SC Administrative Law Court Decisions

I. Statement of the Case

A. Background

The Administrative Law Judge Division (ALJD) has subject matter jurisdiction over contested cases pursuant to S.C. Code Ann. §§ 1-23-600, et seq. and 1-23-310, et seq. (1986 and Supp. 1995). The instant case is before the ALJD pursuant to a challenge to a Construction Permit (No. 0900-0002-DB) (the Permit) issued by the Bureau of Air Quality Control, South Carolina Department of Health and Environmental Control (DHEC) to Giant Cement Company (Giant). On January 9, 1996, Environmentalists, Inc. (Environmentalists) filed a petition for a contested case which challenged the issuance of the Permit. The ALJD received notice of the petition on January 15, 1996.

Environmentalists' filing of a petition automatically stayed the effectiveness of the permit. See S.C. Code Regs. 61-72 (Supp. 1995). In response, Giant filed a Motion To Dismiss or In The Alternative to Lift Stay. At the motion hearing on January 16, 1996, Giant sought a dismissal on the ground Environmentalists lacked standing to contest the permit. Giant's Motion To Dismiss was denied as premature, but the Motion to Lift Stay was granted in an Order dated January 16, 1996. On May 7, 1996, in an effort to ensure the issues were properly joined, a Pretrial Hearing was held. Subsequently, an order was executed limiting the scope of the protest by Environmentalists. Following the Pretrial Hearing, depositions were taken by Giant and documentary evidence was identified and exchanged among the parties.

B. Summary Judgment Motion

Motions for summary judgment are proper before the ALJD. See ALJD Rule 19 (pre-hearing motions allowed), ALJD Rule 52 (questions not addressed by the ALJD Rules are resolved by application of the South Carolina Rules of Civil Procedure) and South Carolina Rules of Civil Procedure, Rule 56. On May 30, 1996, Giant filed a Motion for Summary Judgment, asserting, inter alia, Environmentalists lacked standing to challenge the permit in question.⁽¹⁾ At the June 3, 1996, hearing, DHEC joined in the Motion for Summary Judgment. For the reasons set forth below, Environmentalists has failed to establish the requisite standing to challenge the Permit and, accordingly, Giant's Motion for Summary Judgment is granted.

II. Findings of Fact

Giant operates four kilns to produce Portland cement at its Harleyville, South Carolina facility. Giant uses both solid and liquid fuels to fire the kilns. Pursuant to existing permits issued by DHEC, Giant is authorized to burn fuels derived from hazardous waste. The validity of the prior permits is not an issue in this matter.

On December 21, 1995, DHEC issued a construction permit to Giant to operate a fuels storage building and to construct certain fuel handling equipment. The items to be constructed include a shredder, a screw conveyor and associated pollution control devices. The Permit does not address Giant's operation of the kilns or pollution control devices associated with the kilns.

During discovery, Petitioner presented three witnesses who planned to testify at the hearing in support of the Permit challenge: Ruth Thomas, the President of Environmentalists, Inc. who has represented the Petitioner pro se throughout these proceedings; Dee Ann Henry, a member of the organization; and Thomas W. Howell, also a member of the organization.

By deposition, Ms. Thomas testified she was less impacted by Giant's operations than the general population of South Carolina. (Deposition of Ruth Thomas, dated May 10, 1996 [hereinafter "Thomas Dep."], at 19). Ms. Thomas does not visit the geographic area in which Giant is located. (Thomas Dep. at 9). She does not even pass through the area on a regular basis. (Thomas Dep. at 20).

In her deposition, Ms. Henry testified of a generalized concern that air emissions from Giant may impact the air she breathes and the produce she consumes in South Carolina. (Deposition of Dee Ann Henry [hereinafter "Henry Dep."], at 12). Ms. Henry does not vacation in or otherwise visit the Harleyville area where Giant is located. (Henry Dep. at 12). She has no information or data indicating that air emissions from Giant impact the Columbia area where she lives. (Henry Dep. at 13). She has no information or data indicating that produce grown in Giant's vicinity has been impacted by the facility's operations. (Henry Dep. at 14).

Mr. Howell, Petitioner's last witness, had not reviewed the Permit prior to testifying. (Deposition of Thomas Williams Howell, dated May 10, 1996 [hereinafter "Howell Dep."], at 6). Mr. Howell's only connection to the geographic area in question is driving down I-26 from Columbia on his way to Charleston, maybe twice a year. (Howell Dep. at 7). Mr. Howell claims no particularized injury to himself, noting that his interest in the Permit is the same as any other resident of South Carolina and that he will suffer no unique impact if it issues. (Howell Dep. at 8-9).

III. Conclusions of Law

Summary judgment is proper where it is clear there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Kreutner v. David, ___ S.C. ___, 465 S.E.2d 88 (1995). In deciding a motion for summary judgment, the evidence as well as the inferences that can be drawn from such evidence should be viewed in the light most favorable to the non-moving party. Cafe Associates, Ltd. v. Gerngross, 305 SC. 6, 406 S.E.2d 162 (1991). The issue here is whether Environmentalists has standing to challenge the permit. Viewing the evidence and inferences in the light most favorable to Environmentalists, as a matter of law, Environmentalists lacks standing.

