ORDERS:
FINAL ORDER
This matter comes before me pursuant to petitioner's appeal of respondent South Carolina
Department of Health and Environmental Control's ("DHEC" or "Department") issuance of
NPDES Permit ND # 0073016 to respondent Charleston County School District ("School
District"). The permit provides for the discharge of treated wastewater generated at Lincoln High
School located in McClellanville, South Carolina. This tribunal finds that NPDES Permit ND #
0073016 issued to Charleston County School District by DHEC was properly issued under the
applicable laws and regulations of the State, but that DHEC shall amend this permit to conform
to
this Order, so as to contain all of the conditions outlined by Bill McClure, DHEC Engineer, and
also to require groundwater monitoring for nitrate at the International Paper site.
FINDINGS OF FACT
Jurisdiction
1. This tribunal has jurisdiction of this matter pursuant to S.C. Code Ann. §§
1-23-600(B) (Supp.
1995) and S.C. Code Ann. § 48-1-160 and 24 S.C. Code Regs. § 61-72.
2. Petitioner Thomas L. Colleton, Jr. resides at 1250 Tibwin Road, McClellanville, South
Carolina, which is commonly referred to as the Tibwin Community. His residence is
approximately four-tenths of a mile away from the spray site.
3. Pursuant to 25 S.C. Regs. § 61-72, petitioner timely appealed the issuance of
NPDES Permit
ND # 0073016 by DHEC to the School District.
Petitioner's Appeal
4. Petitioner asserts that Permit ND # 00736016 was improperly issued and fails to comply
with
the applicable statutory and regulatory requirements. Specifically, petitioner contends
that:
a. The permitting process failed to follow standard procedures for review under
the
Berkeley, Charleston, Dorchester COG Water Quality Management Plan. That is, neither
the Preliminary Engineering Report nor the proposed disposal site were submitted to the
COG for review/approval.
b. The permit is not in conformance with the COG Water Quality Management
Plan
because it provides for effluent disposal at a location not authorized in the Plan. That is,
the 1996 Water Quality Plan Update, Vol. 2, identifies the existing discharge for Lincoln
High School pursuant to NPDES Permit No. SC003618, and identifies a proposed spray
field to replace it in the McClellanville/Jeremy Creek area.
c. Public Notice No. 96-138-D issued by DHEC on May 31, 1996 is in error and
misleading because it states an incorrect project location. That is, the notice gives the
project location as "the facility located at Mercantile Road approximately 500 yards north
of McClellanville, South Carolina, Charleston County," whereas, the proposed site is
located seven miles away in the Tibwin Community.
d. The proposed site is a disposal system for a multiple point source discharge.
That is, the
proposed site is, de facto, the initial step in the development of a McClellanville area
sewer
system.
e. The proposed site should be limited to discharge from Lincoln High School
and
McClellanville Middle School.
f. The permit fails to specify adequate site management and operational
conditions to
protect the surrounding community and fails to incorporate the conditions for the
approval mandated by DHEC hydrologists. See Petitioner's Exhibit #s 3,4.
g. The Permit, as issued, would allow the release of an unmanaged aerosol of
effluent into
the surrounding community.
h. The potential effects on the lives of the surrounding residents have not been
adequately
considered.
i. The permit, as issued, fails to protect the shallow wells in the Tibwin
Community from
contamination.
j. The permit, as issued, fails to follow DHEC's own hydrology assessment
regarding site
operation and management.
k. Less intrusive and less costly disposal alternatives are available.
l. The Tibwin Community and surrounding area have been improperly targeted
and
standard procedure ignored or circumvented in an intentional effort to achieve a quick
resolution of the three McClellanville area schools' wastewater problems.
Site Description
5. DHEC issued a National Pollutant Discharge Elimination System ("NPDES") Permit ND
#
0073016 to the School District on May 31, 1996. This permit allows the School District to
discharge treated wastewater generated at Lincoln High School in McClellanville, South Carolina
onto a site (A: 2.4 acres and B: 0.9 acres) which is a portion of a 556 acre tract identified as TMS
Parcel 729-00-00-045. The site is approximately seven miles west of McClellanville, South
Carolina and south of Old Georgetown Road and east of Woodyard Road and bounded to the
east by Tibwin Road.
