SC Administrative Law Court Decisions

I make the following Findings of Fact, taking into consideration the burden on the parties to establish their respective cases by a preponderance of the evidence, and taking into account the credibility of the witnesses:

1. INS operates a facility at 811 South Edisto Avenue in 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. The INS facility is located in an area with residences and businesses.

3. INS took over operation of the facility in 1985.

4. On December 16, 1996, DHEC renewed INS's Radioactive Material License (No. 135) pursuant to S.C. Code Ann. § 13-7-40(F) (Supp. 1998) and 24A S.C. Code Ann. Regs. 61-63 (1976 & Supp. 1998) subject to certain conditions listed in the License.

5. The License permits INS to receive, acquire, possess, and transfer listed types, forms and quantities of radioactive material and to use the radioactive material at the facility for the purpose of decontamination, storage of resultant waste and necessary instrument calibration.

6. On December 23, 1996, INS filed a Petition for Administrative Review appealing Conditions 7(D), 7(E), 7(F), 12, 13, 17, 18, 19 and 20 contained in the License. Challenging Petitioners subsequently filed separate Petitions for Administrative Review challenging the renewal of the license. On January 8, 1997, these separate Petitions were consolidated into one contested case by order of this tribunal.

7. Condition 13 included the requirement that INS perform leak testing of sealed sources containing radioactive material.

8. Other conditions listed in the License included changes to license conditions of prior years. The changes included the following:

(a) Condition 7(D) changed the possession limit for Plutonium from 200 grams to 2 grams;

(b) Condition 7(E) changed the possession limit for Uranium-233 from 200 grams to 2 grams;

(c) Condition 7(F) changed the possession limit for Uranium-235 from 350 grams to 100 grams;

(d) Condition 12 changed the required frequency of corporate radiation health and safety audits from once a year to twice a year, and it added a new requirement that records of these audits be submitted to DHEC;

(e) Condition 17 added a new requirement that INS install and maintain an overhead fire extinguishing/suppression system in rooms where drying equipment is utilized and in rooms where radioactive waste is stored;

(f) Condition 18 added a new requirement that INS conduct operations such that the dose from external sources at any property boundary does not exceed 50 millirem in a year;

(g) Condition 19 added a new prohibition from storing waste for longer than six month intervals; and

(h) Condition 20 added a new requirement that INS construct and maintain a system to contain water in the event of a spill.

9. INS withdrew its objection to Condition # 13 prior to the hearing after DHEC granted a certain exemption requested by INS.

10. Condition 19 was clarified at the hearing to require stored radioactive waste to be moved off-site within six months of collecting a full truckload. DHEC staff agreed that Condition 19 needs to be reworded to reflect this clarification.

CHALLENGING PETITIONERS - PROXIMITY TO FACILITY

11. Environmentalists, Inc. is a non-profit membership organization alleging that its members breathe the air, partake of outdoor activities, eat the food grown in the vicinity, drink the water and travel the roads near the facility.

12. Leslie Minard is a member of Environmentalists, Inc. and lives approximately one mile away. She also owns a house approximately one-half mile from the INS facility.

13. Ms. Minard works, and her daughter attends day care, near the INS facility. Ms. Minard buys food from a market on Rosewood Drive, and she and her daughter play in Rosewood Park, approximately one quarter mile from INS.

14. 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.

15. James Smith lives approximately one quarter of a mile from the INS facility and he is a member of Sierra Club.

16. 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.

17. Melvin Jenkins is a member of the Rosewood Development Association and he lives approximately three-quarters of a mile from the INS facility.

18. Mr. Jenkins and his family regularly participate in activities at Owens Park.

19. Owens Park is approximately two-thirds of a mile from the INS facility. It is a large recreational area with soccer fields where children play almost every day.

20. 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.

21. Isaac McClinton lives approximately two blocks, and within one quarter of a mile, from the INS facility.

22. Gilbert Memorial Baptist Church, located on Mitchell Street, is within a block of the INS facility. The church, which Mr. McClinton attends, holds a Sunday worship service, Bible study on Wednesdays and choir practice throughout the week.

23. Lula Brown lives adjacent to the INS facility. Her house is surrounded on three sides by the facility.

24. Lint from the INS dryers frequently blows into Lula Brown's yard.

25. Tabernacle Progressive Church, located at Bay and Mitchell, is within a block of the INS facility.

26. Holy Ghost Station, on the corner of Edisto and Mitchell, is within a block of the INS facility.

27. A park soon to be named McClinton Park is located on Howe Street, and children recreate in that park. The park is approximately two blocks, and within a quarter of a mile, from the INS facility.

EFFECTS OF RADIATION

28. Exposure to high levels of radiation poses a risk of harm to human health and safety. 29. Extended and prolonged exposure to low levels of radiation have the potential to cause tumors and leukemia and increase the chance of cancer in humans.

30. Cancers associated with exposure to low level radiation have long latency periods (from 8 to 15 years for leukemia and 20 to 40 years for solid cancers).

31. An exposure of 1,000 millirem per lifetime, over and above background radiation, leads to 3 additional cancer deaths in a population of 10,000. Background radiation is the radiation which occurs naturally in the environment.

