South Carolina              
Administrative Law Court
Edgar A. Brown building 1205 Pendleton St., Suite 224 Columbia, SC 29201 Voice: (803) 734-0550

SC Administrative Law Court Decisions

CAPTION:
Greenwood Mills, Inc. vs. SCDHEC

AGENCY:
South Carolina Department of Health and Environmental Control

PARTIES:
Petitioner:
Greenwood Mills, Inc.

Respondent:
South Carolina Department of Health and Environmental Control
 
DOCKET NUMBER:
96-ALJ-07-0542-CC

APPEARANCES:
W. Thomas Lavender, Jr. and John W. Davidson, Attorneys for Petitioner

Thomas G. Eppink, Attorney for Respondent
 

ORDERS:

ORDER AND DECISION

This matter comes to me pursuant to S.C. Code Ann. §§ 1-23-310, et seq. (1986 & Supp. 1996) and 25 S.C. Code Ann. Regs. 61-72 (Supp. 1996) upon Petitioner Greenwood Mills's request of December 10, 1996, for a contested case hearing. Petitioner seeks issuance of separate General Conditional Major Operating Permits by the South Carolina Department of Health and Environmental Control ("DHEC") for Greenwood Mills' Durst and Chalmers Plants, asserting that the two plants constitute two distinct major sources under the S.C. Pollution Control Act. DHEC argues that the Durst and Chalmers Plants constitute one "major source," as defined in 24A S.C. Code Ann. Regs. 61-62.70.2(r) (Supp. 1996), and proposes to issue one permit for both plants.

A Prehearing Conference was held by teleconference on January 22, 1997, in which the parties agreed that the matters at issue were exclusively legal in nature and could be decided without an evidentiary hearing. Accordingly, the parties filed stipulations and briefs with the Court. The sole issue for determination is whether the Durst and Chalmers Plants constitute one or two major sources of air pollutants under the applicable law. That determination hinges on the interpretation of the words "contiguous" and "adjacent." Upon review of the stipulations, briefs, and applicable law, I find and conclude that the Durst and Chalmers Plants are contiguous and adjacent and therefore constitute one major source for permitting purposes.



DISCUSSION

This contested case is purely a controversy involving construction of a regulation. The parties do not dispute the facts of the case nor do they dispute which State regulation is applicable. My analysis of the case is completely from a legal standpoint.

Greenwood Mills owns and operates two separate plants, the Durst and Chalmers Plants, in close proximity to one another. The two plants are under common control of Greenwood Mills and have the same Standard Industrial Classification, but are operated independently of one another and under separate management. The Durst Plant manufactures lightweight greige goods while the Chalmers Plant manufactures heavyweight greige goods. The two mills are located on separate parcels of real property, separated only by a strip of property owned in fee simple by the Georgia and Florida Railway Company. The only physical connection between the mills is a steam pipe which provides steam to the Chalmers Plant from a boiler on the Durst Plant site.

Under the South Carolina Pollution Control Act and its implementing regulations, major sources of air pollutants are required to obtain a State operating permit. Regulation 61-62.70.2(r) defines a "major source" as:

[A]ny stationary source (or any group of stationary sources that are

located on one or more contiguous or adjacent properties, and are

under common control of the same person (or persons under common

control)) belonging to a single industrial grouping and . . . located

within a contiguous area and under common control that emits or has

the potential to emit, in the aggregate, 10 tons per year (tpy) or more

of any hazardous air pollutant . . . . (emphasis added).



DHEC proposes to issue one operating permit for the Durst and Chalmers Plants on the grounds that the plants constitute a single major source of air pollutants under R. 61-62.70.2(r). Instead, Greenwood Mills seeks separate operating permits for each plant, arguing that the two plants constitute two distinct major sources under R. 61-62.70.2(r).

The ultimate decision of whether the two plants constitute one or two major sources turns upon the interpretation of the terms "contiguous" and "adjacent." Greenwood Mills contends that "contiguous" is the only term which requires definition and asserts that it necessarily means physically touching. DHEC argues that contiguity may include actual contact, but requires merely close proximity. The agency believes the term "adjacent" is also pertinent and offers a similar definition for that word.

