SC Administrative Law Court Decisions

STATEMENT OF THE CASE

This matter is before the Administrative Law Court (“ALC” or “Court”) on appeal by Respondent William T. Hicks, d/b/a Miss Kitty’s, Inc., (“Hicks”) of Petitioner South Carolina Department of Health and Environmental Control’s (“DHEC” or “the Department”) issuance of Administrative Order (AO) 05-134-W against Respondent for violations of the Pollution Control Act, S.C. Code Ann. § 48-1-10 to 350 (1987 and Supp. 2004).

Petitioner DHEC filed a “Notice and Motion for Summary Judgment” and a “Memorandum in Support of Motion for Summary Judgment” on January 10, 2006. Petitioner also filed, on January 27, 2006, a “Supplemental Memorandum to its Motion for Summary Judgment to Address Specific Issues of Mitigation”.

BACKGROUND

Respondent William T. Hicks d/b/a Miss Kitty’s Inc., of Horry County, leases and is responsible for the Pink Pussycat, a nightclub (Site), located at 1379 Highway 501, Myrtle Beach, in Horry County, South Carolina.

A Department file review revealed that the Respondent failed to obtain Pump and Haul Waste Water Approval from the Department prior to pumping and hauling wastewater from the Site, and once approval was sought, Respondent failed to respond to the Department’s follow-up inquiries relating to issues that have a bearing on whether Respondent will receive the Department’s approval.

Respondent, in pumping and hauling wastewater from the Site without the proper approval, violated the Pollution Control Act, S.C. Code Ann. §48-1-10 et al., and specifically, Standards for Wastewater Facility Construction, S.C. Code Ann. Regs. 61-7.300(G)(1)(b) (Supp. 2004).

On September 12, 2005, upon deeming it appropriate and necessary, the Department executed Administrative Order (AO) 05-134-W. Accordingly, pursuant to the Pollution Control Act, S.C. Code Ann. §48-1-50 (1987) and §48-1-100 (Supp. 2003), Respondent was ordered to:

1.                  Henceforth, comply with all permitting and operating requirements in accordance with State and Federal regulations.

2.                  Within thirty (30) days of the execution date of this Order, submit to the Department an administratively and technically complete application for a pump and haul approval.

3.                  If pump and haul approval is denied by the Department, within thirty (30) days of written notification, provide for acceptable sewage disposal or discontinue operations at the business site.

4.                  Within thirty (30) days of the execution date of this Order, pay to the Department a civil penalty in the amount of five thousand dollars ($5,000.00).

The Department received, on October 17, 2005, Respondent’s appeal regarding AO 05-134-W and requested a contested case hearing in this matter. Respondent admitted to violating AO 05-134-W, in his Pre-Hearing Statement (See Prehearing Statement of Respondent Hicks, p. 3, ¶ 1)(“It utilized a Pump and Haul method of sewage disposal, but otherwise voluntarily complied with the remaining conditions of the Administrative Order appealed from.”) and during a telephone conference on January 5, 2006.

ISSUES

1.                  Whether a genuine issue of material fact exists as to whether a violation of the Pollution Control Act occurred in this case.

2.                  Whether the issue of financial ability to pay civil penalties is an appropriate issue for consideration by the Administrative Law Court.

3.                  Whether questions pertaining to Respondent’s application for pump and haul review are ripe for review.

4.                  Whether questions pertaining to Respondent’s entitlement to a septic tank permit are ripe for review in this judicial proceeding.

5.                  Whether summary judgment is appropriate in this case.

STANDARD OF REVIEW

The Pollution Control Act, S.C. Code Ann. § 48-1-10 to -350 (1987 and Supp. 2004), and specifically, Standards for Wastewater Facility Construction, S.C. Code Ann. Regs. 61-7.300(G)(1)(b)(Supp. 2004), require that a business obtain approval from the Department before it pump and haul wastewater from its facility or site.

The ALC has jurisdiction over the contested cases that involve DHEC. S.C. Code Ann. § 1-23-600(B) (Supp. 2002). A party who is aggrieved by a final decision in a contested case is entitled to judicial review under the Administrative Procedures Act only after the party has exhausted all administrative remedies available. See S.C. Code Ann. §§ 1-23-380(A) and 610(B) (Supp. 2002); see also Nucor Steel, a Div. of Nucor Corp. v. South Carolina Pub. Serv. Comm’n, 312 S.C. 79, 84, 439 S.E.2d 270, 272 (1994) (section 1-23-380(A) provides that the appealing party must exhaust the administrative remedies before resorting to judicial review).

