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:
- The Petitioner, Greenwood Mills, Inc., operates two textile greige mills, the Durst Plant and the
Chalmers Plant, in Greenwood County, South Carolina.
- The Durst Plant and the Chalmers Plant are operated totally independently of one another and under
separate management.
- 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.
- The only connection between the mills is that the Chalmers Plant purchases steam generated by a
boiler located at the Durst Plant.
- The Durst Plant and the Chalmers Plant are under common control of the same person (or persons
under common control).
- 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.
- Administrative notice is taken of Greenwood County Tax Map 123-09.
- 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.
- 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.
- 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.
- 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:
- 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).
- 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).
- DHEC administers the Pollution Control Act and its implementing regulations. S.C. Code Ann. §§
48-1-10, et seq.
- R. 61-62.70 et seq. requires major sources of air pollutants to obtain a State operating permit.
- 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).
- 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 sources books may be examined. City of Columbia v. Moser, 280 S.C. 134, 311 S.E.2d
920 (1983).
- "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)
- 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, 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).
- "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).
- 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).
- 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.
- 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).
- 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).
- 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).
- It is clear that the plain and ordinary meanings of "contiguous" and "adjacent" include both "close
proximity" and "actual contact."
- 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).
- 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.
- Petitioner's Durst and Chalmers Plants are "contiguous" within the meaning of R. 61-62.70.2(r).
- Petitioner's Durst and Chalmers Plants are "adjacent" within the meaning of R. 61-62.70.2(r).
- Petitioner's Durst and Chalmers Plants are "are located within a contiguous area " within the
meaning of R. 61-62.70.2(r).
- 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 |