ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF CASE
This is a contested case in which the Petitioner challenges certain effluent limitations and
monitoring requirements contained in Land Application Permit No. ND0004472 issued by the
Respondent South Carolina Department of Health and Environmental Control ("DHEC"). A
contested case hearing was held on May 14, 1998, at the Administrative Law Judge Division.
FINDINGS OF FACT
Having observed the witnesses and exhibits presented at the hearing and closely passed upon
their credibility, taking into consideration the burden of persuasion by the Petitioner and Protestant,
I make the following Findings of Fact by a preponderance of evidence:
1. The Petitioner owns and operates a textile manufacturing facility in Florence County,
South Carolina that consists of two plants:
A. The Pamplico plant, constructed in 1966; and
B. The Cypress plant, constructed in 1969.
(The two plants are hereafter jointly referred to as "the Facility").
2. The wastewater generated at the Facility consists of both sanitary wastewater
(generated by employees) and industrial wastewater (generated by the manufacturing process).
3. An oxidation pond was originally used for treating wastewater generated at the
Facility.
4. In 1975, the Petitioner received authorization from DHEC to install and operate a
system that pipes wastewater from the oxidation pond and sprays it onto a field at the Facility. Soil
microorganisms in the spray field act as a "biofilter" in providing additional treatment of the
Facility's wastewater, and grasses that are planted on the field assimilate nutrients contained in the
waste.
5. As a condition to its approval of the spray field, DHEC required the Petitioner to
perform an "aerosol study" to determine whether any bacteria were present in the atmosphere at and
near the field. If bacteria were detected at sufficient levels, DHEC would have required the
Petitioner to disinfect the wastewater prior to spraying it onto the field. The aerosol study, which
was conducted in December of 1975 and April of 1976, sampled the atmosphere above the spray
field itself and at points 50, 100, 200 and 500 feet downwind from the field. No bacteria were
detected. Accordingly, DHEC did not require disinfection at the Facility, nor has the agency
required the Petitioner to conduct any further aerosol studies.
6. When it approved the spray field, DHEC required the Petitioner to install and
periodically sample two groundwater monitoring wells to determine whether the treatment system
was having any impact on groundwater. These wells have been sampled since 1975 and no impact
on groundwater has been detected.
7. In 1987, the Petitioner received authorization from DHEC to increase the size of the
spray field from four acres to 10.4 acres. DHEC required the Petitioner to install two additional
groundwater wells at the expanded field. Regular sampling of these wells since 1987 likewise has
shown that the treatment operation has had no impact on groundwater.
8. The Facility is located in a rural, sparsely populated area of Florence County. The
expanded spray field is located on land entirely owned and controlled by the Petitioner. There is a
vegetated buffer of approximately 400 feet between the spray field and the Petitioner's property line.
9. The spray field operates an average of four hours per day, with the spray rotated
evenly across four different zones of the field. Until recently, the rotation was done manually by one
employee briefly going down to the area and redirecting the spray. On April 30, 1998, DHEC
authorized the Petitioner to install an automatic system for rotating the spray.
10. There is no other land application system in South Carolina that is similar to the one
operated by the Petitioner.
11. On June 28, 1996, DHEC promulgated Regulation 61-9.505 entitled "Land
Application Permits and State Permits." This regulation requires a permit "for the discharge of
pollutants from any source directly or indirectly into groundwater of the State or to the land of the
State." Reg. 61-9.505.1(b)(1).
12. The Petitioner submitted an application for a permit pursuant to this new regulation.
13. DHEC issued the final Land Application Permit (No. ND0004472) ("Permit") on
September 8, 1997.
14. The Petitioner challenges three provisions of the Permit: (a) the effluent limit on
fecal coliform; (b) the requirement that the wastewater (prior to being sprayed onto the field) be
sampled for fecal coliform, nitrate, Biological Oxygen Demand ("BOD"), and Total Suspended
Solids ("TSS"); and (c) the "reopener clause" which states that the Permit may be "reopened" in two
years to impose specific limits on BOD and TSS.
