SC Administrative Law Court Decisions

I. Introduction

On August 24, 2004, Katherine Mosley Morrison (Morrison) filed an application with the South Carolina Department of Health and Environmental Control (DHEC) seeking a septic tank permit. I-77 Properties, LLC (I-77 Properties) opposes the application and seeks a contested case in which to argue that the permit should be denied.

Believing that a contested case hearing is improper, DHEC, in a Motion to Dismiss filed on December 22, 2004, (joined in by Morrison on January 3, 2005) argues the challenge to the Morrison application must be dismissed since I-77 Properties not only lacks standing but also presents a matter not yet ripe for decision. I-77 Properties filed its opposition to the motion. Since I-77 Properties lacks standing, the ripeness issue is not reached.

II. Analysis

A. Requirements of Standing

To obtain a contested case hearing one must be a proper party, i.e. “any person . . . properly seeking and entitled as of right to be admitted as a party.” S.C. Code Ann. §1-23-310(4) (Supp. 2004). A person is not entitled as of right to be admitted as a party unless standing is present. Blandon v. Coleman, 285 S.C. 472, 330 S.E.2d 298 (1995); Lennon v. South Carolina Coastal Council, 330 S.C. 414, 498 S.E.2d 906 (Ct. App. 1998). Standing for South Carolina purposes has been established by case law:

In Lujan v. Defenders of Wildlife, 504 U.S. 555, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992), the United States Supreme Court enunciated a stringent standing test. Lujan set forth the "irreducible constitutional minimum of standing," which consists of the following three elements:

First, the plaintiff must have suffered an 'injury in fact'--an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not 'conjectural' or 'hypothetical'. Second, there must be a causal connection between the injury and the conduct complained of--the injury has to be "fairly ... trace[able] to the challenged action of the defendant, and not ... th[e] result [of] the independent action of some third party not before the court." Third, it must be 'likely,' as opposed to merely 'speculative,' that the injury will be 'redressed by a favorable decision.'

Id. at 559-61, 112 S.Ct. at 2136 (internal citations omitted); see also Beaufort Realty Co. v. S.C. Coastal Conservation League, 346 S.C. 298, 551 S.E.2d 588 (S.C. Ct.App. 2001).

Sea Pines Ass'n for Protection of Wildlife, Inc. v. South Carolina Dept. of Natural Resources, 345 S.C. 594, 550 S.E.2d 287 (2001).

B. Standing Requirements Examined

I-77 Properties, the party alleging standing, has the burden of proving standing. Sea Pines, supra. To meet that burden, “each element [of standing] must be supported in the same way as any other matter on which the plaintiff 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, 504 U.S. 555, 561 (1992)

1. Stage of Litigation

In South Carolina, the stage of litigation reached by a challenge to standing (and thus the point of reference for deciding the manner and degree of evidence needed) is an attack on jurisdiction. See ALJD Rule 68 and SCRCP Rule 12(b)(1); Blandon v. Coleman 285 S.C. 472, 330 S.E.2d 298 (1985) (in the absence of standing an individual may not invoke judicial power); Lennon v. South Carolina Coastal Council, 330 S.C. 414, 498 S.E.2d 906 (Ct. App. 1998) (jurisdiction is not invoked without standing). At such a stage, the manner and degree of proof requires the court to examine the disputed jurisdictional facts and reach factual determinations from the evidence presented. Woodard v. Westvaco Corp., 315 S.C. 329, 332, 433 S.E.2d 890, 892 (Ct.App.1993), vacated on other grounds by 319 S.C. 240, 460 S.E.2d 392 (1995); Baird v. Charleston County, 333 S.C. 519, 511 S.E.2d 69 (1999) (“motion to dismiss [for lack of jurisdiction] may be supported by, and the court may consider, affidavits or other evidence proving lack of jurisdiction.”); Glass v. Dow Chemical Co., 316 S.C. 116, 447 S.E.2d 209 (Ct. App. 1994) (“It stands to reason that the court may likewise [in addition to affidavits seeking to prove lack of jurisdiction] consider affidavits and other evidence submitted by the party opposing the motion.”).

