ORDERS:
ORDER OF DISMISSAL
STATEMENT
OF THE CASE
This
matter is before me on a Motion to Dismiss filed by the South Carolina
Department of Health and Environmental Control (“Department”), Office of Ocean
and Coastal Resource Management (“OCRM”). The Department seeks dismissal of
this case for lack of jurisdiction due to Petitioner’s failure to file a
written request for final review of the agency staff decision within 15 days
after receiving notice of the decision as described in S.C. Code Ann. §
44-1-60(E) (Supp. 2006). Upon review of the aforementioned Motion and Petitioner’s
Brief in Opposition to Motion to Dismiss and the Department’s response thereto,
I find that this Court lacks jurisdiction to hear the matter.
BACKGROUND
OCRM
issued an amended Critical Area Permit to Petitioner on September 7, 2006, and
Petitioner received notice of the same on September 13, 2006. Subsequently, Petitioner
filed a written request for final review to the Board of Health and
Environmental Control (“Board”) on October 9, 2006. The Board declined to
review the matter on the basis that the appeal was untimely.
DISCUSSION
The controlling
statute is section 44-1-60(E) which provides, in part,
The department
decision becomes the final agency decision fifteen days after
notice of the department decision has been mailed to the applicant, unless
a written request for final review is filed with the department by the
applicant, permittee, licensee or affected person.
S.C. Code Ann. § 44-1-60(emphasis
added).
Section
44-1-60 was added to the Code by Act 387 of 2006, § 48.
Subsection (F) of the statute provides for a final review conference conducted
by the Board and for the Administrative Law Court’s review of the Board’s
decision.
Petitioner
argues that section 44-1-60 gives an affected party the option of seeking
review with the Board or waiting until the Department’s staff decision becomes
the final agency decision pursuant to subsection (E) and then seeking review
with this Court. However, such an interpretation of the statute is
inconsistent with the intent behind Act 387 to provide
a uniform procedure for contested cases and appeals from administrative
agencies. See Act 387 of 2006, § 53.
Further,
the language of section 44-1-60 as a whole clearly shows that the legislature
intended to require any affected person to first seek Board review before
seeking review by the Administrative Law Court. Therefore, a reasonable interpretation of the
language in subsection (E) that "The department decision becomes the final
agency decision" is that if the decision is not challenged within the allotted
fifteen days, the affected person has waived his right to review. It logically
follows that any jurisdiction that the Board or, ultimately, the Administrative
Law Court, has to review that decision is extinguished by the affected person’s
failure to perfect his right to review. Cf. Mears v. Mears,
287 S.C. 168, 337 S.E.2d 206 (1985) (applying appellate court rules and finding
lack of jurisdiction for failure to serve a notice of intent to appeal in a
timely manner). Therefore,
in the absence of a timely request for final review under subsection (E), the
instant matter ended, at the latest, 15 days after Petitioner
received notice of the granting of the permit on September 13, 2006.
Based
on the foregoing, I conclude that this Court lacks jurisdiction to hear this matter
due to Petitioner’s failure to file a written request for Board review within
15 days after receiving notice of the Department’s staff decision.
ORDER
IT
IS THERFORE ORDERED that this proceeding be, and hereby is, DISMISSED,
WITH PREJUDICE.
AND
IT IS SO ORDERED.
__________________________________
JOHN D. MCLEOD
Administrative
Law Judge
December 21, 2007
Columbia, South Carolina.
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