6. The effluent force main is proposed to run from the school along Lincoln Road to
Mercantile
Road to Brown Hill Road to Society Road to Pinckney Street, then , along U.S. Highway 17/701
to Tibwin Road, then to Old Georgetown Road to the site. See Respondent School
District's
Exhibit #11B.
7. The site was purchased by the School District from International Paper Timberlands
Operation
Company, LP on August 31, 1995. See Respondent School District's Exhibit #14.
Circumstances That Led To Proposed Site
Background
8. Lincoln High School was issued a Water Pollution Control Permit on April 7, 1986 to
discharge wastewater from its treatment facility located on Mercantile Road directly into Shingle
Canal which flows into Jeremy Creek. This permit expired April 30, 1991. However, the permit
remains in effect pending the outcome of this case and any other judicial review of this matter. See Respondent School District's Exhibit #1.
In 1990, the School District applied to renew the permit. However, a dispute arose over
whether
easements were necessary along the course of Shingle Canal in order to renew the permit. The
town of McClellanville appealed the renewal. The School District attempted to tie-in a newly
renovated middle school located in the corporate limits of the town of McClellanville to the
wastewater treatment facility located at Lincoln High School.
The renovations of the middle school were completed in 1992. The completion was
accomplished
with much contentiousness between the School District and the town, as the town attempted to
legally block the renovation of the school. The middle school currently utilizes a septic system
that must be pumped out monthly. On May 1, 1995, the School District and the town of
McClellanville entered into a Consent Order settling the suit. The gravamen of the Consent
Order is as follows.
The town of McClellanville agreed to grant all permits and authorizations necessary for the
completed renovation and continued operation of the middle school, including, inter
alia,
easements necessary for the laying of utility lines under portions of the streets in McClellanville
and necessary to effectuate the land-based water and sewer licenses. Furthermore, the town of
McClellanville agreed to allow easements so pipes could be laid to carry sewage from the middle
school to the high school and water from the middle school to the high school.
The School District agreed to, inter alia, construct an underground pipeline to
convey treated
wastewater under the town of McClellanville from Lincoln High School to a spray field. See Respondent School District's Exhibit #24.
Alternate Site Consideration
9. Sites other than the International Paper site were considered for the Lincoln High School
wastewater effluent disposal.
a. Pinckney Street site was not accepted by DHEC due to the existence of ditches,
low
areas, and clay within the soil.
b. A site north of McClellanville was not accepted by DHEC because of the
existence of
organic soil material.
c. The National Forest which is adjacent to Randall Road was recommended for
an
application rate of .05 inches of effluent per week. Because a portion of this site was the
habitat of a protected species of woodpecker and because of federal "red tape," this site was
deemed unacceptable.
See Respondent School District's Exhibit #s 2, 6A, 6B, 6D, 6E, 6G, 6F, 7A, 7B,
7C.
10. Hydrological testing was performed by DHEC on all of the sites considered to determine
the
texture of the soils; seasonal high water table; weekly effluent application rates; and buffers to
residences, surface waters, or wetlands, drinking water wells, property lines, and ditches. Of the
sites considered, the International Paper site was concluded by DHEC to be superior to the others
for effluent spray irrigation. See Petitioner's Exhibits #s 1, 2; Respondent School
District's
Exhibits #s 2, 4, 6, 6C, 8A, 8B, 8C, 9; DHEC's Exhibits #s 2, 3, 4, 5, 6.
Permit
11. NPDES Permit ND # 0073016 was issued to the School District on May 31, 1996 and
expires
September 30, 2000. See Petitioner's Exhibit #1; Respondent School District's
Exhibits #s 2,3.
The permit is divided into sections. The significant parts are as follows:
PART I.A. Contains listings of effluent characteristics, discharge limitations,
and
groundwater, soil or sludge monitoring requirements.
