ORDERS:
ORDER GRANTING MOTION TO DISMISS
I. Introduction
This matter is a Motion to Dismiss filed by the South Carolina Department of Health and Environmental
Control (DHEC). The motion was heard in a telephone conference held on August 30, 2001 with all parties
present and participating.
DHEC argues that no jurisdiction exists in the Administrative Law Judge Division (ALJD) since BBA
Nonwovens Simpsonville, Inc (BBA) failed to timely file its request for a contested case. After considering
the arguments presented, I find that the jurisdiction of the ALJD has not been invoked, and the Motion to
Dismiss is granted.
II. Jurisdictional Facts (1)
On March 28, 2001 DHEC published its "Notice of Proposed Issuance of a Part 70 Air Quality (Title V
Operating) Permit" in the Simpsonville Tribune Times. The advertisement is headed "Notice of Proposed
Issuance" and gives the permit type and the name and address of Para-Chem as the party who will obtain
the permit. The body of the advertisement explains that "[a] determination has been made that the facility
will comply with applicable State and Federal Air Quality Regulations when operated in accordance with
conditions contained in the draft permit." Further, the advertisement invites "[i]nterested persons . . . to
review the materials submitted by [Para-Chem]." The notice explains that a permit "has been drafted and, if
approved, will allow" Para-Chem to operate under the permit.
On June 11, 2001, DHEC issued a Part 70 Air Quality Permit to Para-Chem. The permit states that Para-Chem
"is hereby granted permission to discharge air contaminants into the ambient air" and the permit is signed
by an official of DHEC.
On July 16, 2001 an official of DHEC orally acknowledged to BBA that DHEC had issued the disputed
permit to Para-Chem. However, on that date, no copy of the permit was available and a copy was not
provided to BBA until July 17, 2001.
Finally, on July 30, 2001, by mail directed to the Clerk of the DHEC Board, BBA requested a contested
case. The request was received by the DHEC Board Clerk on July 31, 2001.
III. Issue
DHEC moves to dismiss BBA's request for an administrative hearing on the ground that BBA failed to
timely file its request for a contested case. As a result, DHEC believes the contested case jurisdiction of
the ALJD has not been invoked and that the Motion to Dismiss should be granted. Thus, the issue is whether
BBA made a timely request for a contested case hearing.
IV. Analysis
The importance of timely filing a request for a hearing cannot be overstated since a late filing denies
jurisdiction to the adjudicating body. 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).
A. Applicable Time Period For Filing Request
To be timely, BBA must file within the jurisdictional demands of the applicable time frame. DHEC asserts
that the applicable time frame within which BBA must file the request for a contested case is set forth in
Regulation 61-72, § 201A, which sets a time frame as follows:
Any person may request an adjudicatory hearing by filing a Petition for Administrative Review with the
Clerk of the Board. Any such Petition must be filed within 15 days, or other period provided by law,
following actual or constructive notice of a final staff decision on a licensing matter as defined above, or
following receipt of an administrative order.
However, a second time frame established by amended ALJD Rule 11, effective May 1, 2001, establishes the
following:
In all contested cases except county tax matters, the request for a contested case hearing shall be filed
with the affected agency within thirty (30) days after receipt of the agency decision unless otherwise
provided by statute.
Thus, ALJD Rule 11 and § 201A of Regulation 61-72 provide differing time limits in which to take action.
Since both Regs. 61-72 and ALJD Rule 11 address the same subject matter, are in apparent conflict, and are
equivalent to legislative pronouncements, (2) it must be determined whether the two can be harmonized or
whether one must necessarily supersede the other.
ALJD Rule 11 imposes a thirty day limit after receipt of the agency decision, unless otherwise provided by
statute. No statute exists in the instant case to provide a different time period. On the other hand,
Regulation 61-72 imposes a fifteen day limit in which to file a request for a contested case, "or other period
provided by law." Since ALJD Rule 11 sets a time period "provided by law," the potential conflict between
the two rules is harmonized by Regs. 61-72 specifically making provisions for ALJD Rule 11. Accordingly,
the time frame of ALJD Rule 11 applies to the instant case.
In addition, even if the two could be viewed as being incapable of being harmonized, ALJD Rule 11 would
supersede Regs. 61-72. Such is borne out by the legislative history creating the ALJD and its rules.
The ALJD replaced DHEC as the entity to hold contested case hearings. S.C. Code Ann. § 1-23-500 (Supp.
2000); 1-23-600(B) (Supp. 2000). Notably, the promulgation of Regulation 61-72 pre-dates the creation of the
ALJD and the legislation requiring creation of the ALJD Rules. (3) Further, the ALJD Rules were first
promulgated effective May 3, 1995 with the last amendments being effective May 1, 2001. The 2001
amendments substantially changed ALJD Rule 11, which had formerly retained the affected agencies'
respective time limits for filing a request for a contested case.
