| Printed Page 1690, Feb. 10 | Printed Page 1710, Feb. 10 |

EPA Region IV State-Federal Environmental Attorneys Conference; Atlanta, Georgia; Wetlands Issues; July, 1993

Health Physics Society Short Course: NORM (Naturally Occurring Radioactive Material) Regulation; Columbus, Ohio; June, 1992

S. C. Bar Meeting:
January, 1989: Greenville, South Carolina; "Out-of-State Limitation of Hazardous Waste"
June, 1992: Asheville, North Carolina; Procedures before State Agencies"
January, 1993: Charleston, South Carolina; "Procedures before State Agencies"

10. Published Books and Articles:

"New DHEC Procedures for Contested Cases," 4 SC Lawyer May/June 1993, p. 41

Orders of the Board of Health and Environmental Control, 1975-1992, SC DHEC, 1993

"Radon Contingency Clauses: Necessary in SC?" 2 SC Lawyer Jan/Feb 1991, p. 41

"Hazardous Waste" SC Jurisprudence Environmental Law, (in press)

"Ionizing Radiation" SC Jurisprudence Environmental Law, (in press)

"Investigations of the Bonding Mechanism in Pyrite Using the Mossbauer Effect and X-Ray Crystallography," S. L. Finklea, L. Cathey, and E.L. Amma; A32 Acta Crystallographica 529 (1976)

"Magnetic Characteristics of CuFeCl4,AgFeCl4, and TlFeCl4 Near the Neel Temperatures," E.R. Jones, M.E. Hendricks, S.L. Finklea, III, L. Cathey, T. Auel, and E.L. Amma; 52 Journal of Chemical Physics 1922 (1970)

12. Legal experience since graduation from law school:

Staff Attorney, 1985-present, SC Department of Health and Environmental Control

litigation as lead attorney representing agency in administrative hearings, state and federal district court, trials and appellate argument; areas of practice include solid and hazardous waste (RCRA, CERCLA, and state law); water pollution (Clean Water Act, Safe Drinking Water Act, and state law, including underground storage tanks); air pollution (Clean Air Act and state law, including asbestos); radiation control; health licensing; and health regulation;

regulatory and statutory drafting; principal draftsman of complete revision of "contested case" regulation for agency; legal counsellor to agency Board and staff

13. Rating in Martindale-Hubbell:not rated

14. Frequency of appearances in court:

Federal:
6th Circuit Court of Appeals: once
District Court, District of SC: once (lead), twice (second chair)
Bankruptcy Court, District of SC: twice
District Court, Western District of Michigan:twice
U. S. Supreme Court: once (on brief only)

State:
Supreme Court: once
Court of Appeals: four times
Circuit Court: twelve times (lead), twice (second chair)

Other:
Magistrate's Court, three jury trials, one non-jury
Administrative Hearings, forty-two hearings (lead)

16. Percentage of cases in trial courts:
Jury - three cases in magistrate's court
Non-jury - all others

17. Five (5) of the most significant litigated matters in either trial or appellate court:
(a) Michigan Coalition of Radioactive Materials Users v. Griepentrog, 769 Fed.Supp. 999 (WD Mich 1991); stay gr. 945 F.2d 150; rev, 954 F.2d 1174 (6th Cir., 1992) withstood challenge to state's implementation of the Low-Level Radioactive Waste Policy Amendments Act.
(b) City of Beaufort v. DHEC and Beaufort-Jasper Water and Sewer Authority; Board of Health and Environmental Control Order 92-6-B; July 9, 1992: challenge to area-wide pollution control planning authority under Section 208 of the Clean Water Act.
(c) Richland County Northeast Gold CAMOUFLAGE v. DHEC and Ridgeway Mining Co., Board of Health and Environmental Control Order 88-9-B; 29-day hearing to defend comprehensive air, water and mining permit.
(d) Stono River EPA v. DHEC and Buzzard's Roost Marina, 406 S.E.2d 340 (S.C. 1991): affirmed principle that due process right to a hearing to contest agency decisions may exist independently of statutory grant of right to hearing.
(e) Northeast Sanitary Landfill, Inc. v. DHEC, Docket No. 3:90-2296-17, Order of Judge Joseph Anderson, 1/3/92:limited state's ability to control flow of solid waste by means of regional planning.

18. Five (5) civil appeals:
(a) Geronimo v. DHEC and Kiawah River Associates; Civil Action 91-CP-10-2850; Order of Judge William S. Howard; August 8, 1992.
(b) Stono River EPA v. DHEC and Buzzard's Roost Marina, 406 S.E.2d 340 (S.C. 1991).

(d) DHEC v. Armstrong, 359 S.E.2d 302 (S.C. App. 1987).
(e) Michigan Coalition of Radioactive Material Users v. Griepentrog, 769 Fed.Supp. 999 (WD Mich 1991); stay gr. 945 F.2d 150; rev, 954 F.2d 1174 (6th Cir., 1992).