The cardinal rule of statutory construction is that words used in a statute must be given their plain and ordinary meaning without resort to subtle or forced construction to limit or expand the operation of the statute. The language must be read in a sense which harmonizes with its subject matter and accords with its general purpose. Hitachi Data Systems Corp. v. Leatherman, 309 S.C. 174, 420 S.E.2d 843 (1992).

The court's primary function in interpreting a statute is to ascertain the intention of the legislature, and when the terms of a statute are clear and unambiguous, the court must apply them according to their literal meaning. Words used in a statute should be given their plain and ordinary meaning unless something in the statute requires a different interpretation. Further, a statutory provision should be given a reasonable and practical construction consistent with the purpose and policy expressed in the statute. (citations omitted)

First South Sav. Bank, Inc. v. Gold Coast Associates, 301 S.C. 158,390 S.E.2d 486 (S.C.App. 1990).



In construing the plain and ordinary meaning of commonplace words used in a statute, dictionaries and other source books may be examined. City of Columbia v. Moser, 280 S.C. 134, 311 S.E.2d 920 (1983). Black's defines "contiguous" as "[i]n close proximity; neighboring; adjoining; near in succession; in actual close contact; touching at a point or along a boundary; bounded or traversed by." Black's Law Dictionary (6th ed. 1990). Webster's Third New International Dictionary (1993) gives the following definition of "contiguous":

1 (a) touching along boundaries often for considerable distances; (b) next or adjoining with nothing similar intervening; (c) nearby, close, not distant; (d) continuous, unbroken, uninterrupted; touching or connected throughout. 2 (a) immediately preceding or following in time or sequence; without intervening interval or item; (b) near in time or sequence.

The United States Environmental Protection Agency ("EPA"), the Federal agency charged with executing the Federal regulation upon which R. 61-62.70(r) is based, interprets "contiguous" in a similar manner: "The EPA believes Congress intended the term 'contiguous area,' as it is used to define major source in section 112, to have the same meaning as the term 'contiguous or adjacent property,' as it is used to define major source in . . . [the] permit program

regulation. . . ." 58 Fed. Reg. 42767 (1993).

The common dictionary definition of "contiguous" consists, in part, of "nearby, neighboring, adjacent." On this basis, the EPA has historically interpreted 'contiguous property' to mean the same as 'contiguous or adjacent property' in the development of numerous regulations to implement the Act. . . . [T]he fact that all property at a plant site may not be physically touching does not mean that separate plant sites exist. For example, it is common for a railroad right-of-way or highway to cut across a plant site. However, this does not create two separate plant sites. To claim that it does would be an artificial distinction, and it is contrary to the intent of the statutory definition of major source.

59 Fed. Reg. 12412 (1994).



South Carolina courts have interpreted the term "contiguous" in the context of municipal annexation conflicts in Bryant v. City of Charleston, 295 S.C. 408, 410, 368 S.E.2d 295, 901 (1988), Tovey v. City of Charleston, 237 S.C. 475, 117 S.E.2d 872 (1961), and Pinckney v. City of Beaufort, 296 S.C. 142, 370 S.E.2d 909 (Ct. App. 1988). In annexation of contiguous property authorized by statute, municipalities have been allowed to annex property which does not physically touch the cities' boundaries. In Bryant, the court recognized that one ordinary meaning to be afforded "contiguous" is "touching," but held parcels that do not touch because of separation by water or a marshland are also contiguous. Similarly, in Tovey, a municipality and annexed area joined by a bridge, but separated by a navigable stream were held to be contiguous.

"Adjacent" means:

[L]ying near or close to; sometimes, contiguous; neighboring. Adjacent implies that the two objects are not widely separated, though they may not actually touch . . . while adjoining imports that they are so joined or united to each other that no third object intervenes.

Black's Law Dictionary (6th. Ed. 1990).

