SC Administrative Law Court Decisions

FACTS

The Department issued State Agricultural Permit # 18,995-AG to Wang on November 2, 2005 with an effective date of December 7, 2005. On March 23, 2006, the Petitioners filed a Petition for Administrative Review with the Administrative Law Court. On October 26, 2006, Chief Administrative Law Judge Marvin F. Kittrell dismissed Petitioners’ appeal on the basis that the court did not have jurisdiction because the appeal was untimely. On November 21, 2006, Petitioners appealed to the DHEC Board.

On May 9, 2007, the Board affirmed the ALC’s decision. On June 8, 2007, the Petitioners filed an appeal of the Board’s order in Richland County Circuit Court. On January 30, 2008, Judge J. Michelle Childs dismissed the appeal. On January 30, 2008, Judge J. Michelle Childs granted the Department’s and Wang’s motions to dismiss on two bases. First, under 2006 Act No. 387, the Circuit Court did not have jurisdiction to hear appeals of orders issued by the DHEC Board. Second, Judge Childs held that the Circuit Court did not have jurisdiction, because even if the Circuit Court was the correct court to hear the appeal, counsel for Petitioners failed to serve notice of appeal of the issuance of the permit within thirty days as required by Rule 74, SCRCP.

Petitioners did not appeal the Circuit Court’s dismissal. Instead, Petitioners’ counsel asked DHEC legal counsel for an opinion regarding whether the permit had expired on December 7, 2007. On February 26, 2008, DHEC responded to Petitioners’ counsel, stating that DHEC interpreted the agricultural permit regulations to prohibit a permittee from beginning construction on a facility until all appeals were final. Petitioners requested a final review conference by the Board of Health and Environmental Control (Board) on March 7, 2008 alleging that a DHEC staff decision was reflected in a February 26, 2008, letter from the Office of General Counsel to Petitioners’ counsel, and their opinion was a staff determination. On April 17, 2008, the Board decided not to conduct a final review conference in this case[1]. On May 14, 2008, Petitioners filed a Petition for Administrative Review of the alleged Department decision.

ANALYSIS

The letter that was sent to Mr. Robert Guild, Counsel for Petitioners, on February 26, 2008, was in response to his specific request for a legal opinion regarding whether or not the agricultural permit granted by DHEC to Wang had expired. Under S.C. Code Ann. § 44-1-60(A) (Supp. 2007), “[a]ll department decisions involving the issuance, denial, renewal, suspension, or revocation of permits, licenses, or other actions of the department which may give rise to a contested case shall be made using the procedures set forth therein. S.C. Code Ann. § 44-1-60(C) (Supp. 2007) states, “the initial decision involving the issuance, denial, renewal, suspension, or revocation of permits, licenses, or other action of the department shall be a staff decision.”(emphasis added).

The letter of February 26, 2008 provided by the Office of General Counsel was a legal interpretation of S.C. Code Ann. Reg. 61-43 regarding the effectiveness of the agricultural permit once the appellate process came to an end, not a staff decision. A legal opinion is not an essential component of an agency’s decision, is ordinarily not prerequisite to agency decision making and is only advice. In this case, the advice was not given to an agency decision maker, but instead to the Requestor’s counsel – a request apparently made solely for the purpose of attempting to create a right of appeal. The ALC does not have jurisdiction to review a legal opinion by the Department interpreting a regulation. Paralyzed Veterans of America v. Secretary of Veterans Affairs, 308 F.3d 1262 (D.C. Cir. 2002).

Expiration Date of a Permit

Even if the opinion had come from a program staff person, it would still not be subject to a final review conference or other appeal. Although the permit stated on its face that if the permittee did not begin construction by December 7, 2007 and complete construction by December 7, 2008, the permit would expire, under S.C. Code Ann. Reg. 61-43.200.70(K) an animal facility can be built only when the permit is effective with no appeals pending. Under S.C. Code Ann. Reg. 61-43.200.70(K), “The animal facility, lagoon, treatment system, or manure storage pond can be built only when the permit is effective with no appeals pending. The facility cannot be placed into operation until the Department grants written authorization to begin operations.” Since appeals were pending until the Petitioners failed to appeal the Circuit Court’s order of dismissal within thirty days, the permit became final or effective on March 7, 2008. The regulation provides that a permittee must begin construction within two years of the effective date and complete construction within three years.

ORDER

IT IS HEREBY ORDERED that Respondent South Carolina Department of Health and Environmental Control’s Motion to Dismiss is granted.

AND IT IS SO ORDERED.

______________________________

CAROLYN C. MATTHEWS

SC Administrative Law Judge

Edgar Brown Building

1205 Pendleton Street, Suite 224

Columbia, SC 29201

September 26, 2008

Columbia, South Carolina