Bursey v. Dept. of Health & Envir. Control

• Decision Date: 19 June 2006
• Docket Number: No. 26166.,26166.
• Citation: 631 S.E.2d 899
• Parties: Brett BURSEY and Mining Association of South Carolina, Respondents, v. SOUTH CAROLINA DEPARTMENT OF HEALTH AND ENVIRONMENTAL CONTROL, Defendant, and South Carolina Electric and Gas Company, Petitioner.
• Court: South Carolina Supreme Court

631 S.E.2d 899

Brett BURSEY and Mining Association of South Carolina, Respondents, v. SOUTH CAROLINA DEPARTMENT OF HEALTH AND ENVIRONMENTAL CONTROL, Defendant, and South Carolina Electric and Gas Company, Petitioner.

No. 26166.

Supreme Court of South Carolina.

Heard April 4, 2006.

Decided June 19, 2006.

COPYRIGHT MATERIAL OMITTED

Elizabeth B. Partlow, of Ogletree, Deakins, Nash, Smoak & Stewart, P.C., and Thomas Grant Eppink, of SCANA Corporation, both of Columbia, for petitioner.

Gregory Jacobs English, of Wyche, Burgess, Freeman & Parham, P.A., of Greenville, for respondent, Mining Association of South Carolina.

Brett Bursey, of Lexington, pro se respondent.

Etta R. Williams, of Columbia, for defendant.

Justice MOORE:

We granted a writ of certiorari to review the Court of Appeals' decision in Bursey v. South Carolina Dep't of Health and Envtl. Control, 360 S.C. 135, 600 S.E.2d 80 (Ct.App. 2004). We affirm.

PROCEDURAL FACTS

As part of the dam remediation project on Lake Murray, petitioner (SCE&G) planned a back-up dam to be constructed by using materials that could be excavated on-site. During this planning process, SCE&G contacted the Department of Health and Environmental Control (DHEC) to inquire into whether it would be necessary to obtain a mine operating permit. DHEC responded by informing SCE&G that no permit would be needed, as the material SCE&G planned on excavating would be used on-site rather than being sold or transported to another location and, thus, did not fall within the definition of "mining." In response to DHEC's determination, nearby resident, Brett Bursey, and the Mining Association of South Carolina (Association) individually filed appeals with the Mining Council (Council).¹ The Mining Council then agreed to conduct a hearing to review DHEC's decision not to require a mine operating permit. Following the hearing, the Mining Council found SCE&G was required to obtain a permit for the proposed actions. The circuit court and Court of Appeals affirmed. See Bursey, supra.

ISSUES

I. Should the decision of the Mining Council be vacated for lack of subject matter jurisdiction?

II. Did the Court of Appeals err by applying an inappropriate standard of review?

III. Did the Court of Appeals err by applying a substantial evidence standard of review to a legal determination by the Mining Council?

IV. Did the Court of Appeals err by finding respondents' appeals to the Mining Council were timely?

DISCUSSION

I. Subject matter jurisdiction

SCE&G argues the Council did not have subject matter jurisdiction to entertain respondents' appeals because appeals to the Council can be taken only from the approval or denial of an application for an operating permit and cannot be taken from a decision not to require a permit. SCE&G claims that such an appeal should be taken directly to the Administrative Law Court (ALC).

The South Carolina Mining Act, in S.C.Code Ann. § 48-20-30 (Supp.2005) states that DHEC is responsible for administering the provisions and requirements of the Mining Act, which includes the process and issuance of mining permits. Section 48-20-30 further states that DHEC "has ultimate authority, subject to the appeal provisions of this chapter regulating and controlling such activity." (Emphasis added).

South Carolina Code Ann. § 48-20-60 (Supp.2005), provides that an appeal from a DHEC decision regarding an operating permit may be taken to the Council "as provided by Section 48-20-190." Section 48-20-190 provides, in pertinent part:

An applicant for a certificate of exploration or operating permit or a person who is aggrieved and is directly affected by the permit may appeal to the council from a decision or determination of the department issuing, refusing, modifying, suspending, revoking, or terminating a certificate of exploration or operating permit or reclamation plan, or imposing a term or condition on the certificate, permit, or reclamation plan.

(Emphasis added). This section further requires the Council to issue a written decision setting forth its findings of fact and conclusions, and authorizes the Council to direct DHEC to take any action necessary to effectuate the Council's decision.

Section 48-20-60 states that an appeal from a DHEC decision regarding an operating permit may be taken to the Council as provided by § 48-20-190. This section indicates that any appeal involving a decision goes to the Council, including a decision not to require a permit.