25. Occupation, business or profession other than the practice of law:

Michelin Americas Research Corporation, 1976 - research on physical properties of tire textiles

SC Department of Health and Environmental Control, 1977-1985 - Bureau of Radiological Health; emergency response for radiological accidents; drafting regulations; health physics evaluations; licensee inspections

SC Department of Health and Environmental Control, 1985-1993 - Office of General Counsel; represent agency in administrative hearings, state and federal court

26. Officer/director or management of business enterprise:
Windswept Farms, a start-up venture to engage in silviculture; partner and legal counsel

40. Expenditures Relating to Candidacy:
Stationery; $25.00; August 9, 1993
Postage; $58.00; August 9, 1993
Postage; $11.00; November 2, 1993
Copying; $21.00; August 12, 1993
Copying; $7.00; November 2, 1993
Long Distance; $75.00; passim

45. Bar Associations and Professional Organizations:
South Carolina Bar Association, 1984-present; American Bar Association, 1984-present; Health Physics Society, 1978-present; Conference of Radiation Control Program Directors, 1978-present; National Guard Association of the United States, 1975-present; National Guard Association of South Carolina, 1975-present; American Society of Military Comptrollers, 1992-present

48. Five (5) letters of recommendation:
(a) Bobby Chestnut, Assistant Vice President
NationsBank
1301 Gervais Street, Columbia, SC 29201
929-5472
(b) Elizabeth B. Partlow
145 Fox Run Drive, Hopkins, SC 29061
(c) James Patrick Hudson, Esquire
#5 Foxwood Knoll, Blythewood, SC 29016
786-8445
(d) James S. Chandler, Jr., Esquire
P. O. Box 279, Pawleys Island, SC 29585
527-0078
(e) Ellison D. Smith, IV, Esquire
Smith, Bundy & Bybee
P. O. Box 579, Charleston, SC 29401
577-6302

The Board of Commissioners on Grievances and Discipline reports that no formal complaints or charges of any kind have ever been filed against you. The records of the appropriate law enforcement agencies, that being Richland County Sheriff's Department, Columbia City Police Department, SLED and FBI records, are all negative. The Judgement Rolls of Richland County are negative. Federal court records as well are negative. No complaints have been received regarding you and no witnesses are present to testify against you.

At this time, I will turn you over to Ms. McNamee for questioning.
MR. FINKLEA: May I have my one minute, please?
THE CHAIRMAN: You may have your -- I'm sorry. I keep forgetting that. You may have your up to five minutes to give your opening statement.
MR. FINKLEA: Thank you. I've been a lawyer for DHEC for nine years and during that time, it has become clear to me that people -- that the kinds of cases which will come before the ALJ division arise because people have been told by an agency either that they can't do something that they want to do or that they have to do something they don't want to do. That is the distressing to corporate members, but it's more distressing to private citizens who in some cases can't comprehend why they can't use

The role of ALJ division is going to be to give those people a fair hearing and treat them decently and honorably and at the same time to ensure that the agency has followed its own rules and there is ample evidence in the record to support the agency's decision or else the decision must be reversed, otherwise the Circuit Court is going to reserve it and nobody's purposes are being served. Thank you.
THE CHAIRMAN: Thank you very much. Ms. McNamee.
MR. FINKLEA - EXAMINATION BY MS. MCNAMEE:
Q. Thank you. Mr. Finklea, can we talk first about judicial temperament, please. What in your mind is the appropriate demeanor for a judge and all the different qualities we talked -- I talked about this morning.

Patience, open-mindedness, courtesy, tact, firmness, understanding, compassion and humility, which of these do you think is most important for an ALJ, Administrative Law judge or the chief, either one and why?
A. Patience. And I choose that one because I'm going to define it very broadly. Patience means you're not short tempered with the litigants. Patience means that you listen to the positions before -- and listen to all sides of the position before you make the decision. Patience means that you take the time to determine what the applicable law is.

The ALJ is going to be hearing cases coming out of many agencies. I'm most familiar with DHEC's regulations. We probably administer more regulations than any other agency in the state. I don't rely on my memory when it comes down to the point of making a decision. I take the time to look up the applicable law, look up the regulation.

And so I think that in viewing all of those as aspects of patience, that's why I choose that as the most important.
Q. How will you go about educating yourself about those areas of substantive law that you are not familiar with?
A. Well, as several questions -- and several of the Committee members have asked questions about the start-up period and you're going to elect three members who are going to bring -- three ALJs who bring a broad basis of experience to the division and those are certainly resources and a consultation among judges is allowed by the Canons and it's always been my practice to -- insofar as it's allowed by the rules of government, my conduct as an attorney, I tend to do the same with the Canons of Judicial Ethics to consult with people when I have a question.

I have a little more patience in cases of litigants pro se. In a case like that, I'd have to pay particular -- assuming I didn't know the substantive law, I would pay particular attention to be sure that I understood it before I made a ruling adverse to that litigant.