32. Children are approximately twice as radiosensitive as adults.

33. At lower doses of radiation, the genetic material of the cell is somewhat altered; however, long-term exposure to low levels of radiation is difficult to measure statistically due to a host of factors, including the many other carcinogens to which humans may be exposed.

34. Because the incidence of a cancer death from low doses is expected to be very low, it would be very difficult to see it above the natural, spontaneous incidence of cancer in the population.

MEASUREMENT OF RADIATION

35. The potential public exposure to radiation has two elements: internal exposure and external exposure. The major risk to the public, those living around a nuclear facility, is inhalation of radioactive materials in the air emissions coming out of an exhaust stack at the facility; another risk is that of drinking ground water that has been contaminated by liquid effluents from the facility. Both of these risks involve internal exposure. The external dose is the isotropic radiation which travels outward from the facility in both particulate (particle) and electromagnetic form and is externally received by persons near the source. The combination of internal exposure and external exposure is known as the "total effective dose equivalent."

36. The probability of the induction of a cancer is linearly related to the total effective dose equivalent, i.e. the higher the total effective dose equivalent a person receives, the more likely that person is to develop cancer in his or her lifetime.

37. External exposure at the facility is measured by several thermoluminescent dosimeters ("TLD") stationed at various fenceline locations around the perimeter of the facility site. A TLD measures energy that is absorbed from any form of radiation that enters and interacts with the material inside the TLD. Internal exposure is measured by a sampling from the exhaust stack on the roof of the facility. The exhaust stack is connected to a ventilation hood above the laundry sorting table inside the facility.

38. Radiation dissipates with distance and any harmful exposure is proportional to proximity to source and length of exposure, i.e. the closer a person is to a source, the greater, and more harmful, their exposure.

39. In South Carolina, individuals are exposed to approximately 150 millirem per year of background radiation occurring naturally in the environment.

40. Exposure to high levels of radiation would not be expected at a nuclear laundry facility.

41. In 1991, the fenceline reading at the INS facility was 345 millirem. Applicable regulations at that time allowed 500 millirem per year.

42. The 1996 northeast fenceline reading (fence "B") at INS was 160 millirem per year. Other fenceline locations near residential properties also measured in excess of 100 millirem per year. Applicable regulations allowed 100 millirems per year.

43. Fence B is located at the rear of Lula Brown's backyard.

44. The high fenceline reading near Lula Brown's residence can be attributed in part to the accumulation of radioactive waste in a trailer used for off-site shipment which is located close to the fenceline near Ms. Brown's residence. It is necessary to move the trailer to an area on the facility's site which would reduce the potential for radiation exposure to neighboring residents.

45. A 160 millirem fenceline reading would mean an annual exposure, over and above background radiation, of approximately 40 millirem for Lula Brown, assuming that she is physically present in her house fifty (50%) percent of the time.

INS EQUIPMENT AND PROCEDURES

46. The exhaust stack at the facility contains a high efficiency particulate air ("HEPA") filter, which takes particles out of the air with an efficiency of at least 99.97 percent.

47. INS maintains two isokenetic air sampling systems inside its exhaust stack. Samples are analyzed once a week.

48. Sampling data from previous years indicates that radiation released in air emissions from the exhaust stack have been below regulatory limits.

49. INS's liquid effluent goes to the City of Columbia sanitary sewer system after it is tested to determine that the radioactivity in the effluent is below regulatory limits.

50. There is no evidence of release of effluents into the drinking water, any groundwater contamination at the facility, or any other harm to natural resources in the surrounding area.

51. Radioactive solid waste at the facility is stored in metal containers.

52. INS monitors the air inside its facility for regulatory compliance.

53. Internal surveys of radiation and contamination are routinely conducted by INS personnel; at least 200 smears per day inside the facility are conducted.

54. INS workers are required to be monitored in alpha and beta personnel monitors before leaving the facility. These monitors are equipped with highly sensitive gas flow proportional radiation detection equipment, which minimizes the possibility of public exposure to residual radioactive particles remaining on INS employees after leaving the facility.

55. Corporate audits of facility operations are conducted once a year.

56. All of the large dryers at the facility have built-in fire suppression systems.

57. The room where incoming laundry is opened and sorted is the area most likely to create an uncontrolled release of radioactive materials in the event of a fire.

58. Although Condition 17 does not provide for a fire suppression system in the laundry sorting area of the facility, DHEC does not object to the installation of such a system in that area.

59. INS concedes that a fire suppression or sprinkler system is appropriate for its facility.

MATERIALS POSSESSION LIMITS

60. The past possession of Plutonium at the facility has always been less than the two gram possession limit in Condition 7(D) in the License.

61. The main consideration in limiting the amount of Plutonium, Uranium-233 and Uranium-235 INS may possess at any one time would be how much material is available for uncontrolled release, for example, in a fire.

PREVENTION OF SPILLS

62. Due to the proximity of residential neighborhoods, a possible spill moving off site would have an immediate effect on a private residence.

63. INS has a device at its water main which requires the water main valve to be turned off before the facility's alarm system can be activated. This device will help to prevent spills when the facility is unoccupied.