2. Manner and Degree of Proof Required

I-77 Properties must show it has a legally protected interest (i.e., a “cognizable interest”). It must then demonstrate an injury to that interest which is concrete and particularized as well as actual or imminent. Further, the injury must be fairly traceable to the DHEC decision to grant the Morrison permit rather than traceable to the actions of some third party. Finally, I-77 Properties must show that it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992).

a. Cognizable Interest

Thus, the beginning point for I-77 Properties is a showing of a cognizable interest. I-77 Properties’ Petition for Administrative Review provides no allegation of damage or injury to any protected interest. Rather, the document simply seeks a contested case before the ALC.

However, the Prehearing Statement asserts that DHEC “permitted the [septic tank] system with an inappropriately sized disposal system area, and with an insufficient repair area.” PHS p. 3. As a consequence, I-77 Properties further asserts the following:

An inappropriately sited septic system has the potential to malfunction and discharge contaminants onto the surface of adjacent properties and impact both surface and groundwater. As 1-77 Properties is the equitable titleholder of the adjacent property, it will be harmed thereby. Additionally, DHEC is planning revisions to its regulations relating to all new and existing C&D landfills. These regulations will require groundwater monitoring downgradient of this landfill facility. An improperly sited septic system located on a parcel adjacent to the landfill site could cause these monitoring wells to record water quality impacts that could be improperly attributed to the landfill facility. This would further harm Petitioner.

PHS p. 3.

In addition, I-77 Properties asserts DHEC’s granting of a septic tank permit “would either substantially decrease the waste disposal capacity of the pending [I-77 Properties landfill] permit, or destroy it entirely.” PHS p. 3.

Accordingly, I-77 Properties asserts two harms to the same interest. First, while not specifically stated, it is reasonable to conclude that I-77 Properties believes contamination from the septic tank will economically harm its property. Second, the allegations assert the permit will either limit the size of the disposal facility or will prohibit the landfill. Thus, again, while not specifically stated, the allegations reasonably suggest that I-77 Properties believes it has an economic interest that will be harmed by the Morrison septic tank permit. Since both harms are economic in nature, a cognizable interest is presented. See Sierra Club v. Morton, 405 U.S. 727 (1972) (there the court explained that “palpable economic injuries have long been recognized as sufficient to lay the basis for standing.”).

b. Proof of Injury

Given the claimed economic interest, an injury in fact requires establishing economic harm to I-77 Properties.

i. Background

For a number of years prior to August 2004, I-77 Properties has had an application pending before DHEC asking for permission to construct and operate a construction and demolition solid waste landfill. If granted, the landfill will be on land that is under a contract of sale to I-77 Properties. The land that is the subject of the contract is adjacent to Morrison’s property.

Morrison’s application of August 24, 2004, requested a septic tank permit to be used on a portion of a 354 acre tract of land located in Blythewood, South Carolina at 2456 Boney Road. In her Prehearing Statement, Morrison asserts that she plans to build a home on the property. DHEC’s Prehearing Statement is consistent with those intentions since a DHEC employee visited Morrison's property on September 2, 2004. During that visit, the employee evaluated the soil by taking soil borings around the proposed home site. The evaluation led DHEC to conclude the property was suitable for a septic tank permit. Accordingly, on September 17, 2004, DHEC granted a permit to Morrison for her to construct a septic tank system.

An affidavit of an engineer for I-77 Properties who has “investigated hydrogeologic conditions” at the I-77 Properties site, avers that the Morrison property is south of the proposed landfill. He explains that his professional training leads him to believe that “[u]nder S.C. Code Ann. Regs. 61-107.11, Part IV. C. 1. e. the waste disposal area of a landfill cannot be located within 1000 feet of an existing residence.” He then states that “[i]f a residence is located on the northern edge of this adjacent property, this will preclude the use of a substantial amount of planned disposal area under the current permit application.” Finally, the engineer concludes by averring that a residence must have a means for disposing of waste such as through a septic tank system and that “[i]mproperly sited septic tanks create the potential for contamination of both surface water and groundwater that can migrate to adjacent properties” such that the “impacts to groundwater in the form of fecal coliform bacteria would be greatest in the area nearest the improperly sited septic tank and associated drainfield.”