It would be my intention to build as broad a base as possible with the experience among the ALJs just so there wouldn't be one individual who was the entire corporate repository of knowledge in a particular area. I would intend to do that by rotating assignments judiciously and
whatever means that appear to be necessary.
Q. One quick follow up question, do you expect the parties in a contested case to educate you as to the law, educate you as to the facts? Discuss that for a minute, please.
A. Well, under the Rules of Civil Procedure, a Rule 16 brief is supposed to list the applicable law. A brief is obviously always partisan, but I would expect the parties to -- if they are truly in opposition to, between them, flush out all the areas. I don't intend to rely solely on the briefs of the litigants. Never have. Don't intend to start now. I've done my own research since I started law school. I intend to keep doing it.
Q. What is your -- what are your work habits and the way you meet your deadlines, the way you set out your schedule for the day, your hours that you work, et cetera? How does this -- how do you then foresee this being in place when you're a Chief ALJ assuming you get it?
A. Well, I typically work 7:30 to 5:00, but later if I have to. My preference is to -- is not to get down to the last minute. I pulled an all nighter when I was a junior in college and didn't like it and haven't done it since. So I keep my schedule on a computer and so I know what I've -- all the deadlines I've got for the next seven weeks.

So it's typically -- if I had a slack time with no deadline pressing that day, then that's the opportunity to work on things that are going to be due the next week or the week after. And I know from my past practice which cases are going to require the most time, so the ones that I can assign a fixed period of time to work on it -- some things I know are going to take me an hour or two and I can leave that until I have an hour or two. Sometimes when I don't know the answers, you know, I'm going to have to be more open-ended and I have to go by that.
Q. Throughout your career and you have a very extensive career if I might say as a scientist working for DHEC and then as an attorney as you

I don't foresee that I'm going to have any difficulty in making the transition from being the arbitrator that's required by the ALJ. It's clear what the standard of review is and being a blind advocate for the agency is going to result in reversals and we won't serve anybody's purposes.
Q. How will you make use of expert witnesses in areas you know nothing about?
A. Do you mean experts called by parties or experts called by the division -- by the ALJ?
Q. Well, in either way. If there is a situation that comes up that has not been briefed by the parties and you feel you need some additional information or expertise about something, what will you do?
A. Well, the Canons -- the commentary of the Canons suggests that one perfect way to do that is to solicit an Amicus for the -- during the hearing itself, the ALJs are in a better position from the point of view of being able to find out the facts than judges are because they can engage in more extensive questioning of the witness.

That's typically done now by hearing officers in DHEC hearings and I think it's an appropriate way to get answers to questions that the parties don't want to ask.
Q. What has been your managerial experience?
A. I have been responsible for the budgets for the Administrative Division I work for at DHEC in terms of keeping track of what the budget was and what our planned expenses were. Working for a state agency, you are somewhat limited in your ability to control the budget because you're given a certain number of positions and the money to fund those positions flows from that, rather than being given a pot of money to manage personnel like you can in the private sector.

The Division is going to need access to word processing. It's going to need access to a library. Those don't have to be purchased. The libraries in this complex that would be -- I'm sure would be made available as necessary.

The finding out the skills of the ALJs who are elected is going to be -- have to be done early and that process will start the process of team building, deciding who has which skills, who should be assigned to which agencies first.

As far as rules are concerned, the Administrative Procedures Act applies across the board. The individual agencies have procedural rules which apply in hearings for cases brought from them. There are probably going to be some procedural rules that will be required of the Division such as how you file, how the agency transmits a contested case to the agency, how the various briefs are filed.

We propose to do that by an interim order under -- the Statute requires that it would have to be submitted to the General Assembly. I think the

I would talk to Clyde Davis assuming that he's not occupied in other duties or Rita Mims, assuming she hasn't the state for Florida as to what needs to be done to set up the division.
Q. Talking about the case load which we all expect is going to be a hefty case load, if you had, for example, a case that was a contested case from DHEC that was going to be a two-month case, you are experienced to know that that's not unusual because of the complicated issues and the number of parties involved, how would you decide which ALJ heard those? Is that something you would hear?

I assume that you feel that you would be the most knowledgeable to hear that case in that area. Would you sit on that case and if not, how would the length of that hearing effect your deciding what the rotation would be, for instance?
A. Let me back into my answer to that one. First, I think that even though after the rotation is set up, there are going to be certain -- that are likely to be circumstances where an ALJ is going to have to be assigned into it, to hear cases coming out of another assigned area.

I found that at DHEC that we try as we might to assign cases by geographical area or by subject area, we never could predict where the case load was going to increase. It's cyclic and you had to make adjustments.

If such a case came up, not to denigrate the abilities of the other candidates, but from what I know of the candidates running for Seats 2 and 3, I think during the six months -- first six months at least, I'm going to be the one that who knows the most about DHEC issues. If one of them has other comparable experience, then the substantive law can be picked up by that ALJ. And so those are the factors that I would look at before I made the decision.

As far as if a question came up about my hearing a case arising out of DHEC during that period of time, the Canons have already been discussed, if it was a case that involved a matter which I directly participated as an attorney for DHEC, I can't hear it no matter what. Somebody else is going to have to do it.

I think that my history is as far as -- but that I'd certainly make it clear to the litigants that if I chose to take the case what my experience with DHEC was and give them the opportunity to object. It's standard practice in such circumstances.
Q. What is your most valuable administrative law experience? Would you elaborate on that?

| Printed Page 1690, Feb. 10 | Printed Page 1710, Feb. 10 |