Organization’s Objection to Marine Terminal Is Untimely

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SandBar 8:1, April, 2009 Organization’s Objection to Marine Terminal Is Untimely S.C. Coastal Conservation League v. S.C. Dep’t of Health & Envtl. Control, 2008 S.C. App. LEXIS 174 (S.C. Ct. App. Oct. 23, 2008). *Terra Bowling, J.D.* A South Carolina appellate court ruled that a conservation organization’s request for a final review of permit applications for the construction of a 300-acre marine container terminal was untimely, because the organization did not conform to mandatory filing requirements. Background The South Carolina State Ports Authority (SPA) and the South Carolina Department of Transportation (DOT) filed permit applications for the construction of a 300-acre marine container terminal with the South Carolina Department of Health and Environmental Control (DHEC). The terminal would be in an area around the former Charleston Naval Base and the project would include an access road. During hearings regarding the permits, the South Carolina Coastal Conservation League (CCL), a conservation organization, provided comments expressing concern over the negative effects of the construction. The DHEC granted the necessary permits for the project. The SPA and CCL filed a re quest with the South Carolina Board of Health and Environ mental Con trol (Board) for a final review of the permits. Prior to the final review the SPA resolved its issues regarding its permit; however, the Board continued the hearing to hear CCL’s concerns regarding the project. The SPA and DOT objected to the review as untimely, because South Carolina law requires requests for final review to be filed within fifteen days from the date the notice was mailed to permit applicants.1 After the hearing, the Board issued a final agency decision granting the permits with only minor revisions. CCL requested a hearing with an Ad ministrative Law Court (ALC) regarding the permits. SPA argued that court lacked jurisdiction to hear the case, because CCL’s review before the Board was untimely. The court agreed and dismissed the case. Untimely Review On appeal, the court considered whether the ALC was prevented from hearing the case due to the untimely filing of the motion. The CCL filed its request for final review more than fifteen days from the date the notice was mailed to the SPA and DOT. South Carolina law states that the decision becomes final “fifteen days after notice of the department decision has been mailed to the applicant.”2 CCL argued that the fifteen-day limit should run from the time that the notice was actually received. Because the statute was clear and unambiguous in stating that the time ran from when the notice was sent, the court reasoned that it must abide by the “plain meaning rule,” which means that the court must construe the statute in accordance with its usual and customary meaning. The court found that because CCL did not comply with the filing deadlines, the Board did not have jurisdiction to hear the case. The CCL also argued that the time limit was affected by waiver, estoppel, and equitable tolling. These three doctrines would have the effect of allowing CCL more time to file its petition with the Board. The appellate court held that because these issues were not initially raised before the ALC, the issues were not preserved and could not be addressed by the court. Finally, CCL argued that its constitutional due process rights were violated by the ALC’s application of the fifteen-day limit. Under the U.S. Constitution, procedural due process essentially requires a party whose property or liberty interests are affected the right to notice and a meaningful op por tunity to be heard. In this case, CCL claimed that it would be denied due process if the ALC did not hear its case. The court rejected this argument, since CCL had notice and the opportunity to be heard, but merely failed to follow the proper administrative procedures that would have allowed them be heard. Conclusion The court affirmed the ALC’s decision. The permits issued by the DHEC will stand as final agency decisions. Endnotes 1. S.C. Code Ann. A7 44-1-60(E) (2007). 2. Id.
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SandBar 8:1, April, 2009

S.C. Coastal Conservation League v. S.C. Dep’t of Health & Envtl. Control, 2008 S.C. App. LEXIS 174 (S.C. Ct. App. Oct. 23, 2008).

Terra Bowling, J.D.

A South Carolina appellate court ruled that a conservation organization’s request for a final review of permit applications for the construction of a 300-acre marine container terminal was untimely, because the organization did not conform to mandatory filing requirements.

Background
The South Carolina State Ports Authority (SPA) and the South Carolina Department of Transportation (DOT) filed permit applications for the construction of a 300-acre marine container terminal with the South Carolina Department of Health and Environmental Control (DHEC). The terminal would be in an area around the former Charleston Naval Base and the project would include an access road.
During hearings regarding the permits, the South Carolina Coastal Conservation League (CCL), a conservation organization, provided comments expressing concern over the negative effects of the construction. The DHEC granted the necessary permits for the project. The SPA and CCL filed a re quest with the South Carolina Board of Health and Environ mental Con trol (Board) for a final review of the permits. Prior to the final review the SPA resolved its issues regarding its permit; however, the Board continued the hearing to hear CCL’s concerns regarding the project. The SPA and DOT objected to the review as untimely, because South Carolina law requires requests for final review to be filed within fifteen days from the date the notice was mailed to permit applicants.1 After the hearing, the Board issued a final agency decision granting the permits with only minor revisions.
CCL requested a hearing with an Ad ministrative Law Court (ALC) regarding the permits. SPA argued that court lacked jurisdiction to hear the case, because CCL’s review before the Board was untimely. The court agreed and dismissed the case.

Untimely Review
On appeal, the court considered whether the ALC was prevented from hearing the case due to the untimely filing of the motion. The CCL filed its request for final review more than fifteen days from the date the notice was mailed to the SPA and DOT. South Carolina law states that the decision becomes final “fifteen days after notice of the department decision has been mailed to the applicant.”2 CCL argued that the fifteen-day limit should run from the time that the notice was actually received. Because the statute was clear and unambiguous in stating that the time ran from when the notice was sent, the court reasoned that it must abide by the “plain meaning rule,” which means that the court must construe the statute in accordance with its usual and customary meaning. The court found that because CCL did not comply with the filing deadlines, the Board did not have jurisdiction to hear the case.
The CCL also argued that the time limit was affected by waiver, estoppel, and equitable tolling. These three doctrines would have the effect of allowing CCL more time to file its petition with the Board. The appellate court held that because these issues were not initially raised before the ALC, the issues were not preserved and could not be addressed by the court.
Finally, CCL argued that its constitutional due process rights were violated by the ALC’s application of the fifteen-day limit. Under the U.S. Constitution, procedural due process essentially requires a party whose property or liberty interests are affected the right to notice and a meaningful op por tunity to be heard. In this case, CCL claimed that it would be denied due process if the ALC did not hear its case. The court rejected this argument, since CCL had notice and the opportunity to be heard, but merely failed to follow the proper administrative procedures that would have allowed them be heard.

Conclusion
The court affirmed the ALC’s decision. The permits issued by the DHEC will stand as final agency decisions.

Endnotes
1. S.C. Code Ann. A7 44-1-60(E) (2007).
2. Id.