EAGLE v. SCDHEC

THIS OPINION
HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN
ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

Engaging and
Guarding Laurens County's Environment ("EAGLE"), Respondent,

v.

South Carolina
Department of Health and Environmental Control and MRR Highway 92, LLC, Defendants,

of whom MRR
Highway 92, LLC, is Appellant.

Appeal from the Administrative Law Court

 Ralph K. Anderson, III, Administrative
Law Court Judge

Unpublished Opinion No. 2011-UP-380

Heard May 3, 2011 – Filed August 4, 2011

REVERSED

W. Thomas Lavender, Jr., and Joan W. Hartley, both of Columbia,
for Appellant.

Amy E. Armstrong, of Pawleys Island, for Respondent.

PER CURIAM: 
This appeal from the Administrative Law Court (ALC) arises out of the issuance
of a solid waste management permit from the South Carolina Department of Health
and Environmental Control (the Department) to Appellant MRR Highway 92, LLC
(MRR).  Respondent Engaging and Guarding Laurens County's Environment (EAGLE)
requested a contested case hearing after the Department decided not to conduct
a final review conference regarding the issuance of the permit.  The ALC
reversed the Department's decision and denied the permit, finding the proposed
facility was not needed.  MRR appealed from the decision of the ALC, arguing
the ALC did not have jurisdiction and the ALC erred in reversing the decision
of the Department issuing a demonstration of need.  We find the request for a
contested case hearing was timely filed.  We reverse the decision of the ALC
and reinstate the decision of the Department because the Department acted
within its discretion by declining to consider additional factors in issuing a
demonstration of need to MRR.  See S.C. Code Ann. § 44-1-60(G)(3) (Supp.
2010) ("An . . . affected person may file a request with the [ALC] for a
contested case hearing within thirty calendar days after . . . the final agency
decision resulting from the final review conference is received by the
parties."); S.C. Code Ann. § 44-96-260(1) (2002) ("To carry out the
purposes and provisions of [the South Carolina Solid Waste Policy and
Management Act], the department is authorized to . . . promulgate such
regulations, procedures, or standards as are necessary to protect human health
and safety or the environment from the adverse effects of improper, inadequate,
or unsound management of solid waste . . . ."); 25A S.C. Code Ann. Regs.
61-107.17(D)(3)(d) (Supp. 2008) ("The Department reserves the right to
review additional factors in determining need on a case-by-case basis.")
(emphasis added); S.C. Coastal Conservation League v. S.C. Dep't of Health
& Envtl. Control, 363 S.C. 67, 75, 610 S.E.2d 482, 486 (2005)
("Courts defer to the relevant administrative agency's decisions with
respect to its own regulations unless there is a compelling reason to
differ."); S.C. Code Ann. § 1-23-610 (Supp. 2010) (stating this court may
reverse the decision of the ALC if it is affected by an error of law). 

REVERSED.

FEW,
C.J, PIEPER, and LOCKEMY, JJ., concur.