A technical reading of § 48-20-190, however, indicates that respondents' appeals should not go to the Council. DHEC's decision did not issue a permit or refuse to issue a permit. Instead, DHEC's decision was a decision that SCE&G's project did not require a permit. We conclude, however, that such a technical reading is strained and is not a practical interpretation of § 48-20-190 that is consonant with the purpose and policy of the appeal provisions of the Mining Act. See TNS Mills, Inc. v. South Carolina Dep't of Revenue, 331 S.C. 611, 503 S.E.2d 471 (1998) (statutes, as a whole, must receive practical, reasonable, and fair interpretation, consonant with the purpose, design, and policy of lawmakers).

Further, we find the legislature's intent would not be effectuated by requiring that an appeal from a DHEC decision not to require a permit be taken to the ALC, as opposed to the Council, which the legislature has deemed the appropriate specialized entity for addressing appeals regarding DHEC's interpretation of the Mining Act. See Strother v. Lexington County Recreation Comm'n, 332 S.C. 54, 504 S.E.2d 117 (1998) (cardinal rule of statutory construction is to ascertain and effectuate legislative intent whenever possible).

Accordingly, the Mining Council had subject matter jurisdiction to hear respondents' appeals.

II. Appropriate standard of review

In reviewing the Council's decision that DHEC should have required SCE&G to obtain a permit, the circuit court applied the substantial evidence standard located in the Administrative Procedures Act (APA), which states that a reviewing court may reverse or modify a decision of an agency if the findings, inferences, conclusions, or decisions of that agency are "clearly erroneous in view of the reliable, probative and substantial evidence on the whole record." S.C.Code Ann. § 1-23-380(A)(6)(e) (2005). The Court of Appeals affirmed the circuit court, finding the APA required reviewing courts to apply the substantial evidence standard applicable to appeals from decisions of an administrative agency.

SCE&G argues the APA is not applicable to the instant appeal and that the standard of review located in Title 18, Chapter 7, of the South Carolina Code should have been applied by the lower courts. In support, SCE&G cites S.C.Code Ann. § 48-20-200 (Supp.2005), which states:

An appeal to the courts may be taken from any decision of the council, or its designated committee or the hearing panel, in the manner provided by Chapter 7 of Title 18 [S.C.Code Ann. §§ 18-7-10 to -300 (1985 & Supp. 2005)].

SCE&G claims this reference means appeals from the Council must be reviewed using the de novo standard of review set forth in S.C.Code Ann. § 18-7-170 (1985).²

The APA purports to provide uniform procedures before State Boards and Commissions and for judicial review after the exhaustion of administrative remedies. Lark v. Bi-Lo, Inc., 276 S.C. 130, 276 S.E.2d 304 (1981). We have previously used the APA standard of review when reviewing the appeal of a Mining Council decision. In Waters v. S.C. Land Res. Conservation Comm'n, 321 S.C. 219, 467 S.E.2d 913 (1996), the South Carolina Land Resources Conservation Commission (LRCC)³ granted a corporation a permit to mine kaolin. The Council upheld LRCC's decision, and the circuit court upheld both determinations. In affirming the Council's determination, we specifically identified and applied the substantial evidence standard of review contained in the APA.

Further, in the analogous case of Lark v. Bi-Lo, Inc., supra, we ruled the Workers' Compensation Commission (Commission) was an agency for purposes of the APA and that the standard of review located in the APA, rather than the standard of review previously applied by the courts in workers' compensation cases, applied to appeals from the Commission. The Commission and the Mining Council are similar entities. The Commission has seven members who are appointed by the Governor and hears and determines all contested cases involving workers' compensation. See S.C.Code Ann. § 42-3-20 (1985). The Council has eleven members, nine of which are appointed by the Governor. The Council hears contested cases involving mining permit decisions made by DHEC. See S.C.Code Ann. §§ 48-21-20 and 48-20-190 (Supp.2005). In Lark, we held the Commission was an agency for purposes of the APA because it has rule making authority and hears and decides contested matters. The APA defines "agency" as "each state board, commission, department or officer . . . authorized by law to make rules or to determine contested cases." S.C.Code Ann. § 1-23-310(1) (2005). The Council, like the Commission, falls within this agency definition because it determines contested cases.

We find the courts on appeal should defer to the findings of the Council in these matters given the Council has special expertise on mining that the appellate courts do not possess. Based on the authority of Waters and Lark, we find the APA standard of review applies to appeals from Mining Council decisions. Cf. S.C. Reg. 89-290(H) (Supp. 2005) (all Council hearings shall be conducted in accordance with the APA).

III. Application of appropriate standard of review

SCE&G argues the Court of Appeals erroneously applied the substantial evidence standard to a legal determination, that is whether the project fell within an exception to the permitting requirements, rather than examining this determination for an error of law. See S.C.Code Ann. § 1-23-380(A)(...