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:
Macalloy Corporation vs. SCDHEC

AGENCY:
South Carolina Department of Health and Environmental Control

PARTIES:
Petitioner:
Macalloy Corporation

Respondent:
South Carolina Department of Health and Environmental Control
 
DOCKET NUMBER:
99-ALJ-07-0444-CC

APPEARANCES:
Robert T. Bockman and Ethan R. Ware,
Attorneys for the Petitioner Macalloy Corporation

Samuel L. Finklea, III and Robert G. McCullough
Attorneys for Respondent South Carolina Department of Health and Environmental Control
 

ORDERS:

FINAL ORDER AND DECISION

STATEMENT OF THE CASE

This matter comes before the Administrative Law Judge Division pursuant to Article 1, § 22 of the South Carolina Constitution; the South Carolina Administrative Procedures Act, S.C. Code Ann. §§ 1-23-310 et seq. (1986 & Supp. 1999); South Carolina Department of Health and Environmental Control (DHEC or Department) Regulation 61-72, 25 S.C. Code Ann. Regs. 61-72 (Supp. 1999); and Rule 1 of the South Carolina Administrative Law Judge Division Rules upon request by Macalloy Corporation (Macalloy) for an administrative hearing. Macalloy seeks the reversal of a decision of DHEC in which DHEC refused to lift an Emergency Order banning the harvesting or collecting of shrimp and crab in Shipyard Creek in North Charleston, South Carolina. After notice to all parties, a hearing was held on March 14, 2000.



FACTUAL BACKGROUND AND FINDINGS OF FACT

Having carefully considered all testimony, exhibits, and arguments presented at the hearing in this case and taking into account the credibility and accuracy of the evidence, I find the following.

A. Factual Background

For many years, Macalloy operated a ferrochromium alloy smelting facility located adjacent to Shipyard Creek. Ferrochromium is a raw material used to produce stainless steel. The facility ceased operations in July 1998. Tr. at 12-13. Macalloy is presently in the process of responding to historical contamination at the facility.

On April 30, 1998, the Department issued an Emergency Order (Pet. Ex. 2), pursuant to S.C. Code Ann. § 44-1-140 (1976) (Section 44-1-140), banning all harvesting or collecting of shrimp and crab from the mouth of Shipyard Creek to its headwaters. Section 44-1-140 authorizes DHEC to promulgate and enforce reasonable rules and regulations for "safety and sanitation in the harvesting, storing, processing, handling and transportation of mollusks, fin fish and crustaceans." S.C. Code Ann. § 44-1-140(5) (1976). It further authorizes DHEC to issue separate orders to meet any emergency not provided for by general rules and regulations to address "danger to the public life and health." Id. The Emergency Order specifically cited elevated levels of chromium in shrimp, crab, and oysters as the basis for DHEC's action. The Emergency Order stated that the ban would remain in effect until such time as the Department "has cause to modify or revoke" it.

Following issuance of the Emergency Order, Macalloy retained two consulting companies -- McLaren/Hart, Inc. (McLaren/Hart), and Kestrel Management Services, LLC (Kestrel), which retained a third firm, Hazardous Substance & Waste Management Research, Inc. (HSWMR) (collectively, Consultants) -- to determine whether contaminants in the Shipyard Creek posed a threat to public health and to determine whether there was a legitimate basis for DHEC's Emergency Order. Those studies concluded that the chromium levels present in the sediments of Shipyard Creek and in shrimp and crab in Shipyard Creek did not pose a threat to public health because the type of chromium present in the shrimp and crab is trivalent chromium, which is not toxic unless consumed in very large quantities.

On May 18, 1999, Macalloy requested the Department in writing to revoke the Emergency Order. Pet. Ex. 4. As the basis for the request, Macalloy cited the studies by its Consultants which had concluded that the chromium levels present in the sediments and in the shrimp and crab of Shipyard Creek did not pose a threat to public health. Copies of these reports were enclosed with Macalloy's letter. The letter requested an opportunity to meet with the Department to present these studies and to discuss them in detail.

On June 3, 1999, representatives of Macalloy and its Consultants met with representatives of the Department and the South Carolina Department of Natural Resources ("DNR") to discuss the studies. Macalloy made a detailed presentation regarding the findings and conclusions of the studies. DHEC informed Macalloy that it would consider the studies provided and would respond at a later date to Macalloy's request to lift the Emergency Order.

