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:
The Beach Company vs. SCDHEC, et al

AGENCY:
South Carolina Department of Health and Environmental Control

PARTIES:
Petitioner:
The Beach Company

Respondents:
South Carolina Department of Health and Environmental Control and Town Creek Transfer Facility

Intervenors:
Joe Griffith, Inc., and Ginn Development Company, LLC
 
DOCKET NUMBER:
04-ALJ-07-0199-CC

APPEARANCES:
n/a
 

ORDERS:

ORDER DENYING MOTION TO RECONSIDER

I. Introduction

 

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.

 

II. Analysis

 

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


Brown Bldg.

 

 

 

 

 

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