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2011-UP-502 - Hill v. SCDHEC

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Heath Hill, Appellant,

v.

South Carolina Department of Health and Environmental Control and South Carolina Electric & Gas Company, Respondents.


Appeal From Administrative Law Court
Carolyn C. Matthews, Administrative Law Court Judge


Unpublished Opinion No. 2011-UP-502
Heard September 13, 2011 – Filed November 9, 2011


AFFIRMED IN PART, APPEAL DISMISSED IN PART


James Emerson Smith, Jr., E. Scott Winburn, and Robert Guild, all of Columbia, for Appellant.

Elizabeth B. Partlow, John M. S. Hoefer, and Stephen Philip Hightower, all of Columbia, and Francis G. Delleney, Jr., of Chester, for Respondents.

PER CURIAM: Heath Hill appeals the approval by the Administrative Law Court (ALC) of a Class Two Industrial Solid Waste Landfill (ISWLF) permit and a National Pollutant Discharge Elimination System (NPDES) permit, both of which were issued in 2008 by Respondent South Carolina Department of Health and Environmental Control (DHEC) to Respondent South Carolina Electric & Gas Company (SCE&G).  While the matter was pending in this court, SCE&G moved to dismiss Hill's appeal as moot.  The motion was consolidated with Hill's appeal.  We grant the motion to dismiss as to the issues Hill raised concerning the NPDES permit and affirm the ALC's decision affirming the issuance of the ISWLF permit.

1. We hold Hill's challenge to the NPDES permit based on the alleged failure of the ALC to consider (1) a 2001 mixing zone consent agreement between DHEC and SCE&G and (2) the impact of groundwater seeps from the Wateree River Bank on arsenic levels in the Wateree River is now moot.  The NPDES permit has been superseded by a 2010 NPDES permit modification that took effect January 1, 2011, after Hill failed to make a timely request for a contested case hearing on the matter.  We agree with SCE&G that the 2010 permit modification is now the controlling document governing SCE&G's operation of its NPDES system and will remain so even if Hill were to prevail in this appeal on the issues he raised regarding the 2008 permit.  Hence, any adjudication by this court about the 2008 NPDES permit, even if favorable to Hill, would have "no practical legal effect upon [the] existing controversy."  Sloan v. Greenville Cnty., 356 S.C. 531, 552, 590 S.E.2d 338, 349 (Ct. App. 2003) (brackets in original).  

2. We further hold that none of the three exceptions to the mootness doctrine applies in this appeal.  Contrary to Hill's assertion that the controversy giving rise to this appeal is capable of repetition but evading review, we found no indication that his complaints concerning the NPDES permit "can be repeatedly presented to the trial court yet escape review at the appellate level because of [their] fleeting and determinate nature."  Citizen Awareness Regarding Educ. v. Calhoun Cnty. Publ'g, Inc., 406 S.E.2d 65, 67 (W. Va. 1991) (quoted in Curtis v. State, 345 S.C. 557, 568, 549 S.E.2d 591, 596 (2001)).   Furthermore, in his return to SCE&G's motion to dismiss, Hill made only passing references to environmental concerns and a conclusory assertion that the ALC order at issue here may affect future events or result in collateral consequences for the parties; therefore, we hold that neither public interest concerns nor potential repercussions for the parties warrant our adjudication of the propriety of the NPDES permit.  See First Sav. Bank v. McLean, 314 S.C. 361, 363, 444 S.E.2d 513, 514 (1994) (deeming an issue abandoned because the appellant failed to provide supporting arguments or authority).  Accordingly, we dismiss as moot those issues in Hill's appeal concerning the NPDES permit.

3. As to Hill's argument that the ISWLF permit failed to control the effect of SCE&G's landfill "leachate" liquid, we affirm the ALC order pursuant to Rule 220(b)(1), SCACR, and the following authorities: S.C. Code Ann. § 1-23-610(B) (Supp. 2010) (providing the standard of review for the court of appeals when reviewing an order issued by the ALC); Bailey v. S.C. Dep't of Health & Envtl. Control, 388 S.C. 1, 5, 693 S.E.2d 426, 429 (Ct. App. 2010) (stating the court of appeals cannot substitute its judgment for that of the ALC as to the weight of the evidence on questions of fact unless the ALC's findings are " 'clearly erroneous in view of the reliable, probative and substantive evidence in the whole record' ") (quoting Comm'rs of Pub. Works v. S.C. Dep't of Health & Envtl. Control, 372 S.C. 351, 358, 641 S.E.2d 763, 766-67 (Ct. App. 2007)); id. at 5-6, 693 S.E.2d at 429 ("Substantial evidence is not a mere scintilla of evidence, but evidence which, considering the record as a whole, would allow reasonable minds to reach the conclusion the ALC reached.") (citing Leventis v. S.C. Dep't of Health & Envtl. Control, 340 S.C. 118, 130, 530 S.E.2d 643, 650 (Ct. App. 2000)).

AFFIRMED IN PART, APPEAL DISMISSED IN PART.

FEW, C.J., and THOMAS and KONDUROS, JJ., concur.