ii. Lack of Evidence of Injury

Against this background, I-77 Properties must factually establish how the septic tank permit injures it economically. Sea Pines Ass'n for Protection of Wildlife, Inc. v. South Carolina Dept. of Natural Resources, 345 S.C. 594, 550 S.E.2d 287 (2001) (where standing was lacking since “[a]ppellants presented no evidence their opportunity to view and enjoy the deer would be diminished by the permits.”). In deciding the proof issue, the “court must evaluate the jurisdictional merits for itself and need not attach any presumption of truthfulness to the non-moving party's allegations.” Carpet Group Int'l v. Oriental Rug Importers Assoc., 227 F.3d 62, 69 (3d Cir.2000); Thornhill Publ'g Co., Inc. v. General Tel. & Elecs. Corp., 594 F.2d 730, 733 (9th Cir.1979) (explaining that a motion to dismiss based on a factual attack to subject matter jurisdiction does not place any presumptive truthfulness upon the plaintiff's allegations but instead the presence of disputed material facts requires the trial court to evaluate for itself the existence of subject matter jurisdiction in fact); Mortensen v. First Federal Sav. and Loan Ass'n, 549 F.2d 884 (3rd Cir. 1977) (“That the [trial] court is free to determine facts relevant to its jurisdiction has long been clear.”).

First, as to harm to its property from contamination arising from the Morrison septic tank system, I-77 Properties fails to establish an injury in fact. The presence of contamination on land belonging to I-77 Properties (i.e., the injury alleged) must be actual or imminent.

Since the septic tank system is not yet installed, the injury alleged cannot be actual. Further, nothing in the evidence establishes how the injury complained of is imminent. For example, harm from the alleged contamination cannot result unless the contamination moves from Morrison's property to the property of I-77 Properties. To establish movement requires at least proving the gradient of the land on and between the two properties, how surface water or groundwater will flow from Morrison's property to property of I-77 Properties, and where the water table is on Morrison's property.

None of these elements are even alleged let alone proven. The only evidence of injury is the affidavit's simple assertion that "[i]mproperly sited septic tanks create the potential for contamination of both surface water and groundwater that can migrate to adjacent properties." (Emphasis added). Such an assertion does not present a harm that is actual or imminent, but instead suggests a harm that is only conjectural or hypothetical.

Second, an additional injury alleges that granting the Morrison permit will limit the size of the disposal facility or prohibit the landfill altogether. The only factual support for this assertion is found in an affidavit filed by an engineer for I-77 Properties.

The engineer's affidavit for I-77 Properties concludes that under applicable regulations "the waste disposal area of a landfill cannot be located within 1000 feet of an existing residence [and that i]f a residence is located on the northern edge of this adjacent property [i.e., the northern edge of Morrison's property], this will preclude the use of a substantial amount of planned disposal area under the current permit application." However, nothing in the affidavit or any other document filed in this case sets forth facts establishing that the septic tank permit “will preclude the use of a substantial amount of planned disposal area.”

For example, the evidence establishes that I-77 Properties filed an application for a landfill with DHEC. Thus, I-77 Properties has (as the engineer’s affidavit suggests) identified a “planned disposal area.” See S.C. Code Ann. Regs. 61-107.11, Part IV. B. 2.b. (1). (a). (explaining that the applicant must file “[a] site plan on a scale of not greater than two hundred (200) feet per inch [which] . . . plan shall at a minimum identify the . . . [p]roperty boundaries, footprint of the landfill, existing and proposed structures and systems, and access roads.”).

However, despite having such a plan, I-77 Properties has failed to establish the dimensions or location of the landfill’s footprint. Rather, all that is known in this case is that the property that will contain the landfill is adjacent to Morrison’s property. Proof of being an adjacent land owner to Morrison does establish that her septic tank permit “will preclude the use of a substantial amount of planned disposal area.” On the contrary, what is required is concrete proof that a residence will be within 1000 feet of the “waste disposal boundary of the landfill.” See S.C. Code Ann. Regs. 61-107.11, Part IV. C. 1. e. (“The waste disposal boundary of the landfill shall not be located within one thousand (1000) feet of any residence, . . .”). The precise location of the waste disposal boundary is neither alleged nor proven, the precise location of the “residence” is neither alleged nor proven, and, a priori, no factual documentation exists in this case showing that the distance between the two is less than a 1,000 feet. Thus, the injury alleged requires the Court to engage in pure speculation. Therefore, the injury is not concrete and fails to establish an injury in fact.

III. Order

Accordingly, based on the above, I-77 Properties lacks standing in this matter. Thus, the Motion to Dismiss is GRANTED and this matter is ended.

AND IT IS SO ORDERED

______________________

RAY N. STEVENS

Administrative Law Judge

Dated: January 31, 2005

Columbia, South Carolina