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:
City of Cayce vs. SCDHEC, et al

AGENCY:
South Carolina Department of Health and Environmental Control

PARTIES:
Petitioner:
City of Cayce

Respondent:
South Carolina Department of Health and Environmental Control and Richland-

Lexington Airport Commission
 
DOCKET NUMBER:
96-ALJ-07-0262-CC

APPEARANCES:
For the Petitioner:
Thomas B. Jackson, III, Esquire

For the Respondents:
Clifford O. Koon, Jr., Esquire
Richland-Lexington Airport Commission
Samuel L. Finklea, III, Esquire
South Carolina Department of Health and Environmental Control
 

ORDERS:

ORDER

STATEMENT OF THE CASE

This matter comes before me pursuant to the Petitioner City of Cayce's ("Cayce") challenge to Construction Permit #17,982-IW issued by the Department of Health and Environmental Control ("DHEC") on May 2, 1996 to Respondent Richland-Lexington Airport Commission ("Airport Commission"). A hearing was held on November 12, 1996, at the Administrative Law Judge Division, 1205 Pendleton Street, Columbia, South Carolina. For the following reasons, I find that the permit must be modified as set forth herein.

FINDINGS OF FACT

Having carefully considered all testimony, exhibits, and arguments presented at the hearing of this matter, and taking into account the credibility and accuracy of the evidence, I make the following Findings of Fact by a preponderance of the evidence:

1. The parties in this case entered into written stipulations, hereby incorporated by reference, concerning evidence to be admitted, the scope of review of the proceeding, qualification of experts, and the design and capability of the proposed stormwater collection system.

2. The Airport Commission planned, as part of a program of expansion, to provide aircraft deicing facilities and was required by DHEC to ensure that runoff from that activity would be collected and contained before discharge to waters of the State.

3. DHEC issued Construction Permit #17,982-IW to the Airport Commission for the construction of a wastewater collection facility. The permit approves a design submitted by the Airport Commission for a system of collection drains discharging to one of two lined basins with capacity for 3.8 million gallons and 5.3 million gallons, respectively. The larger basin is intended to receive stormwater runoff from the aircraft ramp and taxiways when deicing is not taking place, and any overflow from the smaller basin; by operation of a valve, the smaller basin will receive stormwater runoff during deicing operations. The smaller basin will be connected to a City of Cayce sewer by means of a force main with a design capacity of approximately 100 gallons per minute, the discharge being metered and controlled by the operation of pumps.

4. Cayce owns and operates collection lines and a wastewater treatment plant for municipal and industrial sewage. Cayce requires non-domestic dischargers to apply for and obtain a wastewater contribution permit.

5. Glycol, a chemical commonly used to deice aircraft, is the constituent of concern in this dispute. The degree to which organic chemicals require treatment is measured in units of milligrams per liter of Biological Oxygen Demand (mg/1 BOD5 or BOD); pure glycol has a BOD of 784,740 mg/1, whereas the planning factor for domestic sewage is 250 mg/1. Unplanned excursions of BOD in the effluent to a wastewater treatment plant can disrupt the treatment process, often for days or weeks, causing discharges from the plant in excess of permitted limits.

6. The Airport Commission applied for, and Cayce issued, a wastewater contribution permit authorizing the Airport Commission to discharge up to 5000 gallons per day of wastewater at 250 mg/1 of BOD. The DHEC permit authorizes the Airport Commission to discharge up to 5000 gallons per day to Cayce at effluent concentrations as determined by the wastewater contribution permit.

7. The Cayce Permit was issued to the Airport Commission utilizing information provided by the Airport Commission in a "Non-Domestic Waste Survey Questionnaire" which was completed by the Airport Commission and returned to Cayce in conjunction with the Airport Commission's request for a permit from Cayce. The volume and concentration limits of the Cayce Permit are the same as requested by the Airport Commission based on the information provided to Cayce by the Airport Commission in the "Non Domestic Waste Survey Questionnaire".

