Bursey v. DEPT. OF HEALTH AND ENV.
Decision Date | 01 June 2004 |
Docket Number | No. 3813.,3813. |
Citation | 360 S.C. 135,600 S.E.2d 80 |
Parties | Brett BURSEY and Mining Association of South Carolina, Respondents, v. SOUTH CAROLINA DEPARTMENT OF HEALTH AND ENVIRONMENTAL CONTROL and South Carolina Electric and Gas Company, Appellants. |
Court | South Carolina Court of Appeals |
Elizabeth B. Partlow and Thomas G. Eppink, of Columbia, for Appellant South Carolina Electric and Gas Company.
Mason A. Summers, of Columbia, for Appellant South Carolina Department of Health and Environmental Control.
Brett Bursey, of Lexington, pro se.
Gregory J. English, of Greenville, for Respondent Mining Association of South Carolina.
The South Carolina Department of Health and Environmental Control ("DHEC") and the South Carolina Electric and Gas Company ("SCE & G") appeal a Circuit Court order affirming the decision of the South Carolina Mining Council. The Mining Council, deciding an appeal of a DHEC determination that SCE & G would not be required to obtain a mining permit in connection with its Lake Murray Dam remediation project (also referred to in various documents and briefs as the Saluda River Dam remediation project), ruled that SCE & G was required to obtain a mining permit. We affirm.1
SCE & G is currently engaged in a dam remediation project, which includes construction of a back-up dam for the existing Saluda Dam at Lake Murray in Lexington County, South Carolina. The erection of this back-up dam is to be accomplished by mining materials from the construction site for use in the dam's construction. The quarry mined for this construction will cover from ten to sixty acres and possibly constitute the largest quarry in South Carolina upon completion. Activities in connection with this project will include exploration of the land for suitable materials, blasting, de-watering, crushing raw materials, and the production of concrete. All activities associated with this mining and construction will be conducted at the SCE & G site. None of the mined material will be used for off-site purposes or sold to third parties. By letter dated May 15, 2001, SCE & G requested from DHEC a "letter of verification" stating that SCE & G was not required to obtain a mine operating permit for this project. Craig Kennedy, Assistant Division Director for the Division of Mining and Solid Waste Management, responded in a June 5, 2001, letter that, because the mining proposed by SCE & G fell within an exception to the South Carolina Mining Act ("the Act"),2 SCE & G was not required to obtain a mine operating permit for the project. Kennedy based his finding on the following language of the Act:
S.C.Code Ann. § 48-20-40(1) (Supp.2003). Kennedy concluded: "[A] mine operating permit is not required for landowners excavating on their own property [when] all the excavated material is used on that same tract of land or contiguous tracts of land by the same land owner." Because Kennedy determined the proposed project constituted "on-site construction" as contemplated by the Act, DHEC did not require SCE & G to acquire a mine operating permit.
The Mining Association of South Carolina ("MASC") and Brett Bursey (collectively, "Respondents") appealed the DHEC decision to the Mining Council, a quasi-judicial body established by statute for the purpose of, among other things, hearing appeals of agency decisions related to mine operating permits. See S.C.Code Ann. §§ 48-20-40(2), XX-XX-XXX, 48-21-10, 48-21-20 (1987 & Supp.2003). Bursey's appeal, dated October 17, 2001, was received on October 22. MASC's appeal, dated October 19, 2001, was received on October 26. SCE & G and DHEC filed motions with the Mining Council to dismiss the appeals on the ground that they were filed more than thirty days after Respondents had notice of the decision not to require a permit. See S.C.Code Ann. § 48-20-190 (Supp.2003) (); 26 S.C.Code Ann. Regs. 89-290(B) (Supp.2003) (). The Mining Council denied the motions to dismiss and reversed DHEC's decision, ruling that the SCE & G project required a mining permit under the Act.
SCE & G and DHEC (collectively, "Appellants") appealed the Mining Council's ruling to the Circuit Court. The court, applying the Administrative Procedures Act's (the "APA") "substantial evidence" standard of review, affirmed the Council's rulings on both the timeliness of the appeals and the interpretation of the Act requiring SCE & G to obtain a mine operating permit.
Appellants argue the Circuit Court erred in applying the "substantial evidence" standard of review enunciated in the APA. See S.C.Code Ann. § 1-23-380(A)(6) (Supp.2003). Appellants contend the Mining Act, via the Act's reference to "Chapter 7 of Title 18," mandates a broader standard. See S.C.Code Ann. § 48-20-200 (Supp.2003). We disagree.
A directly affected party, aggrieved by a DHEC determination to grant a mine operating permit, may appeal the decision to grant said permit to the Mining Council.3 S.C.Code Ann. § 48-20-190 (Supp.2003). A party is then granted the right to appeal the ruling of the Mining Council to the Circuit Court. S.C.Code Ann. § 48-20-200 (Supp.2003). Section 48-20-200 requires that this appeal be taken "in the manner provided by Chapter 7 of Title 18." Id.
Chapter 7 of Title 18 generally deals with appeals to the Circuit Court from lower courts, namely the Magistrate's Court. See S.C.Code Ann. § 18-7-10 (1985). The chapter mainly concerns the procedural process these appeals are to follow when seeking review by the Circuit Court. See, e.g., S.C.Code Ann. § 18-7-20 (Supp.2003) ( ). In addition, the chapter includes a general jurisdictional statute, section 18-7-10. The chapter later bestows upon the Circuit Court a broad scope of review when hearing appeals which fall under this jurisdictional grant. See S.C.Code Ann. § 18-7-170 (1985) (); Parks v. Characters Night Club, 345 S.C. 484, 489-90, 548 S.E.2d 605, 608 (Ct.App.2001) ().
Appellants' assertion that the legislature intended Chapter 7's broad standard of review to apply to decisions of the Mining Council is unsound. The standard of review in section 18-7-170 is meant only to apply in appeals over which the Circuit Court gains jurisdiction solely by the jurisdictional grant of section 18-7-10, and not appeals where the court's jurisdiction is, by virtue of a separate statute, otherwise provided for "`by law.'" See Karl Sitte Plumbing Co. v. Darby Dev. Co., 295 S.C. 70, 76, 367 S.E.2d 162, 165 (Ct.App.1988)
(). The Circuit Court's jurisdiction over decisions of the Mining Council is granted by the Mining Act and not section 18-7-10. Therefore, this de novo standard of review does not automatically apply. Appeals from administrative agencies instead typically fall under the APA and its "substantial evidence" standard of review. See S.C.Code Ann. § 1-23-380 (Supp.2003); Waters v. South Carolina Land Res. Conservation Comm'n, 321 S.C. 219, 467 S.E.2d 913 (1996).
In Waters v. South Carolina Land Resources Conservation Commission, the South Carolina Land Resources Conservation Commission (SCLRCC) granted J.M. Huber Corporation a permit to mine kaolin in Lexington County. The South Carolina Mining Council affirmed SCLRCC's decision. An appeal was filed in the Circuit Court seeking review of the Mining Council order. The Circuit Court upheld the decision of SCLRCC and the Mining Council. On appeal, our Supreme Court applied the Administrative Procedures Act for appellate review purposes:
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