SC Administrative Law Court Decisions

For purposes of 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). Summary judgment is appropriate only when the pleadings, depositions, interrogatory answers, admissions, and affidavits show that there is no genuine issue of material fact. Bravis v. Dunbar, 316 S.C. 263, 449 S.E.2d 495, 496 (Ct. App. 1994). For purposes of summary judgment, the facts regarding standing are as follows:

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. 135) 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 the License.

3. On December 23, 1996, INS filed a Petition for Administrative Review appealing the 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. Environmentalists, Inc. is a non-profit membership organization. At least two members own businesses at least one mile from the INS facility. Three other members live at least one mile from the facility, and two members live approximately five or six blocks from the facility. They all alleged in the petition that they breathe the air, partake of outdoor activities, eat the food grown in the vicinity, drink the water and travel the roads near the facility.

5. 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 the vicinity of 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, the particular harm or injury suffered by these members, including herself, resulting from INS's operations was the potential harm from just living in the neighborhood. Thomas Dep. at 18-25. She also expressed psychological concerns or fear associated with the proximity of the plant and the risk of exposure to radiation. See Thomas Dep. at 21, 22, 23, 24.

6. The goal of the Environmentalists, Inc. is to raise questions about the facility. The organization did not express a desire to close the facility or to relocate it.

7. Sierra Club is a non-profit membership organization devoted to the "wise use and conservation of natural resources." Sierra Club alleges that its members own or use property, work, travel, and recreate in the vicinity of the INS facility and regularly breathe the air, drink the water, and use and enjoy natural resources of the Columbia area.

8. 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 near the INS facility. No member has come forward to indicate any particularized harm or injury relating to the facility. Perlic Dep. at 17. Mr. Perlic could not identify any individual members nor any particular harm or injury suffered by these members, including himself and his wife, resulting from the INS's operations. Perlic Dep. at 18. Sierra Club's concerns were the wastewater discharge from the facility, the use of sludge from the facility as a fertilizer, and the possibility of airborne contaminants. The sole issue for Sierra Club, as expressed by Mr. Perlic, was the location of the facility in a residential area.

9. In its Prehearing Statement filed with the Division, Sierra Club states that the release of radioactive wastes into the environment poses a danger to human health and the environment. Its members will suffer injury in fact from the degradation of the environment if INS continues to operate under the DHEC permit.

10. Rosewood Development Association is a not-for-profit membership association. As alleged in its petition, its members live, own property, work, travel, recreate, breathe air, drink and use water, and eat foodstuffs grown in proximity to the INS facility.

11. Melvin E. Jenkins, Rosewood Development Association's coordinator, represented the organization during discovery as its SCRCP Rule 30(b)(6) witness. Mr. Jenkins lives at least one mile from the INS facility. The members of the Rosewood Development Association live near the INS facility. In addition to expressing concerns about the potential health risks to those living in close proximity to the INS facility, Mr. Jenkins specifically pointed to the risk of soil and water contamination, the likelihood of property devaluation in the area, and the long term effects of exposure to radiation especially if there is a release of elements into the air. Jenkins Dep. at 13, 14. 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. Instead Mr. Jenkins relies on his expertise as a real estate agent to support his contention that industrial development adversely affects property values. Jenkins Dep. at 27-28, 30-31.

12. Edisto Court Community Council is also a not-for-profit membership association. Its petition contains the exact same allegations as those of Rosewood Development Association. Members of Edisto Court Community Council include Isaac McClinton and Lula Brown.

13. Isaac McClinton lives approximately one-half mile from the facility. His allegations are the same as those of Edisto Court and Rosewood Development.

14. 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 less than two blocks from 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. Specific health concerns are about the vapors and air quality for those persons living closely to the facility. McClinton Dep. at 13-15, 20-23. Edisto Court Community encompasses approximately six streets near the facility.

