SC Administrative Law Court Decisions

This matter comes before me upon a Motion for Reconsideration filed by Petitioner. Petitioner requests reconsideration of the April 26, 1998 Order rendered by this administrative law judge dismissing Petitioner's request for injunctive relief. Specifically, Petitioner requests a modification of the April 26, 1998 Order to allow Petitioner to pursue its claim for injunctive relief against DHEC. DHEC opposes the motion. For the reasons that follow, the motion for reconsideration is denied.

BACKGROUND

Petitioner originally requested a contested case hearing in this action upon DHEC's refusal to grant certain effluent limitations in the renewal of Petitioner's NPDES permit. The relief Petitioner requested was a revision of the permit to reflect the categorical limitations set forth in the regulations of the United States Environmental Protection Agency. On March 30, 1998, a hearing on Petitioner's motion for summary judgment was conducted. At that hearing, the parties reached an agreement on the effluent limitations for Petitioner's NPDES permit. Petitioner subsequently moved to amend its Complaint to seek an injunction against DHEC's future application of its interpretation of antibacksliding laws to Petitioner's facilities throughout South Carolina. Petitioner is primarily concerned with DHEC's position that a "substantial and material change in circumstances" justifying less stringent effluent limitations than those in a previous permit must involve a change in the actual effluent.⁽¹⁾

In the April 26, 1998 Order, this tribunal ordered DHEC to issue a revised permit based on the parties' agreement concerning the effluent limitations, and dismissed Petitioner's request for injunctive relief. This tribunal found that the issue of DHEC's application of its antibacksliding policies to the permit renewal in this action was rendered moot by the parties' agreement. This tribunal further found that such application to any other facilities of Petitioner was not ripe for review.

STANDARD OF REVIEW

The grounds for which a motion for reconsideration can be granted under ALJD Rule 29(C) and Rule 60(B), SCRCP are as follows:

1. mistake, inadvertence, surprise, or excusable neglect;

2. newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b);

3. fraud, misrepresentation, or other misconduct of an adverse party;

4. the judgment is void; or

5. the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application.

DISCUSSION

Because the motion for reconsideration fails to set forth any of the grounds listed in ALJD Rule 29(C), it must be denied. While Petitioner cites "legal mistake" as a ground for relief, Petitioner's true complaint is that this tribunal committed an error of law, which does not fall within the meaning of "mistake" contemplated by Rule 60(b), SCRCP. See Thompson v. Ballentine, 298 S.C. 289, 379 S.E.2d 896 (1989). In any event, I find the merits of Petitioner's argument unpersuasive for the reasons that follow.

MOOTNESS

Before any action can be maintained, there must exist a justiciable controversy. Byrd v. Irmo High School, 321 S.C. 426, 468 S.E.2d 861 (1996). A justiciable controversy is a real and substantial controversy which is appropriate for judicial determination, as distinguished from a dispute or difference of a contingent, hypothetical or abstract character. Id. This tribunal will not decide moot and academic questions or make an adjudication where there remains no actual controversy. Id.

Mootness has been defined as follows: 'A case becomes moot when judgment, if rendered, will have no practical legal effect upon [an] existing controversy. This is true when some event occurs making it impossible for [the] reviewing court to grant effectual relief.'

Id., quoting Mathis v. South Carolina State Highway Dept., 260 S.C. 344, 346, 195 S.E.2d 713, 715 (1973).

Petitioner wishes for this tribunal to rule on the validity of DHEC's antibacksliding policies in the context of a request for an injunction. The event rendering this issue moot is the parties' agreement on the effluent limitations to be included in Petitioner's NPDES permit. An injunction in this action is unnecessary and inappropriate, as Petitioner has received its requested effluent limitations.

Petitioner asserts that its request for an injunction against DHEC's future application of its antibacksliding policies is not moot because it will affect Petitioner's future permit renewals. In support of its position, Petitioner cites Los Angeles County v. Davis, 440 U.S. 625, 99 S.Ct. 1379, 59 L.Ed.2d 642 (1979), holding that voluntary cessation of allegedly illegal conduct does not make a case moot.

In this action, there was no "voluntary cessation of allegedly illegal conduct." While Petitioner alleges that DHEC's antibacksliding policies are invalid and arbitrarily applied, Petitioner concedes that DHEC did not withdraw those policies in this action. DHEC merely granted the effluent limitations requested by Petitioner within the framework of those policies. This occurred after Petitioner indicated that it was prepared to introduce evidence demonstrating the need for the higher limitations.⁽²⁾ Therefore, the reasoning of Los Angeles County v. Davis does not apply to this case. It was DHEC's application of its antibacksliding policies in Petitioner's favor that has mooted the issue.

