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:
Launeil Neil Sanders vs.SCDHEC et al.

AGENCY:
South Carolina Department of Health and Environmental Control

PARTIES:
Petitioner:
Launeil Neil Sanders

Respondent:
South Carolina Department of Health and Environmental Control and International Paper
 
DOCKET NUMBER:
00-ALJ-07-0357-CC

APPEARANCES:
Appearances: Launeil Sanders, Pro Se Petitioner

Robert G. McCulloch, Esquire, for SC DHEC

Elizabeth B. Partlow, Esquire, for International Paper
 

ORDERS:

ORDER OF DISMISSAL

This matter is before the Administrative Law Judge Division (Division) on appeal by Launeil Sanders of the renewal of a National Pollutant Discharge Elimination System (NPDES) permit issued by the South Carolina Department of Health and Environmental Control (DHEC) to International Paper's Georgetown facility. On July 31, 2000, International Paper (IP) filed a Motion to Dismiss and Motion for Sanctions. On September 29, 2000, DHEC filed a Motion to Dismiss for Lack of Standing and joined IP's motion.

A hearing on the Motions was held on October 17, 2000 at the offices of the Division. Petitioner Sanders, acting pro se, filed no responses to the Motions, but appeared at the hearing and offered his own testimony. Based on the written Motions, the testimony of the Petitioner, and the arguments of counsel, the Court finds that the Petitioner lacks standing to bring this appeal.

IP's NPDES permit authorizes the discharge of treated wastewater from IP's plant in Georgetown County into the Sampit River and consequently to Winyah Bay. However, the Petitioner lives at 2206 Canaan Pointe Drive in Spartanburg, South Carolina. Despite repeated questions from the Court, the Petitioner failed to state any way in which he has sustained, or was in immediate danger of sustaining, prejudice from DHEC's reissuance of the NPDES permit.

STANDING



A fundamental prerequisite to institute an action is the requirement that the Plaintiff have standing. Blanding v. Coleman, 285 S.C. 472, 330 S.E.2d 298 (1985). Standing is a personal stake in the subject matter of a lawsuit. Newman v. Richland County Hist. Preserv. Soc'y, 325 S.C. 79, 480 S.E.2d 72 (1997) (quoting Bailey v. Bailey, 312 S.C. 454, 441 S.E. 2d 325 (1994)). The South Carolina Supreme Court has held:

A private person may not invoke the judicial power to determine the validity of executive or legislative action unless he has sustained, or is in immediate danger of sustaining, prejudice therefrom. [I]t is not sufficient that he has merely a general interest common to all members of the public.

Florence Morning News, Inc., v. Building Comm'n, 265 S.C. 389, 218 S.E.2d 881 (1975)(quoting Ex parte Levitt, 302 U.S. 633 (1937)). See also Lennon v. South Carolina Coastal Council, 330 S.C. 414, 498 S.E.2d 906 (Ct. App. 1998)(unless the Plaintiff has standing to maintain the action, no justiciable controversy is presented).

The South Carolina Supreme Court has recognized one exception to the requirement that a party have standing. In several cases seeking declaratory relief, the Court has conferred standing on a party when the issue is of such public importance that its resolution will prohibit future litigation. Baird v. Charleston County, 333 S.C. 519, 531, 511 S.E.2d 69, 75 (1999). See also Evins v. Richland Co. Historic Preserv. Comm'n, ___ S.C. ___, 532 S.E.2d 876 (2000). The appellate courts have conferred standing in cases that challenge the constitutionality of a statute (Thompson v. South Carolina Comm'n on Alcohol and Drug Abuse, 267 S.C. 463, 229 S.E.2d 718 (1976)), alleged ultra vires acts of public bodies (Baird v. Charleston County, supra; Evins v. Richland Co. Historic Preserv. Comm'n, supra;), or the interpretation of a statute that applies to a great number of persons (CAFÉ v. S.C. Dept. of Labor, Licensing & Regulation, 337 S.C. 476, 523 S.E.2d 795 (Ct. App. 1999)). On the other hand, the South Carolina Supreme Court has refused to confer standing in a citizen suit challenging the method used by a city to annex property. Quinn v. City of Columbia, 303 S.C. 405, 401 S.E.2d 165 (1991). In other cases, the court has applied standing analysis and concluded that Plaintiffs lacked standing without addressing whether standing should be conferred. See Citizens for Lee County v. Lee County, 308 S.C. 23, 416 S.E.2d 641 (1992)(county residents lacked standing to challenge the county's decision to award a landfill contract); Lennon v S.C. Coastal Council, supra (Plaintiff attempting to act in another's interest to challenge a Coastal Council permit lacked standing).

