Bursey v. DEPT. OF HEALTH AND ENV., No. 3813.

CourtCourt of Appeals of South Carolina
Writing for the CourtANDERSON, J.
Citation360 S.C. 135,600 S.E.2d 80
PartiesBrett 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.
Docket NumberNo. 3813.
Decision Date01 June 2004

360 S.C. 135
600 S.E.2d 80

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

No. 3813.

Court of Appeals of South Carolina.

Submitted May 12, 2004.

Decided June 1, 2004.

Rehearing Denied August 18, 2004.


360 S.C. 137
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.

ANDERSON, J.:

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

FACTUAL/PROCEDURAL BACKGROUND

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.

360 S.C. 138
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
(1) "Mining" means:
(a) the breaking of the surface soil to facilitate or accomplish the extraction or removal of ores or mineral solids for sale or processing or consumption in the regular operation of a business;
(b) removal of overburden lying above natural deposits of ore or mineral solids and removal of the mineral deposits exposed....
... Mining does not include excavation or grading when conducted solely in aid of on-site farming or of on-site construction.

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.

360 S.C. 139
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) ("The person taking the appeal within thirty days after the department's decision shall give written notice to the council through its secretary that he desires to appeal and filing a copy of the notice with the department at the same time."); 26 S.C.Code Ann. Regs. 89-290(B) (Supp.2003) ("The person taking the appeal shall within thirty days after notification of the Department's decision, give written notice to the Mining Council through its secretary that he desires to take an appeal, at the same time filing a copy of the notice with the Department."). 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.

ISSUES

I. Did the Circuit Court err in applying the APA's "substantial evidence" standard of review?
II. Did the Circuit Court err in affirming the Mining Council's findings that Respondents' appeals were timely?
III. Did the Circuit Court err in affirming the Mining Council's conclusion that SCE & G's proposed activities require a mine operating permit?

LAW/ANALYSIS

I. Standard of Review

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

360 S.C. 140
"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) (granting thirty days from the date of the notice of the judgment in which to file a written notice of appeal to the Circuit Court). 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) ("In giving judgment the court may affirm or reverse the judgment of the court below, in whole or in part, as to any or all the parties and for errors of law or fact."); Parks v. Characters Night Club, 345 S.C. 484, 489-90, 548 S.E.2d 605, 608 (Ct.App.2001) ("Section 18-7-170 provides that on appeal from Magistrate's Court, the Circuit Court may make its own findings of fact.").

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

360 S.C. 141
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) ("Section 18-7-10 and 18-7-170... apply where appeals of inferior courts or jurisdictions are not otherwise provided for `by law.'"). 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:

This court's review of an administrative agency's findings of fact are limited. The court "shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact." S.C.Code Ann. § 1-23-380(A)(6) (Supp.1994). A court can reverse an agency's findings, inferences, conclusions or decisions only if they are, as appellants here argue, "clearly
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35 practice notes
  • Thompson ex rel. Harvey v. Cisson Const., No. 4339.
    • United States
    • Court of Appeals of South Carolina
    • 1. Februar 2008
    ...Bass v. Kenco Group, 366 S.C. 450, 457, 622 S.E.2d 577, 580 (Ct.App.2005); Bursey v. S.C. Dep't of Health & Envtl. Control, 360 S.C. 135, 141, 600 S.E.2d 80, 84 (Ct.App.2004) aff'd 369 S.C. 176, 631 S.E.2d 899 It is not within the appellate court's province to reverse the Appellate Panel's ......
  • Houston v. Deloach & Deloach, No. 4408.
    • United States
    • Court of Appeals of South Carolina
    • 10. Juni 2008
    ...(Supp.2006); Bass v. Kenco Group, 366 S.C. 450, 457, 622 S.E.2d 577, 580 (Ct.App.2005); Bursey v. S.C. Dep't of Health & Envtl. Control, 360 S.C. 135, 141, 600 S.E.2d 80, 84 (Ct.App.2004), aff'd, 369 S.C. 176, 631 S.E.2d 899 (2006). It is not within the appellate court's province to reverse......
  • Bass v. Isochem, No. 3996.
    • United States
    • United States State Supreme Court of South Carolina
    • 6. Juni 2005
    ...view of the reliable, probative and substantial evidence on the whole record." Bursey v. South Carolina Dep't of Health & Envtl. Control, 360 S.C. 135, 141, 600 S.E.2d 80, 84 (Ct.App.2004); S.C.Code Ann. § 1-23-380(A)(6)(e) (2005). Under the scope of review established in the APA, this Cour......
  • Liberty Mut. Ins. v. Sc Second Injury Fund, No. 3949.
    • United States
    • United States State Supreme Court of South Carolina
    • 22. Februar 2005
    ...of the reliable, probative and substantial evidence on the whole record." Bursey v. South Carolina Dep't of Health and Envtl. Control, 360 S.C. 135, 141, 600 S.E.2d 80, 84 (Ct.App.2004); S.C.Code Ann. § 1-23-380(A)(6)(e) (Supp.2003). Under the scope of review established in the APA, this Co......
  • Request a trial to view additional results
35 cases
  • Thompson ex rel. Harvey v. Cisson Const., No. 4339.
    • United States
    • Court of Appeals of South Carolina
    • 1. Februar 2008
    ...Bass v. Kenco Group, 366 S.C. 450, 457, 622 S.E.2d 577, 580 (Ct.App.2005); Bursey v. S.C. Dep't of Health & Envtl. Control, 360 S.C. 135, 141, 600 S.E.2d 80, 84 (Ct.App.2004) aff'd 369 S.C. 176, 631 S.E.2d 899 It is not within the appellate court's province to reverse the Appellate Panel's ......
  • Houston v. Deloach & Deloach, No. 4408.
    • United States
    • Court of Appeals of South Carolina
    • 10. Juni 2008
    ...(Supp.2006); Bass v. Kenco Group, 366 S.C. 450, 457, 622 S.E.2d 577, 580 (Ct.App.2005); Bursey v. S.C. Dep't of Health & Envtl. Control, 360 S.C. 135, 141, 600 S.E.2d 80, 84 (Ct.App.2004), aff'd, 369 S.C. 176, 631 S.E.2d 899 (2006). It is not within the appellate court's province to reverse......
  • Bass v. Isochem, No. 3996.
    • United States
    • United States State Supreme Court of South Carolina
    • 6. Juni 2005
    ...view of the reliable, probative and substantial evidence on the whole record." Bursey v. South Carolina Dep't of Health & Envtl. Control, 360 S.C. 135, 141, 600 S.E.2d 80, 84 (Ct.App.2004); S.C.Code Ann. § 1-23-380(A)(6)(e) (2005). Under the scope of review established in the APA, this Cour......
  • Liberty Mut. Ins. v. Sc Second Injury Fund, No. 3949.
    • United States
    • United States State Supreme Court of South Carolina
    • 22. Februar 2005
    ...of the reliable, probative and substantial evidence on the whole record." Bursey v. South Carolina Dep't of Health and Envtl. Control, 360 S.C. 135, 141, 600 S.E.2d 80, 84 (Ct.App.2004); S.C.Code Ann. § 1-23-380(A)(6)(e) (Supp.2003). Under the scope of review established in the APA, this Co......
  • Request a trial to view additional results

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