Petitioner asserts that its request for an injunction against DHEC's future application of its antibacksliding policies falls within an exception to the mootness doctrine, namely that the issue raised is capable of repetition, but evading review. See In the Interest of Catrice S., 322 S.C. 204, 470 S.E.2d 856 (Ct. App. 1996). Petitioner cites in support of its position several cases involving government misconduct which is either short-term in nature or voluntarily ceased, but capable of recurring. These cases are distinguishable from the current action. DHEC's antibacksliding policies have not been voluntarily ceased in this case. Further, any application of these policies to a permit renewal which aggrieves an applicant will not be short-term in nature. Moreover, unlike the agency action in the cases cited by Petitioner, the threat of future agency action in a manner that will aggrieve Petitioner is speculative. While the issue may come up in future litigation, there has been no showing of any circumstances necessarily causing this issue to evade review in the future. Therefore, the issue raised by Petitioner does not fall within this exception to the mootness doctrine. This tribunal is keenly aware of Petitioner's litigation cost concerns. Only after considerable litigation expenses were incurred by Petitioner, yet prior to resolution of the issue of which Petitioner seeks review, did DHEC grant the requested COD limitations. At this time, however, there is no indication of any pattern of negligence repeatedly causing permit applicants unnecessary litigation expenses. Therefore, this tribunal is unable to conclude that DHEC's inadvertence in this case is likely to be repeated in other cases at Petitioner's continued expense.

RIPENESS

South Carolina appellate courts have relied on a two-factor test employed by federal courts for determining ripeness: (1) the fitness of the issues for judicial decision, and (2) the hardship to the parties of withholding court consideration. See Waters v. South Carolina Land Resources Conservation Comm'n, 321 S.C. 219, 467 S.E.2d 913 (1996). In determining fitness for judicial decision a "court should not decide a controversy grounded in uncertain and contingent events that may not occur as anticipated or may not occur at all." Waters, 467 S.E.2d at 918, quoting Thrifty Rent-A-Car Sys., Inc. v. Thrifty Auto Sales of Charleston, Inc., 849 F.Supp. 1083, 1085-86 (D.S.C. 1991); see also Park v. Safeco Ins. Co., 251 S.C. 410, 162 S.E.2d 709 (1968)("Courts generally decline to pronounce a declaration wherein the rights of a party are contingent upon the happening of some event which cannot be forecast and which may never take place.").

"It is not enough that a threat of possible injury currently exists; the mere threat of potential injury is too contingent or remote to support present adjudication." Waters, 467 S.E.2d at 918 (1996), quoting Thrifty Rent-A-Car Sys., Inc. v. Thrifty Auto Sales of Charleston, Inc., 849 F.Supp. at 1086 (D.S.C. 1991).

In the current action, there is no certainty that Petitioner will be injured in future permit renewals for its South Carolina facilities. DHEC's application of its antibacksliding policies to future permit renewals may well provide ample effluent limitations to meet Petitioner's needs. Unlike the litigants in the cases cited by Petitioner, Petitioner has not been required to take any action detrimental to its economic interests as a result of DHEC's expressed intentions to continue application of its antibacksliding policies. Therefore, this issue is not fit for judicial decision, and the withholding of court consideration will not result in hardship to Petitioner.

ORDER

Based on the foregoing, the motion for reconsideration is DENIED.

AND IT IS SO ORDERED.

____________________________________

ALISON RENEE LEE

Administrative Law Judge

June 29, 1998

Columbia, South Carolina

1. DHEC's practice in renewing NPDES permits is as follows: if the applicant has already made a change in facility operations, DHEC must determine if the applicant is meeting the current permit limits by quantifying the composition of the actual effluent. If the applicant is meeting current limits, DHEC's position is that there is no justification for relaxing the limits in a permit renewal. When an applicant requests renewal or modification of a permit, and a proposed change in operations has not yet been made, the resulting effluent cannot be determined at the time of the application. In this situation, DHEC works with the applicant to draft limits expected to be met.

2. During the March 30, 1998 hearing, Petitioner indicated that it was prepared to introduce testimony showing that it nearly missed the chemical oxygen demand ("COD") limitations on two occasions, that it curtailed production to avoid exceeding the COD limitations, and that DHEC staff only considered an average COD in the effluent when determining limitations for the renewed permit.