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. |