PART I.E. Contains permittee responsibilities for reporting monitoring results.
PART II.B.4 Describes the specific requirements for an ND permit to be
transferred to
another party.
PART II.C. Contains permittee responsibilities for the proper operation and
maintenance
of the facility.
PART III Contains all the special requirements relative to the permit. Such
items in this
section include the certified operator required to operate the wastewater treatment plant,
the day of the week on which monitoring shall occur, sludge disposal requirements, and
toxicity evaluation and monitoring.
12. Secondary treatment is the prescribed treatment of wastewater for land application under
24
S.C. Code Regs. 61-9 § 133. To put it simply, this type of treatment means removal of
eighty-five percent of the pollutants that are normally found in the wastewater. The Lincoln High
School wastewater treatment facility provides for advance or tertiary wastewater treatment rather
than secondary treatment alone. Advance treatment provides even higher effluent limitations, as
this treatment requires filtration after the secondary treatment. Monitoring ensures that the
effluent limits are being met.
13. The level or rate of spray application to a particular site is based on hydrological factors,
such
as, the depth of the groundwater table on the particular site. This is intended to protect the
quality of the groundwater under the specific site. Hydrological testing was performed on the
proposed site.
14. The Berkeley, Charleston, Dorchester Council of Governments ("COG") is the
designated
Water Quality Management Agency, pursuant to Section 208 of the Clean Water Act, to maintain
the Water Quality Management Plan and oversee Section 208 conformance certification for
DHEC in the above referenced counties.
15. The COG Water Quality Management Plan, Vols. 1 and 2 (1996) reflects the latest
version of
a continuing program in effect since its inception in the late 1970s or early 1980s.
The BCDCOG Section 208 Areawide Wastewater Treatment Management Plan
has
evolved from the provisions of the Federal Water Pollution Control Act Amendments of
1972. This Act provided for a comprehensive Federal-State-Local framework to prevent,
reduce and eliminate water pollution. The following two general goals were included in this
legislation:
1. To achieve, wherever possible by July 1, 1983, water that is clean enough for
swimming
and other recreational uses, and clean enough for the propagation of fish, shellfish and
wildlife; and,
2. By 1985, to have no discharges of pollutants into the nation's waters.
See Petitioner's Exhibit #10 at 1.
The Water Quality Management Plan in effect during 1992 and 1993 was not proffered into
evidence.
16. The COG uses the Water Quality Management Plan in determining Section 208
certification.
17. In reviewing permit applications received by DHEC for conformance to its Water Quality
Management Plan, the COG evaluates the conformance certification request, which identifies the
project, the nature and volume of the discharge, the type of waste and the management agency
and disposal site.
18. The Executive Director of the COG makes the determination of whether a Preliminary
Engineering Report of a proposed project is in conformance with its Water Quality Management
Plan.
19. The Department submitted a Preliminary Engineering Report for the Lincoln High
School
project along with a Section 208 conformance certification request on July 7, 1992. SeePetitioner's Exhibit #s 1, 17. The COG determined that the plan was in
conformance with the
Water Quality Management Plan, as one of the primary goals of Section 208 is the elimination of
surface water discharges and to encourage environmentally preferable treatment of discharges
such as land application.
20. Although the 1992 Preliminary Engineering Report listed several locations under
consideration as the spray application site, it did not include the proposed site which was
purchased from International Paper.
21. On April 6, 1995, DHEC submitted a Section 208 conformance certification request to
the
COG for reissuance of the original permit issued to Lincoln High which had expired on April 30,
1991, permit No. SC 0033618, for discharge into Jeremy Creek. See Petitioner's
Exhibit #18.
22. On April 12, 1993, the School District submitted, through its engineer, E.M. Seabrook,
Jr., an
addendum to its Preliminary Engineering Report, which included the International Paper site
(proposed site). Neither this addendum nor a Section 208 conformance certification for this
specific site was submitted to the COG. See Petitioner's Exhibit #2.
