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SC Administrative Law Court Decisions

CAPTION:
Launeil "Neil" Sanders vs. SCDHEC et al.

AGENCY:
South Carolina Department of Health and Environmental Control

PARTIES:
Petitioner:
Launeil "Neil" Sanders

Respondent:
South Carolina Department of Health and Environmental Control, and City of Rock Hill
 
DOCKET NUMBER:
99-ALJ-07-0641-CC

APPEARANCES:
Launeil Sanders, Pro Se

Samuel L. Finklea, III, for SC DHEC

James W. Sheedy and W. Chaplin Spencer, Jr., for City of Rock Hill
 

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.


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