Opinion
22-ALJ-07-0008-CC
07-15-2022
Gullah/Geechee Fishing Association, Inc., Petitioner, v. South Carolina Department of Health and Environmental Control, and Bay Point Island, LLC, Respondents.
Leslie S. Lenhardt, Esq. Emily Nellermoe, Esq. For Petitioner Gullah/Geechee Fishing Association, Inc. Sara V. Martinez, Esq. Christopher Whitehead, Esq. For Respondent South Carolina Department of Health and Environmental Control Mary D. Shahid, Esq. Lica Colwell, Esq. For Respondent Bay Point Island, LLC
Leslie S. Lenhardt, Esq. Emily Nellermoe, Esq. For Petitioner Gullah/Geechee Fishing Association, Inc.
Sara V. Martinez, Esq. Christopher Whitehead, Esq. For Respondent South Carolina Department of Health and Environmental Control
Mary D. Shahid, Esq. Lica Colwell, Esq. For Respondent Bay Point Island, LLC
ORDER GRANTING RESPONDENT BAY POINT'S MOTION TO DISMISS
S. Phillip Lenski S.C. Administrative Law Judge
STATEMENT OF THE CASE
This matter is before the South Carolina Administrative Law Court (ALC or court) pursuant to a Motion to Dismiss and Memorandum in Support thereof (collectively, Motion) filed by Bay Point Island, LLC (Bay Point) on May 9, 2022. In its motion, Bay Point argues that the Gullah/Geechee Fishing Association, Inc. (Petitioner) failed to timely file its Request for Review (RFR) with the South Carolina Department of Health and Environmental Control's (DHEC or Department) Board of Health and Environmental Control, as well as its request for contested case hearing with this court. As such, Bay Point argues that the court lacks jurisdiction to hear the Petitioner's underlying permit challenge.
A hearing on the Motion was held on June 20, 2022, at the ALC in Columbia, South Carolina. After careful consideration of the parties' arguments and the applicable law, Day Point's Motion is granted.
During the hearing, the court also heard argument on cross motions for summary judgment filed by the Petitioner and the Department on May 27, 2022. Because the court's ruling on Bay Point's Motion is dispositive of this matter, the court does not reach the merits of the summary judgment motions. See Futch v. McAllister Towing of Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d 591, 598 (1999) (citation omitted) (holding that a court need not address remaining issues when disposition of a prior issue is dispositive).
BACKGROUND
Bay Point is the owner of Bay Point Island, a 493-acre island located in Beaufort County, South Carolina. The island is entitled by a subdivision plan that was platted over twenty (20) years ago and approved by Beaufort County. In the past, Bay Point has proposed development of the island to support an environmentally sensitive resort and residential subdivision. However, at present, there is no proposal for large-scale development submitted by Bay Point to the Department. Instead, this matter concerns an application submitted by Bay Point on August 31, 2021, to the Bureau of Environmental Health Services (BEHS) within the Department for authorization to construct a single septic tank and drainfield to serve a single residential dwelling located on a single lot on Bay Point. More specifically, the specialized onsite wastewater system would serve a four-bedroom residence to be located at 98 Bay Point Island Drive (Lot 13), St. Helena, South Carolina in Beaufort County (proposed location). Per the application, the system as designed would handle less than 1,500 gallons per day (GPD) of domestic waste only.
Prior to the application, on July 19, 2021, the Petitioner submitted a Freedom of Information Act (FOIA) request to the "Bureau of Water, OCRM" within the Department requesting "[a]ny and all applications and file documents for NPDES or land disturbance permits for Bay Point Island, likely submitted by Bay Point Island, LLC, or for any requests or file documents relating to a Coastal Zone Consistency Certification for Bay Point Island, LLC."
The Department responded on August 3, 2021, asserting that that it had responsive documents, but none related to septic tank applications or permits; only documents and correspondence for an unrelated issue on Bay Point.
On August 31, 2021, the Department responded that it had no such materials to disclose, which prompted a second FOIA request on the same date seeking "[a]ny applications for permits or permits issued by DHEC for septic tanks or land disturbance permits or coastal zone consistency certifications .... We are also seeking specifically septic tank applications in addition to any other NPDES permits." The Department again responded that it had no such materials to disclose on October 20, 2021.
The Petitioner's second FOIA request was also directed to ''Bureau of Water, OCRM."
On September 23, 2021, BEHS issued Septic Tank Permit No. 2106120 (Septic Permit) authorizing the construction of a septic tank and drainfield at the proposed location. By its specific terms, the Septic Permit authorizes construction of a specialized onsite wastewater system on a single lot on Bay Point Island for peak flows of less than 1,500 GPD.