On August 12, 1999, the Department informed counsel for Macalloy by letter that it would not revoke the Emergency Order. Pet. Ex. 5. The Department's letter stated that further data would be required "to determine what health risks remain from consumption of shrimp and crab." The Department enclosed a workplan which could be used by Macalloy to develop a detailed scope of work for the collection and analysis of additional data. Counsel for Macalloy received the Department's letter on August 16, 1999. On August 27, 1999, Macalloy filed a Petition for Administrative Review seeking review of the Department's decision not to revoke its Emergency Order banning the harvesting or collecting of shrimp and crab in Shipyard Creek.

B. Findings of Fact

1. The uncontradicted expert testimony and evidence presented by Macalloy establishes that the vast majority, if not all, of the chromium in the sediments and shellfish of Shipyard Creek is trivalent chromium.

2. Trivalent chromium is an essential nutrient which occurs in nature and is routinely consumed by humans. It is not toxic unless consumed in extremely large amounts.

4. Even making the conservative assumption that up to 16% of the chromium could be hexavalent chromium, consumption of the chromium by a subsistence fisherman would still be far below the adjusted EPA reference dose and would not pose a threat to public health.



DISCUSSION AND CONCLUSIONS OF LAW

Based upon the Findings of Fact, I conclude the following as a matter of law.

A. Discussion

The issue in this proceeding is whether the levels of chromium in shrimp and crab in Shipyard Creek posed and continue to pose a "danger to public life and health," such that DHEC's closure of the Creek was justified under S.C. Code Ann. § 44-1-140. If the facts do not support a "danger to public life and health," there is no legal basis for the Department's Emergency Order banning shrimping and crabbing in Shipyard Creek, and the Emergency Order should have been revoked as requested by Macalloy.

Based on the expert testimony presented at the hearing, the key issue in determining whether there is a danger to public health is the type of chromium present in the shrimp and crab tissue. If the chromium is hexavalent chromium, also referred to as "chrome 6," a substantial public health concern might exist if sufficient amounts of shrimp or crab are consumed. If the chromium is trivalent chromium, also referred to as "chrome 3," there is no public health concern because trivalent chromium is relatively non-toxic. Chrome 3 is an essential nutrient that is present in vitamins, and it occurs in nature. Tr. at 77-78 and 105. It does not pose a threat to public health unless consumed in extremely large quantities. Tr. at 105. The United States Environmental Protection Agency (EPA) reference dose, or safe dose, for hexavelent chromium is .003 milligrams per kilogram of body weight per day. Tr. at 89. The EPA reference dose for trivalent chromium is 1.5 milligrams per kilogram of body weight per day. Tr. at 94. Thus, the reference dose for trivalent chromium is approximately 500 times higher than the reference dose for hexavalent chromium. Tr. at 94.

The determination of the health risk of a particular chemical, including chromium, also depends upon the bioavailability of that chemical. "Bioavailability" is the measure of the amount of a chemical that is available for absorption by biological species. Chemicals which pass through a biological system without being absorbed are said to have 0% bioavailability, while chemicals that are completely ingested and absorbed are said to have 100% bioavailability. Tr. at 73-74.

Reference doses and bioavailability are helpful in understanding the circumstances under which DHEC initially issued the Emergency Order. Under the auspices of the National Oceanographic and Atmospheric Administration (NOAA), studies, which were relied upon by DHEC in this case, were conducted on the east coast of the incidence of various types of metals in marine systems. As part of this program, a 1997 study was done of the incidence of chromium in Shipyard Creek. Samples of shrimp, crab, fish and oysters were collected and analyzed by the Trace Element Research Laboratory (TERL) of Texas A&M University. TERL released its report "Final Tissue Chromium Data for the 1997 Shipyard Creek Study" on April 9, 1998, with an addendum on April 15, 1998. TERL utilized instrumental neutron activation analysis (INAA) as one of two testing methods to determine levels of chromium in the fish and shellfish tissue. With this method, fish or shellfish tissue is placed in polyethylene polyvial, then irridated using a gamma ray spectroscopy system. The same tissue was then tested using atomic absorption (AA). The AA method first subjects the tissue samples to acid which simulates digestion (acid digestion) before testing for chromium, where the INAA method directly measures chromium levels without the acid digestion step. The INAA method yielded elevated chromium in the tissue samples from Shipyard Creek. The results of the AA testing revealed lower levels of chromium than the INAA testing.

