South Carolina              
Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
Mount Pleasant Waterworks and Sewer Commission vs. SCDHEC

AGENCY:
South Carolina Department of Health and Environmental Control

PARTIES:
Petitioner:
Mount Pleasant Waterworks and Sewer Commission


Respondent:
South Carolina Department of Health and Environmental Control Control and Nucor Steel Corporation
 
DOCKET NUMBER:
96-ALJ-07-0166-CC

APPEARANCES:
W. Thomas Lavender, Jr., Esq., for Petitioner, Mount Pleasant Waterworks and Sewer Commission,

H. Bowen Woodruff, Esq., for Respondent, South Carolina Department of Health and Environmental Control

Bart Daniel, Esq. and Scott N. Schools, Esq., for Respondent, Nucor Steel Corporation
 

ORDERS:

ORDER ON MOTION FOR SUMMARY JUDGMENT

I. Statement of the Case

On May 16, 1996, Nucor Steel Corporation (Nucor) filed a Motion to Dismiss on the ground that Mount Pleasant Waterworks and Sewer Commission (Waterworks) has no standing to obtain the relief it seeks. On May 17, 1996, South Carolina Department of Health and Environmental Control (DHEC) filed a Motion to Dismiss based upon two grounds. The first is that Waterworks failed to state facts sufficient to state a claim upon which relief could be granted. The second is that Waterworks failed to timely seek a contested case. On May 31, 1996, Waterworks filed a memorandum with affidavits in opposition to the motions. Waterworks asserts it has presented a controversy for which relief can be granted and that it timely sought a contested case hearing. A hearing on the motions was held June 5, 1996 with oral argument presented by all parties. The motions to dismiss are deemed motions for summary judgment.(1) The motions are granted.

II. Facts

A. Nucor's Efforts To Obtain Potable Water


While no permit is required for accessing process water, accessing potable water can necessitate a permit from DHEC. See S.C. Code Regs. 61-58.1(B)(1)(Supp. 1995) (before construction of a public water system is allowed, DHEC must issue a construction permit); S.C. Code Regs. 61-58(103)(Supp. 1995) (public water system is one which provides drinking water for humans); S.C. Code Regs. 61-58.1(B)(8) (Supp. 1995) (project involving a new groundwater source of drinking water requires an initial application for a construction permit). In June of 1995, Nucor, a steel manufacturer, sought a DHEC construction permit in order to obtain potable water via a public water system utilizing a new groundwater source. Nucor intended to construct several deep wells to access the Middendorf Aquifer. The wells would provide potable water as well as satisfying the need for process water for steel manufacturing. DHEC granted the construction permit for the two deep wells on July 27, 1995.

Nucor began construction of the wells, but by late November to mid-December of 1995, determined that construction delays were associated with drilling the deep wells and that it needed a more immediate source of drinking water. Accordingly, Nucor abandoned the idea of using the deep wells for potable water, deciding instead to use the deep wells solely for process water. To accommodate its need for potable water, Nucor, in December of 1995, filed with DHEC a request for a construction permit for several shallow wells and notified DHEC that the deep wells would not be used for potable water. The shallow wells would not use the Middendorf Aquifer.

Upon DHEC's recommendation of January 4, 1996, Nucor, by letter dated February 2, 1996, requested DHEC to void the construction permit for the deep wells "since the deep wells will be used for process water applications." On March 13, 1996, DHEC issued the shallow well construction permit and, as special condition one, stated the shallow well permit superseded the deep well permit "which is hereby voided."

B. Waterworks' Efforts For Water Resource Management


Waterworks provides drinking water for approximately 40,000 customers and obtains its water needs from the Middendorf Aquifer. On August 15, 1988, in an attempt to ensure a long term adequate supply of groundwater, Waterworks requested the South Carolina Water Resources Commission (Water Resources) to begin appropriate steps to designate the East Cooper area of Charleston County a capacity use area under S.C. Code Ann. § 49-5-40 (Supp. 1995). In response, the full Commission for Water Resources voted to study whether such a designation should be recommended. Water Resources was still pursuing the groundwater study of the area in May of 1989.

Due to government restructuring, effective July 1, 1994, the regulatory functions of Water Resources were transferred to DHEC. S.C. Code Ann. § 49-3-30 (Supp. 1995). In August of 1995, Waterworks learned Nucor would be using deep wells to draw groundwater from the Middendorf Aquifer. On September 18, 1995, Waterworks asked DHEC to state the total pumping capacity of the deep wells to be used by Nucor. On October 18, 1995, DHEC received notice that Waterworks was very concerned about the impact Nucor's deep wells would have on the Middendorf Aquifer and the ability of Waterworks to satisfy the water needs of its customers. Waterworks formally requested that DHEC hold a public hearing and asked DHEC not to issue any permits which significantly affected the Middendorf Aquifer. On November 6, 1995, DHEC agreed to hold a public meeting upon Waterworks' completion of a study to determine the impact of the Nucor deep wells. DHEC asserted, however, it would not delay the issuance of any permits concerning the Middendorf Aquifer.(2) Finally, on January 9, 1996, R. Lewis Shaw, Deputy Commissioner, Environmental Quality Control, notified Waterworks that DHEC would attempt to obtain legislation to require groundwater permitting for the Coastal Plain and if efforts failed DHEC "agreed to take action to designate portions of the Trident Area a [capacity use area] in accordance with the Groundwater Use Act."