REDUCTION OF RADIATION

64. The three key principles of reducing radiation is time, distance and shielding.

65. INS has built a shield wall around its liquid waste holding tanks to shield this radiation source from the public.

CRITERIA FOR LICENSING

66. INS is qualified to use the materials listed in the License for the purpose requested.

67. INS has the training and personnel necessary to operate a nuclear laundry facility in such a manner as to protect health and minimize danger to life and property.

68. INS' equipment, facilities and procedures (existing and as proposed in the License conditions) are adequate to protect health and minimize danger to life and property.

69. The issuance of the License, with the conditions imposed by DHEC, will not be inimical to the health and safety of the public.

REASONABLENESS OF CONDITIONS

70. INS chose to keep its facility in its current location even after being presented with information indicating that relocation of its laundry operations would be economically feasible.

71. The most recent history of INS operations demonstrates a better commitment to maintaining exposures to radiation as far below the regulatory limits as is reasonably achievable. From 1991 through at least early 1996; however, INS management failed to follow auditor's recommendations in this regard.

72. INS has agreed to work toward achieving 50 millirem or less per year for the external dose limit at the fenceline.

73. DHEC staff indicated that if initial inspections following the imposition of the new conditions reveal that INS is not fully in compliance, INS will not be penalized if it is apparent that it is moving toward the goals of the new conditions.

74. At the final hearing, DHEC staff indicated that DHEC will inspect the INS facility on an annual basis.

STANDING

"South Carolina courts, like the federal courts, require a justiciable case or controversy before any decision on the merits can be reached." Lennon v. South Carolina Coastal Council, 330 S.C. 414, 498 S.E.2d 906 (Ct. App. 1998). Standing acts as one of the elements of the requirement that there be a justiciable case or controversy. Id.⁽²⁾

The question of Challenging Petitioners' standing to object to the renewal of the License was first raised in INS's motion for summary judgment. This tribunal's denial of summary judgment was appropriate under the applicable standard of review. See Cafe Associates, Ltd. v. Gerngross, 305 S.C. 6, 406 S.E.2d 162 (1991) (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); Bravis v. Dunbar, 316 S.C. 263, 449 S.E.2d 495, 496 (Ct. App. 1994) (Summary judgment is appropriate only when the pleadings, depositions, interrogatory answers, admissions, and affidavits show that there is no genuine issue of material fact).

Standing, however, represents a jurisdictional requirement which remains open to review at all stages of the litigation. National Organization for Women, Inc. v. Scheidler, 114 S.Ct. 798 (1994); see also Friends of the Earth, Inc. v. Laidlaw Environmental Services, 149 F.3d 303 (4th Cir. 1998); Lennon v. South Carolina Coastal Council, 330 S.C. 414, 498 S.E.2d 906 (Ct. App. 1998). Each element of standing "must be supported in the same way as any other matter on which [a party] bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation." Lujan v. Defenders of Wildlife, 112 S.Ct. 2130 (1992). The plaintiff always bears the burden of establishing the elements of standing. Carlough v. Amchem Products, Inc., 834 F.Supp. 1437 (E.D. Penn. 1993). At the final stage of the litigation, the facts necessary to establish a claim of standing must be supported adequately by the evidence presented at trial. Lujan, [504 U.S. at 561], 112 S.Ct. at 2137.

For the reasons that follow, I find and conclude that, with the exception of Lula Brown, Issac McClinton and Edisto Court Community Council, Challenging Petitioners failed to carry their burden of establishing standing at the final hearing of this case.

ELEMENTS OF STANDING

In a dispute with DHEC, "[s]tanding shall be determined on the basis of applicable statutes, regulations, case law and Board orders." 25 S.C. Code Ann. Regs. § 61-72.401 (Supp. 1998). 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. 1998) (emphasis added).

While no applicable statute or regulation specifies who is "entitled as of right" to be admitted as a party in this proceeding, South Carolina appellate courts have adopted the "injury-in-fact" test established in Sierra Club v. Morton, 92 S.Ct. 1361 (1972) and refined in Lujan v. Defenders of Wildlife, 112 S.Ct. 2130 (1992). See, e.g., Berry v. McLeod, 328 S.C. 435, 492 S.E.2d 794 (Ct. App. 1997). This test has also been consistently applied in previous decisions of the Administrative Law Judge Division and the DHEC Board. See, e.g., Environmentalists, Inc. v. DHEC, Order No. 96-ALJ-07-0030 (June 18, 1996); League of Women Voters of Georgetown County v. Wachesaw Plantation, Order No. 91-9-B (1991); Moss Creek Development Corp. v. DHEC, Order No. 87-18-B (1987); In re Savannah River Plant NPDES Permit, Order No. 85-6-B (1985).

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, 112 S.Ct. at 2136 (citations omitted). By this the United States Supreme Court means "that the injury must affect the plaintiff in a personal and individual way." Lujan, 112 S.Ct. at 2136, n. 1. The '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] 112 S.Ct. at 2137 (quoting Sierra Club, 405 U.S. at 734-35).

