to the facts in question, justifiable reliance upon
the conduct of the party estopped and a prejudicial change in position).
CWS failed to present evidence of any representation by DHEC that it would pardon all
previous violations in exchange for execution of the Consent Order. Additionally, CWS admits the
violations in its Petition for Administrative Review. Therefore, a penalty must be imposed for the
violations predating the Consent Order. See Midlands Utility, Inc. v. South Carolina Department
of Health and Environmental Control, 301 S.C 224, 391 S.E.2d 535 (1989). These circumstances,
however, serve as an additional mitigating factor relevant to the amount of the penalty imposed. Id.
The circumstances of this case also warrant a suspension of a portion of the fines imposed.
CWS will most likely incur initial expenses ranging from approximately $180,000 to $190,000 to
either upgrade and sell its system or obtain bulk service from the District. The opportunity for CWS
to purge itself of a substantial portion of the fines imposed should encourage expeditious compliance
with the Section 208 plan, facilitate interconnection with the regional system, and bring an end to
the lengthy history of this litigation.
FINDINGS OF FACT
By a preponderance of the evidence, I find the following facts:
- Carolina Water Service, Inc. owns and operates the Whites Creek/ Lincolnshire wastewater
treatment facility ("WWTF"), which serves approximately 262 customers and has
approximately 328 total taps, in the Whites Creek/Lincolnshire subdivision in Georgetown
County, South Carolina.
- CWS's sewer system discharges effluent into a ditch leading to Whites Creek, which empties
into the Sampit River.
- On June 24, 1988, DHEC issued NPDES Permit No. SC0030732 to CWS with an effective
date of August 1, 1988, and an expiration date of January 1, 1990, to allow the discharge of
effluent to the environment in strict compliance with the requirements, terms and conditions
of the permit.
- The WWTF was identified by the Area-wide Waste Treatment Management Plan ("Section
208 Plan"), 33 U.S.C. § 1288, to interconnect with the regional sewer system, Georgetown
County Water & Sewer District.
- Part I.B.l. of the NPDES Permit contains the following provision:
This facility has been identified through the 201/208 planning process
for inclusion in a regional publicly owned treatment works. Upon
notification by SCDHEC that such publicly owned system is available
as determined by SCDHEC the permittee will have 90 days to
connect to the regional system and cease discharging from this
facility.
- Part I. B. 1. of the NPDES Permit further requires that the WWTF be closed out according
to law within 180 days after connection to the regional system. CWS did not seek to appeal
these or other provisions of the Permit. The Permit and these provisions thus became
effective on August 1, 1988.
- On May 1, 1989, DHEC received an application from CWS for renewal of the NPDES
Permit.
- DHEC refused to reissue the permit on the basis that renewal of the Permit would have been
in conflict with the approved 208 Plan.
- DHEC informed CWS by letter of March 7, 1990, that the Permit would not be renewed, but
would be extended to December 31, 1990, to allow time for connection to the regional sewer
system pursuant to the terms of the Permit.
- CWS was notified by letter from the District, dated December 20, 1990, that the regional
system's line was available for interconnection.
- CWS negotiated with the District in good faith for bulk service and its gift of the system to
the District.
- CWS never interconnected with the District, and the WWTF has continued to discharge
effluent.
- Prior to October 30, 1993, DHEC conducted the following twelve Operation and
Maintenance (O&M) Inspections which resulted in unsatisfactory findings and violations of
NPDES permit standards:
A. February 20, 1990 G. June 17, 1992
B. March 1, 1990 H. July 13, 1992
C. October 2, 1990 I. April 14, 1993
D. October 29, 1990 J. September 10, 1993
E. March 5, 1991 K. September 14, 1993
F. May 14, 1991 L. October 11, 1993
- Between April 3, 1990, and October 30, 1993, DHEC conducted the following Compliance
Sampling Inspections which resulted in twenty-one unsatisfactory findings and violations of
NPDES permit standards:
A. April 3, 4, 5, 1990
B. October 22, 23 24, 1990
C. April 15, 16, 17, 1991
D. August 26, 27, 28, 1991
E. January 20, 21, 22, 1992
F. July 21, 22, 23, 1992
G. June 14, 15, 16, 1993
- Between March, 1990, and October 30, 1993, self-monitoring Discharge Monitoring Reports
compiled by CWS revealed the following thirty-eight violations of NPDES permit standards:
A. March, 1990 - ammonia.
B. June, 1990 - excessive flow.
C. July, 1990 - biochemical oxygen demand, ammonia, excessive flow.
D. August, 1990 - biochemical oxygen demand.
E. October, 1990 - excessive flow.
F. January, 1991 - excessive flow.
G. June, 1991 - ammonia.
H. July, 1991 - excessive flow.
I. January, 1992 - excessive flow.
J. June, 1992 - excessive flow.
K. July, 1992 - excessive flow, pH.
L. August, 1992 - Ammonia, excessive flow.
M. September, 1992 - Ammonia, excessive flow.
N. October, 1992 - biochemical oxygen demand, ammonia, excessive flow.
O. November, 1992 - biochemical oxygen demand, excessive flow.
P. December, 1992 - excessive flow.
Q. January, 1993 - excessive flow.
R. February, 1993 - excessive flow.
S. March, 1993 - excessive flow.
T. April, 1993 - biochemical oxygen demand, excessive flow.
U. May, 1993 - ammonia.
V. June, 1993 - ammonia.
W. July, 1993 - ammonia.
X. August, 1993 - ammonia, excessive flow.
Y. September, 1993 - ammonia, excessive flow.
Z. October, 1993 - ammonia, excessive flow.
- CWS's facility was designed to meet the standards to which DHEC held the facility when
properly operated and maintained.
- All of the cited violations were independent of CWS's ability to upgrade its facility.
- Subsequent to October 30, 1993, self-monitoring Discharge Monitoring Reports compiled
by CWS revealed the following two additional violations of NPDES permit standards for
excessive flow:
AA. November, 1993 - excessive flow.
BB. December, 1993 excessive flow
- CWS and DHEC entered into Consent Order 93-060-W, effective October 30, 1993.
- Consent Order 93-060-W contained the following ordering provisions:
[CWS] shall:
1. Properly operate and maintain the WWTF under the
requirements, terms, and conditions of NPDES Permit
#SC0030732 until connected to the regional public sewer
system.
2. On or before November 1, 1993, begin negotiations with
[the District] to allow, either through bulk treatment or transfer
of ownership to [the District], the diversion of the WWTF
effluent to the regional collection system.
3. On or before February 3, 1994, submit to the Department a
copy of the contract between [CWS] and [the District] and an
approvable Preliminary Engineering Report ("PER")
addressing, either through bulk treatment or transfer of
ownership to [the District], the connection and subsequent
closeout of the WWTF. The PER shall contain a proposed
implementation schedule which, upon Department approval,
will become an enforceable part of this Order.
4. Properly closeout the WWTF within one hundred eighty
(180) days following elimination of the effluent discharge in
accordance with Regulation 61-82 and any specific
Department requirements.
- The Consent Order further provided that "failure to comply with any provision of this
Order shall be grounds for appropriate sanction and further enforcement action."
- CWS began negotiations with the District before November 1, 1993 for interconnection
to the regional system.
- Following negotiations for either reduced bulk service rates or the sale of its sewer system
to the District, CWS offered to give its sewer system to the District without cost to the
District.
- After inspecting the system, the District rejected CWS's offer based upon the condition of
the system. The District reasoned that the cost to bring the CWS system up to standards
acceptable to it would be approximately $190,000.
- The District's fee for connection for bulk service is $180,400.
- CWS failed to arrange for the District to accept the effluent discharge from the WWTF as
required by the terms of the Permit and the Consent Order.
- On September 29, 1994, DHEC issued Administrative Order 94-055-W, citing CWS for
violation of the Pollution Control Act for: (1) discharging wastewater into the
environment without being in compliance with a permit issued by DHEC; (2) violating
permit conditions; and (3) failing to connect its wastewater treatment facility to the
regional sewer system in accordance with the Section 208 plan.
- The Administrative Order seeks to impose a $305,500 penalty for violation of the
Consent Order and 73 NPDES violations.
- At all times relevant to this matter, the District has been ready, willing, and able to
provide interconnection to CWS at a bulk rate comparable to that charged to its other
bulk customer.
- CWS's infiltration and inflow problems affect the resulting rate for bulk service from the
District.
- The District's other bulk customer, Green Acres Mobile Home Park, is charged a rate of
approximately $12 to $18 per month per residential equivalent user.
- With the exception of two violations, all of the NPDES violations cited in Administrative
Order 94-055-W occurred prior to the execution of the October 30, 1993 Consent Order.