23. The change of location for land application would be considered a minor amendment
under
the 1996 Water Quality Management Plan. "Public meetings would not be mandatory for
proposed minor amendments. Instead, a public notice would be sent to interested parties and
advertised in a local newspaper, to receive comments on the proposed amendment." Petitioner's
Exhibit #10 at 31. The COG Water Quality Management Plan was adopted in June of 1996.
NPDES Permit ND 0073016 was issued to the School District before the adoption of the COG
Water Quality Management Plan of 1996. Therefore, the addendum was
not subject to the 1996
Water Quality Management Plan. See Petitioner's Exhibit # 10 at 30.
24. Prior to the Berkeley, Charleston, Dorchester Council of Government Water Quality
Management Plan (1996), a change in the location was not considered an amendment and the
determination of whether a site was suitable was left solely to DHEC. Technical evaluations of a
site, such as hydrological testing, are not a part of the Section 208 conformance certification
review.
While it is DHEC's responsibility to submit the Preliminary Engineering Report to the COG,
the
1993 addendum (Preliminary Engineering Report containing International Paper site) was not
submitted to the COG because land spray application was generally an accepted means of
discharge under the Water Quality Management Plan or Section 208. Hence, site specificity was
not significant or crucial prior to the adoption of the 1996 COG Water Quality Management Plan
Update.
25. In a letter dated December 11, 1995, Russell W. Sherer, Bureau Chief of Water Pollution
Control of DHEC informed Mr. Mitchum, Executive Director of the COG, that the COG's
involvement in permitting programs is a critical link to maintaining water quality in the state.
Mr.
Sherer went on to outline changes in Section 208 certification coordination between DHEC and
the COG. Attached to this letter was a Memorandum of Agreement ("Agreement"). This
Agreement provided that Section 208 review would be conducted on all activities involving
DHEC review and approval of Preliminary Engineering Reports, construction permits, and
effluent discharge permits (i.e., NPDES and land application). Certain exclusions to Section 208
review were also outlined. This Agreement supplanted and superseded previous agreements.
Mr.
Mitchum signed the Agreement on February 2, 1996. See Petitioner's Exhibit #s 7,8.
26. According to the COG's Executive Director, the spray application as proposed for the
International Paper site is generally consistent even with the COG's 1996 Water Quality
Management Plan, as one of the primary goals of Section 208 is to eliminate surface water
discharges.
27. According to the COG's Executive Director, public comment is considered by the COG
to the
extent that it addresses "legitimate" issues relating to the criteria under the Water Quality
Management Plan. Public disfavor of a site is not considered a "legitimate" factor under the
Water Quality Plan.
28. Bill McClure, Engineer for the Domestic Wastewater Division of DHEC, outlined
conditions
to the approval of the Preliminary Engineering Report for the wastewater effluent disposal
system
(Petitioner's Exhibit # 2) to be discharged at the International Paper site:
1. The entire spray site must be fenced.
2. A groundwater monitoring program must be proposed, approved and installed
before the
site becomes functional. There must be an adequate number of wells to obtain
representative groundwater samples.
3. Uniform cover crop must be planted and maintained year round. The tree
seedlings
currently at this site will not have an extensive enough root pattern for hydraulic uptake for
many years.
4. Berms must be provided to prevent surface run-off.
See Petitioner's Exhibit #s 3, 6.
Of these conditions, only item 2 referenced above, groundwater monitoring, is provided for
in
NPDES Permit ND # 0073016 issued to the School District by DHEC.
29. The office of Ocean and Coastal Resource Management, South Carolina Wildlife and
Marine
Resources Department, and South Carolina Department of Natural Resources certified that the
Lincoln High School Effluent Land Discharge Project complied with their respective regulations. See Respondent School District's Exhibit #s 1, 2, 3.
30. All public notice requirements were met in the issuance of NPDES Permit ND #
0073016. See Petitioner's Exhibit #s 11, 12, 16 and Respondent School District's Exhibit #s 5,
11, 18, 19,
20, 22.