The TERL results were sent to the South Carolina Department of Natural Resources (DNR). Based on the TERL report, DNR came to the conclusion that levels of chromium in Shipyard Creek were among the highest in the nation. The results of the TERL analysis, along with the opinion from the DNR, were forwarded to DHEC.

A portion of this data was then forwarded by the Bureau of Water to Dr. Robert F. Marino, the Director of DHEC's Division of Health Hazard Evaluation. That Division is responsible for, among other things, measuring and assessing the health impacts to the public from exposure to toxic substances in the environment. Tr. at 140. Dr. Marino testified that he and his staff were asked by the Bureau of Water to determine whether the concentrations of chromium in the shellfish posed a public health risk. Tr. at 142. He was also asked to do so in a brief period of time. Tr. at 166. Dr. Marino received a single sheet of the Texas A&M data on Friday of the week prior to April 30, 1998, the date on which the Emergency Order was issued. He received some additional information on the Texas A&M work on the following Monday. Dr. Marino and the staff member to whom he assigned the project, Tracy Shelley, submitted his Division's recommendation to the Bureau of Water by Tuesday, April 28, 1998. Tr. at 167-69.

Dr. Marino testified that he and Ms. Shelley basically had no information, other than the Texas A&M data, about Shipyard Creek and had to "start from scratch." Tr. at 169. During the two- to-three-day period they were given to make their evaluation and propose a recommendation, Dr. Marino discussed Shipyard Creek and the amount of shellfish harvesting done there with DNR staff (Tr. at 170-171), but he had no time to do any primary research or even to do a literature search concerning the type, or valence, of the chromium (i.e., trivalent or hexavalent) that would likely be present in the shellfish tissue. Tr. at 173. Dr. Marino testified several times regarding the brief time frame he and Ms. Shelley had been given to make a recommendation. Tr. at 146, 148, 173-75 & 179. He stated that he was not informed of the reason for the urgency. Tr. at 174.

Dr. Marino further testified that he had concerns regarding the validity of the Texas A&M data because of the discrepancy in the data obtained utilizing the INAA method versus the data obtained using the more traditional AA method (Tr. at 149-52), with the INAA data showing much higher levels of chromium. He stated that he tried to resolve his concerns during the limited period of time he was given, but that he still had questions about the data even as of the hearing date. He also testified that he had concerns that the data had not been subject to peer review, although at the time he was unaware that the data had not been subject to peer review. Tr. at 172 & 177-79. Dr. Marino also testified that he had no previous experience with chromium contamination. Tr. at 182.

As a result of the short time frame and the limited information, Dr. Marino and Ms. Shelley utilized the most conservative set of assumptions possible regarding the type of chromium likely to be present in the shellfish. First, they assumed all of the chromium to be hexavalent and back-calculated the amount of shellfish that could be consumed under several scenarios utilizing the EPA reference dose for hexavalent chromium. Tr. at 146 & 181; Resp. Ex. 3. Then, they assumed that the chromium would be bioavailable (i.e., that all of it ingested by shellfish would be completely absorbed in the tissue of shellfish). Tr. at 181. Even utilizing these extremely conservative assumptions, Dr. Marino and Ms. Shelley did not recommend a total ban on shell fishing in Shipyard Creek. Rather, they proposed the issuance of a consumption advisory to inform the public regarding the amount of shellfish that could be consumed from Shipyard Creek without endangering health. Tr. at 180. They did not conclude that the situation posed a "danger to public life and health."

Even before Dr. Marino formally communicated his recommendations to the Bureau of Water, he was informed during a conference call with Alton Boozer, Chief of the Bureau of Water, and Bob King, Assistant Deputy Commissioner of Environmental Quality Control, that the Department had decided to issue a ban on shell fishing in Shipyard Creek rather than implement the consumption advisory Dr. Marino had concluded was appropriate. Tr. at 185-86. They informed Dr. Marino that a consumption advisory was too difficult to explain to the public, particularly in light of the limited number of meals per year being recommended. Tr. at 186. Dr. Marino testified that advisories had been issued in other specific situations in South Carolina involving contamination and that he did not know what would have made this advisory more difficult to enforce than any other the Department had previously issued. Tr. at 187. He further testified that he could not recall another situation in which a recommendation that he had made had not been adopted by the Department. Tr. at 188. David Baize, the Director of Water Monitoring Assessment and Protection Division of the Bureau of Water, testified that a group decision was made with the Bureau of Water to issue a complete ban because it was the best risk management approach to protect the public. Tr. 202-03.(3)