15. Lula Brown testified during discovery on her own behalf as an individual. She is also a member of the Edisto Court Community Council. Ms. Brown lives directly adjacent to the INS facility and her property is surrounded on three sides by the facility. The allegations in her petition are the same as those listed for Rosewood Development Association. She also alleges that INS discharges airborne contaminants onto her property. The only particular harm or injury, according to Ms. Brown, was the presence of discomforting odors emanating from the INS facility. No associated health problems could be linked to these odors by her. 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.

16. A joint Prehearing Statement was filed by all Challenging Petitioners (except Sierra Club) stating that the storage of radioactive wastes poses a hazard to human health and that Petitioners are threatened by direct and personal harm to their interests from the continued operation of the INS facility. The prehearing statement alleges that INS discharges airborne contaminants onto Ms. Brown's property and that the facility will be discharging radioactive contaminants into the environment exposing nearby residents and other persons to danger from radioactive contamination.

17. All of the petitions filed by the Challenging Petitioners state that DHEC has failed to assure that INS is qualified by reason of training and experience and has adequate facilities, equipment, and procedures to protect the public health. In addition, Petitioners allege that DHEC has failed to assure that an adequate assessment had been made of the environmental impacts.

18. The affidavit of Dr. Duncan B. Howe, the expert witness for Challenging Petitioners, states that exposure to radiation poses a risk of harm to human health and safety. High levels of exposure are known to cause cancers, heredity defects and defects in fetal development. Exposures to low levels of radiation "are thought to have the potential" to cause tumors and leukemias. Research organizations and commissions have recommended that the annual dose of persons exposed to radiation be reduced. The recommended annual radiation dose to the general public should be reduced from 0.5 rem to 0.1 rem. This recommendation was adopted by the U.S. Nuclear Regulatory Commission. Finally, Dr. Howe states that the cancers associated with exposure to low level radiation have long latency periods (from 8 to 20 years for leukemias and 12 to 40 years for solid cancers or tumors).

19. The facility located at 811 S. Edisto Avenue has been in operation for over 20 years. Interstate Nuclear Services began its operation of the facility in the 1980s.

20. The facility sought renewal of its license to receive, acquire, possess and transfer radioactive material listed in the license and to use the radioactive material for the purposes and at the place designated in the license. Condition 18 of the license states that the facility shall be operated such that the dose from external sources does not exceed 0.05 rem in a year at any property boundary. This condition represents a decrease from previous licenses which allowed a limit of 0.1 rem in a year.

21. Documents of INS reveal that through self monitoring of the location at the property lines, the facility has measured levels of radiation approaching or exceeding 0.1 rem.

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 have 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).

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, it 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. The issue in this case is whether the harm alleged by the Challenging Petitioners constitutes injury in fact which is fairly traceable to INS. The United States Supreme Court has announced repeatedly and has clearly stated in environmental cases that environmental and aesthetic injury was the type of harmful effect adequate to satisfy the "injury in fact" standard. These types of cases include those in which there is a non-economic injury encompassing the use and enjoyment of natural resources or harm to the environment. These cases most often include those referred to by the Challenging Petitioners on use and enjoyment of the beaches of this State, use and enjoyment of the rivers, lakes, wetlands, or environmental impact on wildlife and marine life. See, e.g., South Carolina Wildlife Federation v. South Carolina Coastal Council, 296 S.C. 187, 371 S.E.2d 521 (1988); S.C. Coastal Conservation League v. S.C. DHEC: In re Laurel Hill Plantation, DHEC Order 94-3-B; Geronimo et al. v. S.C. DHEC and Kiawah Resort Associates, DHEC Order 92-4-B. In those cases, the harm resulting from the issuance of a permit affecting those areas was direct and present as well as imminent. Challenging Petitioners and INS failed to cite any cases in which the courts have addressed the issue of specific harm to an individual's personal health, particularly from permitted nuclear activities. Few cases have addressed this specific injury.