- Because interconnection has not occurred, the CWS wastewater system continues to
discharge effluent into Whites Creek.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude, as a matter of law:
1. The Administrative Law Judge Division has subject matter jurisdiction of this
case pursuant to S.C. Code Ann. §§ 1-23-310 et seq. (1986 & Supp. 1998) and 25 S.C. Code
Ann. Regs. 61-72.201 (Supp. 1998).
2. The standard of proof in administrative proceedings is a preponderance of the
evidence. Anonymous v. State Board of Medical Examiners, 329 S.C. 371, 496 S.E.2d 17
(1998); 25 S.C. Code Ann. Regs. 61-72.702(B) (Supp. 1998).
3. Section 208 of the Federal Clean Water Act authorizes an area-wide management
plan for water quality control in problem areas and gives planning authority to designated
agencies within each identified area. 33 U.S.C. § 1288.
4. DHEC is prohibited from issuing a water pollution control permit for any
discharge inconsistent with a Section 208 plan. 24 S.C. Code Ann. Regs. 61-9.122.4(g) (Supp.
1998).
5. South Carolina Code Ann. § 48-1-110(d) (Supp. 1998) provides that it shall be
unlawful for any person to operate an approved waste disposal facility in violation of the
conditions of the permit to discharge.
6. South Carolina Code Ann. § 48-1-90 (Rev. 1987) provides that it shall be
unlawful for any person, directly or indirectly, to discharge into the environment of the State
organic or inorganic matter, except as in compliance with a permit issued by DHEC.
7. The burden of proof is on DHEC to demonstrate that CWS violated the October
30, 1993 Consent Order, the South Carolina Pollution Control Act and the regulations
promulgated thereunder. See 2 Am.Jur.2d Administrative Law § 360 (1994) (generally, the
burden of proof is on the party asserting the affirmative in an adjudicatory administrative
proceeding); Converse Power Corp. v. South Carolina Dep't of Health and Envt'l Control, 98-ALJ-07-0032-CC (June 15, 1998).
8. The trier of fact must weigh and pass upon the credibility of evidence presented. See S.C. Cable Television Ass'n v. Southern Bell Tel. and Tel. Co., 308 S.C. 216, 417 S.E.2d
586 (1992). The trial judge who observes a witness is in the best position to judge the witness's
demeanor and veracity and evaluate his testimony. See, e.g., McAlister v. Patterson, 278 S.C.
481, 299 S.E.2d 322 (1982).
9. Any person violating the Pollution Control Act is subject to a civil penalty not to
exceed ten thousand dollars for each day of violation. S.C. Code Ann. § 48-1-330 (1987).
10. Section 48-1-330 does not require a showing of harm to the environment as a
prerequisite to liability. Midlands Utility, Inc. v. South Carolina Department of Health and
Environmental Control, 298 S.C. 66, 378 S.E.2d 256 (1989). Where the potential for harm
exists, the imposition of a penalty is necessary to deter future violations. See Midlands Utility,
Inc. v. South Carolina Department of Health and Environmental Control, 313 S.C. 210, 437
S.E.2d 120 (1993).
11. Each fine must be analyzed individually to determine if it is appropriate under the
circumstances. Midlands Utility, Inc. v. South Carolina Department of Health and
Environmental Control, 313 S.C. 210, 437 S.E.2d 120 (1993). In assessing a penalty, the fact
finder "should give effect to the major purpose of a civil penalty -- deterrence." Id.
12. A reduced penalty is justified where mitigating factors are present. See Midlands
Utility, Inc. v. South Carolina Department of Health and Environmental Control, 301 S.C. 224,
391 S.E.2d 535 (1989).
13. CWS violated the terms of the October 30, 1993 Consent Order by failing to reach
an agreement with the District for connection of its wastewater treatment facility to the regional
sewer system, by failing to close out its facility within the scheduled period of time, and by
failing to properly operate and maintain its facility under the conditions of its NPDES permit
until connected to the regional sewer system.
14. CWS violated S.C. Code Ann. § 48-1-110(d) (Supp. 1998) by violating the
conditions of its NPDES permit in failing to meet specified permit standards and in failing to
connect its wastewater treatment facility to the regional sewer system in accordance with the
Section 208 Plan.
15. CWS violated S.C. Code Ann. § 48-1-90 (Rev. 1987) by discharging wastewater
into the environment without being in compliance with a permit issued by DHEC.