15. The regulation regarding effluent limits on fecal coliform provides as follows:
Land application systems. For those systems with domestic
wastewater (e.g., municipal or private facilities), a minimum of
200/100 ml monthly average and 400/100 ml daily maximum, or the
fecal coliform standard from nearest surface water body as defined in
R. 61-68 (if this surface water is classified with a more restrictive
standard). For all other discharges, the Department may use the
previously identified limits, or establish other fecal coliform
limitations to reflect the specific discharge and site conditions.
Reg. 61-9.505.45(i)(9)(i).
A central issue in this case involves the phrase "systems with domestic wastewater" in the
first sentence of this provision. DHEC contends that the Petitioner operates "a system with domestic
wastewater" and, therefore, a fecal coliform limit must be imposed, even though the Facility has not
caused any adverse environmental impact in over twenty years of operation. As DHEC's only
witness, Butch Swygert, testified:
Q. Mr. Swygert, there is no evidence at this facility of any
adverse impact on groundwater?
A. Correct.
Q. There is no evidence at this facility of any adverse impact on air; is that
correct?
A. That's correct.
Q. There is no evidence at this facility of any adverse impact on surface water;
is that correct?
A. That's correct.
Q. So the only reason that we are here today involved in this dispute is because
there is this new regulation; is that correct?
A. That's correct.
Q. And that you and your staff feel absolutely compelled to impose a fecal
coliform limit on Delta Mills even though there is no environmental impact,
correct?
A. I want to qualify my answer on that. With the regs as the way they are, the
way we read them we don't have a choice, if that's what you're asking.
Q. Right. You have no choice in your opinion, except to apply the fecal
coliform limit to Delta Mills even though there is no environmental impact
from this facility?
A. That's correct.
Transcript of Hearing, p. 138, l. 8-25 and p. 139, l. 1-9. Similarly, Mr. Swygert later testified: "I
agree there is no problem out there. But we don't have a choice the way the regs are written [except]
to apply it." Transcript of Hearing, p. 151, l. 9-11.
The Petitioner counters that because it operates a system with both domestic wastewater and
industrial wastewater, the Facility is subject to the second sentence of Reg. 61-9.505.45(i)(9)(i),
which gives DHEC the discretion, on a case-by-case basis, not to impose any fecal coliform limit
based on "the specific discharge and site conditions." The Petitioner emphasizes that it has operated
the Facility for over twenty years without causing any environmental problem and without being
subject to any specific effluent limits.
16. The Facility is regulated by DHEC's Industrial, Agricultural & Stormwater
Permitting Division. DHEC's Water Facilities Division regulates "publicly owned treatment works"
and "privately owned treatment works," which are defined in Reg. 61-9.122(b)(63) and (66),
respectively. The Facility operated by the Petitioner is neither a publicly owned treatment works nor
a privately owned treatment works.
17. With respect to BOD and TSS, DHEC maintains that these parameters are governed
by Reg. 61-9.505.45(i)(8): "For dischargers other than Publicly Owned Treatment Works and
domestic wastewater. Adequate treatment shall be determined by the Department on an individual
project basis." DHEC's position essentially is that the Facility is "a system with domestic
wastewater" under Reg. 61-9.505.45(i)(9)(i) but is not a "domestic wastewater discharger" under
Reg. 61-9.505.45(i)(8). Thus, according to the agency, it has discretion under the latter not to
impose specific limits (although it has required monitoring for BOD and TSS), but the former leaves
it with no choice but to impose a specific limit for fecal coliform.
18. If the Petitioner's wastewater was disposed of through a tile field (i.e., through a
network of underground soil absorption trenches) rather than sprayed, DHEC's position is that it
would have the discretion under Reg. 61-9.505.45(i)(9)(ii) not to impose any limits on fecal
coliform.
19. DHEC's Land Application Regulation does not define "domestic wastewater," but
the generally accepted definition of the term is human waste. It is used interchangeably with the
terms "sanitary waste" and "domestic sewage."