8. Contrary to DHEC's assumption when it issued the construction permit, the subject deicing facility was not designed or intended to provide any significant pretreatment of the ethylene glycol prior to discharge into the Cayce sewer. DHEC's assumption that the Airport's facility would pretreat the wastewater was erroneous; the permit application submitted by the Airport Commission indicated only that the proposed facility would provide aeration of the wastewater.

9. In its submissions to DHEC, the Airport Commission estimated that it would use approximately 45,775 gallons of ethylene glycol per year to de-ice aircraft at the proposed facility.

10. The analysis prepared by William H. Bingham, Jr., Cayce's Engineer, indicates that to discharge the entire estimated quantity of ethylene glycol usage anticipated by Airport on a yearly basis, in order to meet the concentration limits of 250mg/l BOD provided by the Cayce and DHEC Permits, would require 393,660 gallons/day of wastewater whereas the Cayce and DHEC Permits only authorize a maximum of 5,000 gallons/day. This is an increase of 7,870 percent over the permitted capacity or 78.7 times the permitted capacity for flow. In addition, to discharge the entire estimated quantity of ethylene glycol usage anticipated by Airport on a yearly basis, the mass of BOD that would have to be discharged daily would be 820.78 pounds BOD per day whereas the Cayce and DHEC Permits only authorize a maximum of 10.4 pounds per day. This amounts to an increase of 7,890 percent over the permitted capacity or 78.9 times the permitted capacity for BOD. Furthermore, the abnormal event analysis prepared by Mr. Bingham indicates further potential problems with the operation of the system in conformity with the limitations of the Cayce and DHEC Permits. I find Mr. Bingham's analysis and testimony to be credible.

11. The proposed stormwater collection and discharge facility is consistent with the Central Midlands Regional Planning Council 208 Plan.

12. The two collection basins are designed, in accordance with Lexington County's requirements, to contain stormwater resulting from a storm which is expected to occur once in 25 years (the 25 year/24 hour storm) and still have excess capacity. In fact, the basins will contain four times the runoff expected from the 25 year/24 hour storm.

13. The quantity of stormwater to be managed, and the concentration of glycol contained therein, are functions of the weather and of the flying schedule. Based on assumptions provided to DHEC by the Airport Commission, discharge to Cayce in compliance with the wastewater contribution permit after deicing aircraft could require either many days to complete, or adoption of alternative methods of disposal. If the facility is constructed as planned with no provision for pretreatment, alternative methods of disposal, or limitations on usage of ethylene glycol, large quantities of wastewater would likely be held in the basins for extended periods of time, with only insignificant amounts being discharged into the Cayce sewer on a daily basis. This scenario results in a potential danger to the environment. However, if modified, the system is capable of being operated in such a way that Cayce's wastewater contribution permit is not violated and the threat to the environment is minimized.

DISCUSSION

Under the circumstances of this case, this tribunal finds DHEC's issuance of the permit to be problematic and troublesome. As a construction permit for a wastewater collection facility is inextricably linked to the operating permit for the same, it is illogical to allow the construction of such a facility without an adequate and identifiable source of treatment and point of discharge. It is further evident from the applicable law and regulations that the issuance of a construction permit for a wastewater collection facility is predicated upon the issuance of a local contribution permit, or other means of discharge consistent with the Clean Water Act. Consequently, a permit for the construction of a wastewater collection facility may be issued only to the extent that the facility is designed to comply with its contribution permit and/or with the Clean Water Act. Here, the Airport Commission is permitted to discharge 5000 gallons per day of wastewater into the Cayce system, but this discharge limitation, contained in the contribution permit, appears to be woefully inadequate to satisfy the Airport Commission's effluent discharge needs. Accordingly, a serious potential exists for damage to the environment resulting from large quantities of wastewater being held in open holding basins for extended periods of time. In addition, DHEC's and the Airport Commission's assertion that Cayce's concerns are more appropriately addressed at the operating permit stage is inconsistent with the fact that no separate opportunity is granted by statute or regulation for an affected party to contest an operating permit. It is therefore incumbent upon this tribunal to examine the potential for harm to the environment if the facility is constructed as permitted.

