Congaree Riverkeeper, Inc. v. Carolina Water Serv., Inc.

• Citation: 248 F.Supp.3d 733
• Decision Date: 29 March 2017
• Docket Number: Civil Action Number: 3:15-cv-00194-MBS.
• Court: U.S. District Court — District of South Carolina
• Parties: CONGAREE RIVERKEEPER, INC., Plaintiff, v. CAROLINA WATER SERVICE, INC., Defendant.

248 F.Supp.3d 733

CONGAREE RIVERKEEPER, INC., Plaintiff,

v.CAROLINA WATER SERVICE, INC., Defendant.

Civil Action Number: 3:15-cv-00194-MBS.

United States District Court, D. South Carolina, Columbia Division, Columbia Division.

Signed March 29, 2017

Filed March 30, 2017

J. Blanding Holman, IV, Southern Environmental Law Center, Charleston, SC, Catherine Moore Wannamaker, Pro Hac Vice, Southern Environmental Law Center, Atlanta, GA, for Plaintiff.

Chad Nicholas Johnston, John Marion S. Hoefer, Randy Lowell, Willoughby and Hoefer, Columbia, SC, for Defendant.

ORDER AND OPINION

The Honorable Margaret B. Seymour, Senior United States District Court Judge

On January 14, 2015, Plaintiff Congaree Riverkeeper, Inc. ("Plaintiff") sued Defendant Carolina Water Service, Inc. ("Defendant") for violations of the Clean Water Act ("CWA"), 33 U.S.C. §§ 1251 et seq. (2012). In Claim I, Plaintiff claims that Defendant violated its National Pollutant Discharge Elimination System ("NDPES") permit by failing to connect its wastewater treatment plant ("WWTP") to the regional system. In Claim III, Plaintiff asserts Defendant violated the effluent limitations allowed under Defendant's NDPES permit. Plaintiff moves for summary judgment on Claims I and III. ECF No. 57. Defendant moves for summary judgment on Claim I. ECF No. 58.¹

On August 1, 2016, the South Carolina Department of Health and Environmental Control ("DHEC") denied Defendant's permit renewal request. ECF No. 64–1. On September 7, 2016, the court issued a text order requiring each party submit a supplemental brief on the impact of DHEC's decision to deny the permit renewal on the present case. Both parties asserted that DHEC's decision not to renew does not affect the current case. ECF No 64 at 5 (Plaintiff's supplemental brief); ECF No. 65 at 1 (Defendant's supplemental brief).

For the reasons set for below, the court grants Plaintiff's motion for summary judgment and denies Defendant's motion for summary judgment. The court finds there is no genuine issue of material fact that Defendant violated the terms of its NDPES permit by failing to connect to the regional system. The court finds there is no genuine issue of material fact that Defendant exceeded its effluent limitations and Defendant cannot demonstrate the affirmative defense of "upset."

I. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff is a § 501(c)(3) not-for-profit organization that works to protect and improve the environmental status and recreational uses of the Congaree, Lower Saluda, and Lower Broad Rivers in South Carolina. ECF No. 1 at ¶ 12. Plaintiff's board, staff, and members live near and regularly visit the Lower Saluda River and intend to visit that river in the future. ECF No. 1 at ¶ 14. Defendant owns and operates wastewater treatment plants ("WWTPs") and other associated facilities as a public utility pursuant to South Carolina Code Annotated §§ 58–3–5(6), 58–3–10(4). ECF No. 58–1 at 5. The Public Service Commission of South Carolina ("PSC") has exclusive jurisdiction to regulate public utilities in South Carolina, including the oversight and approval of any agreement or contract affecting a public utility's ability to provide sewer service to citizens. ECF No. 58–1 at 6 n.6. PSC issued Defendant's WWTPs operating certificates of public convenience and necessity. ECF No. 58–1 at 5.

Central Midlands Counsel of Governments ("CMCOG") is tasked with conducting water quality planning and management for the Midlands region of South Carolina. See ECF No. 58–1 at 3–4. The Town of Lexington ("Town") falls within the Midlands region and was chosen as the Designated Management Agency ("DMA") and regional provider of wastewater collection by the CMCOG, in consultation with the governor, pursuant to 33 U.S.C. § 1288(a). ECF No. 58–1 at 4 n.3. DHEC has the overarching responsibility of regulating activities affecting water quality and establishing classifications and standards. DHEC's issues NDPES permits. Any DHEC decision may be appealed to an administrative law court ("ALC"). The ALC decision may then be appealed to the South Carolina Board of Health and Environmental Control ("Board"). Finally, any Board decision may be appealed to a South Carolina circuit court.

In 1979, pursuant to CWA § 208, 33 U.S.C. § 1288, CMCOG drafted The 208 Water Quality Management Plan for the Central Midlands Region (the "208 Plan") a waste treatment and water quality plan for the region. The 208 Plan was most recently updated in 2004. In the 208 Plan, CMCOG states a general policy to consolidate smaller facilities into regional systems. ECF No. 58–1 at 4.² A 1993 revision of the 208 plan designated a facility owned by the City of Cayce, South Carolina, as the regional treatment facility ("RTF") that would service the Midlands region. ECF No. 58–1 at 5.