20. Untreated domestic wastewater typically contains 200 milligrams per liter (mg/l) of
BOD; 200 mg/l of TSS, and 700 mg/l of Chemical Oxygen Demand ("COD"). The Facility's
wastewater (at the point where it is sprayed onto the field) contains 85-140 mg/l of BOD; 87-240
mg/l of TSS, and 2,150 to 4,260 mg/l of COD. Over 80 percent of the total organic strength of the
Facility's wastewater is attributable to the industrial waste. In fact, the spray field system was
installed solely because of the industrial waste.
21. Chlorination is an effective, and the most commonly used, means of reducing fecal
coliform levels in wastewater, but it is typically applied as the final step in the treatment process
after most of the solids in the waste have been removed. Dr. Sam White, one of the Petitioner's
experts, testified that he would not recommend chlorinating the Facility's wastewater (at the point
where it is sprayed onto the field) because "there are too many solids present." These solids would
"prevent the chlorine from coming into contact with the bacteria." Indeed, Dr. White is not aware
of any treatment system that applies chlorination to wastewater of the type that is sprayed onto the
field at the Facility. Even if chlorination was applied, it would pose, in Dr. White's opinion, a
substantial risk of creating chlorinated organic compounds in the soil that could contaminate the
groundwater beneath the spray field. Dr. White also expressed the opinion that two other
disinfection technologies (ozone and ultraviolet radiation) would not be feasible because of the solids
in the wastewater. I find Dr. White's opinions credible and persuasive.
CONCLUSIONS OF LAW
1. The Administrative Law Judge Division has subject matter jurisdiction of this case
pursuant to the South Carolina Administrative Procedures Act, S.C. Code Ann. § 1-23-310 et seq.
(1986 and Supp. 1997) and DHEC's Regulation on Contested Cases, 25 S.C. Code Ann. Regs. 61-72
(Supp. 1997).
2. The issue as to the fecal coliform limit is whether the Petitioner operates "a system
with domestic wastewater" within the meaning of the first sentence of Reg. 61-9.505.45(i)(9)(i). It
is undisputed that, although most of the wastewater treated by the system is generated by the
manufacturing process, some wastewater generated by humans (domestic wastewater) also enters
the system. DHEC's position is that as long as a system treats some, even a minuscule amount, of
domestic wastewater, it is subject to the first sentence, and fecal coliform limits must be imposed.
3. In construing a statute or regulation, sections which are part of the same general law
must be construed together and each given effect, if it can be done by any reasonable construction. See Nucor Steel v. S.C. Pub. Serv. Comm'n, 310 S.C. 539, 426 S.E.2d 319 (1992); Seckinger v.
Vessel Excalibur, 326 S.C. 382, 483 S.E.2d 775 (Ct. App. 1997). Accordingly, in determining
whether the Delta Mills system is a "system with domestic wastewater," it is appropriate to consider
definitional provisions within Regs. 61-9. Although Regs. 61-9.505 contains no definition of either
"domestic wastewater" or "industrial wastewater," Regs. 61-9.505.2(a) states that "[t]he definitions
contained in R. 61-9.122, R. 61-9.124, R. 61-9.125, R.61-9.129, R. 61-9.133, R. 61-9.403, R. 61-9.503 and R. 61-9.504 apply to this regulation." There is no definition of "domestic wastewater"
listed in any of these sections. However, Regs. 61-9.504(m) does define "industrial wastewater" as
follows:
"Industrial wastewater" is wastewater generated in a commercial or
industrial process (including waste and wastewater from humans
when combined with commercial or industrial wastewater). By
definition, waste or wastewater from humans not combined with
commercial or industrial wastewater will be considered domestic
sewage covered under R. 61-9.503.
(Emphasis added). According to this definition, therefore, Delta Mills' wastewater, which primarily
consists of wastewater generated by the industrial process, but which is combined with a small
amount of wastewater from humans, is "industrial wastewater." Moreover, pursuant to this
definition, the portion of Delta Mills' wastewater attributable to humans is not considered "domestic
sewage" because it is combined with commercial or industrial wastewater. Since "domestic sewage"
is equivalent to "domestic wastewater," I conclude that Delta Mills' system is not a "system with
domestic wastewater," and is therefore not subject to the first sentence of Regs. 61-9.505.45(i)(9)(i).
