South Carolina Coastal Conservation League v. South Carolina Dept. of Health and Envtl. Control, 26892.

• Court: United States State Supreme Court of South Carolina
• Citation: 702 S.E.2d 246,390 S.C. 418
• Decision Date: 15 November 2010
• Docket Number: No. 26892.,26892.
• Parties: SOUTH CAROLINA COASTAL CONSERVATION LEAGUE, Respondent/Petitioner, v. SOUTH CAROLINA DEPARTMENT OF HEALTH AND ENVIRONMENTAL CONTROL and South Carolina State Ports Authority, Respondents, of whom South Carolina Department of Health and Environmental Control is Petitioner/Respondent. and South Carolina Coastal Conservation League, Respondent/Petitioner, v. South Carolina Department of Health and Environmental Control, South Carolina Department of Transportation and South Carolina State Ports Authority, Respondents, of whom South Carolina Department of Health and Environmental Control, is Petitioner/Respondent.

702 S.E.2d 246
390 S.C. 418

SOUTH CAROLINA COASTAL CONSERVATION LEAGUE, Respondent/Petitioner,
v.
SOUTH CAROLINA DEPARTMENT OF HEALTH AND ENVIRONMENTAL CONTROL and South Carolina State Ports Authority, Respondents,
of whom South Carolina Department of Health and Environmental Control is Petitioner/Respondent.
and
South Carolina Coastal Conservation League, Respondent/Petitioner,
v.
South Carolina Department of Health and Environmental Control, South Carolina Department of Transportation and South Carolina State Ports Authority, Respondents,
of whom South Carolina Department of Health and Environmental Control, is Petitioner/Respondent.

No. 26892.

Supreme Court of South Carolina.

Heard June 23, 2010.
Decided Nov. 15, 2010.

702 S.E.2d 248

J. Blanding Holman, IV, of Southern Environmental Law Center, and W. Jefferson Leath, of Leath, Bouch & Crawford, both of Charleston, for Respondent/Petitioner.

Davis Arjuna Whitfield-Cargile, of SCDHEC, of Charleston, and Carlisle Roberts, Jr., of SCDHEC, of Columbia, for Petitioner/Respondent.

Beacham O. Brooker, Jr., of Columbia, for Respondent, SCDOT.

Mitchell Willoughby and Randolph R. Lowell, both of Willoughby & Hoefer, PA, of Columbia, and Philip L. Lawrence, of Charleston, for Respondent SC State Ports Authority.

Derk Van Raalte, IV, of Law Offices of J. Brady Hair, of Charleston, for Amicus Curiae City of North Charleston. James B. Richardson, Jr., of Columbia, for Amicus Curiae Charleston Metro Chamber of Commerce. James S. Chandler, Jr., and Amy E. Armstrong, of Pawleys Island, for Amicus Curiae SC Wildlife, Upstate Forever, Save our Saluda, et al.

Justice KITTREDGE.

390 S.C. 421

The South Carolina States Ports Authority (SPA) and the South Carolina Department of Transportation (DOT) each applied for and received permits from the South Carolina Department of Health and Environmental Control (DHEC) to begin development of a marine container terminal. The South Carolina Coastal Conservation League (the League) sought review of the decision, but the DHEC Board affirmed the DHEC staff decision to issue the permits. The League filed a request for a contested case with the administrative law court (ALC). However, the ALC dismissed the case, finding the League had failed to timely file an appeal with the DHEC Board. The court of appeals affirmed.

390 S.C. 422

S.C. Coastal Conservation League v. S.C. Dep't of Health and Envtl. Control, 380 S.C. 349, 669 S.E.2d 899 (Ct.App.2008). We granted a writ of certiorari to review that decision.¹ We reverse.

I.

SPA submitted permit applications to DHEC seeking a critical area permit, coastal zone consistency certification, and a Section 401 water quality certification in order to begin developing a 300-acre marine container terminal on the west bank of the Cooper River. See S.C.Code Ann. § 54-3-270 (Supp.2008). To provide access to the terminal, DOT sought a permit from DHEC to construct a road linking the terminal with Interstate 26.

DHEC issued public notices regarding the pending applications and held many public hearings. The League participated in the hearings and filed multiple comment letters objecting to the permit applications.

On October 30, 2006, DHEC staff granted all necessary permits to SPA authorizing the construction of the terminal, and on October 31, a copy of the decision was sent to SPA by certified mail. On November 2, DHEC staff made an amendment to the permit and sent notice of the amended permit to SPA by

702 S.E.2d 249

certified mail. On November 13, SPA filed a notice of appeal with the DHEC Board merely seeking to clarify certain terms and conditions.

