Com'Rs of Pub. Works v. Sc Dept. of Health

• Decision Date: 18 December 2006
• Docket Number: No. 4186.,4186.
• Citation: 641 S.E.2d 763
• Parties: The COMMISSIONERS OF PUBLIC WORKS, City of Charleston and North Charleston Sewer District, Respondents, v. SOUTH CAROLINA DEPARTMENT OF HEALTH AND ENVIRONMENTAL CONTROL, Appellant.
• Court: South Carolina Court of Appeals

641 S.E.2d 763

The COMMISSIONERS OF PUBLIC WORKS, City of Charleston and North Charleston Sewer District, Respondents, v. SOUTH CAROLINA DEPARTMENT OF HEALTH AND ENVIRONMENTAL CONTROL, Appellant.

No. 4186.

Court of Appeals of South Carolina.

Heard October 11, 2006.

Decided December 18, 2006.

Withdrawn, Substituted and Refiled January 23, 2007.

Carlisle Roberts, Jr. and Jacquelyn Sue Dickman, both of Columbia and Evander Whitehead, of Charleston, for Appellant.

Frank Paul Calamita, III, of Richmond and Mary D. Shahid and Lucas C. Padgett, Jr., both of Charleston, for Respondents.

KITTREDGE, J.:

The South Carolina Department of Health and Environmental Control (DHEC) appeals the circuit court's order finding DHEC erred in imposing certain flow and load limits in permits issued to the Charleston Commissioners of Public Works and the North Charleston Sewer District (hereinafter "Respondents"). For the reasons discussed below, we affirm in part, reverse in part, vacate in part, and remand to the circuit court for the purpose of remanding to the DHEC Board.

I.

Respondents collect and treat wastewater for portions of Charleston and Berkeley counties. The treated wastewater, called effluent, is discharged into either the Cooper River or Charleston Harbor. This discharge is permitted, subject to National Pollutant Discharge Elimination System (NPDES) permits issued by DHEC. In February 2003, DHEC issued Respondents renewed NPDES permits. Respondents requested a contested case hearing to challenge various provisions of the renewed permits.

Respondents challenged the renewed permits in two respects. First, Respondents argued there was no factual or legal basis for DHEC to impose weekly and monthly volumetric effluent flow limits (flow limits) in the renewed permits. Second, Respondents argued there was no factual or legal basis for DHEC to impose ultimate oxygen demand (UOD) load limits in the renewed permits. The UOD load limits set forth in the renewed permits vary depending on the time of the year; the limits set for the months of November through February ("winter months") are approximately three times higher than the limits set for the months of March through October.¹

The UOD load limits were based upon a Total Maximum Daily Load (TMDL) established by DHEC.² The TMDL purports to implement regulation 61-68(D)(4)(a) of the South Carolina Code (Supp. 2005), a regulation known as the "0.1 Rule." The "0.1 Rule" prohibits the quality of surface water from being cumulatively lowered more than 0.1 mg/l for dissolved oxygen from point sources and other activities when natural conditions cause a depression of dissolved oxygen. S.C.Code Ann. Regs. 61-68(D)(4)(a) (Supp. 2005). Respondents argued DHEC has no authority to apply UOD load limits during a given month in which there is no evidence of a depression of dissolved oxygen in the Cooper River or Charleston Harbor system for that month. Specifically, Respondents challenged the imposition of lower UOD load limits during March, April, May, and October (the "shoulder months").³ DHEC sought to justify the imposition of UOD load limits for the "shoulder months" on a predictive modeling analysis—a holistic approach that does not narrowly depend on the data for a specific month to warrant UOD load limits for that month.

The Administrative Law Judge (ALJ) affirmed the issuance of the permits subject to two modifications. First, the ALJ ordered DHEC to remove the flow limits. The ALJ found DHEC lacked the authority to impose flow limits in an NPDES permit, concluding neither the South Carolina Code nor DHEC regulations authorize imposition of flow limits. Further, the ALJ found that, under the facts of this case, flow limits were unnecessary to protect water quality.

Second, the ALJ ordered DHEC to remove the UOD load limits set for the "shoulder months." The ALJ adopted Respondents' view and held the "0.1 Rule" does not apply to the "shoulder months" because there is no evidence of a depression in dissolved oxygen levels attributable to a natural condition during these months. The ALJ thus concluded that the "0.1 Rule" is only applicable during months in which such a depression is exhibited. The ALJ determined the UOD load limits established for the "winter months" should also apply to the "shoulder months." The ALJ further found DHEC was not authorized to rely on the TMDL to set permit limits because the TMDL was not promulgated as a regulation.

DHEC appealed the ALJ's order to the DHEC Board (the Board). Citing the South Carolina Pollution Control Act (SCPCA), S.C.Code Ann. §§ 48-1-10 to -350 (1987 and Supp. 2005), and regulation 61-9 of the South Carolina Code (Supp. 2005), the Board first held DHEC has the "legal authority to require flow limits in NPDES permits." The Board, however, joined the ALJ in concluding effluent flow limits were not warranted on the facts presented in this case. Accordingly, the Board affirmed the removal of the flow limits.