In accordance with Section 201.1(3) of S.C. Code Reg. 61-56 (Supp. 2021), the minimum required size for any septic tank is a net liquid capacity of one thousand (1000) gallons, which is sufficient to serve dwellings of four bedrooms or less. Additional capacity of 250 gallons is required for each bedroom over four. As such, the Septic Permit authorizes a septic system sufficient for a single six-bedroom home.
The Petitioner became aware of Bay Point's Septic Permit on October 27, 2021, through information provided by a third party.
Fourteen (14) days later, on November 9, 2021, the Petitioner submitted an RFR to the Department, some forty-eight (48) days after the Department issued its decision approving the Septic Permit.
On December 17, 2021, the Department issued a determination declining to conduct a Final Review.
Thereafter, on January 17, 2022, the Petitioner filed a request for a contested case hearing before this court arguing, among other things, that the Septic Permit should be rescinded because the Department failed to conduct a coastal zone consistency review.
STANDARD OF REVIEW
"[T]he question of compliance with rules, regulations, and statutes governing an appeal is one of appellate jurisdiction . . . ." Allison v. W.L. Gore & Assocs., 394 S.C. 185, 188, 714 S.E.2d 547, 549 (2011) (citation omitted); see also Windham v. Sanders, 287 S.C. 170, 171, 337 S.E.2d 205, 206 (1985) ("The appellate record must affirmatively show the proper taking of all necessary steps and the existence of all the facts necessaiy to confer jurisdiction on the appellate court." (citation omitted)).
Due to the de novo nature of a contested case hearing, however, the failure to abide by the rules, regulations, and statutes governing a challenge to a Department determination at the ALC does not implicate "appellate jurisdiction"; instead, it implicates "procedural jurisdiction." FA Logic SC, LLC, d/b/a FA Logic, v. S.C. Dep't of Revenue, Docket No. 19-ALJ-17-0002-CC, 2020 WL 1166875, at *2 (S.C. Admin Law Ct. March 3, 2020); see also Michael J. Finley v. Charleston Cnty. Assessor, Docket No. 19-ALJ-17-0066-CC, 2019 WL 5866668, at *3 n.7 (S.C. Admin. Law Ct. Oct. 30, 2019) ("[P]revious ALC decisions have determined that a litigant's failure to properly follow intermediate administrative steps at the agency level prior to requesting a contested case hearing deprives the ALC of procedural jurisdiction." (citations omitted)); S.C. Dep't of Health & Env't Control v. Kirby Blocker, Docket No. 15-ALJ-07-0554-CC, 2016 WL 5867852, at *5 n.4 (S.C. Admin. Law Ct. Oct. 3, 2016) ("Other ALC case orders have employed the term 'procedural jurisdiction' to bridge the conceptual gap between the quasi-appellate posture of a contested case and the de novo trial-level nature of a contested case, as well as to distinguish the issues of timeliness from those of subject-matter jurisdiction, when determining whether the ALC had the authority to hear the matter." (citations omitted)).
'"[Procedural jurisdiction' may, therefore, be defined as the compliance or noncompliance with the 'rules, regulations, and statutes governing' the request for a contested case hearing at the ALC to challenge the determination of an administrative agency." FA Logic SC, LLC, Docket No. 19-ALJ-17-0002-CC at *2 (citation omitted).
DISCUSSION
In its Motion, Bay Point contends that the Department's September 23, 2021, staff decision to issue the Septic Permit became final on October 8, 2021, because the Petitioner failed to submit an RFR within the fifteen (15) day statutory window. It further asserts that the manner by which an affected person may request notice of such decisions is to submit a written request to the Department. Because the Petitioner did not request in writing to be notified of relevant septic tank pennitting decisions, and did not lodge an RPR within fifteen (15) days of the staff decision's date of mailing, Bay Point contends that this court lacks procedural jurisdiction to hear the untimely challenge. As explained below, the court agrees.
The evidence indicates that the Department's staff decision in this matter was issued on September 23, 2021. A. "staff decision becomes the final agency decision fifteen calendar days after notice of the staff 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." S.C. Code Ann. § 44-1-60(E)(2) (2018). The Petitioner's RFR was not filed until November 9, 2021, forty-eight (48) days after the staff decision regarding the Septic Permit was issued. Thus, pursuant to Section 44-1-60, the staff decision became final on October 8, 2021. See id. This would mean that the Petitioner's RPR-filed thirty-three (33) days after the staff decision had already become final-was untimely.