Once a particularized injury is recognized, a party must also show (1) a fairly traceable connection between the injury and the allegedly unlawful conduct of the other party, and (2) a likelihood that the requested relief will redress the alleged injury. Steel Company v. Citizens for a Better Environment, 118 S.Ct. 1003 (1998); Friends of the Earth, Inc. v. Laidlaw Environmental Services, 149 F.3d 303 (4th Cir. 1998). Failure to meet the injury-in-fact test, however, renders these additional criteria moot and results in a lack of standing.

EXPOSURE TO TOXINS

The only allegation in Challenging Petitioners' pleadings giving rise to continued standing in this case is the alleged health risks created by the continued exposure to low-level doses of radiation. Exposure to a substance generated by the opposing party in such quantity as to be scientifically proven to cause illness (a toxin) is sufficient to meet the injury-in-fact requirement of standing, even if the resulting illness has a long latency period.⁽³⁾ See Ivy v. Diamond Shamrock Chemicals Co., 996 F.2d 1425, 1434 (2d Cir. 1993) (in the case of exposure to a toxin, the injury in fact occurred at the time of exposure); Carlough v. Amchem Products, Inc., 834 F.Supp. 1437 (E.D. Penn. 1993).

Whether non-natural radiation constitutes a "toxin," for purposes of determining injury-in-fact, depends on the amount to which the plaintiff is exposed. In the present case, Challenging Petitioners are requesting the denial of a license to operate a facility emitting a very limited amount of non-natural radiation into the surrounding environment. Therefore, Challenging Petitioners must show that the allowance of this limited amount of radiation will cause adverse health effects to them. Because of the extremely close proximity in which Lula Brown lives to the facility and the continued exposure to low level radiation, she meets the requirements of standing. The amount of radiation she receives may by small, but over time the accumulated effect of the radiation may contribute to an increased risk of cancer, and that is enough to satisfy the standing requirements. See Ivy, 996 F.2d at 1434 (2d Cir. 1993). Because Lula Brown is a member of Edisto Court Community Council, it also has met the requirements of standing. See Sierra Club v. Morton, 92 S.Ct. 1361 (1972); Energy Research Foundation v. Waddell, 295 S.C. 100, 367 S.E.2d 419 (1988). Issac McClinton lives two blocks, or approximately 446 feet, away from the facility. Due to his close proximity to the facility, he also is exposed to radiation in an amount that, over time, could contribute to an increased risk of cancer. Therefore, Mr. McClinton also has standing.

Expert testimony indicates that the radiation exposure to the remaining Challenging Petitioners is negligible due to their distance from the facility and their intermittent activity in the surrounding neighborhoods. Further, there was no evidence of harm to any natural resources in the area surrounding the facility. Therefore, the remaining Challenging Petitioners cannot satisfy the injury-in-fact requirement for standing. Because none of the remaining individual Challenging Petitioners have standing, Sierra Club, Environmentalists, Inc. and Rosewood Development Association do not have standing.⁽⁴⁾

Various members of Environmentalists, Inc. who are not parties to this case were identified at the hearing as living near the facility. None of these individuals, however, lived close enough to the facility to be exposed to radiation to any significant degree.

Challenging Petitioners' other concerns do not serve as a source of standing in this case. Their concern over the results of a possible accident at the facility, or an accident involving one of the facility vehicles transporting contaminated clothing, is a claim of a threatened injury. When a petitioner claims that a threatened injury is the source of standing, he or she must show that the threatened injury is so imminent as to be certainly impending. Whitmore v. Arkansas, 110 S.Ct. 1717 (1990); Friends of the Earth, Inc., et al. v. Gaston Copper Recycling Corporation, 9 F.Supp.2d 589 (D.S.C. 1998). The imminence requirement ensures that courts do not entertain suits based on speculative or hypothetical harms. See Lujan v. Defenders of Wildlife, 112 S.Ct. at 2138-39 n. 2 (1992). Challenging Petitioners have not presented any evidence demonstrating that an accident at the facility or involving a facility vehicle is certainly impending.

Additionally, Challenging Petitioners' concern over the effect the facility will have on the vitality of the surrounding community, including property values, is a zoning issue that cannot be addressed in this environmental permitting case. See 62 C.J.S. Corporations § 199 (1949) (As a general rule, courts will not interfere with, or control or supervise, acts of a municipal corporation, nor will they substitute their judgment for that of the proper municipal authorities). Therefore, this alleged injury does not satisfy the redressability requirement of standing. See Steel Company v. Citizens for a Better Environment, 118 S.Ct. 1003 (1998); Friends of the Earth, Inc. v. Laidlaw Environmental Services, 149 F.3d 303 (4th Cir. 1998) (a party must also show a likelihood that the requested relief will redress the alleged injury).

RENEWAL OF THE LICENSE

Regulation 61-63 establishes the criteria for approval of a radioactive materials license. The applicable criteria are:

(1) The applicant is qualified by reason of training and experience to use the material in question for the purpose requested in accordance with these regulations and in such a manner as to protect health and minimize danger to life and property; and

(2) The applicant's proposed equipment, facilities, and procedures are adequate to protect health and minimize danger to life and property; and

(3) The issuance of the license will not be inimical to the health and safety of the public.