"Adjacent" implies that two objects are not widely separated, though they may not actually touch. Harrison v. Guilford County, 218 N.C. 718, 12 S.E.2d 269 (1940).

It is clear that the plain and ordinary meanings of contiguous and adjacent include both "close proximity" and "actual contact." To read an absolute requirement of actual touching into the definitions of "contiguous" or "adjacent" and therefore into the meaning of R. 61-62.70.2(r), would require resorting to a forced construction to limit the regulation's operation by choosing only one of the several common definitions of the word. There is no evidence that DHEC, the agency which promulgated the regulation, or the Legislature, which approved it, intended to exclude any of the common definitions. Nothing in the regulation requires the DHEC to distinguish between the several common and ordinary meanings of the terms used therein. See

Koenig v. South Carolina Dept. of Public Safety,___ S.C. ___, 480 S.E.2d 98, 99 (Ct. App. 1996) (construing manslaughter to include voluntary and involuntary manslaughter).

The general definitions of "contiguous" and "adjacent" include close proximity without actual contact. If an absolute requirement of touching were intended, it could easily have been legislated by use of other, less flexible terms such as abutting, touching, adjoining, connected, sharing a common boundary, etc. See generally State v. Sims, 304 S.C. 409, 405 S.E.2d 377 (1991).

Furthermore, to interpret "contiguous" and "adjacent" within the context of the regulation to include closeness without physical contact is a reasonable and practical construction, consistent with the purpose and policy expressed in S.C. Code Ann. § 48-1-20 (1987) and R. 61-62.70.2(r). See Hay v. S.C. Tax Commission, 273 S.C. 269, 255 S.E.2d 837 (1979). The regulation relates to air pollution and seeks to regulate the amount of pollutants released into the environment. Once pollutants are airborne, the exact property boundaries of their source point is of little importance. The fact that multiple sources of air pollutants are in the same general area and under a common ownership or control, however, is significant. The State has a legislatively declared public policy, as provided in § 48-1-20, to maintain reasonable standards of air purity and to secure that purpose by abating, controlling, and preventing pollution.

For the foregoing reasons, the Durst and Chalmers Plants are contiguous and adjacent. The plain and ordinary meaning of "contiguous" necessarily includes the Durst and Chalmers Plants within the set of major sources covered by R. 61-62.70.2(r). Similarly, the use of the word "adjacent" in R. 61-62.70.2(r) supports the interpretation that the Durst and Chalmers Plants are also located on "adjacent" properties within the meaning of the regulation. Therefore, the Durst and Chalmers Plants constitute one "major source" of air pollutants under the applicable law because they are "contiguous or adjacent properties . . . located within a contiguous area."

R. 61-62.70.2(r).



FINDINGS OF FACT

By a preponderance of the evidence, I make the following findings of fact:

  1. The Petitioner, Greenwood Mills, Inc., operates two textile greige mills, the Durst Plant and the Chalmers Plant, in Greenwood County, South Carolina.
  2. The Durst Plant and the Chalmers Plant are operated totally independently of one another and under separate management.
  3. The Durst Plant and Chalmers Plant have the same Standard Industrial Classification, but the Durst Plant manufactures lightweight greige goods while the Chalmers Plant manufactures heavyweight greige goods.
  4. The only connection between the mills is that the Chalmers Plant purchases steam generated by a boiler located at the Durst Plant.
  5. The Durst Plant and the Chalmers Plant are under common control of the same person (or persons under common control).
  6. The two mills are located on separate parcels of real property. Specifically, the Durst Plant is located on Parcel 3 of Block 2 of Greenwood County Tax Map 123-09, and the Chalmers Plant is located on Parcel 1 of Block 2 of Greenwood County Tax Map 123-09.
  7. Administrative notice is taken of Greenwood County Tax Map 123-09.
  8. The parcels on which these mills are located are separated in their entirety by property owned in fee simple by the Georgia and Florida Railway Company, an unrelated third party. These parcels do not touch at any point.
  9. On January 24, 1996, Petitioner submitted separate applications for the Durst Plant and for the Chalmers Plant to DHEC requesting individual coverage for each plant under the General Permit. On November 22, 1996, DHEC's Bureau of Air Quality determined that the two plants should be considered one "major source" for purposes of coverage under the general permit.
  10. On December 10, 1996, Petitioner requested a contested case hearing in this matter, and the case was transmitted to the Administrative Law Judge Division for a contested case hearing.
  11. The parties agreed that the matters at issue were exclusively legal in nature and could be decided without an evidentiary hearing. Accordingly, the parties filed stipulations of fact and briefs with the Court.