Nevertheless, the Petitioner argues that its RFR was timely filed because there is no uniform procedure for notifying DHEC of "affected persons" status that would entitle it to notice, and it made attempts to get the information through FOIA, the responses to which the Petitioner maintains were incomplete and untimely. If the FOIA requests had been answered accurately and in a timely manner, the Petitioner argues, it would have revealed the Septic Permit so that the Petitioner could have filed its RPR in a timely manner. The Petitioner further asserts that, pursuant to S.C. Coastal Conservation League v. S.C Department of Health and Environmental Control, "the fifteen-day clock to file an RFR technically never started running because [the] Petitioner was never mailed notice of the permit decision . . . ." The Petitioner argues that if the court "substitute[] the date of actual notice for the date of mailing (October 27, 2021), [the] Petitioner timely filed its RFR within fifteen (15) calendar days (on November 9, 2021)." The Petitioner, therefore, asserts that its November 9, 2021, RFR was timely filed. The court finds this argument unavailing in view of the statutory language and established precedent.
S.C. Coastal Conservation League v. S.C. Dep't of Health andEnv't Control, 390 S.C. 418, 429, 702 S.E.2d 246, 252 (2010).
Though the court appreciates that the Petitioner made efforts to obtain information related to the Septic Permit, allowing the Petitioner's FOIA request to supplant or augment the statutory provision that persons obtain "affected person" status by sending written notification to the Department would be problematic for a number of reasons.
First, a formal statutory procedure for an affected person to request notice of Department permitting decisions is delineated in Section 44-1-60(E)(1). That section unambiguously states that "[a]ffected persons may request in writing to be notified by regular mail or electronic mail in lieu of certified mail." S.C. Code Ann. § 44-l-60(E)(1) (2018). The court is aware of nothing, that precludes the application of that procedure to septic tank permitting decisions. In fact, by its express terms, "[a]ll department decisions involving the issuance ... of permits . . . must be made using the procedures set forth in this section," including that for affected persons to request notice. See S.C. Code Ann. § 44-1-60(A) (Supp. 2021). Yet, the Petitioner maintains that this "task is effectively impossible" because of uncertainty over what qualifies for "affected person" status, essentially arguing that it did not request notice using this procedure because it was not sure it could.
However, the Supreme Court has held that the question of who qualifies as an "affected person" under Section 44-1-60 is determined using a reasonable, ordinaiy definition of the term. See Pres. Soc'y of Charleston v. S.C. Dep't of Health and Env't Control, 430 S.C. 200, 216-17, 845 S.E.2d 481, 490 (2020); see also S.C. Coastal Conservation League, 390 S.C. at 428, 702 S.E.2d at 252 (noting that DHEC takes an informal approach to determining which parties quality as affected persons for notice purposes). Here, the Petitioner alleges, among other things, that it would suffer certain environmental consequences if the Septic Permit was issued. That alone creates an inference that the Petitioner was, or reasonably could be, an affected person. See Pres. Soc'y of Charleston, 430 S.C. at 216-17, 845 S.E.2d at 490 (noting that the petitioners' "members would suffer the environmental consequences [the] [petitioners allege the project will create" in finding that they qualified as "affected persons"); see also Affect, BLACK'S Law Dictionary (11th ed. 2019) (defining "affect" as "[m]ost generally, to produce an effect on; to influence in some way"). Thus, while the statutory procedure requires an inferential step, the court does not find it to be "effectively impossible" to navigate. To the contrary, the court finds the procedure to be both logical and straightforward, and the term "affected person" is interpreted rather broadly. Thus, the court does not find support for the Petitioner's argument in this regard.
As Bay Point notes, the Petitioner must consider itself an affected party to have acted in this matter. Otherwise, the Petitioner's argument that its FOIA requests entitled it to the same notice as an affected person under Section 44-1-60 would be nonsensical. Moreover, even if the Petitioner was unsure if it qualified, because the Petitioner was not the applicant or permittee, "affected person" status was the only avenue under Section 44-1-60 that would entitle it to file its RFR in the first place. See S.C. Code Ann. § 44-1-60(E)(2) (stating that an RFR may be filed with the Department by "the applicant, permittee, licensee, or affected person"). Stated another way, the Petitioner had to be an affected person to file its RFR of the decision it claims it did not receive, in part, because of uncertainty over whether it qualified as an affected person. Had the Petitioner requested notice using the express statutory procedure for affected persons, it would have been notified of the Department's permitting decision in time to file its RFR. Then, the only issue before this court, if any, would be whether the Petitioner qualified as an affected person.
Second, even if the Petitioner was genuinely unsure if it qualified as an affected person for notice purposes under Section 44-1-60, its sole reliance on the FOIA requests was unreasonable under the circumstances. As explained above, a cursory analysis reveals that the Petitioner likely meets the definition of "affected person" and Section 44-1-60 delineates the proper procedure for affected persons to request notice of Department decisions. Here, however, the Petitioner never requested notice through the statutory procedure, under Section 44-1-60, when it filed its FOIA requests. Instead, it chose to rely exclusively on its requests through FOIA, an entirely separate statutory process used for obtaining information from a multitude of state and federal sources, which has different rules and requirements.
