ORDERS:
ORDER OF DISMISSAL WITH PREJUDICE
This matter comes before the Administrative Law Judge Division (“ALJD”)
pursuant to S.C. Code Ann. § 1-23-310 et seq., § 13-7-10 et seq., § 48-1-10 et seq., and §
44-56-10 et seq., for a contested case hearing. Respondent Starmet CMI, Inc.
(“Respondent” or “Starmet”) is contesting the South Carolina Department of Health and
Environmental Control’s (“Department’s”) issuance of Administrative Order 01-01-RW
in October of 2001 (the “2001 AO” or “AO”), its June 17, 2002, written denial of
Starmet’s application to renew Radioactive Material License # 322, and its complete
revocation of Starmet’s Radioactive Materials License #322 as set forth in an Emergency
and Administrative Order issued on June 25, 2002. Starmet’s appeal of the AO began in
November of 2001.
At the request of both parties, the appeal of the AO was initially held in abeyance
until June of 2002 to see if the parties could resolve their dispute without the need for a
hearing. However, when negotiations failed, the undersigned scheduled a hearing on the
merits to be heard on August 14, 2002. On June 17, 2002, the Department issued a letter
to Starmet denying its application to renew the radioactive material storage and
processing provisions in its Radioactive Materials License. Later in June 2002, the
Department issued an Emergency and Administrative Order. In the Administrative
portion of the Emergency and Administrative Order, the Department permanently
revoked Starmet’s Radioactive Materials License. Starmet timely appealed these
licensing decisions as well as the emergency order provisions.
A hearing was held on the emergency order appeal on July 2 and 3, 2002. On
August 2, 2002, Starmet filed a motion to continue the hearing set for August 14, 2002,
relating to the AO, and to consolidate its appeal of the licensing decisions with its appeal
of the AO. On January 3, 2003, the undersigned issued a revised Notice of Hearing
setting the new hearing date on the appeal of the AO and the licensing decisions for
February 3, 2003. In late January of 2003, Starmet again filed a motion for a
continuance, which was opposed by the Department. A telephone conference was held
with attorneys for the Department and Starmet on January 28, 2003. At the end of the
conference call, the undersigned continued the case for up to six months in the interest of
judicial economy, in part because of representations by Starmet’s attorney of record that
Starmet was in the process of selling off the equipment to an out-of-state purchaser,
hoped to complete the sale shortly, and expected its appeal to become moot.
On October 27, 2003, Starmet’s counsel of record, John A. Hodge, Esquire,
moved to be dismissed as counsel of record. This motion was granted and Mr. Hodge
was dismissed as counsel of record for Starmet by Order dated November 10, 2003. On
November 26, 2003, the undersigned issued an Amended Order and Notice of Hearing,
setting the hearing on the merits of the case for 10:00 a.m. on February 18, 2004, and
ordering the parties to file and exchange exhibit notebooks at least five (5) business days
prior to the hearing. The Order further required an attorney representing a party not
already on file to file a Notice of Appearance. All orders, correspondence, and notices
were served on Starmet’s officer and agent at the address provided to the ALJD by Mr.
Hodge. Additionally, the Department’s attorney, Jessica J. O. King, represented to the
undersigned that the Department had served these individuals with all notices and orders
by certified mail to the address provided by Mr. Hodge, and had received back certified
receipts of delivery signed by an agent of Starmet’s. Starmet has failed to file exhibit
notebooks and no Notice of Appearance was filed by any attorney on behalf of Starmet.
A hearing was held on February 18, 2004, at the offices of the ALJD in
Columbia, South Carolina. Starmet, after receiving timely notice from the ALJD and the
Department’s counsel, did not appear at the hearing, was not represented at the hearing
and, did not notify the undersigned that it would not be appearing. Jessica J. O. King and
Samuel L. Finklea, attorneys for the Department, were present at the hearing.
After waiting approximately ten minutes for Starmet to appear, the hearing was
commenced. The Department then made a motion to dismiss or terminate this case in a
manner so as to uphold the Department’s position as the complying party. The
Department’s motion was made pursuant to ALJD Rule 23 on the grounds that Starmet
had failed to prosecute or defend this action, failed to adhere to an interlocutory order,
and failed to appear at the hearing.
I find that the Department’s motion should be granted and that this action should
be dismissed with prejudice pursuant to ALJD Rule 23. Rule 23 provides:
The administrative law judge may dismiss a contested case or dispose of a
contested case adverse to the defaulting party. A default occurs when a party fails
to plead or otherwise prosecute or defend, fails to appear at a hearing without the
proper consent of the judge or fails to comply with any interlocutory order of the
administrative law judge. Any non-defaulting party may move for an order
dismissing the case or terminating it adversely to the defaulting party.
Because Starmet did not appear before the ALJD, did not request a continuance, and
has not otherwise contacted this tribunal regarding this hearing as of the issuance of this
Order,
IT IS HEREBY ORDERED that the above-captioned case is dismissed with
prejudice. The pretrial notebooks have been returned to the Department since the case
was not decided on the merits.
AND IT IS SO ORDERED.
______________________________
MARVIN F. KITTRELL
Chief Administrative Law Judge
February 18, 2004
Columbia, South Carolina |
