Brown v. SC DHEC

• Decision Date: 25 February 2002
• Docket Number: No. 25420.,25420.
• Citation: Brown v. SC DHEC, 348 S.C. 507, 560 S.E.2d 410 (S.C. 2002)
• Parties: Mike BROWN, Howard Tharpe, Interstate Speedway, Inc., and Interstate Speedway, Appellants, v. SOUTH CAROLINA DEPARTMENT OF HEALTH AND ENVRONMENTAL CONTROL, Office of Ocean and Coastal Resource Management and Lisa M. Hadstate, Respondents.
• Court: South Carolina Supreme Court

348 S.C. 507

560 S.E.2d 410

Mike BROWN, Howard Tharpe, Interstate Speedway, Inc., and Interstate Speedway, Appellants, v.SOUTH CAROLINA DEPARTMENT OF HEALTH AND ENVRONMENTAL CONTROL, Office of Ocean and Coastal Resource Management and Lisa M. Hadstate, Respondents.

No. 25420.

Supreme Court of South Carolina.

Heard December 12, 2001.

Decided February 25, 2002.

Rehearing Denied March 21, 2002.

Christopher McG.Holmes, of Charleston, for appellants.

Mary D. Shahid, of Charleston, for respondentSouth Carolina Department of Health and Environmental Control, Office of Ocean and Coastal Resource Management; Robert Guild, of Columbia, for respondentLisa M. Hadstate.

James S. Chandler, Jr., of Georgetown, for Amici Curiae South Carolina Coastal Conservation League, Sierra Club, National Audubon Society, and South Carolina Wildlife Federation; Neil C. Robinson, Jr., of Nexsen, Pruet, Jacobs, Pollard & Robinson, LLC, of Charleston, for Amicus Curiae South Carolina Tourism Council, Inc.

Justice BURNETT:

This appeal concerns an application for a stormwater permit to construct a motor speedway.We affirm in part and reverse in part and remand this matter to the Administrative Law Judge (ALJ) for the purpose of determining whether a consistency review meeting the requirements of the Coastal Management Program had been conducted.

FACTS

In September 1995, AppellantsMike Brown and Howard Tharpe, principals of Interstate Speedway, and Interstate Speedway, Inc.(collectively referred to as "Speedway"), applied with Respondent Department of Health and Environmental Control's (DHEC's)Office of Ocean and Coastal Resource Management(OCRM) for a stormwater permit as required by the Stormwater Management and Sediment Reduction Act (Stormwater Act)¹ in order to construct a motor speedway in Berkeley County.As part of this permitting process, OCRM was to ensure the proposed project, located in a coastal zone, was consistent with the policies of the Coastal Management Program managed by DHEC.SeeS.C.Code Ann. § 48-39-80(B)(11)(Supp.2001).RespondentLisa M. Hadstate(Hadstate) submitted comments opposing issuance of the stormwater permit.On November 7, 1995, OCRM issued the stormwater permit.Hadstate appealed, seeking a contested case hearing before an ALJ.

Testimony at the ALJ hearing revealed Speedway proposed to construct a motor racetrack consisting of a one-half mile concrete oval track, grassed parking lot, and mostly grassed infield on 61 acres located near the intersection of S.C. Highway 27 and Interstate 26 in Berkeley County.The racetrack would operate on Saturday afternoons and evenings from mid-March through September.

The proposed racetrack site is located within the Four Holes Swamp drainage basin.In general, witnesses opposed to the project expressed concern that stormwater sediment discharged from the speedway, both during and after construction, would cause erosion in the Four Holes Swamp,² the Francis Beidler Forest located within the swamp, and in other nearby property.

The ALJ issued a Final Decision upholding OCRM's issuance of the stormwater permit.Hadstate appealed the ALJ's Final Decision to the DHEC Board.³The Board reversed the ALJ, thereby denying Speedway a stormwater permit.

Speedway petitioned for judicial review of the Board's decision.⁴The circuit court affirmed.Speedway appeals.⁵

ISSUES

I.Did the circuit court err by upholding the Board's decision that the ALJ erred by approving use of the rational method model for stormwater discharge?

II.Did the circuit court err by affirming the Board's conclusion there was no evidence OCRM conducted a consistency review which met the requirements of the Coastal Management Program?