The Board next held the ALJ erred in interpreting the "0.1 Rule" as a matter of law. The Board construed the statute and regulation as follows: "If a waterbody is found to be a `naturally dissolved oxygen waterbody' for some period during the year, the requirements of Code § 48-1-83 and related Regulation 61-68.D.4 apply." Thus, contrary to the ALJ's narrow interpretation that DHEC may only impose UOD load limits during the months a depression in dissolved oxygen levels is exhibited, the Board ruled the UOD load limits may be imposed any time during the year provided the "0.1 Rule" is triggered at some point in the year. Because DHEC did not appeal the ALJ's finding that the TMDL was improperly relied on to establish UOD load limits, the Board remanded the permits to DHEC to establish UOD load limits without relying on the TMDL.⁴

Respondents appealed to the circuit court. Regarding the effluent flow limits (which had been ordered removed from the challenged permits), the circuit court proceeded to address the legal issue of whether DHEC has authority to impose effluent flow limits in NPDES permits. The circuit court ruled DHEC lacks any express authority, either in statute or regulation, to impose flow limits. The circuit court also held that "while the Board ordered the removal [sic] flow limits from the [Respondents'] permits, those limits have not been removed and the issue of the Board's authority to impose flow limits is justiciable nevertheless because it is capable of repetition."

The circuit court agreed with Respondents' legal claim that section 48-1-83 of the South Carolina Code (Supp.2005) and regulation 61-68(D)(4)(a)—regarding the "0.1 Rule"— were unambiguous. Although the statute and the regulation are silent as to when the "0.1 Rule" may be applied, the circuit court ruled the law only allows the imposition of UOD load limits for a particular month when dissolved oxygen levels in a waterbody fall below the standard for that month. As a result, the circuit court found the Board erred in remanding Respondents' permits to DHEC staff for the purpose of calculating UOD loads for the "shoulder months." The circuit court reversed the Board and reinstated the ALJ's order. This appeal followed.

II.

The ALJ presides over all hearings of contested DHEC permitting cases and, in such cases, serves as the finder of fact. See S.C.Code Ann. § 1-23-600(B) (Act No. 387, 2006 S.C. Acts 387, eff. July 1, 2006); see also Brown v. S.C. Dep't of Health & Envtl. Control, 348 S.C. 507, 520, 560 S.E.2d 410, 417 (2002). The Board, pursuant to section 1-23-610(D) of the South Carolina Code (2005), reviewed the ALJ's order.⁵ On appeal of such a contested case, a reviewing tribunal "must affirm the ALJ if the findings are supported by substantial evidence, not based on the [reviewing tribunal's] own view of the evidence." Dorman v. S.C. Dep't of Health & Envtl. Control, 350 S.C. 159, 166, 565 S.E.2d 119, 123 (Ct.App.2002); § 1-23-610(D). The circuit court conducted the second appellate review under section 1-23-380(A)(6) of the South Carolina Code (2005).⁶

Our review of the circuit court, which constitutes the third appellate review, is also governed by section 1-23-380(A)(6). Accordingly, this court may reverse the ALJ's decision if substantial rights of the appellant have been prejudiced and the findings, inferences, conclusions or decisions (1) violate constitutional or statutory provisions, (2) exceed the statutory authority of the agency, (3) are based upon unlawful procedure, (4) are affected by other error of law, (5) are clearly erroneous in light of the reliable, probative and substantial evidence on the entire record, or (6) are either arbitrary, capricious, or reflect abuse of discretion or the obvious unwarranted exercise of discretion. § 1-23-380(A)(6); Weaver v. S.C. Coastal Council, 309 S.C. 368, 374, 423 S.E.2d 340, 343 (1992).

Under our standard of review, we may not substitute our judgment for that of the ALJ as to the weight of the evidence on questions of fact unless the ALJ's findings are clearly erroneous in view of the reliable, probative and substantial evidence in the whole record. See Marlboro Park Hosp. v. S.C. Dep't of Health & Envtl. Control, 358 S.C. 573, 580, 595 S.E.2d 851, 855 (Ct.App. 2004). Substantial evidence is not a mere scintilla of evidence, but evidence which, considering the record as a whole, would allow reasonable minds to reach the conclusion the agency reached. Leventis v. S.C. Dep't of Health & Envtl. Control, 340 S.C. 118, 130, 530 S.E.2d 643, 650 (Ct.App.2000).

III.

DHEC contends the circuit court erred in finding Respondents adequately preserved issues for appeal because Respondents' Petition for Judicial Review (petition) failed to properly raise the issues for consideration. We disagree. Having carefully reviewed the petition, we find it adequately apprised the circuit court of "the abuse or abuses allegedly committed below through a distinct and specific statement of...