24A S.C. Code Ann. Regs. 61-63 RHA 2.6 (1976).

In this case, Challenging Petitioners failed to demonstrate that INS has insufficient training, experience, equipment, facilities or procedures (existing and as proposed in the License conditions) with which to protect health and minimize danger to life and property. In fact, Challenging Petitioners' own expert witness stated that INS has the training and personnel necessary to safely operate a nuclear laundry facility. Challenging Petitioners' expert witness also conceded that the range of protection apparatus in place seems to be complete, its equipment appears adequate and its corporate audits are thorough.

Challenging Petitioners also failed to demonstrate that the issuance of the License, with the conditions imposed, will be inimical to the health and safety of the public. No evidence of any harm to natural resources in the surrounding area was presented. Further, no evidence was presented demonstrating radiation emissions from the facility in such quantities as to pose any significant risk of health effects to individuals living in close proximity to the facility.

Public health and safety issues are of grave importance, especially in a matter where radiation is involved. The evidence presented in this case, however, demonstrates that INS is qualified to safely operate a nuclear laundry facility under the conditions imposed in the License. The potential for harm to public health and safety from the very limited amount of radiation released from the INS facility is statistically very low. Exposure to 1000 millirem per lifetime, in addition to background radiation, leads to a very small percentage of deaths in a population. Therefore, in light of recent measurements of radiation from the facility and the new conditions on the License, even the close proximity of Lula Brown and Issac McClinton provides relatively little exposure in an amount likely to cause illness over time.

CONDITIONS OF THE LICENSE

DHEC has the authority to impose such conditions on a radioactive materials license as it deems appropriate or necessary to minimize danger to public health and safety or property. S.C. Code Ann. §13-7-40(F); 24A S.C. Code Ann. Regs. 61-63 RHA 1.11 (1976). Such conditions may be in addition to requirements set forth in Regulation 61-63. 24A S.C. Code Ann. Regs. 61-63 RHA 2.9.2 (1976). Under the circumstances of this contested case, I find and conclude that all of the conditions included in the License are reasonable.

While zoning issues cannot be addressed in this environmental permitting case, the facility's proximity to residential neighborhoods should be taken into consideration in determining the appropriateness and necessity of conditions imposed on the License. In this case, INS failed to demonstrate that the contested conditions to the License are not appropriate to minimize danger to public health and safety in light of the proximity of residential neighborhoods. In fact, DHEC seriously considered the public comments it received and modified the permit in a manner to more closely reflect the actual emissions at the facility.

INS has voluntarily placed itself in the middle of a residential neighborhood and it must accept the added responsibilities that accompany such a location. INS chose to keep its facility in its current location even after being presented with information indicating that it was economically feasible to move its laundry operation to another location. While nothing in the current law prohibits such a choice, INS cannot complain that the conditions in the License are unreasonable or impose undue economic hardship.

Finally, it is necessary to add to the License the condition that INS locate the trailer in which it stores radioactive waste for off-site shipment in an area at the facility that reduces the potential for radiation exposure to neighboring residents.

CONCLUSIONS OF LAW

Based on the foregoing Findings of Fact, I conclude, as a matter of law:

1. The Administrative Law Judge Division has jurisdiction of this matter pursuant to S.C. Code Ann. §§ 1-23-310 et seq. (1986 and Supp. 1998) and 25 S.C. Code Ann. Regs. 61-72.201 (Supp. 1998).

2. The standard of proof in administrative proceedings is a preponderance of the evidence. Anonymous v. State Board of Medical Examiners, 329 S.C. 371, 496 S.E.2d 17 (1998); 25 S.C. Code Ann. Regs. 61-72.702(B) (Supp. 1998).

3. Generally, the burden of proof is on the party asserting the affirmative in an adjudicatory administrative proceeding. See 2 Am.Jur.2d Administrative Law § 360 (1994); Converse Power Corp. v. South Carolina Dep't of Health and Envt'l Control, 98-ALJ-07-0032-CC (June 15, 1998). INS, as the party challenging the conditions in the License, bears the burden of proving that the conditions are not warranted. Challenging Petitioners, as the parties challenging the renewal of the License, bear the burden of proving that the License should not be renewed.

4. The trier of fact must weigh and pass upon the credibility of evidence presented. See S.C. Cable Television Ass'n v. Southern Bell Tel. and Tel. Co., 308 S.C. 216, 417 S.E.2d 586 (1992). The trial judge who observes a witness is in the best position to judge the witness's demeanor and veracity and evaluate his testimony. See, e.g., McAlister v. Patterson, 278 S.C. 481, 299 S.E.2d 322 (1982).

5. Where an expert's testimony is based upon facts sufficient to form the basis for an opinion, the trier of fact determines its probative weight. Berkeley Elec. Coop. v. S.C. Public Serv. Comm'n, 304 S.C. 15, 402 S.E.2d 674 (1991); Smoak v. Liebherr-Am., Inc., 281 S.C. 420, 422, 315 S.E.2d 116, 118 (1984). A trier of fact is not compelled to accept an expert's testimony, but may give it the weight and credibility she determines it deserves. Florence County Dep't of Social Serv. v. Ward, 310 S.C. 69, 425 S.E.2d 61 (1992); Greyhound Lines v. S.C. Public Serv. Comm'n, 274 S.C. 161, 262 S.E.2d 18 (1980).