Thus, the ALJD Rules and its subsequent amendments were promulgated later in time than Regulation 61-72. Therefore, to the extent that the two conflict, the provisions of the ALJD Rules supersede those of
Regulation 61-72. See TNS Mills, Inc. v. South Carolina Dep't of Revenue, 331 S.C. 611, 620, 503 S.E.2d 471,
476 (1998) (When construing a statute, court must presume the legislature did not intend a futile act but
rather intended its statutes to accomplish something); Williams v. Town of Hilton Head Island, 311 S.C.
417, 429 S.E.2d 802 (1993) (where it is not possible to harmonize two statutes, the later enactment
supersedes the earlier legislation); State v. Gibbs, Op. No. 3371 (S.C.Ct.App. filed July 16, 2001) (Shearouse
Adv.Sh. No. 25 at 84) (rules of statutory construction apply to rules of procedure). Therefore, the time
limit for requesting a contested case set forth in ALJD Rule 11 must take precedence over the time limit in
Regulation 61-72.
B. Meeting the Time Period Imposed By ALJD Rule 11
Applying the time frame of ALJD Rule 11 requires determining three elements: a beginning event, an ending
event, and a maximum time period allowed between the two. The beginning point is the date of receipt of
the agency decision, unless otherwise provided by statute. The ending event is the date of filing with the
affected agency, here, the Clerk of the DHEC Board. Finally, the maximum time period allowed between
the beginning and the ending events is thirty days.
1. Ending Event
The date of the ending event is July 30, 2001, the date the request was filed with the Clerk of the Board. (4) Therefore, the beginning event can not have occurred more than thirty days before July 30, 2001; i.e., June
30, 2001. For the reasons that follow, I conclude that the beginning event occurred on June 18, 2001, and
therefore BBA's filing was not timely.
2. The Beginning Event
a. Construction of ALJD Rule 11
The beginning event must be the date of "receipt of the agency decision unless otherwise provided by
statute." ALJD Rule 11. There is no applicable statute providing a time limit within which a request for a
contested case on the disputed permit must be made. Therefore, the thirty day limit of ALJD Rule 11 applies.
BBA argues that July 16, 2001, the date that it learned of DHEC's issuance of the disputed permit, is the
controlling date for setting the beginning event. I disagree.
Determining "receipt of the agency decision" under ALJD Rule 11 is straightforward when applied to a
permit applicant. Typically, the permit applicant automatically receives the agency decision soon after
the decision is made.
Persons not requesting a permit but who may have an interest in the permit issuance do not automatically
receive a copy of the agency decision unless they are already on a designated mailing list. In fact, it is
conceivable that such a person may never receive the agency decision in the literal sense. However, when a
person who does not automatically receive the agency decision, such as BBA, requests a contested case
hearing, ALJD Rule 11 must be construed to impose a reasonableness requirement on the part of the person
requesting the hearing. See South Carolina Department of Transportation v. Faulkenberry, 337 S.C. 140,
522 S.E.2d 822 (Ct. App. 1999) ("In construing a statute, this court will reject any interpretation that leads
to an unreasonable result."); City of Camden v. Brassell, 326 S.C. 556, 486 S.E.2d 492 (Ct. App. 1997) ("The
statute as a whole must receive practical, reasonable, and fair interpretation consonant with the purpose,
design, and policy of lawmakers.").
Imposing a reasonableness requirement on the part of the person requesting the contested case hearing
involves examining what steps a reasonable person would take under the circumstances to obtain receipt
of the decision. Where the surrounding circumstances place the person on a duty to inquire as to the
status of a permit application and to request written notice of an upcoming decision on the permit
application, that person is deemed to have constructive receipt of the agency's decision within a
reasonable time after the decision is issued. (5) In other words, if circumstances are such that the person
could have taken steps to ensure that he received written notice of the agency decision within a
reasonable time after its issuance, but he failed to do so, he is deemed to have received that decision (for
purposes of ALJD Rule 11) within a reasonable time after its issuance. (6)
To construe ALJD Rule 11 otherwise would lead to an unacceptably absurd result which could postpone
the finality of a permitting decision for an unacceptable amount of time. (7) Such a result could not have
been intended by the legislature when it approved the promulgation of this rule. See Kiriakides v. United
Artists Communications, Inc., 312 S.C. 271, 440 S.E.2d 364 (1994) (the court should reject a meaning when to
accept it would lead to a result so plainly absurd that it could not have been intended by the legislature).
