Coastal Conservation v. Dept. of Health

• Decision Date: 23 October 2008
• Docket Number: No. 4450.,4450.
• Court: South Carolina Court of Appeals
• Parties: SOUTH CAROLINA COASTAL CONSERVATION LEAGUE, Appellant, v. SOUTH CAROLINA DEPARTMENT OF HEALTH AND ENVIRONMENTAL CONTROL and South Carolina State Ports Authority, Respondents. South Carolina Coastal Conservation League, Appellant, v. South Carolina Department of Health and Environmental Control, South Carolina Department of Transportation, and South Carolina State Ports Authority, Respondents.

669 S.E.2d 899

380 S.C. 349

SOUTH CAROLINA COASTAL CONSERVATION LEAGUE, Appellant, v. SOUTH CAROLINA DEPARTMENT OF HEALTH AND ENVIRONMENTAL CONTROL and South Carolina State Ports Authority, Respondents.

South Carolina Coastal Conservation League, Appellant, v. South Carolina Department of Health and Environmental Control, South Carolina Department of Transportation, and South Carolina State Ports Authority, Respondents.

No. 4450.

Court of Appeals of South Carolina.

Heard October 21, 2008.

Decided October 23, 2008.

Rehearing Denied December 19, 2008.

J. Blanding Holman, IV and W. Jefferson Leath, both of Charleston, for Appellant.

Sara P. Bazemore and Carlisle Roberts, Jr., both of Columbia, and Evander Whitehead, of North Charleston, for Respondent.

South Carolina Department of Health and Environmental Control. Deborah B. Durden, of Columbia, for Respondent.

South Carolina Department of Transportation. Mitchell Willoughby and Randolph R. Lowell, both of Columbia, and Philip L. Lawrence, of Charleston, for Respondent.

ANDERSON, J.:

The South Carolina Coastal Conservation League ("Coastal") appeals the decision of the Administrative Law Court ("ALC") to grant orders of dismissal in contested case hearings regarding the bestowal of permits to the South Carolina State Ports Authority ("SPA") and the South Carolina Department of Transportation ("DOT") and the issuance of orders of dismissal denying Coastal's motions for reconsideration. Coastal contends the ALC judge erred by (1) misinterpreting the pertinent appeals period for agency decisions, (2) failing to properly invoke jurisdiction over the matter, (3) ignoring issues of waiver, estoppel, and equitable tolling, (4) violating due process rights through a mistaken statutory interpretation, and (5) abusing the court's discretion by denying the motions for reconsideration. We affirm.

FACTUAL/PROCEDURAL BACKGROUND

The South Carolina State Ports Authority and the South Carolina Department of Transportation each filed permit applications with the South Carolina Department of Health and Environmental Control ("DHEC") regarding a proposed project to develop the area around the former Charleston Naval Base. The goal of the project was the construction of a 300-acre marine container terminal. Additionally, in order to provide access to the facility, the DOT intended to construct an access road linking the terminal with Interstate 26.

DHEC issued public notice of the pendency of the applications and conducted hearings to receive comments from concerned citizens and interested parties regarding the permits. The South Carolina Coastal Conservation League participated in these hearings and provided comments to DHEC expressing concernment over the potential negative effects that might flow from the construction. Although Coastal filed comments with DHEC objecting to the permits, the record contains no evidence Coastal filed a request for notification from DHEC when a decision was reached on each of the applications.

After conducting an evaluation of the proposal with consideration given to all information received from the public hearings, including the comments from Coastal, DHEC department staff granted all necessary permits requested for the project. DHEC issued a permit to the SPA on October 30, 2006, and sent a copy through certified mail the following day, October 31, 2006. Based on an error in the original permit, a revised permit was sent to the SPA on November 2, 2006. On November 13, 2006, DHEC mailed a permit to the DOT via certified mail. Both permits consisted of a critical area permit, a coastal zone consistency certification, and a Section 401 water quality certification.

In response to the issuance of these permits, multiple requests for a final review before the South Carolina Board of Health and Environmental Control ("DHEC Board") were filed. The SPA filed for review of its permit on November 13, 2006. Coastal filed a request regarding the SPA permit on November 20, 2006, and a motion to intervene in the SPA's request on December 6, 2006. Additionally, Coastal filed a request for review concerning the DOT permit on November 30, 2006.

The DHEC Board scheduled a final hearing to address the two permits for January 11, 2007. On the day of the hearing, the SPA and DHEC staff announced an agreement had been reached regarding the SPA's permit. The DHEC Board continued with the hearing in order to address Coastal's concerns and ignored objections from the SPA and DHEC staff that Coastal's requests for hearings were not timely filed. In its order dated February 8, 2007, the DHEC Board issued the final agency decision granting the permits with only minor revisions to the DOT permit and with the agreed-upon changes to the SPA permit.

