The Administrative Law Court
(ALC) issued a decision on February 7, 2005, granting a Motion to Dismiss to
Town Creek Transfer Facility (TCTF). The Petitioner and Intervenors filed
Motions to Reconsider. Having reviewed the arguments, the Motions are denied
except for the correction of factual statements which corrections do not alter
the decision to grant the Motion to Dismiss.
The February 2005 decision held
that the jurisdiction of the ALC was not invoked by Beach's May 2004 filing of
a request for a contested case. The ALC decision rests upon ALC Rule 11.
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 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. At the same time, a copy of
the request for a contested case hearing, accompanied by a filing fee as
provided in Rule 71, shall also be filed with the clerk of the [Court].
The February 2005 decision found
that TCTF noticed the public of its application by a newspaper advertisement in
the Charleston News and Courier on March 22, 2003. However, the
March 22, 2003 date is in error. Instead, the publication date is June 12,
2003. Accordingly, the March 22, 2003 statement is hereby corrected to reflect
the publication date of June 12, 2003.
Given the June 12, 2003, public
notice and given the May 2, 2003, Joint Public Notice issued by DHEC and the
Army Corps of Engineers, Beach had notice of the TCTF application. That notice
created a duty of inquiry which when "pursued with due diligence"
would have given Beach notice of the permit's issuance shortly after August 13,
2003 but in no event later than August 30, 2003. See Strother v.
Lexington County Recreation Commission, 332 S.C. 54, 504 S.E.2d 117
(1998).
Accordingly, a timely filing for
a contested case was due no later than September 30, 2003. Here, Beach did not
seek a contested case until May 2004, a filing too late to invoke ALC
jurisdiction.
Finally, I have considered all of
the other arguments presented in the motions for reconsideration and find them
to lack merit. Therefore, other than altering the publication date in the News
and Courier from March 22, 2003 to June 12, 2003, the motions are
denied.
III. Order
Other than altering the
publication date in the News and Courier from March 22, 2003 to
June 12, 2003, the Motions for Reconsideration are denied.
AND IT IS SO ORDERED.
_________________________________
RAY N. STEVENS
Administrative
Law Judge
Dated: June 27, 2005
Columbia, South Carolina