8. The U.S. Supreme Court dealt specifically with standing in this area in Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 98 S.Ct. 2620, 57 L.Ed.2d 595 (1978). In Duke Power, the Court held that the plaintiffs' allegations of environmental and health injuries caused by the construction of two nuclear plants were sufficient to satisfy the injury in fact requirement for standing. Specifically, the Court addressed whether exposure to a toxin is sufficient to confer standing. The plaintiffs claimed that the future exposure to radiation from two nuclear power plants under construction constituted injury in fact entitling them to challenge a statute limiting liability for accidents at nuclear power plants. At the time of the suit, the plants were still under construction, and therefore, plaintiffs had not sustained any radiation-related diseases as a result of future emissions.

The lower court made several findings of fact regarding immediate effects on plaintiffs. These included: (1) "the production of small quantities of non-natural radiation which would invade the air and water; [2] a 'sharp increase' in the temperature of two lakes presently used for recreational purposes resulting from the use of the lake waters to produce steam and to cool the reactor; [3] interference with the normal use of the waters of the Catawba River; [4] threatened reduction in property values of land neighboring the power plants; [5] 'objectively reasonable' present fear and apprehension regarding the 'effect of the increased radioactivity in air, land and water upon [appellees] and their property, and the genetic effects upon their descendants'; and [6] the continual threat of 'an accident resulting in uncontrolled release of large or even small quantities of radioactive material' with no assurance of adequate compensation for the resultant damage." Id., 438 U.S. at 73. The Supreme Court held "[i]t is enough that several of the 'immediate adverse effects were found to harm appellees. Certainly the environmental and aesthetic consequences of the thermal pollution of the two lakes in the vicinity of the disputed power plants is the type of harmful effect which has been deemed adequate in prior cases to satisfy the 'injury in fact' standard. [Citations omitted]. And the emission of non-natural radiation into appellees' environment would also seem a direct and present injury, given our generalized concern about exposure to radiation and the apprehension flowing from the uncertainty about the health and genetic consequences of even small emissions like those concededly emitted by nuclear power plants." Id., 438 U.S. at 73-74.

9. In this case, the Challenging Petitioners presented no evidence or facts to demonstrate any type of harm to the natural resources (ponds, lakes, rivers, or other waters) in the vicinity of the facility. There was no evidence of any immediate injury to these resources. However, evidence was presented that the facility emits non-natural radiation into the air around the facility. In addition, Challenging Petitioners also presented evidence about potential reduction in property values of land neighboring the power plants, fear and apprehension regarding the effect of increased radioactivity in the air, and the continual threat of an accident resulting in the uncontrolled release of quantities of radioactive material into the environment.

10. A subsequent case interpreting Duke Power and applying the injury in fact test to determine standing for health related injuries has found that exposure to toxins which are known to cause injury to health even though manifested at a later date constituted direct and present injury. Carlough v. Amchem Products, Inc., et al., 834 F. Supp. 1437 (E.D. Pa. 1993). In Carlough, plaintiffs who were exposed to asbestos but had not developed asbestos-related conditions brought suit to recover damages for injuries. Their standing was challenged by the defendants. The court held that "the exposure-only plaintiffs have already been exposed to a toxin" and that exposure constitutes sufficient injury in fact to give the plaintiffs standing to sue. The "available medical data on the health consequences of exposure to asbestos also require a conclusion that the exposure-only plaintiffs have alleged a demonstrable physical injury which satisfies the ... injury in fact requirement." Id., 834 F. Supp. at 1454.

11. Petitioners Lula Brown and Isaac McClinton have demonstrated a risk of exposure due to their close proximity to the facility. Because Lula Brown and Isaac McClinton are members of Edisto Court Community Council and its members are residents most likely to have been exposed to the discharges into the air, Edisto Court also has demonstrated injury in fact.