31. Chemicals utilized in the schools' science labs are unlikely to pose any kind of
groundwater
problem due to the insignificant quantity of the chemicals when compared to the wastewater
flow. See Petitioner's Exhibit # 13.
32. Nitrate monitoring is not required by NPDES Permit ND # 0073016, as it was not
required
under 24 S.C. Code Regs. 61-9 at the time the permit was issued in May of 1996. However, a
new regulation was adopted in June of 1996, the month after the issuance of the permit in
question, which would require nitrate monitoring for all such permits issued after the adoption of
the regulation. See S. C. Code Regs. 61-9 § 505. The petitioner raised
concerns at the public
hearing and in his Petition of Appeal about nitrate contaminating groundwater.
33. Treatment of sewage will occur only at the Lincoln High School treatment facility. Only
treated effluent will be transported by the force main or discharged onto the land application site.
Connections which would deliver untreated sewage to the land application site for discharge
cannot be permitted.
CONCLUSIONS OF LAW AND DISCUSSION
A.
1. This matter is an administrative review of an agency decision and is governed by the
provisions
of the Administrative Procedures Act, S.C. Const. art. 1, § 22, and S.C. Code Ann.
§§ 1-23-310
and 1-23-320 (Supp. 1995).
2. The Administrative Law Judge Division has jurisdiction over this matter and is authorized
to
hear this case pursuant to S.C. Const. art. 1, § 22; S.C. Code Ann. § 1-23-600 (Supp.
1995); S.C.
Code Ann. § 48-1-160 (1987); 25 S.C. Code Regs. § 61-72 (Supp. 1995).
3. DHEC is authorized to abate, control, and prevent pollution. S.C. Code Ann. §
48-1-10
through S.C. Code Ann. 48-1-350 (1987); specifically, S.C. Code Ann. §
48-1-20 (1987).
4. If the Department finds that the discharge of sewage or other wastes, or the effluent
therefrom,
into the waters or ambient air of the State will not be in contravention of the provisions of the
Pollution Control Act, the permit to discharge shall be issued. S.C. Code Ann. § 48-1-100
(Supp.
1995).
5. DHEC may of its own volition or upon the request of affected persons conduct public
hearings
when it issues, denies, revokes, suspends or modifies a permit. S.C. Code Ann. §
48-1-150
(1987).
6. 24 S.C. Code Regs. 61-9 (Supp. 1995) provides the regulatory requirements for the
issuance of
NPDES permits. Spray discharge of treated effluent is a legally acceptable method of disposing
of such waste. See Regulation 61.9 § 122.41 through 122.90.
7. 25 S.C. Code Regs. 61-68 (Supp. 1995) provides the standards for protecting the quality of
the
State's surface and groundwater.
8. Pursuant to Section 208(e) of the Clean Water Act, no NPDES permit may be issued
which is
in conflict with an approved Water Quality Management Plan. 40 C.F.R. Part 130.12(a) (1996).
The renewal of the School District's NPDES Permit No. SC 0033618 for the existing surface
water discharge from Lincoln High School's wastewater treatment facility does not, under any
law
or regulation, compel reversal of DHEC's decision to issue the School District a permit for land
application.
9. As the moving party, petitioner Thomas Colleton, Jr. bears the burden of proving by a
preponderance of the evidence that the Department improperly issued respondent School District
NPDES Permit ND # 00736016 in contravention of the Pollution Control Act and the NPDES
permit requirements (Chapter 1, Title 48 of the 1976 South Carolina Code of Laws and 24 S.C.
Code Regs. 61-9). 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).
10. 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
Dictionary 1182 (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)).
11. Evidence of allegations must be sufficient and probative of the matter to be proven. See Coleman v. Palmetto State Life Ins. Co., 241 S.C. 384, 128 S.E.2d 699 (1962).
12. The test for the sufficiency of a proffer of evidence to warrant a finding is as follows:
A . . . finding must be based on the evidence and . . . on the facts proved . . . .