Pursuant to the Pollution Control Act, S.C. Code Ann. § 48-1-10, et seq. (1987 & Supp. 1995), any industrial development must be consistent with reasonable standards of purity of air and water resources of the state. However, the Act is very general and contains no specific standards for the construction of a wastewater collection facility. Therefore, inasmuch as the construction of such a facility does not harm the environment or the public, it is not precluded under this Act. 25 S.C. Code Regs. 61-67.V (1976) is the only regulatory provision which addresses the construction of a wastewater collection facility, but it is still lacking in detailed criteria for permit approval. Regulation 61-67.V sets forth the engineering reporting requirements necessary for DHEC consideration for the approval of the construction of a wastewater collection facility. In part, the regulation states: "Because of the nature of most collection systems [sic] a detailed engineering report is not usually required. A brief report, however, shall be submitted to the appropriate wastewater division, South Carolina Department of Health and Environmental Control, along with the preliminary plans for the collection system." Nowhere does this regulation state the qualifying criteria for the approval of the engineering report. In the absence of any ascertainable standards for the construction of a wastewater collection facility, it is incumbent upon DHEC to take all necessary steps to ensure that the goal of protecting the environment is met. In this instance, DHEC based its issuance of the construction permit on the erroneous assumption that the facility would pretreat the wastewater to reduce the BOD of the effluent being discharged. In fact, no such pretreatment is contemplated by the Airport Commission. Therefore, the question which must be resolved in this case is whether the facility as presently permitted will be adequate both to allow discharges within the limits specified by the contribution permit and to protect the environment.

The evidence presented indicates that if the facility is constructed as presently permitted, and if the Airport Commission uses the full quantity of ethylene glycol it estimates will be needed per year, the facility cannot adhere to the standards of the contribution permit without either limiting its usage of the chemical, providing pretreatment of the effluent to reduce the BOD, or having some alternate method of disposing of the wastewater offsite which is acceptable to DHEC. Otherwise, the potential exists, even with large capacity holding tanks, for vast quantities of effluent to remain in the tanks indefinitely with only a small quantity being metered out for discharge into the Cayce system each day. This scenario is not consistent with the Pollution Control Act's goal of protecting the environment from harm. In fact, DHEC's own expert witnesses testified that if they were making the decision on the permit today, they would not have issued the permit without first ensuring that the facility would be able to comply with the contribution permit. (Tr. at 93-102 and 113-119). Accordingly, I find that the construction permit must be modified to provide either that the Airport Commission must limit its usage of ethylene glycol on a yearly basis to an amount which will allow the facility to meet the contribution permit's flow limitations and that some method of pretreatment acceptable to DHEC must be provided which will limit the BOD of the effluent to a concentration which will enable the facility to comply with the contribution permit; or that to the extent that the wastewater collected would cause the facility to exceed the flow and BOD limitations of the contribution permit, some alternative method of disposal of the excess wastewater which meets DHEC's standards must be incorporated into the plans for the facility.

CONCLUSIONS OF LAW

Based on the above Findings of Fact and Discussion, I conclude as a matter of law the following:

1. The Administrative Law Judge Division has subject matter jurisdiction in this matter and is authorized to hear this case pursuant to S.C. Code Ann. §§ 1-23-600(B), 48-1-50 and 48-1-160 (1987 and Supp. 1995).

2. As the moving party, petitioner Cayce bears the burden of proving by a preponderance of the evidence that DHEC improperly issued respondent Airport Commission Construction Permit #17,982-IW in contravention of the Pollution Control Act and permit requirements (Chapter 1, Title 48 of the 1976 South Carolina Code of Laws, 24 S.C. Code Regs. 61-9 (Supp. 1995), and 25 S.C. Code Regs. 61-67 (1989). See National Health Care Corp. v. S.C. Dep't of Health and Environmental Control, 298 S.C. 373, 380 S.E.2d 841 (Ct. App. 1989); Sanders, Neese, and Nichols, South Carolina Trial Handbook, § 9:3 Party With Burden, Civil Cases (1994).