b. Application of ALJD Rule 11 to this case
In the instant case, DHEC provided public notice on March 28, 2001 in the Simpsonville Tribune Times of
DHEC's intention to issue the permit requested by Para-Chem. DHEC asserts that the advertisement placed
a duty of inquiry upon BBA. DHEC then argues that BBA made no inquiry, but asserts that if such an
inquiry had been made, BBA would have learned of the request for the permit and would have known that
a permit was likely to be issued. (8)
I agree with DHEC, and I further conclude that once BBA had a duty of inquiry, BBA should have
requested that it be placed on a mailing list to receive written notice of the permit decision pursuant to
Regs. 61-62.70.7(h). (9)
In this case, by means of DHEC's public advertisement on March 28, 2001, BBA had information that placed
a duty of inquiry on it. Had BBA used due diligence in pursuing its duty of inquiry, BBA would have
received written notice of DHEC's June 11, 2001 decision to issue a permit within a reasonable time after
June 11, 2001. A reasonable time after June 11, 2001 allows five days for mailing, or June 16, 2001. See ALJD
Rule 3(C). Also, because June 16, 2001 fell on a Saturday, it is fair to consider the following business day,
June 18, 2001 as the beginning event, the day on which the thirty days would start to run. See ALJD Rule
3(A).
Accordingly, BBA had thirty days from June 18, 2001 in which to request a contested case. BBA did not
request a contested case within that period, as it did not file its request until July 30, 2001. Therefore, the
jurisdiction of the ALJD has not been invoked.
c. Adequacy of public advertisement
In defense, BBA argues that the public notice of March 28, 2001 was inadequate to place upon BBA a duty of
inquiry. The inadequacy alleged is that the Simpsonville Tribune Times is not a newspaper of "general
circulation in the area where the source is located." (10) See Regs. 61-62.70.7(h). In support, BBA argues that
the Tribune Times is a "specialty publication" owned by the Greenville News. Further, BBA argues the Tribune Times "is published one day a week and is distributed to a limited population of Greenville County." I
find the Simpsonville Tribune Times is a newspaper of "general circulation in the area where the source is
located" and thus provided BBA with a duty of inquiry on March 28, 2001.
BBA's argument that the Tribune Times has a distribution to a "limited population of Greenville County"
implies that the advertisement in the instant case would be adequate only if placed with the Greenville
News, a newspaper having a larger circulation throughout Greenville County. I disagree.
The mere fact that another newspaper has a greater circulation does not disqualify an otherwise
qualifying newspaper. See, e.g., Foster v. Anable, 19 P.3d 630 (Ariz.App. Div. 1 2001) (choice of newspaper of
general circulation "does not require that it be the newspaper with the largest circulation."). Here all
that Regs. 61-62.70.7(h) requires is that the newspaper have a "general circulation in the area where the
source is located." (Emphasis added). In this case, the source is located in Simpsonville and the newspaper
chosen is one of general circulation in Simpsonville. Thus, a newspaper having a circulation in the
Simpsonville area is proper. See, e.g., People ex rel. Toman v. 110 South Dearborn Street Bldg. Corp., 24
N.E.2d 373 (1939) (where the argument that the circulation of the newspaper could not be limited to a small
portion of a political subdivision but must be general throughout the political subdivision was rejected
since to require such "is to require something that is not in the statute.")
BBA also refers to the Tribune Times as a "specialty publication." While not argued directly, such suggests
that the publication is either not a newspaper or, if it is a newspaper, the circulation is not one that is
general.
A newspaper has long been understood to be "a publication issued at regular stated intervals, containing,
among other things, the current news." Ruth v. Ruth, 79 N.E. 523 (Ind.App. 2 Div. 1906). Here, the exhibits
filed show that the Tribune Times carries current news. Further, the parties all agree that the newspaper
is published at stated intervals of one day each week.
In addition, the Tribune Times has a "general circulation." A newspaper has a "general" circulation when
its content appeals to the general public as opposed to a speciality group such as the construction trade,
textiles etc. Great Southern Media v. McDowell County, 304 N.C. 427, 284 S.E.2d 457 (1981). Here, as the
exhibits show, the Tribune Times carries general news relevant to the area it serves, Simpsonville. The
residents of Simpsonville comprise a significant segment of the population so as to warrant being
designated "the general public" as opposed to a speciality group.
Finally, the fact that the Tribune Times is published once a week is of no consequence. The regulation does
not require a daily newspaper. Indeed, newspapers of general circulation are commonly published on a
daily or weekly basis. Thus, the weekly nature of the Tribune Times does not prevent it from being a
newspaper of general circulation.