III. Law and Application to Facts

This dispute arises from a petition filed by Waterworks on March 28, 1996. The petition challenges special condition one of the shallow well permit and requests the following relief:

Petitioner respectfully requests that the Board of Health and Environmental Control delete special condition number 1 of the Shallow Well Permit thereby maintaining the Deep Well Permit and modify the Deep Well Permit so as to limit the withdrawal rates to not more than 1,000,000 gallons per day unless and until Nucor can demonstrate that no feasible alternatives exist to utilizing groundwater from the Middendorf Aquifer and that an increased pumping rate will have no adverse impact upon existing public water supply wells withdrawing from the Middendorf Aquifer through actual data collection and comparison studies.


The relief seeks three results: a deletion of special condition number one, a limitation of the deep well permit by modifying the withdrawal rate of water used by Nucor, and, as asserted at oral argument, a remand to DHEC with instructions to prohibit DHEC from issuing the requested permit until DHEC determines if a water management program is needed in the area. The deletion is not granted since Waterworks lacks standing to challenge the special condition. The limitation is not granted since the dispute is not ripe for determination and seeks a forbidden advisory opinion. The remand is not granted since a writ for mandamus is not warranted.

A. Standing To Delete Special Condition


An Administrative Law Judge conducts contested case hearings. S.C. Code Ann. § 1-23-600 (Supp. 1995). A contested case is not established where the person seeking the contested case has not shown there is some legal right, duty or privilege that can be determined by the agency involved. SeeS.C. Code Ann. § 1-23-310(2) (Supp. 1995) (a contested case is a proceeding in which the legal rights, duties or privileges of a party are required by law to be determined by an agency after an opportunity for a hearing.). 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. Florence Morning News v. Building Commission of City and County of Florence, 265 S.C. 389, 218 S.E.2d 881 (1975).

Here, the executive action under attack is DHEC's granting of a shallow well permit with restrictions. Waterworks does not challenge the substance of the shallow well permit, but challenges only the single restriction which voids an earlier permit granted to Nucor. The earlier permit allowed Nucor to construct deep wells to remove water for potable purposes from the Middendorf Aquifer. DHEC's voiding of the previous permit, however, prohibits Nucor from utilizing the deep wells to withdraw potable water from the Middendorf Aquifer. The shallow wells will not use the Middendorf Aquifer. Thus, the voiding of the previous deep well permit actually decreases Nucor's use of the Middendorf Aquifer. Since the shallow well restriction reduces Nucor's water withdrawal from the Middendorf Aquifer and since the only prejudice asserted by Waterworks is the increased withdrawal of water from the Middendorf Aquifer, there is no prejudice or harm to Waterworks from special condition one. In fact, the special condition furthers the objective of Waterworks. Since Waterworks is not harmed by the granting of the shallow well permit and is not harmed by special condition one, Waterworks has no standing to challenge the restriction.

B. Advisory Opinion On A Matter Not Ripe For Decision


A dispute must be a real and substantial controversy which is ripe and appropriate for determination, as distinguished from a contingent, hypothetical or abstract dispute. Pee Dee Electric Cooperative v. Carolina Power and Light Co., 279 S.C. 64, 301 S.E.2d 761 (1983). Further, an adjudication that does not settle any legal rights of the parties results in the issuance of an advisory opinion. Power v. McNair, 255 S.C. 150, 177 S.E.2d 551 (1970). An Administrative Law Judge exercises quasi-judicial powers and may not issue advisory opinions. See O'Shields v. McLeod, 257 S.C. 477, 186 S.E.2d 408, (S.C. 1972) (courts of this State are without authority to issue advisory opinions). Here, there is no dispute ripe for decision and any decision in such a matter would be a mere advisory opinion.

Waterworks seeks to modify the deep well permit to limit the water withdrawal rate of Nucor. Prior to filing the petition, Waterworks asked DHEC to examine the East Cooper area of Charleston for its possible designation as a capacity use area. DHEC agreed to do so. In fact, DHEC supports legislation to require groundwater permitting for the entire Coastal Plain and if such failed, DHEC "agreed to take action to designate portions of the Trident Area a [capacity use area] in accordance with the Groundwater Use Act." Pursuant to the Groundwater Use Act, DHEC may declare an area a capacity use area. See S.C. Code Ann. § 49-5-40(A) (Supp. 1995). In the process, DHEC may conduct an investigation and hold public hearings (see S.C. Code Ann. § 49-5-40(C)(1) and (3) (Supp. 1995), and if a declaration of a capacity use area is determined, DHEC must present proposed regulations concerning the use of the groundwater with such regulations subject to approval of the General Assembly. See S.C. Code Ann. § 49-5-50 (Supp. 1995). Finally, once an area is designated a capacity use area, DHEC is required to issue permits to users who wish to exceed statutory withdrawal amounts with any person aggrieved by a DHEC decision having the right to a hearing before the Administrative Law Judge Division. S.C. Code Ann. § 49-5-60 (Supp. 1995). These steps by DHEC have not been completed. When these steps are accomplished, Waterworks may be in a position to present a ripe controversy on the issue of use by Nucor. At present, no such controversy has been presented.