Defendant owns and operates a WWTP in Lexington County, South Carolina, known as the I–20 Plant. Id. DHEC issued NPDES Permit No. SC0035564 ("the Permit") to Defendant on November 17, 1994, (effective January 1, 1995). ECF No. 57 at 4. The Permit was modified in April 1996 and was due to expire on September 30, 1999. ECF 57–1. The Permit authorizes Defendant to discharge wastewater from the I–20 Plant into the Lower Saluda River subject to effluent limitations and monitoring requirements. Importantly, the Permit provides that "[i]n accordance with the [208 Plan], the [I–20] facility is considered a temporary treatment facility that will be closed out when the regional sewer system is constructed and available." ECF No. 57–1. Defendant's permit was to expire when the regional system received its permit to operate. Id.

On April 7, 1999, Town completed construction on the regional sewer line and received a Permit to Operate from DHEC. ECF No. 58–1 at 6. On April 21, 1999, DHEC informed Defendant and Town that the regional system received its permit to operate and that Defendant's construction permit to connect to the regional system was approved. ECF Nos. 65–4, 65–5. Town and Defendant were unable to agree on the terms of a connection. ECF No. 65 at 2. Defendant never constructed the pipeline to connect to the regional system. Id. On July 16, 1999, and August 24, 1999, Defendant sought a major modification to the Permit that would allow the I–20 Plant to continue operating indefinitely as Defendant negotiated with Town and sought PSC approval to connect to the regional system. ECF 61–2 at 24–25. DHEC denied Defendant's major modification requests on the basis that Defendant did not provide good cause for its requests. ECF 61–4 at 2. In February 2000, DHEC found that Defendant was in violation of the Permit due to Defendant's failure to connect to the regional system and for exceeding permitted discharge levels. ECF No. 61–5. In February or March 2000, Defendant appealed denial of the modification, denial of permit reissuance, and issuance of violations to the ALC. See Carolina Water Service v. S.C. Dept. of Health and Environ. Control , No. 99–ALJ–07–0450, 2002 WL 385126 (S.C. Admin. L. Judge Div. Feb. 25, 2002) [hereinafter 2002 ALC Decision].

In July 2000, DHEC and Town entered into an agreement that (1) noted Town's regional system had insufficient capacity to handle the wastewater from Defendant's system, (2) noted PSC must approve any agreement between Town and Defendant, and (3) required Town to offer Defendant a contract by August 5, 2000. ECF No. 65 at 3. Town and Defendant came to an agreement and submitted said agreement to PSC (Docket No. 2000–425–S); however, Defendant withdrew the agreement from consideration in January 2001 pending consideration of Defendant and Town's joint amendment to the 208 Plan. Id. The amendment from Defendant and Town proposed that the I–20 Plant be designated as a permanent treatment facility and not be required to connect to the regional facility. Id.

On March 22, 2001, CMCOG approved the joint amendment to the 208 Plan. ECF No. 58–1 at 7. However, DHEC refused to certify the amendment. ECF No. 58–1 at 7. In August 2001 Defendant, Town, and CMCOG filed a petition in the ALC protesting DHEC's refusal to certify the proposed amendment. The Lexington County Joint Municipal Water and Sewer Commission intervened. See CMCOG v. DHEC , Nos. 01–ALJ–07–0363–CC, 01–ALJ–07–0364–CC, 01–ALJ–07–0365–CC, 01–ALJ–07–0433–CC, 2002 WL 31716469 (S.C. Admin. L. Judge. Div. Oct. 22, 2002).

On February 25, 2002, the ALC issued a decision on Defendant's appeal of DHEC's denial of the modification, denial of permit reissuance, and issuance of violations. The ALC deferred to CMCOG's finding that Defendant was in conformance with the NDPES permit until February 24, 2000, because the regional system was not available for connection. Carolina Water Service , 2002 ALC Decision at *4, *6. Further, the ALC modified the permit compliance schedule requiring Defendant connect to the regional system. Id. at 9. Essentially, the ALC ordered that Defendant was under an "on-going obligation to negotiate an agreement and to continue to seek an agreement between [Defendant] and [Town] that will be approved by the PSC." Id. at 10. The order then states specific timeframes if PSC approves of an agreement. Alternatively, the ALC held that if PSC denies the connection agreement, then the permit will expire after one hundred-eighty days of the final PSC Order. Id.

Defendant and DHEC both appealed to the DHEC Board. Carolina Water Service v. S.C. Dep't of Health and Environ. Control , No. 99–ALJ–07–0450, ECF No. 16–3 (DHEC Board Order March 15, 2004) [hereinafter 2004 Board Order]. The DHEC Board reversed the ALC's holding that Defendant's permit would expire one hundred-eighty days after a PSC denial but otherwise affirmed the ALC's amended schedule to connect to the regional system—including Defendant's on-going obligation to negotiate with Town for an acceptable contract. Id. at 5.

In 2002, Defendant submitted the 2000 interconnection agreement to PSC for approval, with modifications to the customer rate....