ORDERS:
ORDER
This matter is before the Administrative Law Judge Division (Division) pursuant to the request of the Petitioner, Concerned Citizens
for Sandy Flat, for injunctive relief to transfer an appeal to the Division of a staff decision of the Respondent, South Carolina
Department of Health and Environmental Control (DHEC) regarding a modification to a mining permit issued to the Respondent,
Hanson Aggregates, Inc. (Hanson) for its Sandy Flat Quarry. The appeal is currently pending before the Respondent, South Carolina
Mining Council (Council), and a hearing on the merits of the appeal is scheduled for December 14, 2000. Petitioner further requests
that the Division enjoin the December 14 hearing before the Council. Finally, Petitioner requests that the Division order DHEC to
transmit to the Division Petitioner's request for a contested case hearing concerning any DHEC staff decisions to issue mining permit
modifications, air pollution construction or operation permits and water pollution discharge permits to Hanson for the Sandy Flat
Quarry without public notice.
A hearing on Petitioner's request for injunctive relief was held on December 6, 2000, at the offices of the Division in Columbia,
South Carolina. For the following reasons, Petitioner's request is denied.
STATEMENT OF THE CASE
The Petitioner is a citizens' group whose members reside in the vicinity of Hanson's Sandy Flat Quarry in the Sandy Flat Community
of Greenville County, South Carolina. In July of 2000, DHEC staff made a decision to grant a modification to Hanson's mining
permit for the Sandy Flat Quarry. Petitioner was advised that it had thirty (30) days in which to appeal the staff decision to the
Council, and it timely filed such an appeal. Subsequently, the Petitioner retained counsel, who filed a Motion to Transmit the appeal
to the Division on the grounds that the "Restructuring Act," Act 181 of 1993, transferred authority to hear mining permit appeals of
DHEC staff decisions from the Council to the Division. Petitioner also filed a Petition for Administrative Review with the DHEC
Board, requesting a contested case hearing on any permits issued to Hanson for the Sandy Flat Quarry without prior public notice.
The DHEC Board transmitted this Petition to the Council. By Order dated October 25, 2000, the Council denied Petitioner's motion
to transmit the mining permit appeal to the Division and refused to consider any issues raised in the Petition for Administrative
Review on the grounds that the Petition was untimely filed. On October 27, 2000, Petitioner filed its request for injunctive relief with
the Division.
DISCUSSION
I. Mining Permit Appeal
The South Carolina Mining Act (Act), S.C. Code Ann. §§ 48-20-10 et seq. (Supp. 1999) governs the issuance and modification of
mining permits. DHEC is the entity responsible for administering the provisions of the Act, including the issuance of mining permits.
S.C. Code Ann. § 48-20-30 (Supp. 1999).
A party wishing to engage in mining must first obtain an operating permit from DHEC which covers the affected land. S.C. Code
Ann. § 48-20-60 (Supp. 1999). An operating permit is obtained by filing an application with DHEC, which must be on a form
furnished by DHEC and which must contain prescribed information. S.C. Code Ann. § 48-20-70 (Supp. 1999). DHEC must notify
the public of the existence of the application by publishing notice, and must afford members of the public the opportunity for public
comment on the proposed application prior to making a final decision on the permit. Id. A holder of an operating permit may also
apply to DHEC for modification of the permit. S.C. Code Ann. § 48-20-80 (Supp. 1999).
S.C. Code Ann. § 48-20-190 (Supp. 1999) governs appeals from decisions of DHEC concerning mining permits. It provides in
pertinent part:
An applicant for a certificate of exploration or operating permit or a person who is aggrieved and is directly affected by the permit
may appeal to the council from a decision or determination of the department issuing, refusing, modifying, suspending, revoking, or
terminating a certificate of exploration or operating permit or reclamation plan, or imposing a term or condition on the certificate,
permit, or reclamation plan. . . . 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. . . . The chairman of the council shall fix a reasonable time, not less than twenty nor more than forty days from the receipt of the
appeal, and place for a hearing, giving reasonable notice to the applicant, appellant, and to the department. The council, or a
committee of the council designated by the council's rules of procedure, or if agreed by appellant, the council, the operator, and the
department, a hearing panel consisting of one or more individuals shall conduct a full and complete hearing as to the matters in
controversy, and within thirty days shall give a written decision setting forth its findings of fact and its conclusions. The council or its
designated committee or the hearing panel may affirm, affirm with modifications, or overrule the decision of the department and may
direct the department to take action required to effectuate its decision. A further appeal may be taken from the appellate decision to
the court of common pleas as provided in Section 48-20-200.