McLaren/Hart, which has expertise in chromium issues, produced two studies - one entitled "Screening Level Health Risk Assessment of Chromium in Shellfish and Finfish from Shipyard Creek, Charleston, South Carolina" (Pet. Ex. 10) and another entitled "Bioavailability of Chromium in Shipyard Creek Sediments" (Pet. Ex. 11). Kestrel and HSWMR, which has fifteen years experience in toxicology and risk assessment work (including chromium and fish consumption advisories), produced a Technical Report entitled "Chromium in the Environment: Evaluating the Biological Significance of Chromium to Aquatic Species and to Humans Based on Consumption of Aquatic Species, Shipyard Creek, South Carolina." Pet. Ex. 7. Macalloy submitted these studies to DHEC prior to the conference on June 3, 1999, in support of its request for revocation of the Shellfish ban. A presentation entitled "Shellfish Ban - Shipyard Creek" was presented at the meeting utilizing the information in these reports, as well as other data. Pet. Ex. 16. Both groups of consultants independently reached the conclusion that consumption of shellfish and finfish from Shipyard Creek does not pose a risk to human health and that a ban on shell fishing in Shipyard Creek had not been warranted and its continuation was not consistent with the scientific evidence.

On August 12, 1999, DHEC responded to the studies and information that Macalloy had presented at the meeting with a letter stating that it would not revoke the Emergency Order because additional monitoring data was needed to determine what health risks remained from consumption of shrimp and crab. Pet. Ex. 5. DHEC attached a suggested workplan which it stated could be used by Macalloy to develop a detailed scope of work for implementation.

According to the testimony at the hearing, the workplan had not been developed by DHEC after the meeting with Macalloy to provide guidance on the data DHEC needed to address public health concerns. In his deposition taken de bene esse, Chester Sansbury, Assistant Bureau Chief with the Bureau of Water, testified that the workplan had been prepared by DNR. Sansbury Depo. at 47. His recollection was that the workplan had been prepared prior to the meeting with Macalloy for broader purposes. Sansbury Depo. at 49. Mr. Sansbury further testified that he had discussed with David Baize the fact that the workplan was too extensive to meet DHEC's needs because it sought information that was not really necessary for additional risk assessment. Sansbury Depo. at 49-50. Mr. Sansbury further testified that DNR's interest was in ecological impacts which is separate from the public health question. Sansbury Depo. at 51. Mr. Baize acknowledged that the workplan had been provided to DHEC by DNR. Tr. at 225-26. Dr. Christopher Teaf, a professor at Florida State University and President and Director of Toxicology at HSWMR, testified at the hearing that the workplan was basically a research exercise, that it would be very expensive to implement, and that the additional information it may provide was not needed to assess public health impacts. Tr. at 230-31.

At the hearing, Macalloy presented extensive and credible testimony from qualified experts that consumption of shellfish from Shipyard Creek does not pose a threat to public health. David G. Nichols, a principal with Kestrel, was qualified as an expert in site investigation and assessment, geology, hydrogeology, and sediments. Tr. at 44. Mr. Nichols testified regarding his work in collecting existing data regarding chromium levels in the sediments of Shipyard Creek. Mr. Nichols presented this information in map and graphic format. Pet. Ex. 8. In his expert opinion, he concluded that the concentrations of total chromium (not speciated as hexavalent or trivalent) in the turning basin and south of the basin, which are areas downstream from Macalloy's facility, are not significantly different than background concentrations in that area of the State and are substantially less than background concentrations in some other locations of the Piedmont. Tr. at 61. Concentrations of total chromium in the sediment upstream from the turning basin, closer to the Macalloy facility, are elevated, but they are limited to two isolated areas, one of which is essentially inaccessible. Tr. at 61-62.

Ms. Deborah Proctor, a principal health scientist with McLaren/Hart, was qualified as an expert in environmental fate and risk assessment. Tr. at 72. She has extensive experience in the evaluation of chromium contamination in the environment (Tr. at 71-72) and has published ten manuscripts regarding health risks of chromium in peer-reviewed scientific literature. Pet. Ex. 9.