Instead, it is subject to the second sentence of the regulation, which provides that DHEC may use
previously identified limits, or may establish other fecal coliform limitations to reflect the specific
discharge and site conditions.
4. Moreover, the words of a regulation must be given their plain and ordinary meaning
without regard to subtle or forced construction to limit or expand the regulation's operation. Byerly
v. Connor, 307 S.C. 441, 415 S.E.2d 796, 799 (1992): In this instance, it is appropriate to consider
the plain and ordinary meaning of the word "with" in the phrase "system with domestic wastewater."
Webster's Dictionary lists a number of meanings of the word "with"; the ones relevant here
are:
A. Used to indicate the presence of (crowded with people);
B. Possessing, characterized by (a man with a wooden leg);
C. Having (don't eat with your mouth open); and
D. Including (it's $20 with tax).
New Webster's Dictionary and Thesaurus of the English Language (3d ed. 1995), p. 1129.
Some of these meanings (e.g., "including"), lend support to DHEC's interpretation of the
regulation, while other meanings (e.g., "characterized by"), support Delta Mills' interpretation.
However, under the circumstances of this case, and in light of the applicable definitions within the
regulation, I conclude that the most logical meaning of the word "with" to be applied in this
regulation is the meaning "characterized by." Therefore, the phrase "with domestic wastewater"
does not apply to a system that treats industrial wastewater. If that had been the intent, the regulation
could have easily said so.
Additional support for this interpretation lies in the maxim, expressio unius est exclusio alterius ("expression of one thing is exclusion of another"), which is a "long standing rule of
statutory construction" in South Carolina. Scholtec v. Estate of Reeves, 490 S.E.2d 603, 607 (S.C.
App. 1997), reh'g denied, Sept. 18, 1997. In Matthews v. Nelson, 401 S.E.2d 669, 671 (S.C. 1991),
the South Carolina Supreme Court approved the definition of the maxim in Black's Law Dictionary:
"Mention of one thing excludes another. When certain persons or things are specified in a law,
contract, or will, an intention to exclude all others may be inferred." 401 S.E.2d at 671 n.1. In this
case, only "domestic wastewater" is specified in the regulatory provision in question. Therefore,
applying the well settled maxim means that other types of wastewater are excluded. Accordingly,
the first sentence of Reg. 61-9.505.45(i)(9)(i) is not applicable to the Facility. Rather, the Facility
is subject to the second sentence, which does not impose a mandatory fecal coliform limit but instead
allows DHEC to impose limits based upon the specific facts of each case.
5. In light of the undisputed fact that the Facility has not caused any adverse
environmental impact in over twenty years of operation, and in light of the DHEC witnesses'
testimony that the only reason for imposing limits was their interpretation of the regulation, there
is no reasonable basis for imposing any effluent limit on fecal coliform at this time. As to the issue
of monitoring for fecal coliform, nitrate, BOD and TSS, groundwater at the spray field has been, and
continues to be, sampled and analyzed on a regular basis. In over twenty years of operation, no
groundwater problem has been detected at the Facility; therefore, there is no basis for requiring the
Petitioner to monitor the wastewater before it is sprayed onto the field.(1)
I further conclude that in the absence of any monitoring requirements, there is no basis for
the "reopener clause" in the Permit. Moreover, if any reason to reopen this permit occurs under 61-9.122.44(b)(1) the Department can reopen the permit pursuant to those provisions.
ORDER
For the foregoing reasons, IT IS ORDERED THAT:
1. The Discharge Limitations and Monitoring Requirements on fecal coliform contained
in the Permit be and are hereby stricken;
2. The Monitoring Requirements for fecal coliform, Biological Oxygen Demand, Total
Suspended Solids and nitrate contained in the Permit be and are hereby stricken;
3. Paragraph 12 of Part III of the Permit be and is hereby stricken.
___________________________________
Ralph K. Anderson, III
Administrative Law Judge
February 11, 1999
Columbia, South Carolina
1. This ruling does not preclude DHEC from requiring such monitoring if a groundwater
problem arises in the future. |