In a dispute with DHEC, "[s]tanding shall be determined on the basis of applicable statutes, regulations, case law and Board orders." S.C. Code Regs. 61-72.401 (Supp. 1995). While there are no applicable statutes or regulations relevant to the standing issue here, there is authority from case law as well as prior decisions of the Board. As a minimum requirement, case law establishes the party must posses a right which can be protected or an injury that can be remedied before a court can provide relief. See Florence Morning News v. Building Commission of City and County of Florence, 265 S.C. 389, 218 S.E.2d 881 (1975) (a challenger to executive action lacks standing where the challenging party has not sustained or is not in danger of sustaining prejudice from the executive action). This test is the "injury in fact" test as established in Sierra Club v. Morton, 405 U.S. 727 (1972). Previous Board decisions have consistently adopted the judicial test of "injury in fact" as precedent. See, e.g., League of Women Voters of Voters of Georgetown County v. Wachesaw Plantation, Order 91-9-B (1991); Moss Creek Development Corp. v. SCDHEC, Order 87-18-B (1987); and In re Savannah River Plant NPDES Permit, Order 85-6-B (1985).

Here, Environmentalists failed to present factual documentation of a particularized injury in fact. Rule 56(e), SCRCP provides that when a properly supported motion for summary judgment is filed, the adverse party may not rest upon mere allegations but must respond, by affidavits or otherwise, to establish specific facts demonstrating there is a genuine issue for trial. A failure to respond requires summary judgment, if appropriate, to be entered against the party failing to respond.

In this case, Environmentalists presented only one "affidavit" in letter format from Sinkler Warley, Jr (Warley). Even that affidavit, when read in a favorable light and drawing all permissible inferences favorable to Environmentalists, is unhelpful in establishing standing. First, the document is defective since it does not affirmatively state that Warley is competent to testify to the matters stated. See SCRCP Rule 56(e). Second, there is no statement that Warley is a member of Environmentalists and thus any alleged injury is not affirmatively linked to Environmentalists. Third, Warley states that chemicals in the air in Harleyville make him sick. This assertion does not allege causation attributable to Giant since no statement asserts Giant produces the chemicals that cause the sickness. Further, even if an inference could be made that Giant produces the offending chemicals, the assertion that the chemicals cause his illness is not admissible evidence since it is speculative and amounts to an unsupported opinion given by a non-expert. See Baughman v. American Telephone & Telegraph Co, 306 S.C. 101, 410 S.E.2d 537 (1991) (inadmissible opinion testimony may not be set forth in a summary judgment affidavit). Finally, the thrust of the statement is that Warley's travels along I-26 in the Harleyville vicinity are curtailed. This "fact" is a generalized injury not uncommon to any other individual and is not the particularized injury in fact required for standing.

To establish an "injury in fact," a party must show more than an abstract injury. "The injury or threat of injury must be both 'real and immediate,' not 'conjectural' or 'hypothetical' " O'Shea v. Littleton, 414 U.S. 488, 494 (1974). Merely having a general interest common to all members of the public is not sufficient to establish standing. United States v. Richardson, 418 U.S. 166 (1974); Energy Research Foundation v. Waddell, 295 S.C. 100, 367 S.E.2d 419 (1988). In the instant case, Environmentalists' members do not state facts demonstrating a use and enjoyment of the natural resources in the area in which Giant is located, its members do not state facts demonstrating they are affected any differently than any other resident of the State, and its members do not state facts demonstrating they have a personal stake in the outcome of the Permit challenge.

In short, the evidence, when viewed most favorably to Environmentalists, establishes that neither Environmentalists nor its members, have suffered or will suffer a real and immediate injury or threat of injury from the granting of the permit to construct. Accordingly, Environmentalists lacks standing to request an adjudicatory hearing regarding the Permit's issuance.

IV. Order

Giant's Motion for Summary Judgment is granted, Giant's Permit No. 0900-0002-DB is proper as issued, and Environmentalists' challenge to the Permit is dismissed with prejudice.

AND IT IS SO ORDERED.

__________________________________

RAY N. STEVENS

Administrative Law Judge

This 18th day of June, 1996

Columbia, South Carolina

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1. Motions for Summary Judgment should be filed at least ten days prior to the hearing. SCRCP Rule 56(c). Giant filed its Motion for Summary Judgment three days before the hearing date of June 3, 1996. The three day notice is permitted under the circumstance of this case since good cause exists to shorten the ten day time period. See ALJD Rule 3(B) (where good cause is shown and there is no rule or law to the contrary, the ALJ may extend or shorten the time to take any action). First, the delay in filing was due to unavoidable delays in scheduling depositions of Environmentalists' lay witnesses. Second, Environmentalists knew on January 16, 1996 that standing was an issue to be addressed by subsequent motion. See ALJ Order dated January 16, 1996 (parties allowed to file motions on standing after filing pre-hearing statements.) Third, both DHEC's and Giant's Pre-Hearing Statements of January 31, 1996, asserted and notified Environmentalists of the lack of standing. Fourth, the ALJ Order and Notice of Hearing dated February 6, 1996, informed the parties that all pending motions would be heard on June 3, 1996. See Summer Place of Myrtle Beach Homeowner's Ass'n v. Knight, 298 S.C. 241, 379 S.E.2d 724 (Ct. App. 1989) (once party placed on notice that summary judgment would likely be resolved at a pre-trial conference, court had discretion to hear motion.)