CONCLUSIONS OF LAW

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

  1. The Administrative Law Judge Division has jurisdiction over this matter pursuant to S.C. Code Ann. § 1-23-600(B) (Supp. 1996) and 25 S.C. Code Ann. Regs. 61-72 §§ 501 & 502 (Supp. 1996).
  2. South Carolina administers Title V of the Federal Clean Air Act ("CAA") through its Title V Operating Permit Program of the S.C. Pollution Control Act and 25A S.C. Code Ann. Regs. 61-62.70 et seq. (Supp. 1996) and may impose "additional or more stringent requirements not inconsistent with" the CAA. 25 S.C. Code Ann. Regs. 61-62.70.1(c).
  3. DHEC administers the Pollution Control Act and its implementing regulations. S.C. Code Ann. §§ 48-1-10, et seq.
  4. R. 61-62.70 et seq. requires major sources of air pollutants to obtain a State operating permit.
  5. R. 61-62.70.2(r) defines a major source as:

[A]ny stationary source (or any group of stationary sources

that are located on one or more contiguous or adjacent properties,

and are under common control of the same person (or persons under

common control)) belonging to a single industrial grouping and . . .

located within a contiguous area and under common control that emits

or has the potential to emit, in the aggregate, 10 tons per year (tpy) or

more of any hazardous air pollutant . . . . (emphasis added).



  1. The cardinal rule of statutory construction is that words used in a statute must be given their plain and ordinary meaning without resort to subtle or forced construction to limit or expand the operation of the statute. The language must be read in a sense which harmonizes with its subject matter and accords with its general purpose. Hitachi Data Systems Corp. v. Leatherman, 309 S.C. 174, 420 S.E.2d 843 (1992).
  2. The court's primary function in interpreting a statute is to ascertain the intention of the legislature, and when the terms of a statute are clear and unambiguous, the court must apply them according to their literal meaning. Words used in a statute should be given their plain and ordinary meaning unless something in the statute requires a different interpretation. Further, a statutory provision should be given a reasonable and practical construction consistent with the purpose and policy expressed in the statute. (citations omitted)


First South Sav. Bank, Inc. v. Gold Coast Associates, 301 S.C. 158,390 S.E.2d 486 (S.C.App. 1990)

  1. In construing the plain and ordinary meaning of commonplace words used in a statute, dictionaries and other sources books may be examined. City of Columbia v. Moser, 280 S.C. 134, 311 S.E.2d 920 (1983).
  2. "Contiguous" means "[i]n close proximity; neighboring; adjoining; near in succession; in actual close contact; touching at a point or along a boundary; bounded or traversed by." Black's Law Dictionary (6th ed. 1990)
  3. Webster's Third New International Dictionary (1993) gives the following definition of contiguous:

1 (a) touching along boundaries often for considerable distances; (b) next or adjoining with nothing similar intervening; (c) nearby, close, not distant; (d) continuous, unbroken, uninterrupted; touching or connected throughout. 2 (a) immediately preceding or following in time or sequence; without intervening interval or item; (b) near in time or sequence.

  1. The United States Environmental Protection Agency ("EPA"), the Federal agency charged with executing the Federal regulation upon which R. 61-62.70(r) is based, construes "contiguous" as follows:

The common dictionary definition of "contiguous" consists, in part, of "nearby, neighboring, adjacent." On this basis, the EPA has historically interpreted 'contiguous property' to mean the same as 'contiguous or adjacent property' in the development of numerous regulations to implement the Act. . . . [T]he fact that all property at a plant site may not be physically touching does not mean that separate plant sites exist. For example, it is common for a railroad right-of-way or highway to cut across a plant site. However, this does not create two separate plant sites. To claim that it does would be an artificial distinction, and it is contrary to the intent of the statutory definition of major source.