Summary judgment is appropriate when the pleadings and other documents on file with the Court show there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. S.C. R. Civ. P. 56(e). In determining whether any genuine issues of material fact exist, the evidence and all reasonable inferences must be viewed in the light most favorable to the non‑moving party. Osborne v. Adams, 346 S.C. 4, 7, 550 S.E.2d 319, 321 (2001).

Summary judgment should be granted “when plain, palpable and undisputed facts exist on which reasonable minds cannot differ.” Bayle v. South Carolina Dep’t of Transp., 344 S.C. 115, 120, 542 S.E.2d 736, 738 (Ct. App. 2001). A party opposing a properly supported motion for summary judgment may not rest on the mere allegations or denials of his pleading, but “his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.” S.C. R. Civ. P. 56(e); Thomas v. Waters, 315 S.C. 524, 445 S.E.2d 659 (Ct. App. 1994).

ANALYSIS

1. Respondent Hicks Admitted Violating the Pollution Control Act, Thus

No Genuine Issues of Material Fact Exist on This Issue

Respondent Hicks has admitted to violating AO 05-134-W. This was admitted in Respondent Hicks’ Prehearing Statement, dated December 2, 2005, and during the telephone conference call held with the Court on Thursday, January 5, 2006. Therefore, in light of this admission of violation by Respondent, there exists no genuine issue of material fact. Accordingly, the Department should be entitled to summary judgment as a matter of law pursuant to Rule 56(c), SCRCP.

2. Ability to Financially Respond to or Pay Civil Penalties is a Moot Issue and is

Also an Issue that is not Appropriate for Consideration by the Administrative

Law Court

It is well settled that an appellate court “will not pass on moot and academic questions or make an adjudication where there remains no actual controversy.” Mathis v. South Carolina State Highway Dep’t, 260 S.C. 344, 346, 195 S.E.2d 713, 714 (1973). Furthermore, “[a] case becomes moot when judgment, if rendered, will have no practical legal effect upon the existing controversy.” Sloan v. Greenville County, 361 S.C. 568, 572, 606 S.E.2d 464, 466-67 (2004).

The question raised by the Respondent as to his ability to financially respond to or pay civil penalties is a moot issue that should not be adjudicated in these proceedings because whether or not Respondent is able to financially respond to or pay civil penalties has no bearing on whether or not Administrative Order 05-134-W was properly issued by the Department or whether Respondent is in violation of said Order. Therefore, adjudication of that issue will have no practical legal effect upon the existing controversy. Id.

Furthermore, to adjudicate whether or not Respondent is able to financially respond to or pay the civil penalty assessed by DHEC goes beyond the scope of the Administrative Law Court’s subject matter jurisdiction. S.C. Code Ann. Regs. 61-67.100(E)(6)[1] and S.C. Code Ann. § 1-23-310 et seq. (1986 & Supp. 2005). “Inherent in and fundamental to the powers of an Administrative Law Judge, as the trier of fact in contested cases under the Administrative Procedures Act, is the authority to decide the appropriate sanction when such is disputed.” Walker v. South Carolina Alcoholic Beverage Control Comm’n, 305 S.C. 209, 407 S.E.2d 633 (1991). However, in this instance, no such dispute has been stated or referenced in any of the pleadings submitted by Respondent. Actually, the Respondent has admitted, on page 3, number 4, of its Prehearing Statement that he “…resumed business operations on the premises with a beer and wine license only. It utilized a Pump and Haul method of sewage disposal, but otherwise voluntarily complied with the remaining conditions of the Administrative Order appealed from.” This is an outright admission by Respondent that he violated the Standards for Wastewater Facility Construction, S.C. Code Ann. Regs. 61-7.300(G)(1)(b) (Supp. 2004), in that it pumped and hauled wastewater without an approval from the Department. Respondent also admits that he “…has continued operations at the premises in this fashion....” Such statements by Respondent evidence that not only did he violate the DHEC Standards and regulations by allowing a Pump and Haul operation on the premises without proper DHEC approval, but that Respondent has continued to violate the Pollution Control Act, as he has “continued operations at the premises in this fashion.” Respondent’s own statements evidence that his actions are and have been deliberate.

