SC Administrative Law Court Decisions

STATEMENT OF THE CASE

The Administrative Law Judge Division (ALJD) has subject matter jurisdiction over contested cases pursuant to S.C. Code Ann. §§ 1-23-600, et seq.(Supp. 1996) and 1-23-310, et seq. (1986 and Supp. 1996). This case is before me pursuant to a challenge to a South Carolina Radioactive Materials License (No. 135) (the "License") renewal issued by the Bureau of Radiological Health, South Carolina Department of Health and Environmental Control ("DHEC") to Interstate Nuclear Services Corporation ("INS") on December 16, 1996. On December 23, 1996, INS filed a Petition for Administrative Review appealing certain conditions contained in the License. Subsequently, Environmentalists, Inc., Rosewood Development Assoc., Sierra Club, Edisto Court Community Council, Isaac McClinton, and Lula Brown ("Challenging Petitioners") petitioned for administrative review challenging DHEC's reissuance of the License.

On July 18, 1997, INS filed a SCRCP Rule 56 Motion for Summary Judgment, pursuant to ALJD Rules 19(A) and 52, seeking the dismissal of the Challenging Petitioners from this contested case hearing due to their alleged lack of standing. On August 4, 1997, the Challenging Petitioners filed a Response, and a hearing was held on October 10, 1997. Motions relating to the July 11, 1997 Protective Order were also presented at the October 10th hearing. For the reasons set forth below, Challenging Petitioners have failed to establish the requisite standing to challenge the License and, accordingly, INS's Motion for Summary Judgment is granted.

FINDINGS OF FACT

1. INS operates a facility at 811 S. Edisto Avenue in the city of Columbia, South Carolina which cleans and decontaminates garments used at nuclear enterprises and government facilities. The residual radioactive waste is stored at the facility and subsequently shipped off for disposal.

2. On December 16, 1996, DHEC renewed INS's Radioactive Material License (No. 35) pursuant to DHEC's authority under S.C. Code Ann. § 13-7-40, et seq. (Supp. 1996) and 25 S.C. Code Ann. Regs. § 61-63 (Supp. 1996) subject to certain conditions listed in Amendment 29 of the License.

3. On December 23, 1996, INS filed a Petition for Administrative Review appealing the Amendment 29 conditions contained in the License. Challenging Petitioners subsequently filed separate Petitions for Administrative Review challenging the reissuance of the license itself. On January 8, 1997, these separate Petitions were consolidated into one contested case by order of this tribunal.

4. Ruth Thomas, President of Environmentalists, Inc., represented the organization during discovery as its SCRCP Rule 30(b)(6) witness. Ms. Thomas testified that several members of Environmentalists, Inc. resided or worked in close proximity to the INS facility. Ms. Thomas indicated a concern about the potential health risks placed on those members due to INS's handling of radioactive materials at its facility. Upon specific questioning, Ms. Thomas could not identify any particular harm or injury suffered by these members, including herself, resulting from INS's operations. Thomas Dep. at 18-25.

5. Thomas Perlic, Director of the South Carolina Sierra Club, represented the organization during discovery as its SCRCP Rule 30(b)(6) witness. Mr. Perlic's testimony indicated that several members of the S.C. Sierra Club, not including himself, reside in close proximity to the INS facility. Mr. Perlic could not identify any particular harm or injury suffered by these members, including himself and his wife, resulting from the INS's operations. Perlic Dep. at 13-18.

6. Melvin E. Jenkins, Rosewood Development Association's coordinator, represented the organization during discovery as its SCRCP Rule 30(b)(6) witness. The members of the Rosewood Development Association live in close proximity to the INS facility. In addition to expressing concerns about the potential health risks on those living in close proximity to the INS facility, Mr. Jenkins specifically pointed to the risk of soil and water contamination and to the likelihood of property devaluation in the area. Mr. Jenkins provided no factual data to indicate that such contamination has occurred in the area surrounding the INS facility, nor was any data provided showing INS's operations were the cause of any past or present contamination. Jenkins Dep. at 18-19, 23. Additionally, Mr. Jenkins provided no statistical support for the allegation that property values had decreased due to the presence of the INS facility. Jenkins Dep. at 27-28, 30-31.

7. Isaac McClinton testified during discovery as Edisto Court Community Council's SCRCP Rule 30(b)(6) witness as well as on his own behalf as an individual. Mr. McClinton resides in close proximity to the INS facility. Mr. McClinton expressed concerns about health risks, property devaluation, and fire hazards as a result of INS's operations in his community. Mr. McClinton could point to no specific harm or injury suffered by himself or any member of the Edisto Court Community Council as a result of the INS facility. McClinton Dep. at 13-15, 20-23.

8. Lula Brown testified during discovery on her own behalf as an individual. Ms. Brown lives directly adjacent to the INS facility and her property is surrounded on three sides by the facility. The only particular harm or injury Ms. Brown testified to was the presence of discomforting odors emanating from the INS facility. No associated health problems could be linked to these odors by Ms. Brown in her testimony. Like the other deposed witnesses presented by the Challenging Petitioners, Ms. Brown's testimony expressed a concern and fear of the potential risks associated with the handling and possible exposure to radioactive materials resulting from operations at the INS facility.

CONCLUSIONS OF LAW

1. Summary judgment is proper where it is clear there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Kreutner v. David, 320 S.C. 283, 285, 465 S.E.2d 88, 90 (1995). In deciding a SCRCP Rule 56 motion for summary judgment, the evidence as well as the inferences that can be drawn from such evidence should be viewed in the light most favorable to the non-moving party. Cafe Associates, Ltd. v. Gerngross, 305 S.C. 6, 406 S.E.2d 162 (1991). The issue here is whether each of the Challenging Petitioners has standing to challenge DHEC's December 16, 1996 reissuance of INS's License. Viewing the evidence and inferences in the light most favorable to each of the Challenging Petitioners, as a matter of law, the Challenging Petitioners lack standing.