[A]lthough
difficulty of proof does not prevent the assertion of a legal right, the . . . finding cannot rest
on surmise nor can it rest on mere speculation. Likewise, . . . a . . . finding cannot rest on
conjecture. . . guesswork . . . or rest on supposition, assumption, imagination, suspicion,
arbitrary action, whim, caprice, illogical and unsound reasoning, innuendo, percentage, likelihood, mere theory, or conclusions that are in conflict with undisputed fact
. . . The evidence on which the . . . finding is based must be competent, legal evidence received in
the course of the trial, credible, and of probative force, and must support every material
fact. The decision should be against the party having the burden of proof where there is no
evidence, or the evidence as to the material issue is insufficient. . . . (emphasis added).
32 C.J.S Evidence § 1042 (1964); see also S.C. Code Ann.
§ 1-23-320(i) (Supp. 1995).
13. Evidence has probative value "if it tends to prove an issue." Black's Law
Dictionary 1203
(6th ed. 1990).
B.
In the instant case, the gravamen of petitioner's argument that DHEC improperly issued
NPDES
Permit ND # 0073016 to respondent School District rests upon his assertion that during the
permitting process, DHEC failed to follow procedures of the COG Water Quality Management
Plan. In particular, petitioner argues that the 1993 addendum to the School District's Preliminary
Engineering Report of 1992 was not submitted to the COG for Section 208 certification. For that
reason, the School District contravened the Water Quality Management Plan according to
petitioner. The 1993 addendum specified the International Paper site as the proposed site for
land
application of the Lincoln High School effluent, whereas, the 1992 Preliminary Engineering
Report did not. The record is clear that the addendum was not submitted to the COG, as the
1992 Preliminary Engineering Report had been. The record is equally clear that site specificity
was not critical in obtaining Section 208 certification from the COG when land application was
the method of discharge rather than surface water. It is further evident that even when the 1992
Preliminary Engineering Report was submitted to the COG, several potential sites were listed for
land application. This gives credence to the COG's Executive Director's testimony that, prior to
1996, site specificity was not crucial to COG Section 208 certification. The COG's primary
emphasis is the elimination of surface water discharges and the selection of an alternate site for
spray application, without submission of such to the COG, was still consistent with this primary
objective. Furthermore, there was no amendment process in place prior to 1996 for a change of
site selection. Even though a new Memorandum of Agreement was executed between DHEC
and
the COG in February of 1996, requiring the submission of all effluent discharge reports to the
COG, this fact does not disturb the School District's permit subsequently issued on May 31,
1996.
It is clear that the initial Preliminary Engineering Report submitted to the COG in 1992 satisfied
the Section 208 certification. Both under the specific requirements of the COG's Water Quality
Management Plan in existence during 1993, and the practice and understanding which existed
between DHEC and the COG in 1993, the 1993 addendum was encompassed and incorporated
by
the 1992 Section 208 certification.
In his Memorandum of Law, petitioner also contends that DHEC failed to follow proper
administrative procedure in processing the permit application. Petitioner asserts that DHEC
should have made the School District file a separate application for the discharge from
McClellanville Middle School. Petitioner further contends that DHEC should have issued a
notice
of intent to deny the permit when it rejected the site selection in the initial Preliminary
Engineering
Report, and that the addendum specifying the International Paper site should have been treated as
a new permit application. A careful review of the pleadings indicates that this issue was not
raised
prior to the hearing, no evidence or argument concerning this issue was presented at the hearing,
and the petitioner has not made a motion to amend the pleadings to include this issue. SeeSCRCP
15(b). Accordingly, this issue is not properly before this tribunal. See Lane v.
Berry, 288 S.C.
54, 339 S.E.2d 521 (Ct. App. 1986).
Even if the issue had been timely raised, however, petitioner's contentions are without merit.