Ms. Proctor testified regarding the basics of chromium chemistry and identified the conditions in which trivalent and hexavalent chromium are likely to exist. Given a pH of 7 to 8, the existence of substantial amounts of organic matter, and low levels of dissolved oxygen, all of which are conditions in Shipyard Creek, she concluded that Shipyard Creek is generally a "reducing" environment which is a steady state for trivalent chromium to exist and an environment in which hexavalent chromium would be converted to trivalent chromium. Tr. at 79-83. She also testified regarding the process by which hexavalent chromium, when released to the environment, would be converted to trivalent chromium by organic material in the water and sediments, then residual hexavalent chromium would be reduced further to trivalent chromium when consumed by shrimp and crab because of the interaction with their gastric juices. Pet. Ex. 14; Tr. at 83-86. She stated that a human also has the capability to further convert any residual hexavalent to trivalent chromium in the gastrointestinal tract. Tr. at 85.

Ms. Proctor testified regarding the sediment samples which McLaren/Hart collected and analyzed to determine the type of chromium in the sediments in Shipyard Creek. Six samples were collected and split for analysis between Columbia Analytical in Washington and Dr. Bruce James, a recognized expert in chromium issues at the University of Maryland. Columbia Analytical found hexavalent chromium in only one sample, which was a sample taken near the Naval Base upstream from Macalloy's facility. Tr. at 96. Dr. James analyzed the samples and found no hexavalent chromium in any of the six samples. Pet. Ex. 12; Tr. at 97. Moreover, both Columbia Analytical and Dr. James determined that there was no hexavalent chromium in the samples collected near the outfalls at Macalloy where there were elevated levels of chromium. Tr. at 97. Thus, the form of chromium was nearly exclusively trivalent.

Ms. Proctor also testified regarding the risk assessment she conducted of the ingestion of shellfish and finfish in Shipyard Creek. Pet. Ex. 10. She utilized conservative assumptions assuming high levels of ingestion per EPA guidelines and assuming 100% bioavailability. She assumed that all of the chromium was trivalent and concluded that the ingestion of even high levels of shrimp on a regular basis would not pose a risk. Tr. at 87.

In response to questioning by the Court, Ms. Proctor explained that speciating the chromium in biological tissue was difficult because the acid extraction process essentially converts any hexavalent chromium to trivalent chromium. Tr. at 102. She testified that experts utilize published literature to assist in making this determination, such as the Food and Drug Administration Guidelines which assume chromium in shellfish to be trivalent chromium. Tr. at 102-04. They also utilize knowledge of chromium chemistry to make reasonable assumptions about the form of the chromium. Tr. 103-04. Ms. Proctor concluded that it was a safe assumption that trivalent chromium exists in shellfish in Shipyard Creek given the facts that it is trivalent chromium which is present in the sediments, that Shipyard Creek is an environment in which trivalent chromium would be expected to predominate, and that the published literature assumes trivalent chromium to be the form that exists in shellfish. Tr. at 105.

Dr. Christopher Teaf was qualified as an expert in toxicology and human health assessment. Tr. at 109. Dr. Teaf also has extensive experience in reviewing fish advisories, having served as a consultant to the Florida Department of Environmental Protection for a number of years. Tr. at 134-37. Consistent with Ms. Proctor's testimony, Dr. Teaf testified regarding the substantial body of published scientific literature which concludes that the type of chromium that exists in biological species is trivalent chromium. Pet. Ex. 17, p.2; Tr. 115-18. Dr. Teaf stated that all of this literature was available at the time that the Emergency Order was issued. Tr. at 116. He also testified that trivalent chromium does not convert to hexavalent chromium except in very peculiar circumstances, which circumstances do not exist in Shipyard Creek. Tr. at 119.

Dr. Teaf further testified regarding calculations he had made to compare intake levels of shellfish to the EPA reference dose set for trivalent chromium.(4) Dr. Teaf utilized a conservative set of assumptions, including the assumption of the maximum intake rates utilized by EPA for a recreational fisherman and for a subsistence fisherman and the assumption of the maximum concentration detected in the Texas A&M data of 77.8 mg/kg of chromium in shrimp. Dr. Teaf then compared the calculated intake to the EPA reference dose for trivalent chromium and found the calculated intake to be substantially less than the reference dose, thereby demonstrating that there would be no threat to public health from consumption of shellfish from Shipyard Creek. Pet. Ex. 17, p. 5; Tr. at 124.

