South Carolina              
Administrative Law Court
Edgar A. Brown building 1205 Pendleton St., Suite 224 Columbia, SC 29201 Voice: (803) 734-0550

SC Administrative Law Court Decisions

CAPTION:
Bennie and Gail Unsworth, Michael and Janet Maerz, Walter and Elizabeth Marsh, and Daniel W. Davis, MD vs. DHEC and Leverne Berry

AGENCY:
South Carolina Department of Health and Environmental Control

PARTIES:
Petitioners:
Bennie and Gail Unsworth, Michael and Janet Maerz, Walter and Elizabeth Marsh, and Daniel W. Davis, MD

Respondents:
South Carolina Department of Health and Environmental Control and Leverne Berry
 
DOCKET NUMBER:
03-ALJ-17-0037-CC

APPEARANCES:
n/a
 

ORDERS:

ORDER OF DISMISSAL
deprives the Division of jurisdiction over this matter. Id., citing Sadisco of Greenville, Inc. v. Greenville County Bd. of Zoning Appeals, 340 S.C. 57, 530 S.E.2d 383 (2000); Mears v. Mears, 287 S.C. 168, 337 S.E. 2d 206 (1985); Stroup v. Duke Power Co., 216 S.C. 79, 56 S.E. 2d 745 (1949).

The timeliness of the filing of a request for a contested case hearing is addressed in ALJD Rule 11. Specifically, that rule provides, in pertinent part:

[T]he 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. In no case shall a request based upon failure to receive notice be filed more than ninety (90) days after the order or determination of the agency, unless for substantial cause shown the administrative law judge assigned to the case allows the filing to be made. ALJD Rule 11 (emphasis added.)


90 Day Repose Period

The permit was issued on August 22, 2002. To meet even the outside time limit, the

petitioners were required to request a hearing by the repose date of November 20, 2002, which is 90 days from the issuance of the permit. The requests for a contested case hearing were not filed until December 30, 2002, more than forty (40) days after the expiration of the repose period. A repose period is necessary to ensure finality to the permittee in the issuance of the permit. If the permit could be challenged at any time, the permittee, and those with whom the permittee does business, could never have the assurance that the permit was in place. The South Carolina Court of Appeals has stated regarding a similar statute of repose:

A statute of repose creates a substantive right in those protected to be free from liability after a legislatively-determined period of time. . . [A] statute of repose is typically an absolute time limit beyond which liability no longer exists and is not tolled for any reason, because to do so would upset the economic balance struck by the legislative body.


Florence County School District #2 v. Interkal, Inc., 348 S.C. 446, 453, 559 S.E. 2d 866, 869 (Ct. App. 2002), citing Langley v. Pierce, 313 S.C. 401, 403-04, 438 S.E. 2d 242, 243 (1993) (quoting First United Methodist Church v. U.S. Gypsum Co., 882 F.2d 862, 865-866 (4th Cir. 1989). Thus, to allow this contested case to go forward would frustrate the purpose of the repose language included in ALJD Rule 11.

Furthermore, the petitioners have not provided any information sufficient to rise to the level of “substantial cause” to their excuse failure to meet the repose date. ALJD Rule 11 sets a higher standard that must be met by petitioners than that commonly found in other rules. For example, a default my be set aside for “good cause shown.” Rule 55(c) , SCRCP. The ALJD Rule 3 (B) allows certain non-jurisdictional time limits to be extended for “good cause shown.” “Substantial cause” requires a higher hurdle to be met by the petitioners than merely “good cause.” In light of this higher standard, and the policy reasons underlying the repose period, petitioners have not shown substantial cause shown sufficient to invoke the Division’s jurisdiction.

Therefore, the Division lacks jurisdiction to hear this contested case, and it must be dismissed.

30 Day Time Limit

The petitioners failed to meet the 30 day time limit also. The permit was issued on August 22, 2002 and a notice placed in a local newspaper of general circulation also on August 22, 2002. In order to meet the 30 day time frame in ALJD Rule 11, the requests would have to have been filed no later than September 21, 2002. The petitioners did not meet that time limit.

The requests sent by the petitioners make no effort to address the late filing nor set out when the petitioners allege that they became aware of the permit issuance. Similarly, the Response to Notice of Motion and Motion to Dismiss filed by the petitioners also fails to address these issues. In their Response, however, the petitioners concede that DHEC published the Notice of Issuance of Permit in the Lexington County Chronicle on August 22, 2003, as required by SC Code Reg. 61-43.200.60(H).

The petitioners had constructive notice of the permit issuance on August 22, 2002. The publication of the Notice of Issuance constitutes constructive notice of the issuance of the permit. Concerned Citizens for Sandy Flat v. S.C. Dept. Of Health and Environmental Control and Hanson Aggregates Southeast, Inc., 01-ALJ-07-0009-CC (October 12, 2001). In that case, petitioners filed a contested case hearing request relating to an operating permit, among other things, well outside of the applicable time period. A Notice of Proposed Issuance of the operating permit was published in a newspaper of general circulation pursuant to a regulatory requirement similar to that in the case at bar. The Division held that the notice by publication was sufficient and the petitioner “must be charged with notice of the Operating Permit”, Id. at 4, and dismissed the petition as having been filed untimely. The Division went on to say:

Had the Petitioner responded to the public notice, its members could have received copies of the Operating Permit and could have filed a request for a contested case hearing in a timely manner. Having failed to do so, however, Petitioner is now foreclosed from challenging the Operating Permit. Id., at 5.


I conclude that the notice published in the newspaper in this case contains the same information as that discussed in Sandy Flat. It informs the public of the permit and tells all interested members of the public how to go about seeking a contested case relating to the permit’s issuance. Therefore, I conclude that the petitioners had constructive notice of the permit on August 22, 2002. Because the requests were not filed within the applicable time limits, the Division lacks jurisdiction to hear this contested case, and it must be dismissed.

ORDER

THEREFORE, IT IS HEREBY ORDERED that the Respondents’ Motions to Dismiss are

GRANTED.

AND IT IS SO ORDERED.

______________________________

CAROLYN C. MATTHEWS

Administrative Law Judge


February 25, 2003

Columbia, South Carolina


Brown Bldg.

 

 

 

 

 

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