ORDERS:
ORDER GRANTING MOTIONS TO DISMISS
FACTUAL BACKGROUND
In July 2001 the Lexington County Recreation and Aging Commission started
construction on a 21-court tennis complex on Oak Drive in the Oak Grove
community of Lexington County. Previously, on June 15, 2001, DHEC issued
a permit for Wastewater Construction to the Commission. Since the plan
was in its initial phases, the Petitioner has spoken out against the project
claiming that the complex would increase traffic and noise and eliminate
green space. Petitioner lives in a neighborhood across Oak Drive from the
location of the project. Petitioner is seeking review of the issuance of
the wastewater permit by DHEC.
STATEMENT OF THE CASE
Previously, in Docket No. 01-ALJ-07-0350-CC, Petitioner requested a
contested case hearing on a Department of Health and Environmental Control
(DHEC) permit to allow construction of a water distribution system by Lexington
County Recreation and Aging Commission (County). On August 27, 2001, Petitioner
filed a motion to amend her protest to include the wastewater permit which
had also been issued by DHEC to the County. Simultaneously, Petitioner
filed an affidavit in response to a Motion to Dismiss which had been filed
in the matter. In the affidavits Petitioner indicated that she had actual
or constructive notice of the permits on or about July 26, 2001. On August
31, 2001, Administrative Law Judge Ray N. Stevens dismissed Petitioner's
contested case, finding that she did not have standing to challenge the
water distribution system permit because she had shown no injury in fact.
On the same date, Judge Stevens also issued an order dismissing her Motion
to Amend to add the wastewater construction permit on the basis that he
had no jurisdiction to address the Motion to Amend since the underlying
case had been dismissed for lack of standing.
On September 6, 2001, Petitioner filed a protest to the issuance of
Wastewater Construction Permit No. 26,721-WW with DHEC. On September 11,
2001, DHEC forwarded its Agency Transmittal Form for this protest to this
Division. With the agency transmittal, DHEC filed a Motion to Dismiss,
on the ground that the Petitioner did not timely file her request for a
contested case and that she does not have standing to challenge the issuance
of the permit. Also on September 11, 2001, Respondent Lexington County
filed a Motion to Dismiss on the same grounds, and a Motion for Expedited
Hearing.
On September 12, 2001, Petitioner was notified that as of September
5, 2001, the ALJD required a $70.00 filing fee for all cases brought before
the Division. Since this fee is the first filing fee ever collected by
the ALJD, the Clerk's office has made it its policy to notify Petitioners
that a filing fee is due and to allow them ten additional days to pay the
money. Therefore, the case was not assigned to the undersigned judge until
September 25, 2001.
On September 28, 2001, Carolina Water Service, Inc. filed a Motion to
Intervene, Motion to Dismiss, Motion for Expedited Hearing and a supporting
affidavit for those motions. To date, no response has been received from
the Petitioner. This office did receive telephone calls from her on October
3 and 4, 2001, stating that she was ill and would not have time to prepare
responses to the motions before a hearing which was scheduled for October
9, 2001. However, this would only apply to the motions of Carolina Water
Service, Inc. on September 28, 2001. Any response to the other motions
would have been due September 21, 2001, pursuant to ALJD Rule 19.
ANALYSIS
I. TIMELINESS OF FILING
DHEC has regulations established to govern administrative review of
its decision. These regulations are found in Chapter 61 of the Code of
Regulations. Regulations 61-72, Section 201 (Law Co-op. Supp. 2001) provides,
"Any person may request an adjudicatory hearing by filing a Petition for
Administrative Review with the Clerk of the Board. Any such Petition must
be filed within 15 days, or other period provided by law, following actual
or constructive notice of a final
staff decision on a licensing matter as defined above, or following
receipt of an administrative order."
However, on May 1, 2001 this Division amended its Rules of Procedure
and ALJD Rule 11 now states, "In all contested cases except county tax
matters, the request for a contested case hearing shall be filed with the
affected agency within thirty (30) days after receipt of the agency decision
unless otherwise provided by statute." DHEC's contested case procedures
are found in regulation and not in statute.
Nevertheless, the conflict between the two provisions is not at issue
here. The Petitioner states in her protest to the Clerk of the Board of
DHEC that she did not discover these permits had been issued until August
23, 2001. Under DHEC's regulations or under the Rules of the Administrative
Law Judge Division, her filing of September 6 would constitute a timely
filing. However, I find that there is ample evidence in the files of this
Division to conclude that the Petitioner had actual or constructive notice
of this wastewater construction permit on July 26, 2001. Therefore, under
either DHEC regulations or the ALJD Rules of Procedure, the Petitioner
did not timely file her appeal.