Dr. Teaf also testified regarding a second calculation that he had made based upon a more conservative assumption that at least a portion of the chromium could be hexavalent, although he believed that was very unlikely. He described that two EPA regions make the assumption that there is the possibility of the existence of some hexavalent chromium in some media, and they then assume a ratio of trivalent to hexavalent chromium of five to one. Tr. at 124. Based on that assumption, Dr. Teaf recalculated the reference dose on the basis that one-sixth, or 16%, of the chromium could be hexavalent chromium and 84% could be trivalent chromium The recalculated reference dose still exceeded the intake rates by a very substantial amount, indicating no risk to public health. Pet. Ex. 17, p. 5.

Dr. Teaf further testified regarding a calculation he had performed to determine a safe target concentration of chromium in shellfish in order to compare that concentration to existing data. Tr. at 125-30. Taking the situation of a subsistence fisherman who would consume the highest amount of shellfish, Dr. Teaf calculated a target concentration of chromium in seafood of 620 ppm. Utilizing the specification of 16% hexavalent chromium and 84% trivalent chromium, Dr. Teaf calculated the target concentration to be 520 ppm. Both target concentrations substantially exceeded 77.8 ppm, the highest concentration of chromium found in any sample of any species in the Texas A&M data. Pet. Ex. 17, pp. 7-8.

Based on this analysis of the data, Dr. Teaf tendered his professional opinion that the environmental chemistry data did not support the imposition of the Emergency Order. He further opined that there is no need for a continuation of the Emergency Order banning shell fishing in Shipyard Creek. Tr. at 131.

DHEC offered no scientific evidence during the hearing to contradict the expert testimony presented by Macalloy that the chromium present in the sediments and shellfish in Shipyard Creek is trivalent chromium and that consumption of even substantial quantities of shellfish from Shipyard Creek would not pose a danger to public health. To suggest that conditions in Shipyard Creek could cause trivalent chromium to convert to hexavalent chromium, DHEC identified two considerations: the saltwater environment of Shipyard Creek and the presence of manganese. Ms. Proctor refuted both of those considerations. Ms. Proctor testified that manganese, in a form that could act as an oxidizing agent, would not likely exist in Shipyard Creek because the creek is a reducing environment and the manganese would likely have reacted with organic material, thereby neutralizing its oxidizing potential. Tr. at 98. With regard to the issue of a saltwater versus freshwater environment, Ms. Proctor testified that, while saltwater environments and freshwater environments are somewhat different, the conditions in Shipyard Creek create a reducing environment in which hexavalent chromium would be unstable and trivalent chromium would predominate. Tr. at 86. DHEC presented no scientific evidence to the contrary.

B. Conclusions of Law

1. The Administrative Law Judge Division has subject matter jurisdiction in this case pursuant to Article 1, § 22 of the South Carolina Constitution; the South Carolina Administrative Procedures Act, S.C. Code Ann. §§ 1-23-310 et seq. (1986 & Supp. 1999); DHEC Regulation 61-72, 25 S.C. Code Ann. Regs. 61-72 (Supp. 1999); and Rule 1, South Carolina Administrative Law Judge Division Rules.

2. DHEC is authorized by law to issue orders, such as the Emergency Order dated April 30, 1999, if there is a "danger to the public life and health." S.C. Code Ann. § 44-1-140 (1976).

3. In civil cases, generally, the burden of proof rests upon the party who asserts the affirmative of an issue. 29 AM. JUR.2d Evidence § 127 (1994); 2 AM JUR.2d Administrative Law § 360 (1994); Alex Sanders, ET AL., South Carolina Trial Handbook § 9:3 Party with Burden, Civil Cases (1994). In the present case, Petitioner claims that DHEC's refusal to lift the ban on harvesting shrimp and crab in Shipyard Creek, pursuant to the Emergency Order, was arbitrary and capricious and that DHEC's refusal to lift the ban exceeded its statutory authority under Section 44-1-140. Therefore, Petitioner asserts the affirmative of the issue. Accordingly, Petitioner must prove, by a preponderance of the evidence, that the DHEC's refusal to lift the ban, pursuant to the Emergency Order, was arbitrary and capricious or that DHEC's refusal to lift the ban exceeded its statutory authority under Section 44-1-140. See Anonymous v. State Board of Medical Examiners, 329 S.C. 371, 769 S.E.2d 17 (1998) (setting forth standard of proof as a preponderance of the evidence). (5)