12. The allegations and evidence of the remaining Challenging Petitioners, viewed in a light most favorable to them, have demonstrated a fear of exposure to radioactive material and the accompanying psychological effects from such fear. Members of the Sierra Club and Environmentalists, Inc., have demonstrated an injury from the risk of exposure to their members. These organizations seek to challenge the license because of their concern for the residents in the neighborhood that may be exposed to airborne contaminants. These residents include Sierra Club and Environmentalists, Inc. members. Rosewood Development Association has alleged the same fear of exposure, but also threatened reduction in property values, and harm from long term exposure to radiation. There has been no evidence of pollution of natural resources and no evidence to connect the facility with any pollution of the drinking water, "foodstuffs", or natural resources located in the vicinity. There is evidence of past and future emissions by INS into the environment.

13. Challenging Petitioners rely on Natural Resources Defense Council Inc. v. Watkins, 954 F.2d 974 (4th Cir. 1992) in which the Fourth Circuit determined that members of environmental organizations could show injury in fact from allegations or evidence of discharge from a nuclear reactor which contributed to pollution interfering with use of a river by its members. The Fourth Circuit held that the plaintiffs had alleged sufficient facts to have standing to redress environmental injury. The injury was the pollution which interfered with the recreational use of the river by the organization's members. Here, although neither Sierra Club nor Environmentalists, Inc., nor Rosewood Development Association have testified to any facts to support their allegations that INS contributes to pollution or harms the drinking water or natural waters used by their members, all of the petitioners have expressed concern over the discharge of pollutants into the air.

14. Based upon the analysis of Duke Power and Carlough, these organizations have demonstrated an injury in fact.

15. The question now turns to whether the injury is caused by the other party and whether it is within the zone of interests protected by the statute or regulation in question. Whether the injury is caused by INS is without question. The type of injury alleged and demonstrated by the Challenging Petitioners is directly related to the activity occurring at the facility operated by INS. The type of contaminant that may affect the air and the health of the petitioners is emitted by INS.

16. Finally, the injury occurring to Challenging Petitioners is within the zone of interests protected by the statutes and regulations at issue. S.C. Code Ann. § 13-7-40 (Supp. 1996) provides that DHEC is designated as the state agency responsible for the control and regulation of radiation sources. It also provides that DHEC shall formulate, adopt, promulgate, and repeal regulations relating to the control of ionizing and nonionizing radiation as well as provide by regulation for the licensing or registration of radiation sources. No person may possess, use, or transfer a source of ionizing or nonionizing radiation unless registered, licensed, or exempted by the Department. S.C. Code Ann. § 13-7-40(A), (F), and (G) (Supp. 1996).

17. DHEC promulgated Regulation 61-63 on Radioactive Materials pursuant to the statutory provisions. 24A S.C. Code Regs. 61-63 (Supp. 1996). The regulation applies to all persons who receive, possess, use, transfer or acquire any radioactive material.

18. Regulation 61-63.3.13.1.1 provides that the licensee shall conduct operations so that the total effective dose equivalent to individual members of the public from the licensed operation does not exceed 0.1 rem in a year, exclusive of the dose contribution from the licensee's disposal of radioactive material into sanitary sewerage allowed in accordance with Regulation 61-63.3.29.

19. Challenging Petitioners have shown that INS emits radioactive material from its operations at its Columbia facility, which is an injury falling 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 invade the air.

20. Since the Challenging Petitioners have established that the release of radioactive material into the air constitutes injury in fact and that injury is causally connected to the operation of INS and within the zone of interests protected by the statute and regulation, I conclude that they have standing to maintain this action. Therefore, it is not necessary to determine whether the injuries based on the possibility of an accident causing radioactive material to be emitted in unknown quantities into the environment and the "present apprehension generated by this future uncertainty" are sufficiently concrete to satisfy standing requirements. See Duke Power, supra, 438 U.S. at 73.

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby

ORDERED, that INS's Motion for Summary Judgment is DENIED.

AND IT IS SO ORDERED.

_________________________________

ALISON RENEE LEE

Administrative Law Judge

November 21, 1997

Columbia, South Carolina.