On November 17, counsel for the League emailed DHEC indicating he was made aware that DHEC granted SPA a permit, but that no public notice had been issued. An employee from DHEC responded in an email, making it plain that DHEC was aware of the League's involvement and desire to be notified of the agency decision: "Did he also mention they [SPA] appealed it? ? ? ? You were on the mailing list and should have received a copy. Did you not get it?" DHEC immediately sent notice of the staff decision to the League. The League received the notice on November 20 by mail ² and filed a notice of appeal that day.

390 S.C. 423

On November 13, DHEC approved DOT's permit and issued notice to DOT by certified mail. The League received notice of this decision on November 29 and filed a notice of appeal the following day on November 30.³

South Carolina Code Ann. § 44-1-60(E) (Supp.2008) was enacted in 2006 as a part of Act No. 387 and became effective July 1, 2006. This act amended and added statutory provisions relating to administrative procedures and appeals. Section 44-1-60(E) provides:

Notice of the department decision must be sent to the applicant, permittee, licensee, and affected persons who have asked to be notified by certified mail, return receipt requested. The department decision becomes the final agency decision fifteen days after notice of the department decision has been mailed to the applicant, unless a written request for final review is filed with the department by the applicant, permittee, licensee, or affected person.

The League filed its notices of appeal of the DHEC staff decisions regarding SPA's and DOT's permits more than fifteen days after the staff decisions were mailed to SPA and DOT—the applicants—but within fifteen days of the League receiving notice of the decisions. At the hearing before the DHEC Board, DHEC staff initially argued the League's appeal was not timely. The DHEC Board considered this argument, but found the League had timely appealed. The Board proceeded to hear the merits of the League's appeal and ultimately approved the DHEC staff decision to issue the permits.⁴

A. ALC Order

The ALC found the League's appeal was not timely and issued an order dismissing the case.⁵ The ALC interpreted

390 S.C. 424

§ 44-1-60(E) as unambiguously providing that a party challenging a DHEC staff decision must file a notice of appeal with the DHEC Board within fifteen days after the decision is mailed to the applicant. The ALC ruled that the League had a statutory right to request to be notified of the decision and that there was no "evidence that the League filed a request to be notified of the decision per section 44-1-60(E)."

To counter this interpretation, the League argued it was entitled to notice of the DHEC staff decision pursuant to Regulation 61-101, which requires DHEC to send notice of any decision to issue a Section 401 water certification permit to any party that provides comments to a Section 401 permit application. S.C.Code Ann. Regs. 61-101.G.1 (Supp.2008). The ALC first ruled Regulation 61-101 notice requirements were not applicable to this permit.⁶ However, the ALC went on to find

702 S.E.2d 250

the notice requirements in Regulation 61-101 directly conflicted with the notice requirements in § 44-1-60(E) and, therefore, ruled the regulation "had been superseded" by the statute.⁷

B. Court of Appeals

The court of appeals' opinion followed the reasoning of the ALC. The court of appeals held § 44-1-60(E) unambiguously requires a party to file a request for final review within fifteen days from the date DHEC mails the decision to the applicant—not fifteen days after notice of the decision is received. It held the League "failed to request notification of the staff decision as delineated in Section 44-1-60(E)."

390 S.C. 425

S.C. Coastal Conservation League, 380 S.C. at 373, 669 S.E.2d at 911 (emphasis in original). The court examined the relevant dates and held the League had failed to comply with the statute.

The court of appeals also affirmed the ALC's ruling that Regulation 61-101 was invalid to the extent its notice provisions conflicted with § 44-1-60(E). The court found Regulation 61-101 conflicted with § 44-1-60(E) because it expanded the group to which DHEC was required to give notice of a decision regarding the issuance of a Section 401 permit.⁸

We granted DHEC's and the League's petition for a writ of certiorari to review the court of appeals' opinion. Although the parties disagree on the merits of the decision to issue the permits, they both take the position that the League's appeal to the DHEC Board was timely and that the ALC and court of appeals erred in ruling § 44-1-60(E) repealed the notice provisions set forth in Regulation 61-101.⁹

II.

Statutory Interpretation

Statutory interpretation is a question of law. City of Newberry v. Newberry Elec. Co-op., Inc., 387 S.C. 254, 256, 692 S.E.2d 510, 512 (2010). The primary rule of statutory construction is to ascertain and give effect to the intent of the legislature. Mid-State Auto Auction of Lexington, Inc. v. Altman, 324 S.C. 65, 69, 476 S.E.2d 690, 692 (1996). Unless there is something in the statute requiring a different interpretation, the words used in a statute must be given their ordinary meaning. Id. When a statute's terms are clear and unambiguous on their face, there is no room for statutory

390 S.C. 426

construction and a court must...