ORDERS:
ORDER OF DISMISSAL
This matter is before the Division on appeal by Launeil Saunders of two NPDES permits issued by the South
Carolina Department of Health and Environmental Control (Department or DHEC). The Department filed a
Motion to Dismiss or, in the alternative, a motion for an order requiring Petitioner to file a Petition, in
accordance with Rule 18 of the Rules of Procedure for the Administrative Law Judge Division (Division or
ALJD), stating with more particularity grounds of appeal over which the Division can assert jurisdiction. As
one of the two permitees in this matter, the City of Rock Hill filed a Petition to Intervene on February 3,
2000, which I hearby grant. The other permitee, the Town of Fort Mill, withheld its own intervention
pending the outcome of this hearing. All motions were argued before me on February 9, 2000, at the ALJD
in Columbia, South Carolina.
The Respondents contend that the Petitioner's appeals of Permit #SC0020443 (City of Rock Hill) and
Permit #SC0020371 (Town of Fort Mill) were not filed within the required fifteen (15) day period to seek
administrative review of the Department's decision as provided by S.C. Code Ann. §1-23-610 (1986 and
Supp. 1998).(1) Therefore, this Division is divested of subject matter jurisdiction. The Petitioner contends
that this Division does have subject matter jurisdiction to hear this case.
Rule 11 of the Rules of Procedure for the Administrative Law Judge Division provides, "[t]he request for a
contested case hearing shall be filed with the affected agency within the time
frame authorized by that agency." Furthermore, 25 S.C. Code Ann. Regs. 61-72, § 201(A) (Supp. 1998)
sets forth:
Any person may request an adjudicatory hearing by filing a Petition for Administrative Review with the Clerk
of the Board. Any such Petition must be filed within 15 days, or other period provided by law, following
actual or constructive notice of a final staff decision on a licensing matter as defined above, or following
receipt of an administrative order.
The Department, citing Botany Bay Marina v. Townsend, 296 S.C. 330, 372 S.E. 2d 584 (1988), contends
that the Petitioner's failure to timely request a contested case hearing extinguishes subject matter jurisdiction
of this case before the ALJD. "Subject matter jurisdiction of a court depends upon the authority granted to
the court by the constitution and laws of the state." Paschal v. Causey, 309 S.C. 206, 209, 420 S.E. 2d 863,
865 (Ct. App.1992). It "refers to [the] court's power to hear and determine cases of the general class or
category to which [the] proceedings in question belong . . . ." Black's Law Dictionary 1425 (6th ed. 1990).
The ALJD has subject matter jurisdiction over contested cases arising from NPDES permit disputes and,
accordingly, over this case. S.C. Code Ann. § 1-23-600(B) (1986 and Supp. 1998). Therefore, since the
ALJD has subject matter jurisdiction to hear this contested case, the Department must be contending that the
ALJD's jurisdiction to hear this case is divested by the Petitioner's belated filing.
As set forth above, 25 S.C. Code Ann. Regs. 61-72, § 201(A) (Supp. 1998), the controlling regulation in
this matter, provides that a Petition must be filed within fifteen (15) days of a final staff decision on a
licensing matter. Thus, § 201(A) sets forth a fixed period of time by which an individual can seek an appeal
of a final DHEC staff decision. "A statute of limitations has been defined as the action of the state in
determining that after the lapse of a specified time a claim shall not be enforceable in a judicial proceeding.
Thus, any law which creates a condition of the enforcement of a right to be performed within a fixed time
may be defined as a statute of limitations." 51 Am. Jur. 2d Limitation of Actions § 2 (1970). Furthermore,
[t]here has been some difference of opinion among the authorities whether, at least in the absence of an
expression of the legislature in this particular respect, the running of a statute of limitations operates to
extinguish merely the remedy or to extinguish the substantive right as well as the remedy. The general rule
in this respect, supported by the great preponderance of the authorities on the subject, is that a statute of
limitations operates on the remedy directly only and does not extinguish the substantive right. Under this
rule the courts have regarded true statutes of limitation as doing no more than cut off resort to the courts for
enforcement of the substantive claim or right.
51 Am. Jur. 2d Limitation of Actions § 22 (1970). I therefore find that 25 S.C. Code Ann. Regs. 61-72, §
201 (Supp. 1998) operates as a "statute of limitations." Furthermore, though the ALJD is not divested of
subject matter jurisdiction in this case, the Petitioner's remedy to seek a contested case before this Division is
foreclosed. Moreover, this court has no authority to expand the time in which the request for a hearing must
be filed. See Mears v. Mears, 287 S.C. 168, 337 S.E. d. 206 (1985).
Permit #SC0020443, was issued to the City of Rock Hill on May 1, 1998, which was much greater than
fifteen days before the Petition was filed with the Clerk of the Board of Health and Environmental Control
on December 6, 1999. Additionally, Permit #SC0020371 was issued to the Town of Fort Mill on November
5, 1999, and Petitioner's appeal was received by the Clerk of the Board of Health and Environmental Control
on December 6, 1999. Although there is conflicting testimony regarding whether the Department posted a
timely notice of the permit issuance on its web site, I find that the Department staff complied with the
general public notice requirements of 24 S.C. Code Ann. Regs. 61-9, §§ 124.10 and 124.15, by publishing a
legal notice in the Fort Mill Times, a newspaper of general circulation within the area affected by the
permitted activity. I further find that the Petitioner had actual notice of the issuance of the Fort Mill permit
on or about November 10, 1999. Therefore, though the ALJD is not divested of subject matter jurisdiction
in either of these cases, the Petitioner's remedy to seek a contested case before this Division is foreclosed
and the appeals must be dismissed.
The Department filed a motion to dismiss Petitioner for lack of standing in addition to its motion to dismiss
for failure to appeal within fifteen days of issuance of the permit to Fort Mill. Because I conclude that the
appeal of both permits must be dismissed for failure to comply with 25 S.C. Code Ann. Regs. 61-72, §
201(A), I need not rule on this motion.
IT IS THEREFORE ORDERED that the caption in this matter be amended to reflect the intervention of
the City of Rock Hill as a Respondent.
IT IS FURTHER ORDERED that this case be dismissed with prejudice.
AND IT IS SO ORDERED.
_________________________________
Ralph King Anderson, III
Administrative Law Judge
February 24, 2000
Columbia, South Carolina
1. Permit #SC0020443 (City of Rock Hill) was issued on was issued on May 1, 1998, and permit
#SC0020371 (Town of Rock Hill) was issued November 5, 1999. Mr. Sanders filed this case on December
6, 1999. |