First, 24 S.C. Code Regs. 61-9 §124.3(a)(1) did not require the School District to submit a
separate application for the wastewater from McClellanville Middle School. That regulation
provides that a single application may be filed for multiple outfalls discharging from a single
location. Such is the case in this instance. The wastewater from the middle school will be
carried
through pipes to the high school, where it will be added to the wastewater from the high school,
treated, and then discharged. Second, DHEC's denial of the initial Preliminary Engineering
Report is not tantamount to a tentative decision to deny the entire permit application, which
would have required the issuance of a notice of intent to deny pursuant to Regs. 61-9
§124.6(b).
The site for land application is but one of many components of a permit application, and the
rejection of a particular site is not a determination that the entire permit should be denied.
Only two of petitioner's other contentions are meritorious: (1) DHEC should have
incorporated
the conditions outlined by its engineer into the permit, and (2) nitrate monitoring should be a
condition to permit issuance. First, it is abundantly clear that Bill McClure, Engineer for the
Domestic Wastewater Division of DHEC, mandated that the conditions outlined in his letter,
Petitioner's Exhibit # 2, be incorporated into the permit to ensure public and environmental
protection. What is not clear is why DHEC did not incorporate all of these conditions in the
permit.
Secondly, petitioner raised concerns at the public hearing held by DHEC and in his Petition
of
Appeal about monitoring the groundwater at the site for nitrate. Nitrate monitoring is not
required by the permit, as such monitoring was not specifically required by 24 S.C. Code Regs.
61-9 at the time the permit was issued in May of 1996. However, a new regulation was adopted
in June of 1996 which would require nitrate monitoring for all land spray application permits
issued, after the adoption of the regulation. The fact that a regulation did not technically require
nitrate monitoring does not negate the need for such monitoring at the International Paper site.
On the contrary, the fact that a regulation was adopted by the General Assembly one month after
the issuance of the School District's permit confirms the need for such testing to protect the
public
and the environment. Additionally, at least two years transpired from DHEC's drafting and
submission of the regulation to its ultimate adoption by the General Assembly. Clearly, the need
for nitrate monitoring was present for a while. Moreover, DHEC is authorized under the
Pollution Control Act to take action to abate, control and prevent pollution of air and water
resources of the State consistent with public health, safety, and welfare of the citizens of South
Carolina. See S.C. Dep't of Health and Environmental Control v.
Armstrong, 293 S.C. 209, 359
S.E.2d 302 (Ct. App. 1987). Accordingly, DHEC was authorized under the Pollution Control
Act to require nitrate monitoring even prior to the adoption of S.C. Code Regs. 61-9 § 505.
In
order to protect the public and the environment, groundwater monitoring for nitrate should be a
condition to the School District's permit.
Finally, petitioner's other contentions must fail as they are unsupported by the record and
applicable law. No concrete evidence was offered to support petitioner's contention that the
permit was improperly issued under the applicable laws and regulations of this State. While this
tribunal is empathetic to petitioner's desire not to have Lincoln High School's treated wastewater
effluent applied to land in his community, it cannot be controlled by such empathy. Rather, in
adjudicating this matter, this tribunal is constrained by the record before it. And this record
supports the issuance of the permit in question with the addition of the aforementioned
conditions, as the permit will not cause contravention of water quality standards at or around the
site.
ORDER
Accordingly, it is so ORDERED that NPDES Permit ND # 0073016 issued to Charleston
County
School District by DHEC was properly issued under the applicable laws and regulations of the
State, but that DHEC shall amend this permit to conform to this Order, so as to contain the
following conditions outlined by its engineer, Bill McClure, and also to require
groundwater
monitoring for nitrate at the International Paper site.
Conditions
1. The entire spray site must be fenced.
2. A groundwater monitoring program must be proposed, approved and installed before the
site
becomes functional. There must be an adequate number of wells to obtain representative
groundwater samples.
3. Uniform cover crop must be planted and maintained year round. The tree seedlings
currently
at this site will not have an extensive enough root pattern for hydraulic uptake for many years.
4. Berms must be provided to prevent surface run-off.
AND IT IS SO ORDERED.
__________________________________
JOHN D. GEATHERS
Administrative Law Judge
P.O. Box 11667
Columbia, South Carolina 29211-1667
December ___, 1996
Columbia, South Carolina
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