South Carolina              
Administrative Law Court
Edgar A. Brown building 1205 Pendleton St., Suite 224 Columbia, SC 29201 Voice: (803) 734-0550

SC Administrative Law Court Decisions

CAPTION:
Carolina Water Service vs. SCDHEC

AGENCY:
South Carolina Department of Health and Environmental Control

PARTIES:
Petitioner:
Carolina Water Service


Respondent:
South Carolina Department of Health and Environmental Control

Intervenor:
York County, South Carolina
 
DOCKET NUMBER:
95-ALJ-07-0690-CC

APPEARANCES:
Thomas Hilliard, III, Esq., for Petitioner

William S. Coleman, Jr., Esq., for Respondent

Melvin B. McKeown, Jr., Esq., for Intervenor
 

ORDERS:

ORDER

I. Statement of the Case

The South Carolina Department of Health and Environmental Control (DHEC) granted NPDES Permit No. SC0026298 to Carolina Water Service, Inc. (CWS). The permit established a schedule of compliance to which CWS objected. CWS sought a contested case seeking an extension from the compliance date of August 31, 1996. A hearing on the matter was held on May 17, 1996.

I find no extension shall be granted. Any issues raised in the proceedings or hearing of this case but not addressed in this Order are deemed denied. ALJD Rule 29(B). Further, the filing of a motion for reconsideration is not a prerequisite to any party filing a notice of appeal of this Order. ALJD Rule 29(C).

II. Issue

Should the date of August 31, 1996, which date establishes the date for elimination of discharges of wastewater into Lake Wylie from the River Hills Plantation treatment plant near Clover in York County, be extended to a future date not to exceed October 1, 1998?



III. Analysis

1. Positions of Parties:

CWS asserts Part 1 D., Schedule of Compliance of NPDES Permit No. SC0026298 issued to CWS for its River Hills Plantation wastewater treatment plant in York County, South Carolina should be modified. The permit sets August 31, 1996, as the date by which CWS shall cease discharging waste into Lake Wylie from the River Hills Plantation wastewater treatment plant. CWS seeks to extend the date for the elimination of discharges from the plant from August 31, 1996, as provided in the NPDES Permit, to a later date not to exceed October 1, 1998. Both York County and DHEC oppose any extension.

2. Findings of Fact:

I find, by a preponderance of the evidence, the following facts:

1. By means of the River Hills Plantation wastewater treatment plant near Clover in York County, CWS discharges treated wastewater into Lake Wylie under a DHEC issued NPDES permit.
2. On January 28, 1992, CWS and York County entered into an agreement pursuant to which York County agreed to construct a sewage pump station and sewage force mains in the CWS service area.
3. On February 17, 1992, York County adopted an ordinance in which the county issued a non-exclusive franchise to CWS to operate the water and sewer systems.
4. The sewage mains require a sufficient size and capacity to transport sewage from the CWS service area to sewage treatment plants contracted for by the county.
5. Under the agreement York County would provide sewage transportation and treatment services for CWS.
6. Under the agreement, CWS agreed to lease its River Hills Plantation wastewater treatment plant to York County with the treatment plant to be used by York County as a flow equalization basin.
7. Several of the leases involved in the project were delivered to CWS in March and April of 1996.
8. On February 6, 1995, York County received a Construction Permit (Permit No. 19,868-DW) (York Permit) from DHEC for the construction of a Lake Wylie western shore force main and pump stations.
9. The York Permit allows the conversion of the River Hills Plantation wastewater treatment plant to an equalization basin.
10. The York Permit eliminates the discharge into Lake Wylie from the River Hills Plantation wastewater treatment plant.
11. The collected wastewater will be transported to the Manchester treatment plant operated by the City of Rock Hill.
12. On October 19, 1995 CWS filed a request for an adjudicatory hearing and on October 20, 1995 filed an amended request for an adjudicatory hearing.
13. The requests seek to challenge provisions of the NPDES Permit issued to CWS by DHEC on October 9, 1995, which allows for the operation of CWS's River Hills Plantation wastewater treatment plant.
14. The schedule of compliance directs CWS to eliminate its discharge into Lake Wylie from the River Hills Plantation wastewater treatment plant by August 31, 1996.
15. CWS seeks to extend from August 31, 1996 to no later than October 1, 1998 as the date upon which it must eliminate its discharge from the River Hills Plantation wastewater treatment plant.
16. The construction of pumps and force main to transport wastewater collected by the CWS system to the Manchester treatment plant in Rock Hill is substantially complete.
17. Final completion has not been accomplished since in April of 1996 CWS would not allow York County to accomplish necessary connections on CWS' property.
18. Final completion will require three to four weeks.
19. York County is ready, willing and able to connect its force main, pumps and wastewater transportation and treatment system to the wastewater collection system operated by CWS.
20. The River Hills wastewater treatment plant operated by CWS has been cited by DHEC for violations.
21. CWS is under a consent order executed in January of 1990 to, among other things, extend to the main channel of Lake Wylie the outfall line for discharge of wastewater.
22. The expenditure to accomplish the requirements of the consent order is approximately $500,000.
23. CWS, in an effort not to expend the funds, asked DHEC for permission to be allowed not to make the extension since CWS was making arrangements to cease discharging into Lake Wylie altogether.
24. DHEC agreed to CWS's proposal and did not enforce the consent order.
25. Due to the impending connection to York County's system and the scheduled elimination of CWS's discharges into Lake Wylie, CWS has not been required to accomplish the terms of the consent order.
26. The operation of the River Hills plant has resulted in DHEC issuing violations to CWS in 1992, 1993, 1994, and 1995.
27. Despite efforts by CWS to reduce violations, in 1995 there were at least three violations for the presence of fecal coliform discharges at the River Hills plant into Lake Wylie.
28. In setting the discharge elimination date, DHEC staff added an extension of six months in arriving at the August 31, 1996 date in order to allow for contingencies.
29. There is insufficient reason to extend the compliance schedule contained in the NPDES Permit issued by DHEC to CWS.


3. Discussion

DHEC included a schedule of compliance in the NPDES Permit issued to CWS. The schedule requires CWS to eliminate its discharge of waste into Lake Wylie from the River Hills Plantation wastewater treatment plant by August 31, 1996. CWS asserts it is unable to meet the deadline because its attorneys need to review lease agreements surrounding the project. Under the facts here, the compliance date of August 31, 1996, is proper and shall not be extended.

A contract between CWS and York County provides for the transportation of wastewater from the area served by the River Hills Plantation wastewater treatment plant. Further, DHEC issued a construction permit (Permit No. 19868-DW) to York County to allow the construction of a force main and associated facilities. The main and facilities will eliminate the discharge of waste by CWS from the River Hills Plantation into the waters of Lake Wylie. Finally, the construction of the force main, pumps and related facilities are all substantially complete with final completion requiring only three to four weeks. In fact, construction efforts were halted in April of 1996 since CWS would not allow the completion of necessary connections of CWS' property.

While other considerations were advanced, the only substantial reason given for the requested delay is the need for attorneys of CWS to review several lease agreements involved in the project. I do not find such a request sufficient to postpone the August 31, 1996 elimination date.

First, at least some of the leases were delivered to CWS in March and April of 1996. It is common practice for attorneys to work against deadlines. There is nothing in the evidence that convinces me that a deadline of August 31, 1996 is unreasonable for completion of legal review of lease agreements.

Second, pursuant to a consent order in January of 1990, CWS was obligated to create an extension of the point at which CWS discharged into the lake. The cost to accomplish the extension was at least $500,000. By March of 1992, CWS, in an effort not to expend the funds, asked DHEC for permission to be allowed not to make the extension if DHEC would allow CWS to continue discharging waste at the existing point while CWS continued its arrangements with York County to cease discharging into Lake Wylie altogether. DHEC agreed and did not enforce the 1990 consent order. A further extension is not compelled since CWS has already benefited from a significant delay of enforcement of the consent order issued in 1990.

