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2011-UP-380 - 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Unpublished Opinion No. 2011-UP-380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.