Gullah Geechee Fishing Association 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

Gullah/Geechee Fishing Association, Inc., Appellant,

v.

South Carolina Department of Health and Environmental
Control and Bay Point Island, LLC, Respondents.

Appellate Case No. 2022-001126

Appeal From the Administrative Law Court
S. Phillip Lenski, Administrative Law Judge

Unpublished Opinion No. 2024-UP-242
Submitted June 1, 2024 – Filed July 3, 2024

AFFIRMED

Leslie S. Lenhardt, of S.C. Environmental Law Project of
Pawleys Island, for Appellant.

Mary Duncan Shahid and Angelica M. Colwell, both of
Maynard Nexsen PC, of Charleston, for Respondent Bay
Point Island, LLC.

Christopher Patrick Whitehead and Sara Volk Martinez,
both of Columbia, for Respondent South Carolina
Department of Health and Environmental Control.
PER CURIAM: Gullah/Geechee Fishing Association, Inc. (GGFA) appeals the
Administrative Law Court's (ALC) order granting Bay Point Island, LLC's (Bay
Point) motion to dismiss. On appeal, GGFA argues the ALC erred in finding (1) it
lacked "procedural jurisdiction" to hear the case, (2) GGFA's Freedom of
Information Act (FOIA) request did not qualify it as an "affected person" under
section 44-1-60(E)(1) of the South Carolina Code (2018), and (3) GGFA's request
for the Department of Health and Environmental Control (DHEC) to review its
issuance of a septic tank permit to Bay Point was not timely. We affirm pursuant
to Rule 220(b), SCACR.

Initially, although GGFA contends that the burden of notification of septic tank
applications and permits should not be shifted to the public and that the ALC
ignored the intent of the legislature "by allowing an agency decision made behind
closed doors to go unchallenged," we hold these arguments are not preserved for
appellate review because they were not raised to and ruled on by the ALC. See
Brown v. S.C. Dep't of Health & Env't Control, 348 S.C. 507, 519, 560 S.E.2d 410,
417 (2002) (stating issues not raised to and ruled upon by the ALC are unpreserved
for appellate review).

Next, we hold the ALC did not err in granting Bay Point's motion to dismiss
because GGFA's Request for Review (RFR) was not timely filed. Although GGFA
contends its fifteen-day clock to file an RFR "technically never started running
because [GGFA] was never mailed notice of the permit decision," we hold GGFA
failed to show it was entitled to notice of the septic tank permit because it did not
communicate to DHEC that it was an "affected person who . . . requested in
writing to be notified" under section 44-1-60(E)(1). See S.C. Code Ann.
§ 1-23-610(B) (Supp. 2023) ("The review of the [ALC's] order must be confined to
the record."); Torrence v. S.C. Dep't of Corr., 433 S.C. 633, 643, 861 S.E.2d 36,
41-42 (Ct. App. 2021) ("Unless there is a compelling reason to the contrary,
appellate courts 'defer to an administrative agency's interpretations with respect to
the statutes entrusted to its administration or its own regulations.'" (quoting
Chapman v. S.C. Dep't of Soc. Servs., 420 S.C. 184, 188, 801 S.E.2d 401, 403 (Ct.
App. 2017))); S.C. Coastal Conservation League v. S.C. Dep't of Health & Env't
Control, 390 S.C. 418, 425, 702 S.E.2d 246, 250 (2010) ("Statutory interpretation
is a question of law."); § 44-1-60(E)(1) ("Notice of a department decision must be
sent by certified mail, returned receipt requested to the applicant, permittee,
licensee, and affected persons who have requested in writing to be notified."
(emphasis added)). Although GGFA asserts that there is not a stated procedure for
making an "affected persons" request under section 44-1-60(E)(1) and that the
ALC failed to consider the "practical impossibility" of making an affected person
request, the relevant statute—section 44-1-60(E)(1)—provides a process for
individuals to receive notification of DHEC department decisions; specifically, an
"affected person" must "request[] in writing to be notified." See § 44-1-60(E)(1)
("Notice of a department decision must be sent by certified mail, returned receipt
requested to the applicant, permittee, licensee, and affected persons who have
requested in writing to be notified."). Here, the only written communications
GGFA submitted to DHEC were two FOIA requests; however, neither FOIA
request comports with the requirements of the statute. See id. Specifically, neither
request submitted stated that GGFA wanted to be considered an "affected person"
under § 44-1-60(E)(1). 1 See S.C. Coastal Conservation League, 390 S.C. at
425-26, 702 S.E.2d at 250 ("[T]he words used in a statute must be given their
ordinary meaning. When a statute's terms are clear and unambiguous . . . there is
no room for statutory construction and a court must apply the statute according to
its literal meaning." (citation omitted)). Accordingly, when DHEC issued the
septic tank permit on September 23, 2021, the fifteen-day timeline for an RFR
began to run; thus, the GGFA's RFR submitted on November 9, 2021, was
untimely because it was more than fifteen days after notice of the staff decision
was mailed. See § 44-1-60(E)(2) ("The 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 accompanied by a filing fee
is filed with the department by the applicant, permittee, licensee, or affected
person.").

AFFIRMED. 2

THOMAS, MCDONALD, and VERDIN, JJ., concur.

1
We acknowledge there are arguments related to whether DHEC failed to
accurately disclose the existence of public records in its possession following
GGFA's second FOIA request; however, any allegations that DHEC violated the
FOIA statute are not properly before this court. See S.C. Code Ann. § 30-4-100(A)
(Supp. 2023) ("A citizen of the State may apply to the circuit court for a
declaratory judgment, injunctive relief, or both, to enforce provisions of [FOIA]
. . . .").
2
We decide this case without oral argument pursuant to Rule 215, SCACR.