6. In issuing an emergency order, a government agency must fully explain its course of inquiry, its analysis and its reasoning to establish a rational basis for its decision. See Trinity American Corp. v. U.S. Envt'l Protection Agency, 150 F.3d 389, 394 (4th Cir. 1998). The Court of Appeals of the Fourth Circuit in Trinity has addressed the U.S. Environmental Protection Agency's decision to issue an emergency order under the Safe Drinking Water Act and stated that:

we recognize that the Safe Drinking Water Act, like most environmental statutes, is complex and requires sophisticated evaluation of complicated data. Accordingly, we "do[] not sit as a scientific body, meticulously reviewing all data under a laboratory microscope." [Natural Resource Defense Council v. U.S. Environmental Protection Agency, 16 F.3d 1395, 1401 (4th Cir. 1993); Natural Resource Defense Council U.S. Environmental Protection Agency, 824 F.2d 1211, 1216 (D.C. Cir. 1987)] ("it is not for the judicial branch to undertake comparative evaluations of conflicting scientific evidence"). Rather, if [the U.S. Environmental Protection Agency] "fully and ably explain[s] its course of inquiry, its analysis, and its reasoning" sufficiently enough for us to discern a rational connection between "its decision-making process and its ultimate decision," we will not disturb EPA's action.



Trinity American Corp. v. U.S. Envt'l Protection Agency, 150 F.3d 389, 394 (4th Cir. 1998).

7. DHEC's refusal to lift the ban on harvesting shrimp and crab, pursuant to the Emergency Order dated April 30, 1998, was without sufficient consideration of the facts and without an adequate scientific basis to establish a danger to public health as required by Section 44-1-140. Furthermore, due to insufficient information and self-imposed time constraints, DHEC utilized extremely conservative assumptions not based on existing and reliable scientific literature or research. Moreover, DHEC issued a complete ban on shell fishing in Shipyard Creek, rather than the advisory as recommended by its Division of Health Hazard Evaluation, based on assumptions of the administrative convenience of enforcing a complete ban rather than the factual impact on public health.

8. Following issuance of the Emergency Order, DHEC had additional time to consider the scientific basis for the Emergency Order and the presentation of Macalloy's scientific studies verifying that there was no adverse public health impact from consumption of shellfish in Shipyard Creek and establishing that its original assumptions were incorrect. DHEC, however, unreasonably refused to revoke the Emergency Order and continued the Order in effect without an adequate scientific basis.

9. DHEC exceeded its statutory authority under Section 44-1-140 by refusing to revoke the Emergency Order in light of substantial scientific evidence demonstrating that there was no danger to public health from consumption of shellfish in Shipyard Creek.

10. DHEC acted in an arbitrary and capricious manner and abused its discretion in refusing to revoke the Emergency Order in light of substantial scientific evidence presented to DHEC demonstrating that there was no danger to public health from consumption of shellfish in Shipyard Creek. See Deese v. S.C. State Board of Dentistry, 286 S.C. 182, 332 S.E.2d 539 (Ct. App. 1985) (a decision is arbitrary and capricious if it is without rational basis, is based alone on one's will and not upon any course of reasoning in exercise of judgment, is made at pleasure without determining principles, or as governed by no fixed rules or standards).

11. This tribunal respects the charge with which the legislature has entrusted DHEC, including protecting the environment and the public health and welfare. Like the Court of Appeals of the Fourth Circuit in Trinity, supra, this tribunal does not consider itself "a scientific body, meticulously reviewing all data under a laboratory microscope." Nonetheless, the evidence leads to the inescapable conclusion that DHEC's refusal to lift the ban on harvesting shrimp and crab, pursuant to the Emergency Order was unreasonable in light of the scientific evidence presented by Petitioner.

12. Furthermore, DHEC's conclusion from the data was contrary to the accepted and prevailing scientific literature. See Tr. at 101-02 (testimony of Proctor); Tr. at 160-61 &163 (testimony of Dr. Marino).