The Petitioner has not argued that this case presents a question of such public importance that its resolution is required for future guidance. Rather, the Petitioner argued that he has standing under the Courts' traditional standing analysis. As set forth above, however, the Petitioner has failed to allege or to establish any imminent prejudice "of a personal nature to the party laying claim to standing and not merely of general interest common to all members of the public." Citizens for Lee County v. Lee County, 416 S.E.2d 641, 645. Furthermore, this case does not present a question of such public importance that its resolution is required for future guidance. In fact, it is difficult to ascertain exactly what question is being presented.

Simply put, the Petitioner does not like DHEC's NPDES permitting program. He contends that DHEC's regulations are defective or that DHEC implementation of its lawful obligation to protect the public health and safety is either corrupt, incompetent, or both. However, the Petitioner's claims about the inadequacies of the regulations and their implementation are more properly addressed through the ongoing administrative and legislative processes to amend the NPDES regulation. See 24 S.C. State Reg. 20 (July 28, 2000). Moreover, the Petitioner's more generalized claims that "citizens are dying and streams are being polluted" are so broadly written that there is no clear issue on which the Court might provide future guidance. To find that such a broad allegation of a threat to public health and safety is sufficient to confer standing would eviscerate the standing requirement.

Additionally, the Petitioner claims that the recent United States Supreme Court case of Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 120 S. Ct. 693 (2000), gives him and all other citizens standing in this matter. In Friends of the Earth, an environmental group brought a citizen suit in federal court pursuant to Section 505 of the Clean Water Act, (1) seeking declaratory and injunctive relief and an award of civil penalties for the alleged failure of Laidlaw Environmental Services to comply with its NPDES permit. The Supreme Court held that the relevant question for purposes of Article III standing is not injury to the environment, but injury to the Plaintiff. Applying that analysis, the Court found that the testimony of various members of Friends of the Earth demonstrated sufficient injury to establish standing. Friends of the Earth, Inc., 120 S. Ct. 693, 704-705.

The Petitioner's reliance on Friends of the Earth is misplaced. First, Friends of the Earth was analyzed in the context of the requirements for Article III standing. In other words, the Court considered whether the constitutional limitation on federal judicial authority grounded in the "case or controversy" requirement of the United States Constitution existed. Although the language of South Carolina's standing cases often reflects the language of federal decisions, South Carolina courts are not constrained by the "case or controversy" limitation of the federal Constitution. Second, even if the analysis of Friends of the Earth were applied to this case, as set forth above, the Petitioner has failed to meet the requirement in Friends of the Earth that a Plaintiff articulate sufficient particularized injury to establish standing.

SANCTIONS



IP has also moved for sanctions on the ground that the Petition is replete with immaterial, impertinent, and scandalous matter, and that the Petitioner lacks an objective good-faith basis for the Petition. DHEC joined IP's motion in its Motion to Dismiss for Lack of Standing. Following the hearing, counsel for IP and DHEC submitted affidavits setting forth the amount of attorneys' fees incurred by IP and DHEC in defense of this matter.

An Administrative Law Judge has the same powers as those held by a circuit court judge. S.C. Code Ann. §1-23-630 (1999). An inherent power of a judge is the power to control the practices of those who appear before him or her. See Link v. Wabash R. Co., 370 U.S. 626, 632, (1962) (establishing that the inherent power of a court to levy sanctions in response to abusive litigation practices is "well-acknowledged"). However, since a judge's inherent powers "are shielded from direct democratic controls, they must be exercised with restraint and discretion. See Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 450-451 (1911).

The Petitioner clearly takes issue with the way DHEC administers the NPDES program. Clearly, Sanders has been unsuccessful in satisfying the criteria needed to establish a contested case and has repeatedly failed to appreciate the need for obtaining a final decision from DHEC before seeking a contested case. Furthermore, Sanders' continues to allude to criminal activity beyond the purview of the matters decided by this Division. However, I conclude that though Sanders' repeated filings are at least bordering on sanctionable conduct, his prosecutions of the cases that have been dismissed do not yet warrant sanctions.

ORDER



Accordingly, I find that the Petitioner lacks standing to prosecute this appeal and therefore this case should be dismissed. Furthermore, the Respondents' motion for sanctions is denied.

AND IT IS SO ORDERED.

______________________________

Ralph King Anderson, III

Administrative Law Judge



March 20, 2001

Columbia, South Carolina

1. Section 505 of the Act states that a suit to enforce any limitation in an NPDES permit may be brought by any "citizen," defined as "a person or persons having an interest which is or may be adversely affected." 33 U.S.C. §§ 1365(a) and (g).


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