16. The terms of the Consent Order do not forgive NPDES violations predating it.
17. DHEC's failure to bring enforcement action on violations preceding the Consent
Order do not justify the avoidance of a penalty for them. See Midlands Utility, Inc. v. South
Carolina Department of Health and Environmental Control, 301 S.C 224, 391 S.E.2d 535 (1989)
18. A party claiming estoppel against a public body must show a lack of knowledge
and means of knowledge of the truth as to the facts in question, justifiable reliance upon the
conduct of the party estopped and a prejudicial change in position. See Midlands Utility, Inc. v.
South Carolina Department of Health and Environmental Control, 298 S.C 66, 378 S.E.2d 256
(1989).
19. CWS's perceived financial hardship and its execution of the Consent Order in an
attempt to comply with its NPDES permit conditions are mitigating factors that may be taken
into consideration in determining the appropriate amount of the penalty for violations.
20. Acting as the fact-finder, it is the prerogative of the administrative law judge "to
impose the appropriate penalty based on the facts presented." Walker v. South Carolina ABC
Comm'n, 305 S.C. 209, 211 S.E.2d 633, 634 (1991).
21. Appropriate penalties under the facts of this case are as follows: $100 for each of
the twelve Operation and Maintenance violations predating the 1993 Consent Order, $100 for
each of the twenty-one Compliance Sampling Inspections violations predating the Consent
Order, $100 for each of the thirty-eight self-monitoring Discharge Monitoring Reports violations
predating the Consent Order, $100,000 for failure to comply with the October 30, 1993 Consent
Order and $1000 for each of the two self-monitoring Discharge Monitoring Reports violations
occurring after the execution of the Consent Order, for total fines of $109,100.
22. The opportunity for CWS to purge itself of a substantial portion of the fines
imposed should encourage expeditious compliance with the Section 208 plan, facilitate
interconnection with the regional system, and bring an end to the lengthy history of this litigation.
Therefore, it is within this tribunal's authority to suspend a portion of the fines imposed in this
case. See. S.C. Code Ann. § 1-23-630 (Supp. 1998) ("Each of the law judges of the
[Administrative Law Judge] division has the same power at chambers or in open hearing as do
circuit court judges . . . ."); cf. State v. Kennerly, 331 S.C. 442, 503 S.E.2d 214 (Ct. App. 1998)
(quoting In re Terry, 128 U.S. 289, 303 (1888) ("'The power to punish for contempt is inherent
in the nature and constitution of a court. It is a power not derived from any statute, but arising
from necessity; implied, because it is necessary to the exercise of all other powers.'").
23. Any motions or issues raised in these proceedings, but not addressed in this Order
are deemed denied pursuant to ALJD Rule 29(C).
ORDER
IT IS THEREFORE ORDERED that Petitioner Carolina Water Services, Inc. pay to the
South Carolina Department of Health and Environmental Control a fine of One Hundred Nine
Thousand, One Hundred Dollars ($109,100) within thirty (30) days of the date of this Order for
violation of the October 30, 1993 Consent Order and violations of the South Carolina Pollution
Control Act.
IT IS FURTHER ORDERED that a portion of the fines imposed, Eighty-nine Thousand
One Hundred Dollars ($89,100) shall be suspended upon Petitioner's presentation to DHEC, within
fifteen (15) days of the date of this Order: (1) its written agreement with the Georgetown County
Water & Sewer District for connection of its wastewater treatment facility to the regional sewer
system; and (2) a preliminary engineering report addressing the connection and subsequent closeout
of the facility.
IT IS FURTHER ORDERED that Petitioner shall properly operate and maintain its
wastewater treatment facility under the terms of NPDES Permit # SC0030732 until connected to the
regional public sewer system.
IT IS FURTHER ORDERED that following interconnection with the regional sewer
system and elimination of the effluent discharge in accordance with DHEC regulations and DHEC's
specified requirements, Petitioner shall properly close out its wastewater treatment facility within
one hundred eighty (180) days thereafter.
AND IT IS SO ORDERED.
____________________________________
STEPHEN P. BATES
ADMINISTRATIVE LAW JUDGE
January 26, 1999
Columbia, South Carolina
1. Formerly known as Georgetown County Water and Sewer Authority.
2. Section 201 of the Federal Clean Water Act authorizes an area-wide plan to identify
what wastewater treatment facilities are necessary to efficiently meet the needs of the area.
Section 201 also provides for EPA grants for necessary construction. |