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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, International Paper Corporation, Georgetown, SC; International Paper Corporation (formerly old Union Camp Mill), Eastover, SC.; Smurfit Stone Container Corporation; Bowater; Westvaco; Sonoco Products, Inc.; and Willamette Industries, Inc.
 
DOCKET NUMBER:
99-ALJ-07-0657-CC

APPEARANCES:
Launeil Sanders, Pro Se

Samuel L. Finklea, III, for SC DHEC

Karen A. Crawford and Bernard F. Hawkins, Jr., for International Paper (#SC0000868/Georgetown and #SC0038121/Eastover); Smurfit Stone Container (#SC0000876); Bowater (#SC0001015); and Willamette Industries (#SC0042188)

Francis J. Murphy, for Westvaco (#SC0001759)

Thomas R. Gotshall, for Sonoco Products (#SC0003042)
 

ORDERS:

ORDER OF DISMISSAL

This matter is before the Division on appeal by Launeil Saunders of various NPDES permits issued by the South Carolina Department of Health and Environmental Control (Department or DHEC). The Department filed a Motion to Dismiss based upon two grounds in which all the named co-Respondents joined. The Respondents contend that either the Petitioner's appeals were not filed within the required fifteen day period in which to seek administrative review of the Department's decisions as provided by S.C. Code Ann. §1-23-610 (1986 and Supp. 1998) or that this issue is not yet ripe as the Department has not issued the permits the Petitioner is challenging. The Petitioner filed motions and affidavits in opposition. All motions were argued before me on February 9, 2000, at the Administrative Law Judge Division (Division or ALJD) in Columbia, South Carolina.

Fifteen Day Period to Seek Administrative Review

At the hearing into this matter, the Petitioner explained that he was seeking to challenge the original issuance of Permits #SC0038121 (International Paper - Eastover), #SC0000876 (Stone Container), #SC0001015 (Bowater), #SC0001759 (Westvaco), and #SC0042188 (Willamette) . However, those permits were issued more than fifteen days before the Petition was filed in this case.(1) The Respondents contend that the failure of the Petitioner to timely file divests this Division of subject matter jurisdiction. The Petitioner contends that this Division has 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 that:

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.



At the hearing, the Petitioner conceded that his request to appeal these permits is well outside the fifteen day time period.

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). Accordingly, I conclude that the Petitions against International Paper - Eastover, Smurfit Stone Container Corporation, Bowater Corporation, Westvaco, and Willamette Industries are dismissed with prejudice.

Permits Awaiting Reissuance

At oral argument, the Petitioner stated that he seeks to appeal the reissuance of the permits for International Paper (#SC0000868/Georgetown) and Sonoco Products (#SC0003042) rather than the permits presently in effect. NPDES permits are issued for time periods of five years. International Paper - Georgetown and Sonoco Products made timely applications for reissuance of their respective permits and, in accordance with S.C. Code § 1-23-370(b) (1986 and Supp. 1998), their permits continue in full force and effect pending a decision on reissuance. Since the Department has not made any decision on reissuance, the Petitioner's claim against these two permits is not yet ripe. The Administrative Procedures Act requires an opportunity for a hearing in a contested case setting after the agency has issued a final decision subject to review. See South Carolina Baptist Hosp. v. S.C. Dep't. of Health and Envtl. Control, et al., 291 S.C. 267, 353 S.E.2d 277 (1987). Because DHEC has not made a final decision as to the reissuance of the permits for International Paper - Georgetown (#SC0000868) and Sonoco Products (#SC0003042), it would be premature for the ALJD to so at this time.

Accordingly, I find that any appeal of the reissuance of permits #SC0000868 or #SC0003042 is premature and the Petitions against International Paper - Georgetown and Sonoco Products are dismissed without prejudice with the Petitioner retaining the right to file an appeal as prescribed by law.

IT IS THEREFORE ORDERED that this case be dismissed as set forth above.

AND IT IS SO ORDERED.







_______________________________ Ralph King Anderson, III

Administrative Law Judge



February 24, 2000

Columbia, South Carolina

1. Permit #SC0038121 (International Paper - Eastover) was issued September 28, 1995; permit #SC0000876 (Stone Container) was issued June 26, 1997; permit #SC0001015 (Bowater) was issued August 31, 1995; permit #SC0001759 (Westvaco) was issued May 23, 1995; and permit #SC0042188 (Willamette) was issued September 30, 1996. Mr. Sanders filed this case on December 28, 1999.


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