3. The preponderance of the evidence "is evidence which is of the greater weight or more convincing than the evidence which is offered in opposition to it . . . ." Black's Law Dictionary1182 (6th ed. 1990). "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, Neese, and Nichols, South Carolina Trial Handbook, § 9:5 Quantum of Evidence in Civil Cases(1994), (citing Frazier v. Frazier, 228 S.C. 149, 89 S.E.2d 225 (1955)).

4. Evidence of allegations must be sufficient and probative of the matter to be proven. SeeColeman v. Palmetto State Life Ins. Co., 241 S.C. 384, 128 S.E.2d 699 (1962).

5. Evidence has probative value "if it tends to prove an issue." Black's Law Dictionary 1203 (6th ed. 1990).

6. "The qualification of a witness as an expert in a particular field is within the sound discretion of the trial judge." Smoak v. Liebherr-Am., Inc., 281 S.C. 420, 422, 315 S.E.2d 116, 118 (1984); S.C. Dept. of Highways and Public Transp. v. Manning, 283 S.C. 394, 323 S.E.2d 775 (1984). However, where the expert's testimony is based upon facts sufficient to form the basis for an opinion, the trier of fact determines its probative weight. Berkeley Elec. Coop. v. S.C. Public Serv. Comm'n, 304 S.C.15, 402 S.E.2d 674 (1991); Smoak, supra. Further, a trier of fact is not compelled to accept an expert's testimony, but may give it the weight and credibility he determines it deserves. Florence County Dept. of Social Serv. v. Ward, 310 S.C. 69, 425 S.E.2d 61 (1992); Greyhound Lines v. S.C. Public Serv. Comm'n, 274 S.C. 161, 262 S.E.2d 18 (1980). He also may accept one expert's testimony over that of another. S.C. Cable Tel. Assn. v. Southern Bell Tel. and Tel. Co., 308 S.C. 216, 417 S.E.2d 586 (1992).

7. Permits to construct wastewater collection and treatment facilities are required by the South Carolina Pollution Control Act, S.C. Code Ann. § 48-1-10, et seq. (1987 and Supp. 1995), as implemented by 25 S.C. Code Regs. 61-67 (1976). Midlands Utility, Inc. v. South Carolina Department of Health and Environmental Control, 301 S.C. 224, 391 S.E.2d 535 (1989). The South Carolina Pollution Control Act requires that parties obtain a permit from DHEC prior to making any change in any existing disposal system that would materially alter the method or the effect of treating or disposing of the sewage, industrial waste or other wastes; or before increasing the load through existing outlets of sewage, industrial waste or other wastes into the waters of the State. S.C. Code Ann. § 48-1-110 (a)(2) and (4) (Supp. 1995).

8. DHEC is specifically authorized to issue, deny, revoke, suspend or modify permits pertaining to the discharge of sewage, industrial waste or other waste or as relates to the installation or operation of disposal systems or sources or parts thereof. S.C. Code Ann. § 48-1-50(5) (1987). In addition, DHEC is authorized to take all action necessary or appropriate to secure to the State of South Carolina the benefits of the Federal Water Pollution Control Act and any and all other Federal and State acts concerning air and water pollution control, S.C. Code Ann. § 48-1-50(17) (1987), and to abate, control, and prevent pollution. S.C. Code Ann. §§ 48-1-10 through 48-1-350 (1987); specifically, S.C. Code Ann. § 48-1-20 (1987).

9. Pursuant to the provisions of 25 S.C. Code Regs. 61-67 (1976), before a permit to construct can be issued by DHEC, the applicant must submit information sufficient to allow DHEC to determine that the proposed system will in fact collect and/or treat, if necessary, or convey wastewater in such a way that the discharge of same is in compliance with all applicable laws and regulations pertaining thereto. In order for DHEC to make such a determination as to wastewater treatment facilities, information must be included in the application concerning the projected effect the discharge will have on the dissolved oxygen content of the receiving stream. See Regs. 61-67 IV. I.