ANALYSIS

This case involves appearances before four tribunals and includes three levels of appellate review.Pursuant to provisions of the Administrative Procedures Act(APA),⁶ the ALJ presided as the fact-finder in the hearing of this contested case.S.C.Code Ann. §§ 1-23-600(B)(Supp.2001);seeJean Hoefer Toal, et al., Appellate Practice in South Carolina 49 (1999)(explaining three duties of ALJ Division—serving as fact-finder in certain cases, acting as appellate tribunal in other cases, and holding hearings on proposed regulations in other cases).Although this case reached the ALJ in the posture of an appeal, the ALJ was not sitting in an appellate capacity and was not restricted to a review of OCRM's permit decision.SeeReliance Ins. Co. v. Smith,327 S.C. 528, 489 S.E.2d 674(Ct.App.1997).Instead, the proceeding before the ALJ was in the nature of a de novo hearing with the presentation of evidence and testimony.Id.

The first appellate review occurred when the final decision of the ALJ was reviewed by the Board under its limited scope of review set forth in § 1-23-610(D).The second appellate review occurred when the circuit court reviewed the Board's decision to determine whether it properly applied its standard of review set forth in § 1-23-610(D).The circuit court's well-established scope of review is set forth in § 1-23-380(A)(6).Our review of the circuit court order to determine if the lower court properly applied its scope of review constitutes the third appellate review.Our scope of review is the same as that established for the circuit court.§ 1-23-380(A)(6).

I.Rational Method

Speedway argues the circuit court erred by affirming the Board's decision that the ALJ erred by concluding the rational method was appropriately used to calculate stormwater runoff rates.It claims the applicable regulation provides OCRM with the flexibility to permit use of the rational method even when the project site is greater than 20 acres.Speedway further claims there is substantial evidence in the record which supports use of the rational method for its project and, therefore, OCRM properly applied its discretion to grant the permit application which used this method.We agree.

The purpose of the Stormwater Act is "to reduce the adverse effects of stormwater runoff and sediment and to safeguard property and the public welfare by strengthening and making uniform the existing stormwater management and sediment control program."ActNo. 51, 1991 Acts 167.In keeping with this purpose, unless otherwise exempted, a person who intends to engage in a land disturbing activity must first submit a stormwater management and sediment control plan to the appropriate implementing agency and obtain a permit to proceed.§ 48-14-30.

South Carolina Regulation 72-307(Supp.2001) sets forth the design criteria, minimum standards, and specifications for projects requiring a stormwater management and sediment control plan.Preliminarily, Regulation72-307(C) provides as follows:

Specific requirements for the permanent stormwater management and sediment control plan approval process include, but are not limited to, the following items.The appropriate plan approval agency may modify the following items for a specific project or type of project.

(Underline added).

Thereafter, the regulation lists twelve items as specific requirements for the permanent stormwater management portion of the plan.Item two follows:

(2) All hydrologic computations shall be accomplished using a volume based hydrograph method acceptable to the Commission.The storm duration for computational purposes for this method shall be the 24-hour rainfall event, SCS⁷ distribution with a 0.1 hour burst duration time increment.The rational and/or modified rational methods are acceptable for sizing individual culverts or stormdrains that are not part of a pipe network or system and do not have a contributing drainage area greater than 20 AC.The storm duration for computational purposes for this method shall be equal to the time of concentration of the contributing drainage area or a minimum of 0.1 hours, whichever is less.

(Underline added).⁸

At the administrative hearing, Hadstate's expert witnesses testified it was inappropriate to use the rational method to calculate runoff from the 61 acre tract.The witnesses explained the rational method is only acceptable for use with small watersheds as it assumes the entire area contributes to stormwater flow, thereby losing its accuracy as areas increase in size.

Speedway's expert witnesses, including one employee of OCRM, testified the rational method was an appropriate model for the expected stormwater flow from the site.These witnesses explained the rational method suited this project because there was overall uniformity (very gentle slopes, no subwatersheds) in the watershed site.The OCRM witness testified that, on a case by case basis, OCRM permitted other applicants with a contributing drainage area greater than 20 acres to use the rational method.In permitting use of the rational method, the witness explained she relied on the "South Carolina Stormwater Management and Sediment Review" course materials which approve use of the rational method for contributing watersheds of up to 200 acres and a N.C. State publication which suggests use of the rational method for a watershed of up to 300 acres.Another OCRM expert witness testified he reviewed the rational method calculations conducted by Speedway's professional engineer and concluded they were appropriate.

The ALJ concluded the rational method model, recognized as reliable in various fields for designing storm drainage systems in excess of 20 acres, was properly utilized in Speedway's permit application.The Board, however, concluded OCRM and the ALJ "misinterpreted and misapplied"Regulation72-307(C)(2).It held the regulation "specifically restricts the use of the rational method for hydrologic computations to sites much smaller than [Speedway's] site, and was used improperly in evaluating this application."The circuit court agreed with the Board.

The scope of judicial review of agency decisions is governed by S.C.Code Ann. § 1-23-380(A)(6)(Supp.2001)."[T]he construction of a...