Based on the decision of the DHEC Board, Coastal requested contested case hearings with the Administrative Law Court on March 9, 2007, for the SPA and DOT permits. The ALC judge granted the SPA's motion to intervene with the consent of all parties. Subsequently, the SPA filed motions to dismiss in both cases on the grounds that the ALC lacked jurisdiction to decide the matters due to Coastal's failure to timely file for review before the DHEC Board. On July 2, the ALC judge conducted a hearing on the motions for dismissal.

On September 4, 2007, the ALC judge issued an order dismissing both cases. In reaching this decision, the ALC judge concluded:

S.C.Code Ann. § 44-1-60(E) clearly provides the exclusive mechanism for review under the facts and circumstances presented in this case. The fifteen-day time period within which to file a request for final review begins upon mailing the notice of the staff decision to the applicant. It is undisputed that the League failed to file a request for final review with the Board within the statutory time frame. The arguments offered by the League to excuse this failure to timely file are unavailing. Therefore, this Court lacks jurisdiction over this matter, and this case must be dismissed.

Following the issuance of the order, Coastal filed a motion for reconsideration with the ALC on September 18, 2007. The motion was denied as untimely. Coastal filed a second motion for reconsideration requesting a review of the original ALC order and the first order for reconsideration. On October 1, 2007, Coastal filed a notice of appeal with the Court of Appeals. Based on the pending appeal, the ALC issued an order declining to rule on the second motion for reconsideration and to make any additional rulings on the controversy.

ISSUES

1. Did Coastal's dual requests for final review before the DHEC Board, which were not filed within fifteen days from the date notice was mailed to the permit applicants, prevent the Administrative Law Court from conducting a contested case hearing on the matter?

2. Did principles of waiver, estoppel, and equitable tolling entitle Coastal to a contested case hearing before the Administrative Law Court regardless of the timeliness of the request for final review?

3. Did the Administrative Law Court deny Coastal due process rights through its application of Section 44-1-60?

4. Did the Administrative Law Court abuse its discretion by striking Coastal's Motion for Reconsideration as untimely?

STANDARD OF REVIEW

The South Carolina Administrative Procedures Act (APA) articulates the standard for judicial review of cases decided by the ALC. See S.C.Code Ann. § 1-23-610(B)-(C) (Supp. 2007); Olson v. S.C. Dep't of Health & Envtl. Control, 379 S.C. 57, 63, 663 S.E.2d 497, 500-501 (Ct.App.2008) ("Judicial review of the ALC judge's order is governed by section 1-23-610(C)...."). Section 1-23-610(C) of the South Carolina Code illuminates:

The review of the administrative law judge's order must be confined to the record. The reviewing tribunal may affirm the decision or remand the case for further proceedings; or it may reverse or modify the decision if the substantive rights of the petitioner has been prejudiced because of the finding, conclusion, or decision is:

(a) in violation of constitutional or statutory provision (b) in excess of the statutory authority of the agency;

(c) made upon unlawful procedure;

(d) affected by other error of law;

(e) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or

(f) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.

S.C.Code Ann. § 1-23-610(C).

In similitude to the standard established by the APA and codified in Section 1-23-380(A)(5) for review of decisions of the Worker's Compensation Commission and other administrative agencies, the applicable measure of review is the substantial evidence rule. S.C.Code Ann. § 1-23-380(A)(5) (Supp.2007); see Hernandez-Zuniga v. Tickle, 374 S.C. 235, 242, 647 S.E.2d 691, 694 (Ct.App.2007); Hall v. United Rentals, Inc., 371 S.C. 69, 78-79, 636 S.E.2d 876, 881 (Ct. App.2006) (citing Lark v. Bi-Lo, Inc., 276 S.C. 130, 135, 276 S.E.2d 304, 306 (1981); Hargrove v. Titan Textile Co., 360 S.C. 276, 288, 599 S.E.2d 604, 610 (Ct.App.2004)). Decisions of the ALC judge should not be overturned by the reviewing court unless they are unsupported by substantial evidence or controlled by some error of law. Olson, 379 S.C. at 63, 663 S.E.2d at 501 ("[T]his court can reverse the ALC if the findings are affected by error of law, are not supported by substantial evidence, or are characterized by abuse of discretion or clearly unwarranted exercise of discretion."); see S.C.Code Ann. § 1-23-610(C); see, e.g., Grant v. Grant Textiles, 372 S.C. 196, 200, 641 S.E.2d 869, 871 (2007); Hall, 371 S.C. at 79, 636 S.E.2d at 882; Smith v. NCCI, Inc., 369 S.C. 236, 246, 631 S.E.2d 268, 273-274 (Ct.App.2006); Bass v. Isochem, 365 S.C. 454, 467, 617 S.E.2d 369 (Ct.App.2005).

The decision must be affirmed if supported by substantial evidence in the record. See Whitworth v. Window World, Inc., 377 S.C. 637, 640, ...