ORDERS:
ORDER
This matter is before me pursuant to various Motions filed by the Respondents. Respondents South Carolina Department of Health
and Environmental Control (DHEC) and Holnam, Inc (Holnam) filed Motions to Dismiss and Motions for Summary Judgment.
Respondent Holnam filed a Motion for Reconsideration and an alternative Motion to Amend the Scheduling Order issued by the
undersigned administrative law judge on December 8, 2000. Also, Respondent Holnam filed a Motion to Compel the Deposition of
Curtis James and Motion for Contempt. A hearing on the Motions was held on January 10, 2001 at the Administrative Law Judge
Division (Division) in Columbia, South Carolina.
At the hearing, Holnam withdrew the Motion to Compel and Motion for Contempt because Mr. Lavender, attorney for Holnam, was
able to take Mr. James' deposition. For the reasons set forth below, the Motions to Dismiss are hereby granted.
FACTUAL BACKGROUND
Holnam operates a plant in Holly Hill, South Carolina that produces Portland Cement. Holnam currently operates two wet Portland
cement kilns at the plant. The existing kilns have been operating for over twenty-five (25) years. Holnam is planning to
decommission these two kilns and replace them with a new modern dry process preheater/precalciner kiln. The new kiln system will
have the ability to produce approximately 2.5 million short tons of clinker annually. The new kiln system will continue to use a
combination of fuels including conventional fossil fuel (low sulphur coal), alternate fuels including chipped and/or whole tires, and
hazardous waste derived fuel (HWDF) just as the existing kilns do today.
The project will involve a $230-250 million economic investment and will allow Holnam to supply projected market needs through
an increase in production capacity as well as an improvement in the cost of production. Furthermore, the new kiln system eliminates
most design obstacles for continued compliance with new environmental standards.
Holnam submitted its application to the Department for the construction permits for the new Portland cement kiln system on
December 22, 1999. The Department, along with the United States Fish and Wildlife Service and the Environmental Protection
Agency, reviewed this application extensively and, after a public hearing and comment period, the Department concluded that the
project was capable of achieving all applicable air quality standards and published its Final Determination to issue the Permits on
October 13, 2000. Petitioner filed a petition for a contested case hearing which challenged the issuance of the permits on October 30,
2000.
DISCUSSION & ANALYSIS
The Respondents contend that pursuant to Rule 12(b)(6), SCRCP this case should be dismissed because the Petitioner failed to state a
cause of action. In the alternative, the Respondents contend that they are entitled to summary judgment pursuant to Rule 56, SCRCP
because there is no genuine issue as to any material fact.
After carefully reviewing the Petition that Ms. Townsend filed with DHEC requesting an administrative review, I find that this case
should be dismissed. The Petition fails to state facts sufficient to constitute a cause of action. Rule 12(b)(6), SCRCP. In this
Petition, Ms. Townsend lists fourteen questions that she wants DHEC to answer. Ms. Townsend made a Freedom of Information Act
(FOIA) request for this information, but was not satisfied with DHEC's response. In the Petition, Ms. Townsend did not allege that
DHEC violated a statute or regulation in granting the construction permits to Holnam. In fact, in Petitioner's Response to the Motion
to Dismiss, Ms. Townsend stated that she could not show that the construction permits were improperly issued but that Holnam had
not proven that the permits were properly issued. However, Holnam does not have to prove that the permits were properly issued. In
administrative proceedings, the burden of proof is on the party asserting the affirmative of an issue. 2 Am. Jur. 2d Administrative
Law § 360 (1994). In this case, Petitioner asserts the affirmative and she must prove her allegations by a preponderance of the
evidence. See Anonymous v. State Board of Medical Examiners, 329 S.C. 371, 496 S.E.2d 17 (1998). Therefore, Ms. Townsend has
the burden of proof and she has failed to make any allegations that DHEC improperly issued these construction permits to Holnam.
Furthermore, the Administrative Law Judge Division is not authorized to grant the relief that Ms. Townsend requested, which was for
DHEC to do a collaborated study of emission rates in the area and for her to be relocated to another area. See S.C. Code Ann. §§ 1-23-310 et seq. (Supp. 2000).
Therefore, I find that this case should be dismissed pursuant to Rule 12(b)(6), SCRCP because Ms. Townsend failed to state facts
sufficient to constitute a cause of action. The dismissal of this case does not affect Ms. Townsend's pending FOIA request with
DHEC. However, the Administrative Law Judge Division does not have the authority to enforce the provisions of the Freedom of
Information Act. See S.C. Code Ann. § 30-4-100(a) (1991).
ORDER
For all the foregoing reasons, the Respondents' Motion to Dismiss is hereby granted and this case is dismissed.
AND IT IS SO ORDERED.
____________________________
C. Dukes Scott
Administrative Law Judge
January 19, 2001
Columbia, South Carolina |
