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Unpublished Opinion No. 2011-UP-502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permit has been superseded by a 2010 NPDES permit modification that took effect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.