Third, the interest of the public is not benefited by additional delays. The operation of the River Hills plant has resulted in DHEC issuing violations to CWS in 1992, 1993, 1994, and 1995. Despite efforts by CWS to reduce violations, in 1995 there were at least three violations for the presence of fecal coliform discharges at the River Hills plant into Lake Wylie. The elimination of the discharge is best served by adhering to the August 31, 1996 date.

Finally, no further extension is required since one extension has already been given. Testimony shows that the estimated completion date for the York County construction was March 1996. In setting the discharge elimination date, DHEC staff added an extension of six months to August 31, 1996 to allow for contingencies. Thus, the August 31, 1996 elimination date already includes one extension.



4. Conclusions of Law

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

1. The Administrative Law Judge Division has subject matter jurisdiction. S.C. Code Ann. §§ 1-23-600 et seq. and 1-23-310 et seq. (Supp. 1995).
2. DHEC is authorized to abate, control and prevent pollution. S.C. Code Ann. § 48-1-20 (1987).
3. DHEC is authorized to take all necessary or appropriate action to secure for South Carolina the benefits of the Federal Water Pollution Control Act and any other federal and state acts concerning water pollution control. S.C. Code Ann. § 48-1-50(17) (1987).
4. Except in compliance with a permit issued by DHEC, it is unlawful for any person to discharge into the environment any sewage, industrial wastes, or other waste. S.C. Code Ann. § 48-1-90 (1987).
5. DHEC is authorized to promulgate regulations to implement the provisions of Chapter 1 of Title 48 of the 1976 Code as well as promulgate regulations to adopt standards to indicate polluted conditions. S.C. Code Ann. §§ 48-1-30 and 48-1-40 (1987).
6. Regulations to implement the provisions of Chapter 1 of Title 48 of the 1976 Code and to govern the National Pollutant Discharge Elimination System (NPDES) permit program have been promulgated by DHEC. S.C. Code Regs. 61-9 (Supp. 1995).
7. NPDES permits may establish a schedule of compliance to which the permitted party must adhere. S.C. Code Regs. 61-9.122.47
8. The schedule of compliance section in an NPDES permit requires compliance "as soon as possible." S.C. Code Regs. 61-9.122.47(a)(1).
9. When DHEC acts to protect the health and welfare of the public through its charge to insure the waters of South Carolina are as free of pollutants as possible, DHEC's authority is construed liberally. City of Columbia v. Board of Health and Environmental Control, 292 S.C. 199, 355 S.E.2d 536 (S.C. 1987).
10. The scheduled compliance date of August 31, 1996 for the elimination of discharge of treated wastewater by CWS into Lake Wylie from the River Hills Plantation Treatment Plant near Clover in York County is proper.
11. The denial of the relief sought by CWS is proper since it is consistent with the compliance provisions contained in the NPDES Permit issued to CWS.
12. The denial of the relief sought by CWS is proper since it most expeditiously eliminates the discharge from the River Hills Plantation wastewater treatment plant into Lake Wylie.
13. The denial of the relief sought by CWS is proper since it permits the prompt and timely closure of the River Hills Plantation wastewater treatment plant except for use as an equalization basin.
14. The denial of the relief sought by CWS is proper since it permits both CWS and York County to fulfill their respective contractual obligations in the most expeditious manner.
15. The denial of the relief sought by CWS is proper since it more promptly provides more desirable and reliable wastewater transportation and treatment services.
16. The denial of the relief sought by CWS is proper since it is in the best interest of the public to promptly eliminate the possibility of inadvertent violations of wastewater discharge provisions governing Lake Wylie.
17. The compliance date of August 31, 1996 for the elimination of discharge of treated wastewater by CWS into Lake Wylie from the River Hills Plantation Treatment Plant near Clover in York County must not be extended.


IV. ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, the following ORDER is issued:

CWS's request to have the NPDES permit altered to provide for a date other than August 31, 1996 to eliminate the discharge of wastewater into Lake Wylie from the River Hills Plantation Treatment Plant near Clover in York County is denied.

IT IS SO ORDERED.



____________________________

RAY N. STEVENS

Administrative Law Judge

This 19th day of June, 1996


Brown Bldg.

 

 

 

 

 

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