(Emphasis added).
Petitioner argues that, pursuant to state government restructuring and the creation of the Division, its appeal of the mining permit
modification for Hanson's Sandy Flat Quarry is properly heard by the Division rather than the Mining Council. Specifically,
Petitioner contends that S.C. Code Ann. § 1-23-600(B), which was enacted after the latest amendment to Section 48-20-190, confers
jurisdiction upon the Division to hear this case. That section provides:
An administrative law judge of the division shall preside over all hearings of contested cases as defined in Section 1-23-310 involving
the departments of the executive branch of government in which a single hearing officer is authorized or permitted by law or
regulation to hear and decide such cases. . . .
(Emphasis added). Petitioner argues that, since Section 48-20-190 provides that a "hearing panel consisting of one or more
individuals" can hear a mining permit appeal if all parties and the Council agree, Section 1-23-600(B) operates to divest the Council
of jurisdiction to hear such appeals and to bring those appeals within the Division's jurisdiction. This argument, however, must fail
for several reasons.
First, an examination of the plain language of the statutes in question reveals that the Council retains jurisdiction over mining permit
appeals. The words of a statute must be given their plain and ordinary meaning without resorting to subtle or forced construction to
limit or expand the statute's operation. Rowe v. Hyatt, 321 S.C. 366, 468 S.E.2d 649 (1996). In this case, the meaning of the statutes
is manifest. Section 48-20-190 provides for the Council, or a committee of the Council, to hear the appeals. A "hearing panel
consisting of one or more individuals" can hear a mining permit appeal only if agreed by the appellant, the Council, the operator, and
DHEC. Thus, the statute does not unconditionally authorize or permit the Council to appoint a single hearing officer to decide cases.
The authority for a single hearing officer to decide mining permit appeals is derived not from the statute, but from the agreement of
the parties. Therefore, there is no law or regulation which "authorizes or permits" a single hearing officer to decide mining permit
appeals, and Section 1-23-600(B) is inapplicable.
Further, the legislative history of the statutes makes it clear that the General Assembly intended that the procedure for mining permit
appeals remain unchanged by the Restructuring Act. The Restructuring Act, as discussed above, created the Administrative Law
Judge Division to hear certain contested cases, appeals, and regulation hearings. Act 181 of 1993, § 9 (effective July 1, 1994). The
Restructuring Act also amended several provisions of the Mining Act. The authority for administering the provisions of the Mining
Act was transferred from the Land Resources Conservation Commission to DHEC. Act 181 of 1993, § 1220. In addition, the
functions of the Mining Council were changed by the Restructuring Act. Prior to restructuring, in addition to its jurisdiction over
mining permit appeals, the Council had the authority to promulgate regulations to implement the provisions of the Mining Act. See S.C. Code Ann. § 48-20-210 (Supp. 1992). The Restructuring Act divested the Council of its rulemaking authority and transferred
that authority to DHEC. Act 181 of 1993, § 1223. However, the Restructuring Act left the authority of the Council to hear mining
permit appeals intact. There is a basic presumption that the General Assembly has knowledge of previous legislation when later
statutes are passed on a related subject. Arnold v. Ass'n of Citadel Men, 337 S.C. 265, 523 S.E.2d 757 (1999). Had the General
Assembly intended to transfer the authority to hear mining permit appeals from the Council to the Division, it would have done so by
amending Section 48-20-190 in the Restructuring Act. Moreover, the Mining Act has been amended since government restructuring,
and no changes to the mining permit appeal procedure were made during the most recent amendment. See Act 8 of 1997 (effective
March 31, 1997) (adding Section 48-20-55 and amending Sections 48-20-160 and -220). I therefore find that the General Assembly
intended to leave the authority of the Council over mining permit appeals intact rather than to transfer that authority to the Division.