C. Mandamus Improper


While its petition seeks to modify the deep well permit by limiting the withdrawal rate of water by Nucor, at oral argument, Waterworks alternatively requested a remand to DHEC with instructions not to issue the permit until DHEC determines if a water management program is needed in the area. In essence, Waterworks is asking for a writ of mandamus ordering DHEC to carry out its duties under the Groundwater Use Act and to issue no permits for the area in the interim. A writ of mandamus, in this instance, is improper.

To obtain a writ of mandamus requiring the performance of some act, an applicant must show: (1) a duty upon the respondent to perform the act; (2) that the duty is ministerial in character; (3) that the applicant has a specific legal right for which the discharge of the duty is necessary; and, (4) that he has no other legal remedy. City of Greenville v. Willimon, 243 S.C. 82, 132 S.E.2d 169 (1963); Wiblen v. Long, 262 S.C. 430, 205 S.E.2d 174 (1974). At least two of the four requirements are not met here.

The first requirement is not met. DHEC has a duty to determine whether an area should be designated a capacity use area. See S.C. Code Ann. § 49-5-40 (Supp. 1995). The challenge here, however, amounts to an assertion that DHEC has a duty to perform its tasks within a time frame that is acceptable to Waterworks. There is no duty upon DHEC to perform its capacity use determinations within a specified time period since no statute or regulation imposes such. Rather, the Act requires DHEC to investigate, hold public hearings, promulgate regulations, and grant or deny permits. See S.C. Code Ann. §§ 49-5-40, 49-5-50, and 49-5-60 (Supp. 1995). These activities are time consuming. In the instant case, DHEC has begun the process, and as late as January 1996, was still pursuing "action to designate portions of the Trident Area a [capacity use area] in accordance with the Groundwater Use Act." Thus, in the absence of a mandated time frame in which to perform, there is no failure of DHEC to perform and no duty which mandamus can compel.

The second requirement, that the administrative duty must be ministerial in character, is also not met. A ministerial duty is one in which a person performs in obedience to a mandate of legal authority without regard to the exercise of his own judgment upon the propriety of the act to be done. Godwin v. Carrigan, 227 S.C. 216, 87 S.E.2d 471 (1955); Sumter County v. Hurst, 189 S.C. 316, 1 S.E.2d 242 (1939). Here, mandamus is improper since the designation of an area as a capacity use area is an obvious discretionary decision based upon extensive judgment and evaluation.

Further, if Waterworks is seeking an order directing DHEC to carry out its discretionary duties, a tribunal rarely finds sufficient grounds to order an agency to carry out discretionary acts. Where a tribunal is asked to compel by mandamus an administrative agency to exercise its discretion, such a writ should not be issued unless the administrative agency's failure to act amounts to an arbitrary or capricious abuse of discretion. Sleeth v. Dairy Products Co., 228 F.2d 165 (4th Cir. 1955); Atlantic Coast Line RR Co. v. Caughman, et al, 89 S.C. 472, 72 S.E. 18 (1911); Mauldin v. Matthews, 81 S.C. 414, 62 S.E. 695 (1908). Further, when the assertion is that the agency has refused to act, a court should be greatly reluctant to substitute its discretion for that of the agency, and should interfere by mandamus only when the facts so clearly show a duty to act that there is no room for the exercise of reasonable discretion by the agency. Mauldin v. Matthews, supra. In the instant case, DHEC is actively pursuing the issue of whether to designate the area a capacity use area. Thus, there has been no failure by DHEC to exercise its discretion and there is no basis for a writ of mandamus.

III. Order

The motions to dismiss are deemed motions for summary judgment. The motions are granted since, as a matter of law, Waterworks has no standing to challenge the deletion of the special condition, the request to restrict Nucor's water usage seeks an advisory opinion on a matter not ripe for decision, and the request to seek a remand to DHEC does not warrant the granting of a writ of mandamus.

AND IT IS SO ORDERED.

__________________________________

RAY N. STEVENS

Administrative Law Judge

This 12th day of June, 1996

Columbia, South Carolina

_____________________

Fn1. Pre-hearing motions are proper before the ALJD. ALJD Rule 19. Questions not addressed by the ALJD Rules are resolved by application of the South Carolina Rules of Civil Procedure. ALJD Rule 52. Motions to dismiss that rely upon documents, affidavits, or other exhibits outside the initial filings of the parties are best treated as motions for summary judgment. Diminich v. 2001 Enterprises, Inc. 292 S.C. 141, 355 S.E.2d 275 (Ct. App. 1987).

Fn2. While DHEC asserted it would not delay any permits concerning the Middendorf Aquifer, such a position had no practical impact upon Nucor since, as previously stated, in late 1995 Nucor abandoned its intent to use the deep wells for potable water and thus no longer needed a permit.


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