SC Administrative Law Court Decisions

This matter is before the Administrative Law Judge Division (Division) on remand from the South Carolina Supreme Court in the case of Brown, et al. v. South Carolina Department of Health and Environmental Control, ___S.C.___, 560 S.E.2d 410 (S.C. 2002). The sole issue for determination on remand is "whether a consistency review meeting the requirements of the Coastal Management Program had been conducted." 560 S.E.2d at 412.

In September 1995, Interstate Speedway applied to the Department of Health and Environmental Control's (DHEC) Office of Ocean and Coastal Resource Management (OCRM) for a stormwater permit as required by the Stormwater Management and Sediment Reduction Act (Stormwater Act), S.C. Code Ann. §§ 48-14-10 to 48-14-170 (Supp. 1995) in order to construct a motor speedway in Berkeley County. Since the proposed project is located in a coastal zone, OCRM was required to review the project to ensure that it complied with the policies of the Coastal Zone Management Program (CZMP). See S.C. Code Ann. § 48-39-80(B)(11) (Supp.1995).

On November 7, 1995, OCRM issued the stormwater permit to Interstate Speedway. Lisa M. Hadstate (Hadstate) appealed, seeking a contested case hearing before the Division. Following four days of testimony during May and June of 1996, the Division issued its Final Decision affirming the issuance of the permit on December 3, 1996. This matter made its way through the judicial system with Respondent Interstate Speedway ultimately filing an appeal with the South Carolina Supreme Court. The Supreme Court issued its opinion on February 25, 2002, and remanded the matter in part to the Division. In its opinion, the Supreme Court ruled that the Board exceeded its authority in making independent factual findings related to the consistency review and application of CZMP policies and that the Board was required to remand that issue to the Division. The Supreme Court further concluded that the Final Decision of the Administrative Law Judge "contains no reference to the evidence from the hearing and, more important, no factual findings concerning the consistency review process and how that process was conducted in this case." The Supreme Court then remanded the matter to the Division for findings consistent with that conclusion. Therefore, the issues in this matter are whether a consistency review was conducted at the time the stormwater permit was issued, and whether that review process met the requirements of the Coastal Zone Management Program.

In 1977, the General Assembly enacted the Coastal Tidelands and Wetlands Act (Coastal Zone Management Act or CZMA). S.C. Code Ann. §§ 48-39-10 to 48-39-360 (Supp.1995). Under the Coastal Zone Management Act, one of the South Carolina Coastal Council's (OCRM's predecessor) duties was to develop and administer a Coastal Zone Management Program. In that regard, S.C. Code Ann. § 48-39-80 (Supp. 1995) provides that:

The department shall develop a comprehensive [CZMP] and thereafter have the responsibility for enforcing and administering the program in accordance with the provisions of this chapter and any rules and regulations promulgated under this chapter.

(Emphasis added.). Furthermore, as part of the CZMP, the Coastal Council was required to "[d]evelop a system whereby the department shall have the authority to review all state and federal permit applications in the coastal zone, and to certify that these do not contravene the management plan." S.C. Code Ann. § 48-39-80(B)(11) (Supp. 1995).

The CZMP was published as a special edition of the State Register. See 2 State Register (No. 26, Oct. 1978). While the CZMP did not provide for a specific procedure by which projects will be evaluated, it set forth the significant policies that OCRM should support and contains guidelines that the staff is to use in the evaluation of all projects. In 1993, the CZMP was refined, in part, as a result of the stormwater regulations that were promulgated in 1991, in order to give a more heightened review of land disturbance permits in the eight coastal zone counties. As is the case with the original CZMP, there is no section in the "Refinements" setting forth a specific procedure for consistency reviews. However, OCRM is charged with utilizing these guidelines in its review of all state and federal permits.