2. In a dispute with DHEC, "[s]tanding shall be determined on the basis of applicable statutes, regulations, case law and Board orders." S.C. Code Ann. Regs. § 61-72.401 (Supp. 1996). The South Carolina Administrative Procedures Act defines a proper party to a contested case as any "person... properly seeking and entitled as of right to be admitted as a party." S.C. Code Ann. § 1-23-310(4) (Supp. 1996) (emphasis added).

3. The test utilized to determine who is "entitled as of right" to be a party to a contested case (i.e., the test to determine standing), is the "injury-in-fact" test established in Sierra Club v. Morton, 405 U.S. 727 (1972), refined in Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992), and consistently applied in previous Board and ALJD decisions. See, e.g., Environmentalists, Inc. v. SCDHEC, Order No. 96-ALJ-07-0030 (June 18, 1996) (Stevens, A.L.J.) [hereinafter Giant Cement]; League of Women Voters of Georgetown County v. Wachesaw Plantation, Order No. 91-9-B (1991); Moss Creek Development Corp. v. SCDHEC, Order No. 87-18-B (1987); and In re Savannah River Plant NPDES Permit, Order No. 85-6-B (1985).

4. An "injury-in-fact" is "an invasion of a legally protected interest which is (a) concrete and particularized... and (b) 'actual or imminent, not conjectural or hypothetical." Lujan, 504 U.S. at 560 (citations omitted); see Giant Cement; Savannah River Plant. "[T]he 'injury in fact' test requires more than an injury to a cognizable interest. It requires that the party seeking review be himself among the injured." Lujan, 504 U.S. at 563 (quoting Sierra Club, 405 U.S. at 734-35). For purposes of standing, then, the interest purported to be at issue is defined and measured by the actual injury incurred.

5. Once a particularized injury is recognized, a party must show that such injury was (1) caused by the other party (Lujan, 504 U.S. at 560) and (2) within the zone of interests protected by the statute or regulation in question (Sierra Club, 405 U.S. at 733; Savannah River Plant) in order to meet the requirements of standing. Failure to meet the injury-in-fact test renders these additional criteria moot and results in a lack of standing.

6. A party may not obtain standing solely by asserting the rights of a third party. Warth v. Seldin, 422 U.S. 490, 508 (1975). An organization or association, acting as a party, may not establish standing on the basis of general interest common to all members of the organization or the public. See Sierra Club, 405 U.S. at 736; Giant Cement. In order for an organization or association to establish standing, they must demonstrate that at least one identified member has suffered an injury-in-fact. See Maryland Highway Contractors Ass'n v. State of Maryland, 933 F.2d 1246, 1251 (4th Cir. 1991).

7. Each of the Challenging Petitioners has failed to show any particularized injury-in-fact resulting from INS's operations at its Columbia facility which fall within the zone of interests protected by S.C. Code Ann. § 13-7-40, et seq. (Supp. 1996) and 25 S.C. Code Ann. Regs. § 61-63 (Supp. 1996). Taken collectively, the Challenging Petitioners assert that their interests are adversely affected due to the increased risk of harm presented by the close proximity of radioactive materials handled and stored at INS's facility and the production of small quantities of radiation which would invade the air. Deposition testimony demonstrated that each of the Challenging Petitioners was unable to identify a concrete and particularized injury, either to persons living in close proximity to the facility or to the property in the area, that would satisfy the injury-in-fact test. Risk of future harm, without specific reference to actual injury, does not rise to the level of injury-in-fact.

8. In their Response, Challenging Petitioners argue that "potential future injury is sufficient to confer standing on a party" independent of whether actual injury has occurred (emphasis added). Such a construction of standing is not supported by Sierra Club v. Morton, supra; Lujan v. Defenders of Wildlife, supra; ALJD decisions (see Giant Cement), or past Board decisions (see Wachesaw Plantation; Moss Creek; Savannah River Plant). Cases in which the "injury in fact" analysis has been conducted specifically require a showing of a concrete and particularized injury to establish standing. None of the deposition testimony established a "concrete and particularized" injury. At best, the evidence presents a risk to the general public of potential future exposure to radioactive materials. This risk is a generalized injury not uncommon to any other individual. In addition, this risk is not both "real and immediate" but is conjectural or hypothetical.

9. The inability to establish the existence of injury-in-fact defeats Challenging Petitioners' claim of standing in this matter, and renders unnecessary a determination of whether the causation requirement has been met.

10. The evidence, when viewed most favorably to the non-moving party, establishes that the Challenging Petitioners have not suffered a concrete and particularized injury resulting from INS's operations at its Columbia facility. Accordingly, the Challenging Petitioners lack standing to request an adjudicatory hearing challenging DHEC's decision to renew INS's License.

ORDER

For the reasons stated herein, INS's Motion for Summary Judgment is GRANTED. The challenges to the License filed by Environmentalists, Inc., Sierra Club, Rosewood Development Association, Edisto Court Community Council, Isaac McClinton, and Lula Brown are dismissed.

Because the petitions of these parties have been dismissed, this tribunal will not reach or decide the remaining issues raised at the motion hearing relating to the confidentiality of certain documents. The Motion to Lift the Protective Order is therefore moot and is also dismissed.

AND IT IS SO ORDERED.

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ALISON RENEE LEE

Administrative Law Judge

October 22, 1997

Columbia, South Carolina.