10. In this case, the mixture of deicing fluid and storm drain water is intended to be discharged to the wastewater treatment system owned and operated by Cayce. The Cayce Wastewater Treatment Plant treats sewage, industrial effluent, and other wastewater and discharges the treated wastewater to the Congaree River in accordance with its NPDES Permit, which limits the volume and concentration of water which can be discharged.

11. Regulation 61-9 § 403 establishes responsibilities of state and local government, industry, and the public to implement National Pretreatment Standards to control pollutants which pass through or interfere with treatment processes in Publicly Owned Treatment Works.

12. The Airport Commission is required to obtain a construction permit from DHEC for the deicing runoff collection and discharge system.

13. DHEC's determination that the planned discharge is consistent with the area wide 208 plan is a prerequisite for issuance of the permit. Because the Airport Commission will not discharge directly to waters of the State, but plans to deliver its stormwater to Cayce's wastewater treatment plant, the effluent must comply with a pretreatment permit from Cayce. See 25 S.C. Code Regs. 61-9 § 403 (Supp. 1995).

14. As indicated by DHEC in its Memorandum submitted in this case, in order to effectively manage the waste loads it must receive and treat, Cayce (as are other operators of Publicly Owned Treatment Works) is required to implement the General Pretreatment Regulations for Existing and New Sources of Pollution, 24 S.C. Code Ann. Regs. 61-9 § 403 (Supp. 1995). In conjunction with this Regulation, the Cayce Permit was issued to the Airport Commission which specified the volume and concentration of wastewater which the Airport Commission is authorized to discharge from its subject deicing facility to the Cayce Sewer System.

15. The permit at issue requires the Airport Commission to monitor the characteristics of the effluent and to limit the discharge of that effluent to the parameters established by Cayce's contribution permit.

16. The construction permit addresses design criteria pertaining to the capacity of the system and its means of discharge. As part of the approval process for such a permit, DHEC is required to ascertain whether the system will operate so as to prevent discharges to the environment. Seegenerally S.C. Code Ann. § 48-1-10 et seq. (1987 & Supp. 1995); 25 S.C. Code Regs. 61-67 (1976).

17. There is no statute or regulation which affords affected parties the opportunity to contest an operating permit for a wastewater collection facility. This conclusion is confirmed by DHEC's Post-Hearing Brief, dated January 29, 1997.

18. Based upon the evidence presented in this case, the anticipated volume and concentration of the effluent to be discharged from the facility as presently designed will substantially exceed the limitations imposed by both the Cayce and DHEC permits. Accordingly, before construction of the facility can proceed, the permit must be modified to provide either that the Airport Commission must limit its usage of ethylene glycol on a yearly basis to an amount which will allow the facility to meet the contribution permit's flow limitations and that some method of pretreatment acceptable to DHEC must be provided which will limit the BOD of the effluent to a concentration which will enable the facility to comply with the contribution permit; or that to the extent that the wastewater collected would cause the facility to exceed the flow and BOD limitations of the contribution permit, some alternative method of disposal of the excess wastewater which meets DHEC's standards must be incorporated into the plans for the facility.

ORDER

Based on the foregoing Findings of Fact, Conclusions of Law, and Discussion,

IT IS HEREBY ORDERED AND ADJUDGED that Construction Permit No. 17,982-IW issued to the Richland-Lexington Airport Commission be modified as follows, before construction of the facility can proceed, the permit must be modified to provide either that the Airport Commission must limit its usage of ethylene glycol on a yearly basis to an amount which will allow the facility to meet the contribution permit's flow limitations and that some method of pretreatment acceptable to DHEC must be provided which will limit the BOD of the effluent to a concentration which will enable the facility to comply with the contribution permit; or that to the extent that the wastewater collected would cause the facility to exceed the flow and BOD limitations of the contribution permit, some alternative method of disposal of the excess wastewater which meets DHEC's standards must be incorporated into the plans for the facility.

AND IT IS SO ORDERED.



____________________________

John D. Geathers

Administrative Law Judge

February 11, 1997

Columbia, South Carolina


Brown Bldg.

 

 

 

 

 

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