Additionally, 1993 Act 181, which restructured South Carolina state government, gave OCRM not only the responsibility for administering the CZMP, but also responsibility for administering the state Stormwater and Sediment Control Program in the coastal zone. This change in the structure of state government resulted in OCRM issuing stormwater permits, while at the same time certifying that those permits were consistent with the CZMP. As a result of that change, DHEC's Department of Environmental Quality Control (EQC) and OCRM entered into a Memorandum of Agreement in 1994, whereby the permitting process became streamlined. The memorandum provided: "Coastal Zone Consistency Certification of state EQC permits within the eight coastal counties will be provided by OCRM but handled internally as part of the permitting process. . . . OCRM will issue direct permits for alteration of the critical areas. . . . OCRM staff will coordinate internally with EQC water quality staff for review of the applications for those activities which also require 401 Water Quality Certification. Appeals of these permits will be heard by the Coastal Zone Management Appellate Panel. The direct permit will serve as the 401 Water Quality Certification for an associated Federal permit." (Emphasis added.)

Having observed the witnesses and exhibits presented at the hearing and closely passed upon their credibility, taking into consideration the burden of persuasion by the parties, I make the following Findings of Fact by a preponderance of the evidence:

1. OCRM granted a permit pursuant to the Stormwater Act for the construction of a one-half mile concrete oval racetrack and support facilities for approximately 4,500 spectators. The proposed Interstate Speedway would discharge stormwater run-off into the adjacent Four Holes Swamp and would be near the property of the National Audubon Society's Francis Beidler Forest, an ancient forest sanctuary which provides a habitat for numerous species of songbirds and other wildlife. The Francis Beidler Forest (the Forest) is a natural resource of national significance. It represents a unique and irreplaceable resource with the largest remaining stand of ancient bald cypress, a dense nesting songbird habitat, and generally a place of great beauty.

Neither the stormwater permit nor the Department's approval letter establishes upon its face that a determination of consistency with the Coastal Zone Management Program was specifically made. However, when Interstate Speedway submitted its application, the permit review, as well as the consistency review for this project, was conducted by OCRM. Since this review had been "streamlined," the OCRM staff did not conduct two separate reviews and did not generate two separate documents. Rather, OCRM performed two reviews concurrently.

Nevertheless, to fulfill its obligations with respect to the CZMP, OCRM undertook several measures. First, OCRM reviewed the permit application from Interstate Speedway. Prior to the passage of the Stormwater Act, OCRM reviewed proposed state and federal permits before other agencies to insure that those permits were consistent with the Coastal Zone Management Program. Since the inception of the CMP and "restructuring," OCRM reviews the Stormwater Management Sediment Reduction Act permits itself, and also looks at concerns in the Coastal Zone through the Coastal Zone Management Program.

Barbara Neale, a hydrologist with OCRM, was assigned as OCRM's project manager for this application and was charged with the responsibility of reviewing the stormwater management permit for compliance with the stormwater requirements and for consistency with the CZMP. She thereafter reviewed the permit application for consistency with the CZMP, according to the guidelines available to staff at the time (the South Carolina Stormwater Management and Sediment Control Handbook) and the procedures set forth in the 1994 Memorandum of Agreement entered into between OCRM and DHEC. The application form had extensive data identifying the site's size, location and physical characteristics, including nearest receiving water body and distance thereto, as well as the presence or absence of wetlands.

In particular, Ms. Neale reviewed the "Refinements" to the CZMP, which apply to stormwater permit applications within the coastal zone. The Refinements include guidelines for review of stormwater permits, which in large part are directed toward impacts to shellfish resources. Because this project did not fall within the categories set forth in the Refinements, Ms. Neale concluded that the project was consistent with the CZMP. ⁽¹⁾ Therefore, although there was not a separate review document generated in the course of the application review process, Ms. Neale, nevertheless, specifically reviewed for consistency with the CZMP.

Additionally, although the state stormwater program has no public notice requirement, OCRM published a public notice of Interstate Speedway's permit application which was circulated to a variety of federal and state resource agencies (including the Department of Natural Resources, the Environmental Protection Agency, and Archives & History) as well as the public. This notice states that the Interstate Speedway project had been received for determination of consistency with the CZMP and invited comments. Ms. Hadstate filed a written comment pursuant to that notice objecting to the issuance of the permit. Afterwards, OCRM held public meetings to address the concerns raised in regard to Interstate Speedway's permit application and the stormwater management plan. The public comments were taken into consideration in evaluating the issuance of the permit.

