Duke Energy Carolinas, LLC v. South Carolina Department of Health & Environmental Control

744 S.E.2d 194, 404 S.C. 119
CourtCourt of Appeals of South Carolina
DecidedDecember 12, 2012
DocketAppellate Case No.2010-166486; No. 5062
StatusPublished
Cited by1 cases

This text of 744 S.E.2d 194 (Duke Energy Carolinas, LLC v. South Carolina Department of Health & Environmental Control) is published on Counsel Stack Legal Research, covering Court of Appeals of South Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Duke Energy Carolinas, LLC v. South Carolina Department of Health & Environmental Control, 744 S.E.2d 194, 404 S.C. 119 (S.C. Ct. App. 2012).

Opinions

LOCKEMY, J.

In this administrative action, South Carolina Department of Health and Environmental Control (DHEC) appeals the administrative law court’s (ALC) decision, arguing that the ALC erred in finding: (1) DHEC’s review of Duke Energy Carolinas, LLC’s (Duke) water quality certification application was not timely and (2) DHEC waived its right to issue a water quality certification to Duke. American Rivers and South Carolina Coastal Conservation League (Coastal Conservation) (collectively Conservation Groups) also appeal the ALC’s decision and contend the ALC erred in: (1) refusing to give effect to Regulation 61-30; (2) finding DHEC’s decision untimely; (3) misconstruing Regulation 61-101; (4) ignoring facts that showed Duke was estopped from arguing DHEC’s decision was untimely; and (5) failing to find that Duke waived any challenge to DHEC’s certification decision and the State’s certification authority.1 We reverse and remand.

FACTS

We first review the relevant statutory framework for these facts. Section 401 of the Clean Water Act (CWA), 33 U.S.C. §§ 1251-1387 (2010), “requires States to provide a water quality certification [WQC] before a federal license or permit can be issued for activities that may result in any discharge into intrastate navigable waters.” PUD No. 1 of Jefferson [122]*122Cnty. v. Wash. Dep’t of Ecology, 511 U.S. 700, 707, 114 S.Ct. 1900, 128 L.Ed.2d 716 (1994); see 33 U.S.C. § 1341 (2010). States “shall establish procedures for public notice in the case of all applications for certification by it and, to the extent it deems appropriate, procedures for public hearings in connection with specific applications.” 33 U.S.C. § 1341(a)(1). Further, section 401 of the CWA provides:

If the State ... fails or refuses to act on a request for certification, within a reasonable period of time (which shall not exceed one year) after receipt of such request, the certification requirements of this subsection shall be waived with respect to such Federal application. No license or permit shall be granted until the certification required by this section has been obtained or has been waived as provided in the preceding sentence.

Id.

“The Pollution Control Act [PCA] empowers DHEC to ‘take all action necessary or appropriate to secure to this [s]tate the benefits of the Federal [CWA].’” S.C.Code Ann. § 48-1-50(17) (Rev.2008). Section 48-1-30 of the South Carolina Code (Rev.2008) authorizes generally that DHEC shall promulgate regulations guiding the procedures for permits under the PCA. Regulation 61-101was then promulgated pursuant to section 48-1-30 to establish procedures and policies for implementing the WQC requirements of Section 401 of the CWA. S.C.Code Ann. Regs. 61-101 (Supp.2011); S.C. Coastal Conservation League v. S.C. Dep’t of Health and Envtl. Control, 390 S.C. 418, 430, 702 S.E.2d 246, 253 (2010).

Regulation 61-101 requires that any applicant for a federal license or permit, including those issued by Federal Energy Regulatory Commission (FERC), to conduct any activity which during construction or operation may result in any discharge in navigable waters, must obtain a water quality certification from DHEC. S.C.Code Ann. Regs. 61-101(A)(2). Further, it establishes a time frame for review of the applications, stating

[DHEC] is required by Federal law to issue, deny, or waive certification for Federal licenses or permits within one (1) year of acceptance of a completed application unless processing of the application is suspended. If the Federal [123]*123permitting or licensing agency suspends processing of the application on request of the applicant or [DHEC] or of its own volition, suspension of processing of application for certification -will also occur, unless specified otherwise in writing by [DHEC]. Unless otherwise suspended or specified in this regulation, [DHEC] shall issue a proposed decision on all applications within 180 days of acceptance or an application.

S.C.Code Ann. Regs. 61-101(A)(6). Review can begin when an applicant has presented DHEC with a complete application in the manner specified by Regulation 61-101. S.C.Code Ann. Regs. 61-101(C)(1). An application must contain the names and addresses of adjacent property owners. S.C.Code Ann. Regs. 61 — 101(C)(1)(f).

Regulation 61 — 101(C)(2) states

[i]f [DHEC] does not request additional information within ten (10) days of receipt of the application or joint public notice, the application will be deemed complete for processing; however, additional information may still be requested of the applicant within sixty (60) days of receipt of the application.
Moreover, Regulation 61-101(C)(4) provides [w]hen [DHEC] requests additional information it will specify a time for submittal of such information. If the information is not timely submitted and is necessary for reaching a certification decision, certification will be denied without prejudice or processing will be suspended upon notification to the applicant by [DHEC]. Any subsequent resubmittal will be considered a new application.

The Environmental Protection Fund Act (Fund Act), sections 48-2-10 to 48-2-90 of the South Carolina Code (Rev.2008 & Supp.2011), was enacted for the purpose of creating a fund whose “monies must be used for improved performance in permitting, certification, licensing, monitoring, investigating, enforcing, and administering [DHEC’s] functions.” S.C.Code Ann. § 48-2-40 (Rev.2008). The Fund Act applies to the processing of all environmental permits, licenses, certificates, and registrations authorized by the PCA, Clean Air Act, Safe Drinking Water Act, Hazardous Waste Management Act, Atomic Energy Act, and the Oil and Gas Act. S.C.Code Ann. [124]*124§ 48-2-30(B) (Rev.2008 & Supp.2011). WQCs are also covered by the Fund Act. S.C.Code Ann. § 48 — 2—50(H)(1)(b) (Supp.2011).

The Fund Act contains a provision entitled, “Processing of permit application; maximum time for review,” which mandates that DHEC promulgate regulations governing the timeliness, thoroughness, and completeness of DHEC’s processing of application subject to the Fund Act. S.C.Code Ann. § 48-2-70 (Rev.2008). Section 48-2-70 states

[ujnder each program for which a permit processing fee is established pursuant to this article, the promulgating authority also shall establish by regulation a schedule for timely action by [DHEC] on permit applications under that program. These schedules shall contain criteria for determining in a timely manner when an application is complete and the maximum length of time necessary and appropriate for a thorough and prompt review of each category of permit applications and shall take into account the nature and complexity of permit application review required by the act under which the permit is sought.

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744 S.E.2d 194, 404 S.C. 119, Counsel Stack Legal Research, https://law.counselstack.com/opinion/duke-energy-carolinas-llc-v-south-carolina-department-of-health-scctapp-2012.