ORDERS:
ORDER OF DISMISSAL
STATEMENT OF THE CASE
On September 9, 2002, Petitioner Carolina Water Service, Inc. (CWS) filed a request for a contested case with Respondent
South Carolina Department of Health and Environmental Control (DHEC or Department). This request was transmitted to
the Administrative Law Judge Division (ALJD or Division) on September 18, 2002, and was subsequently assigned to the
undersigned with docket number 02-ALJ-07-0405-CC. In its request for a contested case, Petitioner CWS seeks review of
the Department's August 19, 2002 Administrative Order 02-182-W, which withdrew and vacated Administrative Order 89-37-W in its entirety.
Subsequently, on October 21, 2002, Petitioner CWS filed a motion with the Division for an order directing DHEC to
transmit CWS's 1989 appeal of Administrative Order 89-37-W to the Division for adjudication. This matter was
designated as docket number 02-ALJ-07-0456-IJ and was likewise assigned to the undersigned. In these two cases, taken
together, Petitioner CWS seeks to prohibit the Department from vacating Administrative Order 89-37-W so that it can
attempt to have that order reversed by this tribunal. Because these cases implicate the same set of operative facts and
involve an intertwined set of legal issues, the two cases were consolidated under ALJD Rule 19D by an Order of this
tribunal dated November 22, 2002. Further, because the only issue raised by these cases appeared to be a moot issue, a
hearing on whether this tribunal has jurisdiction over the cases was held on December 3, 2002. Having considered the
arguments presented at the hearing and the applicable law, I find that these cases do not raise any justiciable issues and
must, therefore, be dismissed.
BACKGROUND
A complete understanding of the issues raised in these cases requires some further elucidation of the factual background
giving rise to those issues.
Petitioner Carolina Water Service, Inc. (CWS) owns and operates a sewage collection system and wastewater treatment
facility serving the Kings Grant subdivision in Dorchester County, South Carolina. On August 5, 1981, the Department
issued National Pollutant Discharge Elimination System (NPDES) permit #SC0021911 to CWS for the operation of the
Kings Grant facility. In accordance with the 208 Areawide Waste Treatment Management Plan developed by the Berkeley-Charleston-Dorchester Council of Governments (B-C-D COG), this permit included the requirement that the discharge
from the Kings Grant facility be eliminated by connection to the Dorchester County regional sewer system if and when
connection to the regional system became available. This permit expired on September 1, 1986.
On February 25, 1986, some six months prior to the expiration of the 1981 permit, CWS submitted an application to the
Department for the reissuance of its NPDES permit. However, while the renewal request was under consideration, the B-C-D COG informed DHEC on July 8, 1986, that the Dorchester County regional sewer system was available to CWS for
the connection of the Kings Grant facility. By letter dated July 11, 1986, DHEC, in turn, informed CWS that its NPDES
permit could not be renewed because its reissuance would conflict with the Areawide 208 Plan for the region, which called
for the elimination of the Kings Grant discharge in the regional system. Curiously, CWS did not appeal this decision of the
Department.
Nor did CWS connect to the regional system. Consequently, on May 8, 1989, DHEC issued Administrative Order 89-37-W ("the 1989 Order") against CWS. This Order found that, by failing to connect to the regional system, CWS was in
violation of the South Carolina Pollution Control Act, and ordered CWS to complete arrangements with Dorchester County
for the connection of the Kings Grant facility to the county system. The 1989 Order further specified that, while those
arrangements were being made, CWS was to operate the Kings Grant facility under the terms of the expired 1981 permit.
On June 5, 1989, CWS challenged the 1989 Order by filing a Petition and Request for Adjudicatory Hearing with the
Department. In its Petition, CWS sought to litigate whether compliance with the 1989 Order would constitute a taking
under the South Carolina Constitution and whether such compliance would violate CWS's federal and state constitutional
rights to due process and equal protection of the laws. As a prayer for relief in the Petition, CWS requested "[t]hat
Administrative Order No. 89-37-W of the Bureau of Water Pollution Control, dated May 8, 1989 be rescinded, withdrawn
and vitiated in its entirety." This challenge to the 1989 Order was assigned to a Department hearing officer and carried
through the initial proceedings, but, for reasons unknown, a hearing on the merits of CWS's request for review of the 1989
Order was never held.
Some ten years later, on December 13, 2000, Dorchester County informed DHEC that its regional system no longer had the
capacity to accept the discharge from the Kings Grant facility. As a consequence, on August 19, 2002, DHEC issued
Administrative Order 02-182-W ("the 2002 Order"), which withdrew and vacated Administrative Order 89-37-W in its
entirety, because it was no longer appropriate to require CWS to connect its facility to the Dorchester system. As noted
above, CWS filed a request for a contested case hearing before the ALJD to challenge the 2002 Order. In particular, CWS
"seeks to adjudicate DHEC's authority to withdraw an order pending before a tribunal in addition to all issues regarding the
appeal of Administrative Order 89-37-W, including Petitioner's constitutional claims as previously stated." (Pet'r Pet. for
Admin. Rev. of Admin. Order 02-182-W, at 3.) In furtherance of this request, CWS also filed a motion to transmit its
appeal of the 1989 Order from the Department to this tribunal.