6. South Carolina Code Ann. § 13-7-40(F) (Supp. 1998) requires DHEC to

(1) develop and conduct programs for evaluation of hazards associated with the use of radiation sources;

(2) develop and conduct programs for the control, surveillance, and regulation of radiation sources, ...;

(3) formulate, adopt, promulgate, and repeal regulations relating to the control of ionizing and nonionizing radiation;

. . .

(9) provide by regulation for the licensing or registration of radiation sources or devices or equipment utilizing these sources. . . .; [and]

(10) promulgate and repeal regulations pertaining to the qualifications of operators applying ionizing or nonionizing radiation to humans.

7. No person may possess, use, or transfer a source of ionizing or nonionizing radiation unless registered, licensed, or exempted by DHEC. S.C. Code Ann. §13-7-40(G) (Supp. 1998).

8. Regulation 61-63 establishes the criteria for approval of a radioactive materials license. The applicable criteria are:

(1) The applicant is qualified by reason of training and experience to use the material in question for the purpose requested in accordance with these regulations and in such a manner as to protect health and minimize danger to life and property; and

(2) The applicant's proposed equipment, facilities, and procedures are adequate to protect health and minimize danger to life and property; and

(3) The issuance of the license will not be inimical to the health and safety of the public.

24A S.C. Code Ann. Regs. 61-63 RHA 2.6 (1976).

9. DHEC has the authority to impose such conditions on a radioactive materials license as it deems appropriate or necessary to minimize danger to public health and safety or property. S.C. Code Ann. §13-7-40(F); 24A S.C. Code Ann. Regs. 61-63 RHA 1.11 (1976). Such conditions may be in addition to requirements set forth in Regulation 61-63. 24A S.C. Code Ann. Regs. 61-63 RHA 2.9.2 (1976).

10. DHEC is also authorized to require such reports and the keeping of such records, and to provide for such inspections of activities under the license as may be appropriate or necessary. 24A S.C. Code Ann. Regs. 61-63 RHA 2.9.2.2 (1976).

11. Each licensee shall conduct operations so that

(1) the total effective dose equivalent to individual members of the public from the licensed operation does not exceed 0.1 rem (100 millirem) in a year, exclusive of the dose contribution from background radiation, any medical administration the individual has received, voluntary participation in medical research programs, and the licensee's disposal of radioactive material into sanitary sewerage in accordance with RHA 3.29, and

(2) the dose in any unrestricted area from external sources does not exceed .002 rem (2 millirem) in any one hour.

24A S.C. Code Ann. Regs. 61-63 RHA 3.13.1 (Supp. 1998).

1. A licensee shall show compliance with the annual dose limit in RHA 3.13 by

(1) demonstrating by measurement or calculation that the total effective dose equivalent to the individual likely to receive the highest dose from the licensed operation does not exceed the annual dose limit: or

(2) demonstrating that

(a) the annual average concentrations of radioactive material released in gaseous and liquid effluents at the boundary of the unrestricted area do not exceed the values specified in Table 2 of Appendix B, RHA 3.53, and

(b) if an individual were continually present in an unrestricted area, the dose from external sources would not exceed .002 rem (2 millirem) in an hour and .05 rem (50 millirem) in a year.

24A S.C. Code Ann. Regs. 61-63 RHA 3.14.2 (Supp. 1998).

13. The licensee shall use, to the extent practicable, procedures and engineering controls based upon sound radiation protection principles to achieve occupational doses and doses to members of the public that are as low as is reasonably achievable. 24A S.C. Code Ann. Regs. 61-63.3.4.2 (Supp. 1998). This principle is known as "ALARA."

14. ALARA means making every reasonable effort to maintain exposures to radiation as far below the dose limits in Part III of Regulation 61-63 as is practical, consistent with the purpose for which the licensed activity is undertaken, taking into account the state of technology, the economics of improvements in relation to state of technology, the economics of improvements in relation to benefits to the public health and safety, and other societal and socioeconomic considerations, and in relation to utilization of nuclear energy and licensed materials in the public interest. 24A S.C. Code Ann. Regs. 61-63.3.2.5 (Supp. 1998).

15. The evidence demonstrates that INS meets the applicable criteria for approval of the License.

16. Zoning issues cannot be addressed in this environmental permitting case, but must be left to local authorities. See 62 C.J.S. Corporations § 199 (1949) (As a general rule, courts will not interfere with, or control or supervise, acts of a municipal corporation, nor will they substitute their judgment for that of the proper municipal authorities).

17. The facility's proximity to residential neighborhoods should be considered in determining the appropriateness and necessity of conditions imposed on the License.

18. INS's voluntary choice to stay in the neighborhood when relocation was economically feasible may be considered in evaluating the reasonableness of the conditions imposed on the License in terms of any resulting economic hardship to INS.

