The South Carolina Department of
Health and Environmental Control (DHEC) asserts Don Acevedo (Acevedo) violated
regulations governing water pollution control permits and violated the
Pollution Control Act by discharging sediment into the waters of the State.
Acevedo disagrees and filed a request for a contested case seeking to challenge
DHEC's determinations.
Prior to this matter being set
for a merits hearing, DHEC filed a Motion to Dismiss Acevedo's action on the
ground that the Administrative Law Court (ALC) lacks jurisdiction since Acevedo
failed to timely file a request for a contested case. Acevedo has responded by
asserting that the allegations made by DHEC should be dismissed since he is not
affiliated with Sharon Homes and is not the party who committed any of the
alleged violations.
Having reviewed the documents
submitted and considering the arguments made, the Motion to Dismiss filed by
DHEC must be granted.
Although subject matter
jurisdiction is essentially a question of law (see Bridges v. Wyandotte
Worsted Co., 243 S.C. 1, 132 S.E.2d 18 (1963), overruled on other
grounds, Sabb v. South Carolina State University, 350 S.C. 416,
567 S.E.2d 231 (2002)), if factual determinations are necessary to resolve
jurisdiction, the court may rely upon the facts placed before it. See Graham
v. Lloyd's of London, 296 S.C. 249, 251, 371 S.E.2d 801, 802 n. 1
(Ct.App.1988) ("When the issue is the existence of jurisdiction in fact,
the court is not confined to the allegations of the complaint, but may resort
to affidavits or other evidence to determine its jurisdiction."). Here,
the parties have provided the factual material needed to determine
jurisdiction.
A. Factual Background
Acevedo signed an application
seeking a permit from DHEC allowing the disturbance of land during construction
of a real estate development site and allowing the discharge of storm water
into the waters of the State. DHEC issued the requested permit.
DHEC's investigation of the
construction site caused DHEC to find violations of regulations governing water
pollution control permits and violations of the Pollution Control Act for
improperly discharging sediment into the waters of the State. As a result,
DHEC executed an Administrative Order on September 4, 2004 in which it detailed
the violations. On September 14, 2004, DHEC sent the order to Acevedo by
certified mail‑return receipt requested. In addition, DHEC sent the
order by non‑certified mail to Acevedo's attorney.
The order sent to Acevedo was
unclaimed and resulted in the document being returned to the Department on
October 4, 2004. However, the order sent to Acevedo's attorney was received.
In fact, as a result of receiving the order, Acevedo's attorney filed a request
for a contested case with the Administrative Law Court on October 1, 2004.
However, no request for a contested case was filed with DHEC.
B. Application of Law to Facts
The provisions of ALC Rule 11 as
it existed on October 1, 2004 stated that "the request for a contested
case hearing shall be filed with the affected agency within thirty (30) days
after actual or constructive notice of the agency decision unless otherwise
provided by statute." Here, no statute provides any other means for
requesting a contested case. Thus, to invoke the jurisdiction of the ALC, the
request for a contested case must have been filed with DHEC and must have been
filed within 30 days of the October 1, 2004 notice to Acevedo.
Under the facts of this case,
since Acevedo's attorney filed a request for a contested case with the ALC on
October 1, 2004, Acevedo plainly had notice of the DHEC order no later than
October 1, 2004. Thus, to invoke the jurisdiction of the ALC, Acevedo must
have requested a contested case from DHEC by November 1, 2004.
However, the facts in this case
establish that no request for a contested case was filed with DHEC. Rather,
the uncontradicted affidavit from the Clerk for the DHEC Board establishes that
no request was filed with the DHEC Board by November 1, 2004. Thus, this
matter must be dismissed since a late filing fails to satisfy the
jurisdictional requirements and prevents invoking the jurisdictional authority
of the ALC. Mears v. Mears, 287 S.C. 168, 337 S.E.2d 206 (1985); Burnett v. South Carolina State Highway Dept., 252 S.C. 568, 167
S.E.2d 571 (1969); Stroup v. Duke Power Co, 216 S.C. 79, 56
S.E.2d 745 (1949).
Acevedo's assertion that he has
no affiliation with Sharon Homes is unavailing. Rather, notice was properly
directed to Acevedo since he signed the document seeking the permit which DHEC
granted to allow the disturbance of land and the discharge of storm water.
Thus, having signed as a party requesting the permit, Acevedo cannot now
disavow responsibility for the violations of the permit.
III. Order
Since the ALC's jurisdiction has
not been invoked, DHEC's Motion to Dismss Acevedo's contested case is granted.
Therefore, this matter is ended.
AND IT IS SO ORDERED.
__________________________________
RAY N. STEVENS
Administrative
Law Judge
Dated: December 21, 2005
Columbia, SC