ANALYSIS
In this matter, Petitioner CWS essentially raises a two-part argument to invoke this tribunal's jurisdiction. First, CWS
contends that DHEC did not have the authority to issue the 2002 Administrative Order revoking the 1989 Administrative
Order, because the 1989 Order was still ostensibly pending before a DHEC hearing officer. Second, CWS argues that,
because the 1989 Order has not been properly revoked and is still pending a hearing by an administrative tribunal, this
tribunal should take jurisdiction over the 1989 Order and conduct a contested case on its validity, to include an opportunity
for CWS to litigate its constitutional objections to the 1989 Order. However, I find that DHEC did have the authority to
revoke the 1989 Order, and that the revocation of the 1989 Order rendered CWS's objections to the Order moot. Further, I
find that the other issues raised by CWS in its petitions and in the hearing before this tribunal are either not properly before
this tribunal or not ripe for adjudication at this time.
In its challenge to the 2002 Order, Petitioner "asserts that DHEC does not have authority to independently issue or
withdraw an order if the issues contained in the order have been appealed and are pending before a tribunal." (Pet'r Pet. for
Admin. Rev. of Admin. Order 02-182-W, at 4.) However, unlike those instances when an agency attempts to revoke or
modify an order pending before another entity, such as the ALJD, which do raise certain jurisdictional concerns, the 1989
Order at issue in this matter remained within DHEC's jurisdiction from its issuance until its revocation by the 2002 Order. See S.C. Code Ann. § 1-23-660 (Supp. 2001). Therefore, DHEC properly exercised its statutory authority over the 1989
Order when it withdrew and vacated the Order in its entirety. See S.C. Code Ann. § 48-1-50(3) (1987) (authorizing DHEC
to "[m]ake, revoke or modify orders requiring the discontinuance of the discharge of sewage, industrial waste or other
wastes into any waters of the State.") (emphasis added). (1)
Because Administrative Order 89-37-W has been validly withdrawn and vacated by DHEC, CWS's objections to that Order
have been rendered moot. The South Carolina Supreme Court has defined the principle of mootness as follows:
A case becomes moot when judgment, if rendered, will have no practical legal effect upon [an] existing controversy. This
is true when some event occurs making it impossible for the reviewing Court to grant effectual relief.
Byrd v. Irmo High Sch., 321 S.C. 426, 431, 468 S.E.2d 861, 864 (1996) (quoting Mathis v. S.C. State Highway Dep't, 260
S.C. 344, 346, 195 S.E.2d 713, 715 (1973)). Such is the case here. An order from this tribunal regarding the propriety of
the 1989 Order, an order that has been vacated in its entirety, would have no practical legal effect. Further, in revoking the
1989 Order, DHEC granted the relief sought by CWS in its challenge to the 1989 Order and thereby extinguished CWS's
existing controversy with DHEC. (2) And, because CWS's challenge to Administrative Order 89-37-W has been rendered
moot by the revocation of that Order, this tribunal has no jurisdiction to address CWS's objections to the Order. See Sessions v. Withers, 327 S.C. 409, 417-18, 488 S.E.2d 888, 893 (Ct. App. 1997).
Similarly, the remaining issues raised by CWS in the papers filed in these cases and at the hearing of this matter cannot be
addressed by this tribunal at this time. Any issues regarding the status of the NPDES permit for the Kings Grant facility
have not been properly brought before this tribunal. CWS apparently did not seek administrative review of the
Department's July 11, 1986 letter notifying CWS that the Kings Grant NPDES permit could not be renewed, nor has CWS
sought to re-apply for an NPDES permit for the facility since the expiration of the 1981 permit. CWS cannot now seek to
bootstrap such issues to its challenge to the 1989 Administrative Order, which was confined solely to CWS's objections to
the terms of the Administrative Order and did not reference any of the Department's permitting decisions.
Further, any issues concerning potential actions DHEC might take with regard to the Kings Grant facility are clearly not
ripe for adjudication at this time. This tribunal simply cannot evaluate the propriety of the terms of an NPDES permit or
denial thereof, or an enforcement order until such time as the Department actually issues such a permit or order. While
CWS has apparently legitimate concerns regarding the future of the Kings Grant facility, these concerns cannot be litigated
before this tribunal until they ripen into an actual controversy. See Waters v. S.C. Land Res. Conservation Comm'n, 321
S.C. 219, 227, 467 S.E.2d 913, 917-18 (1996) ("A justiciable controversy is a real and substantial controversy which is ripe
and appropriate for judicial determination, as distinguished from a contingent, hypothetical or abstract dispute."). (3)
The Department acted within its authority in issuing Administrative Order 02-182-W, which withdrew and vacated
Administrative Order 89-37-W in its entirety. This revocation rendered CWS's objections to the 1989 Order moot, and
divests this tribunal of jurisdiction to hear those mooted objections. Further, the other issues raised by CWS in these
proceedings are either not properly before this tribunal or not ripe for adjudication at this time.
ORDER
For the reasons set forth above,
IT IS HEREBY ORDERED that the above-captioned cases are DISMISSED.
AND IT IS SO ORDERED.
_____________________________________
JOHN D. GEATHERS
Administrative Law Judge
December 17, 2002
Columbia, South Carolina
1. Moreover, nothing in 25 S.C. Code Ann. Regs. 61-72 (Supp. 2001), which governed CWS's contested case challenge to
the 1989 Order, prohibits DHEC from withdrawing an order pending before a Departmental hearing officer.
2. As noted above, in its appeal of the 1989 Order, CWS sought to have the Order "rescinded, withdrawn and vitiated in its
entirety." DHEC's 2002 Order did just that.
3. The Court in Waters went on to note that "[i]t is not enough that a threat of possible injury currently exists; the mere
threat of potential injury is too contingent or remote to support present adjudication." Waters, 321 S.C. at 228, 467 S.E.2d
at 918 (quoting Thrifty Rent-A-Car Systems, Inc. v. Thrifty Auto Sales of Charleston, Inc., 849 F. Supp. 1083, 1086
(D.S.C. 1991)) (emphasis in original). |