2. I find that based upon the evidence submitted that this project is consistent with the CZMP. Hadstate's cross-examination of Neale did not contradict the evidence presented by OCRM. Rather, the cross-examination focused on the fact that there is no document which specifically states that the project is consistent with the CZMP or which addresses the policies set forth in the CZMP. The failure of OCRM to specifically document that the project is consistent with the CZMP does not logically establish that OCRM failed to consider whether the project is consistent with the CZMP. On the other hand, the permit placed many restrictions and requirements on this project to protect water quality and quantity, and to ensure that the run-off from the site does not adversely affect the surrounding areas.

More importantly, my finding that the project is consistent with the CZMP is significantly influenced by the location of the project in relation to the Francis Beidler Forest. The project is downstream of the Forest and would be approximately four miles from the Forest. Furthermore, no shellfish resources or other significant resources were present at the project site.

Based upon the foregoing Findings of Fact, I conclude the following as a matter of law:

1. The Division has jurisdiction over this matter pursuant to S.C. Code Ann. §1-23-600 (Supp. 1995).

2. The Administrative Law Judge is the fact finder in this matter for purposes of administrative and judicial review. Brown v. S.C. Dep't of Health and Envtl. Control, 348 S.C. 507, 560 S.E.2d 410 (2002). The standard of proof in weighing the evidence and making a decision on the merits at a contested case hearing is a preponderance of the evidence. Nat'l Health Corp. v. S.C. Department of Health and Environmental Control, 298 S.C. 373, 380 S.E.2d 841 (Ct. App. 1989). Furthermore, the burden of proof in a contested case hearing is upon the moving party. S.C. Code Ann. § 44-7-210(E) (Supp. 1995); See also 2 Am. Jur. 2d Administrative Law § 360 (1994); Alex Sanders, et al., South Carolina Trial Handbook § 9:3 Party With Burden, Civil Cases (1999). In the present case, the Petitioner has the burden of proving that OCRM improvidently issued the stormwater permit to Interstate Speedway.

3. The issuance of stormwater permits for construction of facilities is governed by the South Carolina Stormwater Management and Sediment Control Act, S.C. Code Ann. §48-14-10 et seq. (Supp. 1995), and, in the coastal zone, also by the S.C. Coastal Council (OCRM) Stormwater Management Guidelines.

4. The Coastal Zone Management Program was mandated by the CZMA, and the policies developed and set forth in the CZMP were to serve as guidelines for determining consistency with the CZMP. Non-point source pollution generated by run-off from rainfall was not a permitted activity when the CZMA was passed or when the CZMP was adopted. Subsequently, the Stormwater Management and Sediment Reduction Act was passed. In response to this new law, OCRM refined its CZMP to address stormwater issues.

Hadstate argues that OCRM failed to make a particularized determination that the Interstate Speedway project was consistent with the CZMP's policies as required. The Respondents contend that since no permit can be issued in contravention of the CZMP, the stormwater permit itself supports the conclusion that the project was consistent with the Coastal Zone Management Program. However, the issuance of a stormwater permit does not establish that OCRM properly considered whether the permit complied with the CZMP policies. Such an interpretation would lead to the conclusion that lawfully permitted activities would automatically meet the consistency requirement. Such a result would vitiate review of whether the Department complied with the mandates of Coastal Zone Management Act.

Nevertheless, OCRM's failure to document its review of those policies does not establish that the policies were not considered. The issue is whether the consistency review was conducted, and if it was conducted, that the requirements of the CZMP were met. As expressed in the Findings of Fact, I find that consistency review was conducted by OCRM and that the permit issued to Interstate Speedway is consistent with the applicable CZMP policies and regulations promulgated in consideration of those policies.

Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby:

ORDERED that Stormwater Permit #15-95-10-2 be granted.

AND IT IS SO ORDERED.

______________________________

Ralph King Anderson, III

Administrative Law Judge

October 15, 2002

Columbia, South Carolina

1. The Refinement guidelines addressed only mines, landfills, golf courses, bridges, and, pointedly, exemptions for discharges to swamps. Therefore, the Refinements established no additional protection for this project.