13. Most compelling, however, is Dr. Marino's testimony that he would revise his opinion concerning the issuance of the Emergency Order if certain gaps in Petitioner's data were filled, namely sample speciation of trivalent and hexavalent chromium in tissues. See Tr. at 162 & 163. This reasoning is wholly inconsistent with the prevailing literature. Even Dr. Marino concedes that such speciation would be difficult. See Tr. at 163 & 164. Similarly, Petitioner's expert, Deborah Proctor, convincingly testified that to extract chromium from tissue samples would require the use of acids. The use of acids in the extraction process would convert the hexavalent chromium, if any, into trivalent chromium. Tr. at 102. Hence, it is very difficult to measure accurately hexavalent chromium in tissue samples. As a result of these obstacles, Macalloy's consultants took sediment samples and applied FDA guidelines and reasonable assumptions to calculate the hexavalent chromium levels in shellfish. See Tr. at 103 & 104.

14. In general, "expert opinion evidence is to be considered or weighed by the triers of the facts like any other testimony or evidence; the triers of facts cannot, and are not required to, arbitrarily or lightly disregard, or capriciously reject, the testimony of skilled witnesses, and make an unsupported finding contrary to the opinion." 32A C.J.S. Evidence § 727 (1955). Furthermore, "expert testimony is essential in cases which involve a subject of special technical science, skill, or occupation of which the members of the jury or the trial court are not presumed to be specially informed." 32A C.J.S. Evidence § 729 (1955). For example, the Supreme Court of South Carolina has addressed medical malpractice cases and stated that "the plaintiff must use expert testimony . . . unless the subject matter lies within the ambit of common knowledge and experience, so that no special learning is needed to evaluate the conduct of the defendant." Pederson v. Gould, 288 S.C. 141, 341 S.E.2d 633 (1986).

In the present case, this tribunal finds the testimony of Petitioner's experts exceedingly persuasive. In contrast, DHEC's expert, Dr. Marino, conceded that he was not a "laboratory person" and had difficulty understanding the data. Tr. at 151-53. While this tribunal is cognizant of the potential import of the Emergency Order, it cannot ignore the education and experience of Petitioner's experts or the logical conclusions reached by those experts. ORDER

Based on the foregoing Findings of Fact and Conclusions of Law, IT IS HEREBY ORDERED that the Emergency Order, dated April 30, 1998, should be REVOKED. Nothing in this Order shall be construed as precluding the Department from issuing another emergency order at Shipyard Creek banning the harvesting of shrimp or crab in the event that it discovers sufficient scientific data to support such a ban.

AND IT IS SO ORDERED.

___________________________________

John D. Geathers

Administrative Law Judge

May 19, 2000

Columbia, South Carolina

1. EPA sets reference doses that are essentially the safe doses of certain chemicals for oral exposure.

2. 0 Subsistence fishermen are persons who consume fish or shellfish as their total source of protein and who may fish in the same water bodies on a regular basis. They are assumed to eat about 170 grams a day of fish which is approximately 140 pounds per year of fish or shellfish. Tr. at 127.

3. 0 Following the issuance of the Emergency Order, Dr. Marino attempted to obtain more information on the speciation of the chromium. Tr. at 188. Five tissue samples were sent to Batelle Laboratories in Washington, and one sample tested to have 5 mg/kg of hexavalent chromium. Tr. at 152-53. Dr. Marino testified that he had some question about where the samples were taken. Tr. at 153. He also testified that, because the samples had been frozen, he was uncertain of the effect on the reliability of the data. Tr. at 190.

4. TC = RfD x BW x AT

CR x EF x ED x CF



TC = Target Concentration in aquatic species tissue (mg/kg)

RfD = Reference Dose for Chromium in mg/kg/day (from EPA)

BW = Body Weight (based on standard EPA default parameter in kg)

AT = Average Time (equal to ED in years x 365 days/year; days)

CR = Consumption Rate (rates in grams/day)

EF = Exposure Frequency (standard assumption of unrestricted 365 days/year)

ED = Exposure Duration (standard assumption of 30 years residence time in vicinity)

CF = Conversion Factor in kg/gram

5. The preponderance of the evidence means "[t]he greater weight of the evidence" or "superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other." BLACK'S LAW DICTIONARY 1201 (7th ed. 1999). "The preponderance of the evidence means such evidence as, when considered and compared with that opposed to it, has more convincing force and produces in the mind the belief that what is sought to be proved is more likely true than not true." Sanders, supra, § 9:5 Quantum of Evidence in Civil Cases (1994), citing Frazier v. Frazier, 228 S.C. 149, 89 S.E.2d 225 (1955).


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