19. Conditions 7(D), 7(E), and 7(F), limiting the quantity of Plutonium, Uranium-235 and Uranium-233 that INS may possess at any one time, are appropriate to minimize the potential for uncontrolled releases, in light of INS's proximity to residential neighborhoods. These limits are also consistent with the requirement that the licensee make every reasonable effort to achieve occupational doses and doses to members of the public that are as low as is reasonably achievable.

20. The lowered limits on Plutonium, Uranium-235 and Uranium-233 are reasonable despite INS's contention that these limits will hinder its ability to compete with similar facilities. INS has voluntarily placed itself in the middle of a residential neighborhood and it must accept the added responsibilities and limitations that accompany such a location.

21. Condition 12, which requires semi-annual health and safety audits, is appropriate to minimize danger to public health and safety.

22. Condition 17, which requires installation of an overhead fire extinguishing system in rooms where drying equipment is used and where radioactive waste is stored, is appropriate to minimize danger to public health and safety.

23. While there is a fire suppression system built into the large dryers at the facility, the addition of an overhead system would provide additional protection in the event that the system inside a dryer malfunctions. This added requirement is reasonable in light of the proximity of the facility to residential neighborhoods.

24. Because a possible fire in the laundry sorting area presents the highest probability of an uncontrolled release of radioactive materials, it is appropriate to amend Condition 17 to add the requirement that a fire suppression system be installed and maintained in that area.

25. Condition 18 is appropriate to minimize danger to public health and safety, despite its removal of the first option for demonstrating compliance with RHA 3.13, in light of the following: INS's proximity to residential neighborhoods; INS's history of its failure to follow the recommendation of auditors concerning compliance with the ALARA principle; prior fenceline readings exceeding 100 millirem per year; and INS's agreement to work toward a goal of 50 millirem per year for the external dose limit at the fenceline. 24A S.C. Code Ann. Regs. 61-63 RHA 2.9.2 (1976)("[DHEC] may incorporate in any license at the time of issuance or thereafter, such additional requirements and conditions . . . as it deems appropriate or necessary in order to . . . [p]rotect health or to minimize danger to life and property. . . ") (emphasis added).

26. Condition 19, which was clarified at the hearing to require stored radioactive waste to be moved off-site within six months of collecting a full truckload, is appropriate to prevent stockpiling of waste. Also, it is necessary to add to this condition the requirement that INS locate the trailer in which it stores radioactive waste for off-site shipment in an area at the facility that reduces the potential for radiation exposure to neighboring residents.

27. Condition 20, which requires additional containment systems, is appropriate to minimize danger to public health and safety. Due to the proximity of the facility to residential neighborhoods, a possible spill moving off-site would have an immediate effect on a private residence. 28. INS failed to meet its burden of proving that the contested conditions to the License are not appropriate to minimize danger to public health and safety in light of the proximity of residential neighborhoods. INS chose to keep its facility in its current location even after being presented with information indicating that it was economically feasible to move its laundry operation to another location. While nothing in the current law prohibits such a choice, INS must accept the added responsibilities and limitations that accompany its proximity to residences. If the resulting limitations are perceived as imposing economic hardship, INS cannot complain that it did not have an economically viable alternative to such limitations.

29. The License is properly conditioned to assure that doses to individual members of the public do not exceed regulatory limits.

30. There is no requirement that DHEC perform an environmental assessment or environmental impact statement on the decision to reissue License No. 135.

31. Allegations that reissuance of the license violates principles of environmental justice are not properly within the scope of these permitting proceedings.

STANDING

32. Standing represents a jurisdictional requirement which remains open to review at all stages of the litigation. National Organization for Women, Inc. v. Scheidler, 114 S.Ct. 798 (1994); see also Friends of the Earth, Inc. v. Laidlaw Environmental Services, 149 F.3d 303 (4th Cir. 1998); Lennon v. South Carolina Coastal Council, 330 S.C. 414, 498 S.E.2d 906 (Ct. App. 1998).

33. Each element of standing "must be supported in the same way as any other matter on which [a party] bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation." Lujan v. Defenders of Wildlife, 112 S.Ct. 2130 (1992).

34. A petitioner always bears the burden of establishing the elements of standing. Carlough v. Amchem Products, Inc., 834 F.Supp. 1437 (E.D. Penn. 1993).

35. At the final stage of the litigation, the facts necessary to establish a claim of standing must be supported adequately by the evidence presented at trial. Lujan, 112 S.Ct. at 2137.

36. In a dispute with DHEC, "[s]tanding shall be determined on the basis of applicable statutes, regulations, case law and Board orders." 25 S.C. Code Ann. Regs. § 61-72.401 (Supp. 1998).

37. 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. 1998) (emphasis added).

38. While no applicable statute or regulation specifies who is "entitled as of right" to be admitted as a party in this proceeding, South Carolina appellate courts have adopted the "injury-in-fact" test established in Sierra Club v. Morton, 92 S.Ct. 1361 (1972) and refined in Lujan v. Defenders of Wildlife, 112 S.Ct. 2130 (1992). See, e.g., Berry v. McLeod, 328 S.C. 435, 492 S.E.2d 794 (Ct. App. 1997).

