ORDERS:
ORDER GRANTING SUMMARY JUDGMENT
This matter is before me on a Motion for Summary Judgment filed by Respondent South
Carolina Department of Health and Environmental Control ("DHEC"). Respondent Spartanburg
Sanitary Sewer District joins in DHEC's summary judgment motion. Petitioner opposes the motion.
In October, 1997, DHEC issued to Petitioner a NPDES permit renewal with the condition that
Petitioner connect to the regional sewer system and cease discharge into receiving waters within a
pre-determined schedule, in accordance with the Section 208 area-wide management plan authorized
by the Federal Clean Water Act. Petitioner requested a contested case hearing, objecting to the
permit condition on the grounds that it is unable to meet the compliance schedule and that it should
receive market value compensation for its assets.
After notice to all parties, a motions hearing was conducted on April 20, 1998. Summary
judgment is granted, as there are no genuine issues of material fact and Respondents are entitled to
judgment as a matter of law.
STANDARD OF REVIEW
Summary judgment is proper where there is no genuine issue as to any material fact and the
moving party is entitled to judgment as a matter of law. Rule 56(c), SCRCP; Tupper v. Dorchester
County, 326 S.C. 318, 487 S.E.2d 187 (1997). In making its determination, the court must view the
evidence in the light most favorable to the party opposing the motion. Rothrock v. Copeland, 305
S.C. 402, 409 S.E.2d 366 (1991).
Under Rule 56(c), SCRCP, the party seeking summary judgment has the initial burden of
demonstrating the absence of a genuine issue of material fact. Baughman v. American Tel. & Tel.
Co., 306 S.C. 101, 410 S.E.2d 537 (1991). Once the party moving for summary judgment meets the
initial burden of showing an absence of evidentiary support for the opponent's case, the opponent
cannot simply rest on mere allegations or denials contained in the pleadings. Rule 56(e), SCRCP; SSI Med. Servs., Inc. v. Cox, 301 S.C. 493, 392 S.E.2d 789 (1990). Rather, the non-moving party
must come forward with specific facts showing there is a genuine issue for trial. Id.
DISCUSSION
Section 208 of the Federal Clean Water Act authorizes an area-wide management plan for
water quality control in problem areas and gives planning authority to designated agencies within
each identified area. The area in which Petitioner's facility is located is governed by the
Appalachian Council of Governments for the six-county Appalachian region of South Carolina. The
Section 208 plan for this region includes the goal of promoting publicly owned and operated
wastewater treatment systems and encouraging incorporation of private treatment plants into the
public system.
The Section 208 plan also includes guidelines for consolidation of facilities. The compliance
schedule included in Petitioner's October, 1997 permit is based on these guidelines. It requires
submission of plans and specifications for the tie-on and close-out by January 1, 1998,
commencement of construction by March 1, 1998, completion of construction by May 1, 1998, and
close-out of Petitioner's facility by November 1, 1998.
DHEC regulations prohibit the issuance of a water pollution control permit for any discharge
inconsistent with a Section 208 plan. 24 S.C. Code Ann. Regs. 61-9.122.4(g) (Supp. 1997).
Therefore, DHEC was required to include in Petitioner's permit the condition that Petitioner connect
to the regional sewer system and cease discharge into receiving waters. Further, the compliance
schedule included in Petitioner's October, 1997 permit is based on guidelines in the Section 208
plan.
Petitioner does not contest the propriety of the permit condition or DHEC's authority to
include such a condition in the permit. Petitioner further concedes that there are no issues of
material fact that preclude summary judgment. Petitioner merely asserts financial hardship and
requests market value compensation for its assets. The issue of compensation for Petitioner's assets
is not properly before this tribunal. Only a condemnation proceeding in circuit court can address the
question of the appropriate compensation, if any, Petitioner should receive.
CONCLUSION
Petitioner concedes that there are no genuine issues of material fact precluding summary
judgment. Further, DHEC is entitled to judgment as a matter of law, as the condition and
compliance schedule in Petitioner's permit were authorized under the area Section 208 plan pursuant
to the Federal Clean Water Act. Therefore, DHEC's Motion for Summary Judgment is granted.
IT IS THEREFORE ORDERED that NPDES Permit No. SC0034169 be issued to
Petitioner as written.
AND IT IS SO ORDERED.
____________________________________
STEPHEN P. BATES
ADMINISTRATIVE LAW JUDGE
July 21, 1998
Columbia, South Carolina
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