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:
Carolina Water Service, Inc. vs. SCDHEC

AGENCY:
South Carolina Department of Health and Environmental Control

PARTIES:
Petitioner:
Carolina Water Service, Inc.


Respondent:
South Carolina Department of Health and Environmental Control
 
DOCKET NUMBER:
94-ALJ-07-0329-CC

APPEARANCES:
E. Crosby Lewis and Timothy J. Slabouz, Attorneys for Petitioner

Thomas G. Eppink, Attorney for Respondent South Carolina

Department of Health and Environmental Control
 

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:

  1. 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.
  2. CWS's sewer system discharges effluent into a ditch leading to Whites Creek, which empties into the Sampit River.
  3. 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.
  4. 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.
  5. 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.



  1. 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.
  2. On May 1, 1989, DHEC received an application from CWS for renewal of the NPDES Permit.
  3. DHEC refused to reissue the permit on the basis that renewal of the Permit would have been in conflict with the approved 208 Plan.
  4. 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.
  5. CWS was notified by letter from the District, dated December 20, 1990, that the regional system's line was available for interconnection.
  6. CWS negotiated with the District in good faith for bulk service and its gift of the system to the District.
  7. CWS never interconnected with the District, and the WWTF has continued to discharge effluent.
  8. 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

  1. 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

  1. 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.

  1. CWS's facility was designed to meet the standards to which DHEC held the facility when properly operated and maintained.
  2. All of the cited violations were independent of CWS's ability to upgrade its facility.


  1. 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

  1. CWS and DHEC entered into Consent Order 93-060-W, effective October 30, 1993.
  2. 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.

  1. 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."
  2. CWS began negotiations with the District before November 1, 1993 for interconnection to the regional system.
  3. 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.
  4. 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.
  5. The District's fee for connection for bulk service is $180,400.
  6. 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.
  7. 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.
  8. The Administrative Order seeks to impose a $305,500 penalty for violation of the Consent Order and 73 NPDES violations.
  9. 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.
  10. CWS's infiltration and inflow problems affect the resulting rate for bulk service from the District.
  11. 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.
  12. 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.
  13. 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.


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