39. 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, 112 S.Ct. at 2136 (citations omitted). The injury must affect the plaintiff in a personal and individual way." Lujan, 112 S.Ct. at 2136, n. 1.

40. Once a particularized injury is recognized, a party must also show (1) a fairly traceable connection between the injury and the allegedly unlawful conduct of the other party, and (2) a likelihood that the requested relief will redress the alleged injury. Steel Company v. Citizens for a Better Environment, 118 S.Ct. 1003 (1998); Friends of the Earth, Inc. v. Laidlaw Environmental Services, 149 F.3d 303 (4th Cir. 1998).

41. Exposure to a substance generated by the opposing party in such quantity as to be scientifically proven to cause illness is sufficient to meet the injury-in-fact requirement of standing, even if the resulting illness has a long latency period. See Ivy v. Diamond Shamrock Chemicals Co., 996 F.2d 1425, 1434 (2d Cir. 1993); Carlough v. Amchem Products, Inc., 834 F.Supp. 1437 (E.D. Penn. 1993).

42. When a petitioner claims that a threatened injury is the source of standing, he or she must show that the threatened injury is so imminent as to be certainly impending. Whitmore v. Arkansas, 110 S.Ct. 1717 (1990); Friends of the Earth, Inc., et al. v. Gaston Copper Recycling Corporation, 9 F.Supp.2d 589 (D.S.C. 1998).

43. Challenging Petitioners have not presented any evidence demonstrating that an accident at the facility or an accident involving a facility vehicle is certainly impending.

44. Challenging Petitioners' concerns over the effect that the facility will have on the vitality of the surrounding community, including property values, constitutes a zoning issue that cannot be addressed in this environmental permitting case, but must be left to local authorities. See 62 C.J.S. Corporations § 199 (1949) . Therefore, this alleged injury does not satisfy the redressability requirement of standing. See Steel Company v. Citizens for a Better Environment, 118 S.Ct. 1003 (1998); Friends of the Earth, Inc. v. Laidlaw Environmental Services, 149 F.3d 303 (4th Cir. 1998).

45. An organization has standing if at least one of its members can meet the injury-in-fact requirement. See Sierra Club v. Morton, 92 S.Ct. 1361 (1972); Energy Research Foundation v. Waddell, 295 S.C. 100, 367 S.E.2d 419 (1988).

46. Challenging Petitioners Lula Brown, Issac McClinton and Edisto Court Community Council have standing to challenge reissuance of the License. None of the remaining Challenging Petitioners have standing to challenge reissuance of the License.

ORDER

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

ORDERED that Environmentalists, Inc., Rosewood Development Association, and Sierra Club are dismissed as petitioners in this case.

IT IS FURTHER ORDERED that DHEC, with the following exceptions: (1) Condition 19 shall be reworded to require stored radioactive waste to be moved off-site within six months of collecting a full truckload and amended to require that INS locate the trailer in which it stores radioactive waste for off-site shipment in an area at the facility that reduces the potential for radiation exposure to neighboring residents; and (2) Condition 17 shall be amended to add the requirement that a fire extinguishing/suppression system be installed and maintained in the laundry sorting area of the facility.

AND IT IS SO ORDERED.

_________________________________

ALISON RENEE LEE

Administrative Law Judge

March 3, 1999

Columbia, South Carolina.

1. Julius Goodwine also joined in the Petition for Administrative Review filed by Rosewood Development Association, Sierra Club, Edisto Court Community Council, Isaac McClinton, and Lula Brown. Mr. Goodwine died in 1997.

2. South Carolina courts, however, recognize an exception to the justiciable controversy requirement where an issue is deemed to be of such public importance as to require its resolution for future guidance. See Baird v. Charleston County, Op. No. 24885 (S.C.Sup.Ct. filed January 18, 1999) (Shearouse Adv.Sh. No. 3 at 51) (holding that a court may confer standing upon a party when an issue of public importance is presented); Thompson v. South Carolina Comm'n on Alcohol and Drug Abuse, 267 S.C. 463, 229 S.E.2d 718 (1976); Ashmore v. Greater Greenville Sewer Dist., 211 S.C. 77, 44 S.E.2d 88 (1947) ("[Q]uestions of public interest originally encompassed in an action should be decided for future guidance, however abstract or moot they may have become in the immediate contest."). These cases are distinguishable, however, from the case at hand, as the resolution of the issues in those cases affected an entire population of a political subdivision. While the issues in the case at hand are important and have captured public attention, resolution of those issues will not affect an entire population of a political subdivision.

3. Challenging Petitioners' testimony regarding fear and apprehension over the effect of increased radioactivity in the air is relevant only to the extent that they have demonstrated an increased health risk from exposure to radiation emitted from the facility.

4. My finding that only Lula Brown, Issac McClinton and Edisto Court Community Council have standing to object to the issuance of a license to INS, does not deny the remaining Challenging Petitioners due process. Article I, § 22 of the South Carolina Constitution provides:

No person shall be finally bound by a judicial or quasi judicial decision of an administrative agency affecting private rights except on due notice and an opportunity to be heard ... and he shall have in all instances the right to judicial review.

(emphasis added). The phrase "affecting private rights" dovetails with the injury-in-fact requirement of standing.