In Docket No. 01-ALJ-07-0350-CC the Petitioner signed an affidavit swearing
to certain facts. She states, "The DHECpermits I protested relate to construction on this tennis complex. I received no
actual or constructive notice of the DHECpermits protested until on or about July 26, 2001." (underlining added). This affidavit
was not filed as a part of her Motion to Amend, but was filed simultaneously
with it as a response to another motion. There is every reason to believe
that the permits to which Petitioner was referring were the water distribution
permit and the wastewater construction permit. The water distribution permit
was the permit for which she filed the contested case, and the wastewater
permit was the one she was attempting to get made a part of this case in
her Motion to Amend. "When a party has formerly asserted a certain version
of the facts in litigation, he cannot later change those facts when the
initial version no longer suits him." Hayne
Fed. Credit Union v. Bailey, 327 S.C.242, 251, 489 S.E.2d 472, 477
(1997).
II. STANDING
Assuming arguendo that Petitioner did file her request for review
in a timely manner, Petitioner's case would still fail because she has
no standing to bring the action. The Administrative Law Judge Division
may only hear those cases that present a legitimate justiciable controversy.
In order to revoke a permit issued by DHEC, the Petitioner must have been
adversely affected by the granting of the permit. Lennon
v. South Carolina Coastal Council, 330 S.C. 414, 498 S.E.2d 906
(Ct.App.1998). Otherwise, the Petitioner would not have standing to bring
an action. As previously stated, the Division has not received a response
to the motions to dismiss of DHEC and Lexington County. A review of her
protest received by the DHEC Board on September 6, 2001, indicates her
interest stems from the closeness of the project to her home. She alleges
that the service provider, Carolina Water Systems, "is not in compliance
with EPA regulations under the existing NPDES (National Pollutant Discharge
Elimination System) regulations promulgated pursuant to the Clean Water
Act." Protest Letter of Petitioner. The South Carolina Supreme Court ruled
on the issue of standing in a recent case. Sea
Pines Ass'n, for the Protection of Wildlife, Inc., et al. vs. South Carolina
Department of Natural Resources and Community Associates, Inc.,
Op. No.25326 (S.C.Sup.Ct. filed July 23, 2001)(Shearouse Adv.Sh. No.26
at 84, 90).
The Court found that simply having an interest is not enough. The agency
action must cause an injury to that particular person. They applied the
3-prong test enunciated in Lujan
v. Defenders of Wildlife, 112 S.Ct. 2130 (1992):
First, the plaintiff must have suffered an 'injury in fact' - an invasion
of a legally protected interest which is (a) concrete and particularized
and (b) actual or imminent, not 'conjectural' or 'hypothetical'. Second,
there must be a causal connection between the injury and the conduct complained
of - the injury has to be "fairly...trace[able] to the challenged action
of the defendant, and not ...th[e] result [of] the independent action of
some third party not before the court." Third, it must be "likely", as
opposed to merely 'speculative,' that the injury will be 'redressed by
a favorable decision.'
Sea
Pines at pp. 89-90 (citing Lujan,
112 S.Ct.at 2136).
In this case the Petitioner does not get past the first prong. There
has been no evidence of any injury which is concrete or particularized.
Her objections are general and hypothetical. This permit allows the construction
of pipes which would deliver sanitary waste from the site to the Carolina
Water Service sewer system. There is no evidence that this would cause
particularized injury to the Petitioner.
Furthermore, the challenge to the permit based on an alleged violation
of regulations by Carolina Water Service, Inc. does not confer standing.
"What may be perceived as another interest, [a] concern with assuring the
Agency fulfills its governmental obligation to carry out the state's policy
regarding property in the coastal zone, is not a property interest recognized
as sufficiently individual to provide standing." Ogburn-Matthews
vs. Loblolly Partners and DHEC, 332 S.C. 551, 565-66, 505 S.E.2d
598, 605 (1998)(citing Energy
Research Foundation v.Waddell, 295 S.C. 100, 367 S.E. 2d 419 (1988)).
III. OTHER MOTIONS
The motions of Carolina Water Service, Inc., including its Motion to
Intervene, were filed on September 28, 2001. Since this order is issued
based on the two motions to dismiss made by the Respondents, there is no
reason to reach the issues asserted by Carolina Water Service, Inc. in
its motions.
Likewise, there is no reason to reach the other issues brought before
the Division in the remaining motions of the two Respondents.
ORDER
THEREFORE, IT IS HEREBY ORDERED that the Respondents' Motions
to Dismiss are GRANTED.
AND IT IS SO ORDERED.
____________________________________
CAROLYN C. MATTHEWS
Administrative Law Judge
October 9, 2001
Columbia, South Carolina |