C. Conclusion as to Jurisdiction
In the instant case, ALJD Rule 11 required the request for a contested case to have been filed with DHEC
within thirty days after BBA's receipt of the agency decision. In the instant case, the March 28, 2001 public
advertisement of DHEC's intention to issue the disputed permit placed a duty of inquiry on BBA. BBA was
then required to take reasonable steps to ensure that it could obtain written notice of the upcoming
agency decision within a reasonable time after its issuance. Therefore, BBA is deemed to have received the
agency decision within one week after its June 11, 2001 issuance, June 18, 2001, and the request for a
contested case should have been filed within thirty days of that date. Because the request was not filed
until July 30, 2001, the jurisdiction of the ALJD has not been invoked.
V. Order
BBA did not timely file a request for a contested case hearing. Thus, the ALJD's jurisdiction has not been
invoked, and the Motion to Dismiss is granted.
AND IT IS SO ORDERED
RAY N. STEVENS
Administrative Law Judge
Dated: September 7, 2001
Columbia, South Carolina
1. 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)), 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 documents needed
to determine jurisdiction.
2. S.C. Code Ann. § 48-1-30 requires DHEC to promulgate regulations, approved by the General Assembly, to govern the
procedure of the Department with respect to the issuance of permits. S.C. Code Ann. § 1-23-650 requires the ALJD to
promulgate rules, approved by the General Assembly, governing practice and procedure before the Division.
3. Regulation 61-72 was last amended in 1993 (effective April 23, 1993) and the statute requiring this regulation, § 48-1-30,
was enacted in 1962 and last amended in 1978. On the other hand, section 1-23-500, which created the ALJD, was enacted
effective July 1, 1993 and amended effective June 16, 1994. Section 1-23-650, which requires promulgation of the
Division's rules, was enacted effective July 1, 1993 and was last amended in 1998.
4. ALJD Rule 4(C) provides that the date of filing is the date of delivery or the date of mailing. BBA mailed the request for
a contested case on July 30, 2001.
5. Where prior to issuance of the decision, a person requests to be placed on a mailing list or otherwise exercises due
diligence, the actual date of receipt of the agency decision will be used in determining the timeliness of a request for a
contested case.
6. A reasonable time after the decision is issued is five days. See ALJD Rule 3(C) ("Whenever a party has the right or is
required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper
upon him and the notice or paper is served upon him by mail . . . five days shall be added to the prescribed period.").
7.
For example, assume on January 2, 2001, X requests a permit from DHEC. No opposition is expressed by anyone during
a three month DHEC review. On April 2, 2001, DHEC grants the permit. Construction begins thirty-one days later with
completion on September 30, 2001 at a cost of $1,000,000. On March 3, 2002, Y receives a copy of the agency decision
and files a request for a contested case on April 1, 2002. To hold X at risk under such circumstances is grossly
unreasonable. Rather, Y should be held to a time frame based upon constructive receipt of the DHEC decision, which is to
be determined by examining what steps, if any, a reasonable person would take under the circumstances to obtain receipt of
the decision.
8. The advertisement is headed "Notice of Proposed Issuance" and gives the permit type and the name and address of Para-Chem as the party who will obtain the permit. The body of the advertisement explains that "[a] determination has been
made that the facility will comply with applicable State and Federal Air Quality Regulations when operated in accordance
with conditions contained in the draft permit." Further, the advertisement invites "[i]nterested persons . . . to review the
materials submitted by [Para-Chem]."
9. The relevant language of Regs. 61-62.70.7(h) is as follows:
Public participation. Except for modifications qualifying for minor permit modification procedures, all permit proceedings,
including initial permit issuance, significant modifications, and renewals, shall provide adequate procedures for public
notice including offering an opportunity for public comment and a hearing on the draft permit. These procedures shall
include the following:
(1) Notice shall be given: by publication in a newspaper of general circulation in the area where the source is located or in a
State publication designed to give general public notice; to persons on a mailing list developed by the Department, including those who request in writing to be on the list; and by other means if necessary to assure adequate notice to the
affected public.
(emphasis added).
10. I find BBA's other arguments of "inadequacy" to lack merit. The fact that the advertisement did not list the applicant as
a superfund site and did not include "all relevant information" does not establish an inadequate advertisement. Rather, the
advertisement need only identify "the name, address, and telephone number of a person from whom interested persons may
obtain additional information, including copies of . . ., all relevant supporting materials, . . . and all other materials
available to the Department that are relevant to the permit decision;" The advertisement meets these conditions. Likewise,
Para-Chem had no affirmative duty to notify BBA, and the fact that the Greenville office took an extra day to obtain the
permit once requested is of no significance. |