The Petitioner does not cite any authority suggesting that a FOIA request can serve as a substitute for the procedure set forth in Section 44-1-60, but argues, generally, that the purpose and spirit of the legislation is similar. However, this ignores the fact that the General Assembly has provided a specific statutory procedure in Section 44-1-60(E)(1) to address the issue of how persons affected by Department permitting actions can request notice of those decisions. See Wooten v. S.C. Dep't of Transp., 333 S.C. 464, 468, 511 S.E.2d 355, 357 (1999) ("A specific statutory provision prevails over a more general one." (citation omitted)). To that end, the court finds it incongruous that the Petitioner would seek notice of a Department permitting decision to enable it to file an RPR under Section 44-1-60(E)(2) using FOIA instead of the process set forth in the immediately preceding section of the same statute. S.C. Code Ann. § 44-1-60(E)(1). See Jowers v. S.C. Dep't of Health and Env't Control, 423 S.C. 343, 359, 815 S.E,2d 446, 455 n.14 (2018) ("[Statutes must be read as a whole and sections which are part of the same general statutoiy scheme must be construed together and each given effect, if it can be done by any reasonable construction." (citation omitted)).
This court further finds that allowing FOIA to be used by anyone, regardless of whether they qualify as an "affected person," as a supplement for the procedure set forth in Section 44-1-60 is not in keeping with the legislative intent of that section. See S.C. Code Ann. § 44-1-60(E)(1) (providing that only "affected persons" may request notice of Department permitting decisions). Such a result would significantly expand the procedural influence of a FOIA request, and the Department's obligations related thereto. Consequently, the court finds that the Petitioner's decision to forgo use of the statutory procedure in Section 44-1-60 and instead rely only on its FOIA requests was misguided.
Third, even if the Petitioner's sole reliance on FOIA was not unreasonable under the circumstances, the FOIA requests themselves were inadequate. The Petitioner's first FOIA request was submitted on July 19, 2021, forty-three (43) days before the Septic Permit application was even filed, to the wrong Department division. The Petitioner's second FOIA request, filed on August 31, 2021, the same day the Septic Permit application was filed by Bay Point, was also sent to the wrong Department division. The court acknowledges that the Department's response to the second FOIA request appears timely and ultimately inaccurate. However, the incorrect addressee and concurrent timing of the request with the application may have contributed to its apparent delay. Regardless, it is not within this court's jurisdiction to remedy purported FOIA violations. See S.C. Code Ann. § 30-4-100(A) (Supp. 2021) ("A citizen of the State may apply to the circuit court for a declaratory judgment, injunctive relief, or both, to enforce the provisions of [FOIA] . . . ."). The court, therefore, cannot confer Section 44-1-60 notice rights with a faulty FOIA request and cannot otherwise remedy the purported FOIA deficiencies.
The court is troubled by the Department's late and inaccurate response to the Petitioner's second FOIA request.
In any event, without a request for notice pursuant to Section 44-1-60, this court is without authority to extend the deadline to file an RFR based on a party's actual notice of the Department determination. In S.C. Coastal Conservation League v. S.C. Department of Health and Environmental Control, the Supreme Court explicitly rejected the idea that actual notice triggers the fifteen (15) day period to begin running, holding that:
The clear and unambiguous language in the statute provides that the staff decision becomes final "fifteen days after notice of the department decision has been mailed . . . ." Had the legislature intended for the time period to begin running from the date a party receives notice of the decision, the statute would have been drafted accordingly.S.C. Coastal Conservation League, 390 S.C. at 426, 702 S.E.2d at 251-52. Moreover, that case is distinguishable because, unlike here, the petitioner had, by the Department's own admission, requested to be notified of a permitting decision, but was not notified simultaneously with the other parties. Id. at 427-28, 702 S.E.2d at 251. Consequently, since the Petitioner did not submit a written request to notified, and did not file its RFR within the fifteen (15) day statutory window, this court is without authority to extend the deadline to file an RFR based the Petitioner's actual notice of the Department's determination.
This holding was recently reaffirmed by the Supreme Court:
As we noted in SCCCL, the General Assembly chose not to include an actual notice trigger when it enacted the statutory provisions governing the procedure for bringing a contested case before the ALC. We have no authority to inject into the statute an actual notice trigger of the fifteen-day limitations period, as that would disturb the legislatively prescribed procedure for appealing permitting decisions.Pickens Cray. v. S.C. Dep't of Health and Env't Control, 435 S.C. 99, 105-06, 866 S.E.2d 537, 540 (2021) (citations omitted).
ORDER
THEREFORE, IT IS HEREBY ORDERED that Bay Point's Motion to Dismiss is GRANTED.
AND IT IS SO ORDERED.