59 Fed. Reg. 12412 (1994).

  1. "The EPA believes Congress intended the term 'contiguous area,' as it is used to define major source in section 112, to have the same meaning as the term 'contiguous or adjacent property,' as it is used to define major source in . . . [the] permit program regulation. . . ." 58 Fed. Reg. 42767 (1993).
  1. Contiguity is not destroyed simply because parcels do not physically abut one another. Land separated by water or a marshland is considered contiguous. Bryant v. City of Charleston, 295 S.C. 408, 410, 368 S.E.2d 295, 901 (1988); Tovey v. City of Charleston, 237 S.C. 475, 117 S.E.2d 872 (1961); and Pinckney v. City of Beaufort, 296 S.C. 142, 370 S.E.2d 909 (Ct. App. 1988).
  2. According to Black's Law Dictionary (6th. Ed. 1990), "adjacent" means:

[L]ying near or close to; sometimes, contiguous; neighboring. Adjacent implies that the two objects are not widely separated, though they may not actually touch . . . while adjoining imports that they are so joined or united to each other that no third object intervenes.



  1. Adjacent implies that two objects are not widely separated, though they may not actually touch. Harrison v. Guilford County, 218 N.C. 718, 12 S.E.2d 269 (1940).
  2. To read an absolute requirement of actual touching into the definitions of contiguous or adjacent, and therefore into the meaning of R. 61-62.70.2(r), would require resort to a forced construction to limit the regulation's operation by choosing only one of the several common definitions of the word. Nothing in R. 61-62.70.2(r) requires one to distinguish among the several common and ordinary meanings of the terms used therein. See Koenig v. South Carolina Dept. of Public Safety, ___ S.C. ___, 480 S.E.2d 98, 99 (Ct. App. 1996).
  3. The general definitions of contiguous and adjacent include close proximity without actual contact. If an absolute requirement of touching were intended, it could have easily have been legislated by use of other, less flexible terms such as abutting, touching, adjoining, connected, sharing a common boundary, etc. See generally State v. Sims, 304 S.C. 409, 405 S.E.2d 377(1991).
  4. It is clear that the plain and ordinary meanings of "contiguous" and "adjacent" include both "close proximity" and "actual contact."
  5. It is reasonable and practical, and consistent with the purpose and policy expressed in S.C. Code Ann. § 48-1-20 (1987), to interpret "contiguous" and "adjacent" within the context of R. 61-62.70.2(r) to include closeness without physical contact. See Hay v. S.C. Tax Commission, 273 S.C. 269, 255 S.E.2d 837 (1979).
  6. The State has a legislatively declared public policy, as provided in S.C. Code Ann.

§ 48-1-20, to maintain reasonable standards of air purity and to secure that purpose by abating, controlling, and preventing pollution.

  1. Petitioner's Durst and Chalmers Plants are "contiguous" within the meaning of R. 61-62.70.2(r).
  2. Petitioner's Durst and Chalmers Plants are "adjacent" within the meaning of R. 61-62.70.2(r).
  3. Petitioner's Durst and Chalmers Plants are "are located within a contiguous area " within the meaning of R. 61-62.70.2(r).
  4. The Durst and Chalmers Plants form a single "major source" for purposes of R. 61-62.70.2(r).


ORDER



IT IS HEREBY ORDERED that the General Conditional Major Operating Permit (GCMP-01) must be issued to Greenwood Mills' Durst and Chalmers Plants as one "major source," as defined in R. 61-62.70.2(r).

AND IT IS SO ORDERED.



___________________________________

STEPHEN P. BATES

ADMINISTRATIVE LAW JUDGE



June 30, 1997.

Columbia, South Carolina

960542.wpd


Brown Bldg.

 

 

 

 

 

Copyright © 2021 South Carolina Administrative Law Court