Finally, the Petitioner's argument must fail because to hold that Section 1-23-600(B) is controlling in this case would require a
finding that that section impliedly repealed the mining permit appeal procedures in Section 48-20-190. Repeals by implication are
not favored by the courts, and to repeal a statute on account of an asserted conflict or repugnancy with another statute, the repugnancy
must not only be plain, but the provisions of the two statutes must be incapable of any reasonable reconcilement. City of Rock Hill v.
S.C. Dept. of Health and Envtl. Control, 302 S.C. 161, 394 S.E.2d 327 (1990); Mullinax v. J.M. Brown Amusement Co., Inc., 333
S.C. 89, 508 S.E.2d 848 (1998). As a general rule, a statute of a specific nature is not to be considered as repealed in whole or in part
by a later general statute, unless there is a direct reference to the former or the intent of the legislature to repeal it is explicitly implied
therein. Spartanburg County Dept. of Social Services v. Little, 309 S.C. 122, 420 S.E.2d 499 (1992); City of Rock Hill, supra. In this
instance, the specific statutory provisions concerning mining permit appeals in Section 48-20-190 should not be considered to have
been impliedly repealed by the general grant of jurisdiction to the Division in Section 1-23-600(B), as there is no indication in either
statute that the legislature so intended. Therefore, I find that the Mining Council has jurisdiction to hear the Petitioner's appeal of the
mining permit modification granted to Hanson by DHEC. The Petitioner's Motion to Transmit the appeal of the mining permit must,
therefore, be denied.
II. Appeals of Other Permits
Petitioner also requests that the Division order the DHEC Board to transmit its September 19, 2000, Petition for Administrative
Review of "each and every DHEC Staff decision heretofore made" on permits issued by DHEC for the Sandy Flat Quarry since 1974,
on the grounds that DHEC improperly failed to place the issuance of these permits on public notice. The Respondents oppose this
motion on the grounds that any such appeal would be untimely. To the extent that the September 19, 2000 Petition for
Administrative Review pertains to mining permits issued for the Sandy Flat Quarry, I have already ruled that the Mining Council is
the proper forum for the disposition of Petitioner's appeal. However, to the extent that the Petition pertains to air or water quality
permits or other permits issued pursuant to the Pollution Control Act, the Division is the proper forum to hear contested cases with
regard to these permits. S.C. Code Ann. § 1-23-600(B) (Supp. 1999); S.C. Code Ann. Regs. § 61-72.
The Petition fails to set forth the specific permits which the Petitioner alleges were issued without public notice. Without specific
details and allegations concerning the permits involved, it is impossible to determine whether the DHEC Board erroneously refused to
transmit the Petition to the Division. At the hearing on Petitioner's Motion, Petitioner's counsel stated that he had filed a Freedom of
Information Act request with DHEC, requesting specific information about the permits issued for the Sandy Flat facility. Subsequent
to the hearing on the Motion, Petitioner's counsel filed a "Supplement to Motion to Transmit Appeals" which sets forth a list of the
permits allegedly issued without public notice and an opportunity to be heard. However, the Supplement has not been incorporated
into a Petition for Administrative Review, nor does it set forth with any specificity the errors allegedly made by DHEC. Therefore, I
decline to assume jurisdiction over Petitioner's appeals of these permits at this time. Instead, Petitioner must file a Petition for
Administrative Review with the Clerk of the DHEC Board which sets forth in detail, for each permit which is being appealed, the
specific provisions of law which DHEC allegedly violated, the constitutional issues involved, and the jurisdictional basis for the
Division to conduct a contested case hearing to review the issuance of these permits. If the Clerk of the DHEC Board fails to transmit
the Petition to the Clerk of the Division for assignment of the case to an Administrative Law Judge, the Petitioner may then move
pursuant to ALJD Rule 12 for an order directing DHEC to transmit the case.
ORDER
For all the foregoing reasons, Petitioner's Motion to Transmit Appeals is hereby DENIED. and this matter is hereby dismissed.
AND IT IS SO ORDERED.
________________________________
Marvin F. Kittrell
Chief Judge
December 14, 2000
Columbia, South Carolina |