Moreover, case law states that “a reduced penalty is justified where the permit is eventually obtained or other mitigating factors are present.” See Midlands Utility, Inc. v. South Carolina Dep’t of Health and Envtl. Control, 301 S.C. 224, 391 S.E.2d 535 (1989). Here, Respondent has not requested a reduced penalty in any of his pleadings, nor has he offered any mitigating circumstances to warrant the possibility that the Court consider those circumstances. Additionally, Respondent has offered nothing in any of his pleadings to indicate that his non-compliance with the regulations, as he freely admits is something of which he is culpable, was an honest mistake in misinterpreting DHEC representations or its regulations; nor that he ceased his unlawful activities as soon as he was notified by an official notice, which in this case would be the issuance of the Administrative Order; nor has Respondent demonstrated that he has actually been granted a Pump and Haul Approval by DHEC. Not only has DHEC not issued Respondent a Pump and Haul Approval, the Department’s Bureau of Water is unable to issue this approval, per Affidavit of Jeff deBessonet, dated January 27, 2006, until Respondent has satisfactorily submitted to DHEC the answers to all of the questions/issues presented in a letter to Respondent from DHEC dated February 22, 2005. Therefore, pursuant to the foregoing, the issue of whether Respondent is capable of financially responding to or paying the several penalties required by the Administrative Order appealed from, or otherwise, is a moot issue. Moreover, based on the fact that no mitigation issues have been raised in any of the pleadings filed by Respondent, this is not an issue that can be determined by the Administrative Law Court and therefore, will not be deliberated upon by the Court.

3. Questions Pertaining to Respondent Hicks’ Application for Pump and Haul Review are Not Ripe for Review

The South Carolina Supreme Court has opined that before a court may render a declaratory judgment, an actual, justiciable controversy must exist. Orr v. Clyburn, 277 S.C. 536, 542, 290 S.E.2d 804, 807 (1982). A justiciable controversy is a real and substantial controversy which is ripe and appropriate for judicial determination, as distinguished from contingent, hypothetical or abstract dispute. Id.

The questions raised by Respondent as to his application for Pump and Haul Waste Water Approval are not ripe for review because the Department has not denied Respondent a Pump and Haul Waste Water Approval (See Prehearing Statement of Respondent Hicks; pages 1-5). To date, the Department has been unable to make a decision regarding Respondent’s request for a Pump and Haul Waste Water Approval because the Respondent has failed to submit the necessary information requested by the Department. (See Affidavit of Jeff deBessonet dated January 27, 2006). Therefore, no actual, justiciable controversy exists as to the question of whether the Department should or should not grant Respondent’s application for a Pump and Haul Waste Water Approval.

4. Questions Pertaining to Whether Respondent Hicks is Entitled to a Septic Tank Permit is Ripe for Review but not in This Judicial Proceeding

Likewise, at the time Respondent Hicks filed an appeal of Administrative Order 05-134-W, the issue of whether the Respondent was entitled to a Septic Tank Permit was not ripe for judicial review. (See Prehearing Statement of Respondent Hicks; p. 2, #3, D). This issue was not ripe for judicial review because at the time the appeal was filed, on October 14, 2005, no decision had been made by the Department to either grant or deny Respondent a Septic Tank Permit. Subsequently, however, the Department did determine that granting such a permit was not warranted. Therefore, Petitioner DHEC’s denial of Respondent’s Septic Tank Permit is now ripe for review because DHEC has denied Respondent’s permit application in a letter to Respondent on November 30, 2005. However, it would not be appropriate for judicial review of this issue in these proceedings since the denial of the Septic Tank Permit was issued after these proceedings commenced.

Since there is a specific procedure for appealing the Septic Tank Permit denial, as directed in the permit denial letter dated November 30, 2005, Respondent Hicks will not be allowed to challenge the denial in these proceedings.

Respondent exercised his administrative remedies by seeking a contested case hearing prior to a final agency decision being issued in either instance, which is inappropriate, untimely, and against pertinent regulations.

CONCLUSION

Respondent admitted to violating AO 05-134-W; Respondent raised moot questions regarding his ability to pay civil penalties imposed by AO 05-134-W; and in prematurely challenging certain decisions of the Department, Respondent has raised questions that are or were not ripe for review at the time of this appeal. Accordingly, since no genuine issues of material fact exist, and viewing all evidence and all reasonable inferences in the light most favorable to Respondent, the Department is entitled to an order granting summary judgment in its favor.

ORDER

Based on the foregoing,

IT IS THEREFORE ORDERED that Respondent Hicks, within thirty (30) days of the execution of this Order, comply completely with the terms of Administrative Order 05-134-W, which includes, but is not limited to, payment to Petitioner DHEC of the assessed civil penalty of Five Thousand Dollars ($5,000.00).

AND IT IS SO ORDERED.

_____________________________ John D. McLeod

Administrative Law Judge

April 19, 2006

Columbia, South Carolina