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SC Administrative Law Court Decisions

CAPTION:
Concerned Citizens for Sandy Flat vs. SCDHEC et al.

AGENCY:
South Carolina Department of Health and Environmental Control

PARTIES:
Petitioner:
Concerned Citizens for Sandy Flat

Respondent:
South Carolina Department of Health and Environmental Control, and Hanson Aggregates Southeast, Inc., (Sandy Flat Quarry)
 
DOCKET NUMBER:
01-ALJ-07-0009-CC

APPEARANCES:
Robert Guild, Esquire, for Petitioner

Elizabeth G. Howard, Esquire, for the Respondent South Carolina Department of Health and Environmental Control

Gregory J. English, Esquire, for the Respondent Hanson Aggregates Southeast, Inc.
 

ORDERS:

ORDER

This matter is before the Administrative Law Judge Division (Division) pursuant to the motions of the Respondents, South Carolina Department of Health and Environmental Control (DHEC) and Hanson Aggregates Southeast, Inc. (Hanson), to dismiss the Petitioner's Supplement to Petition for Administrative Review, which was filed with the Division on January 4, 2001. Petitioner requested a contested case hearing before the Division, seeking review of a number of permits issued by DHEC to Hanson for its Sandy Flat Quarry in Greenville County, South Carolina. After notice to the parties, a hearing on the Motions to Dismiss was held at the offices of the Division in Columbia, South Carolina, on May 2, 2001. For the reasons set forth herein, the Motions to Dismiss are hereby granted.



STATEMENT OF THE CASE

The Petitioner is a citizens' group whose members reside in the vicinity of Hanson's Sandy Flat Quarry (Quarry) in Greenville County, South Carolina. Petitioner seeks review of two types of permits issued by DHEC's Bureau of Air Quality for the Quarry in the years 1993, 1994 and 1998. The 1993 and 1994 permits challenged by the Petitioner are some twenty-two (22) construction permits (Construction Permits) to build individual pieces of equipment used at the Quarry. Petitioner also seeks review of the Conditional Major Air Quality Permit (Operating Permit) issued by DHEC for the Quarry on August 12, 1998. Petitioner claims that the permits in question were issued without the requisite notice and opportunity to be heard, thus denying Petitioner due process of law. The Respondents argue that Petitioner's request for review is untimely, in that it was filed more than 15 days following actual or constructive notice of the issuance of the permits. See 25 S.C. Code Ann. Regs.61-72, § 201(A) (Supp. 2000). Respondents further contend that the permitting procedures in this case satisfied the requirements of due process.



DISCUSSION

Timeliness of Petitioner's Requests

Respondents contend that the Petitioners failed to timely file their request for a contested case hearing and are now barred from bringing any action to challenge the permits in question. The timeliness of Petitioner's request for a contested case hearing involving these permits issued by DHEC is governed by 25 S.C. Code Ann. Regs. 61-72, § 201 (Supp. 2000). (1) That regulation states that a request for a hearing must be filed "within 15 days . . . following actual or constructive notice of a final staff decision on a licensing matter. . . ." (Emphasis added). In this case, DHEC issued the Construction Permits in 1993 and 1994, and the Operating Permit was issued on August 12, 1998, but the Petitioner did not file its initial request for a contested case hearing until September 19, 2000. (2) Clearly, a significant amount of time - far greater than fifteen days - elapsed between the issuance of the permits and the Petitioner's request for a contested case hearing. Petitioner, however, argues that it made its request within fifteen days of receiving actual copies of the permits in question, and that it should be allowed to proceed. Assuming without deciding that the Petitioner did make its request within fifteen days of receiving actual notice of the permits, this Court must determine whether the Petitioner should be charged with constructive notice of the permits.

Constructive notice is defined as "information or knowledge of a fact imputed by law to a person, because he could have discovered the fact by proper diligence, and his situation was such as to cast upon him the duty of inquiring into it." Black's Law Dictionary, 1062 (6th ed. 1990). Constructive notice is generally either imputed by a recording statute or presumed because a person has knowledge of certain facts which should reasonably lead him or her to knowledge of the ultimate fact. 66 C.J.S. Notice § 6 (1950). "When a person has notice of such facts as are sufficient to put him on inquiry, which, if pursued with due diligence, would lead to knowledge of other facts, he must be presumed to have knowledge of the undisclosed facts." Norris v. Greenville, S. & A. Ry. Co., 111 S.C. 322, 97 S.E. 848 (1919). However, a person put on inquiry by facts is to be allowed a reasonable time in which to make inquiry before being affected with notice. After a person has actually made due inquiry and such inquiry has proved futile, he is to be regarded as having acted bona fide and without notice of the fact. 66 C.J.S. Notice § 11 (1950).



Construction Permits

With respect to the Construction Permits, which were issued in 1993 and 1994, the applicable regulations do not require that any form of public notice be given. See 24A S.C. Code Ann. Regs. § 61-62.1(A)(1) (1976 & Supp. 2000). In accordance with the regulations, these particular permits were issued without public notice or a hearing. Regardless of whether a person is entitled to notice of the issuance of a construction permit under the applicable regulations, superseding constitutional due process considerations may confer upon him the right to receive notice, have an opportunity to be heard, and obtain judicial review. Article I, Section 22 of the South Carolina Constitution provides in pertinent part that "[n]o person shall be finally bound by a judicial or quasi-judicial decision of an administrative agency affecting private rights except on due notice and an opportunity to be heard . . . and he shall have in all instances the right to judicial review." In Stono River Envtl. Protection Assoc. v. DHEC, 305 S.C. 90, 406 S.E.2d 340 (1991), the South Carolina Supreme Court, applying this constitutional provision, held that "[a]dministrative agencies are required to meet minimum standards of due process," and that "constitutional due process provisions, apart from the APA, are sufficient to confer the rights to notice and an opportunity to be heard." Id. at 342. Based upon these principles, it is clear that, even if the applicable statutes and regulations do not provide the right to notice and a hearing, a citizen whose rights may be adversely affected by the actions of a state agency is protected by the fundamental requirements of due process, and has a right to judicial review of his grievance. A citizen whose claim arises under the Constitution rather than under a specific statute or regulation, however, must still act to preserve his claim within a reasonable time after having received actual or constructive notice of the agency action he seeks to challenge. See 25 S.C. Code Ann. Regs. 61-72, §102 (Supp. 2000) (the provisions of Reg. 61-72, including the time limits for filing a claim, apply to all proceedings in which the right to a hearing is provided by statute or regulation, or is required by due process under the South Carolina or United States Constitutions); Stono River, 406 S.E.2d at 342 (where the Supreme Court noted, in conducting a due process review, that "the appeal pursuant to regulation 61-72 was timely.").

Based upon the documents submitted in this case, many of the members of Petitioner have resided in the vicinity of the Sandy Flat Quarry for years, and have had complaints about dust, noise, and traffic resulting from the quarry's operations. These complaints were raised by many of Petitioner's members at the public hearing on the Mine Permit on March 18, 1999. Since the Petitioner's members lived near the quarry and were aware of its operations, they must necessarily be charged with the knowledge that the quarry had to have one or more permits from DHEC in order to operate. See Smothers v. U.S. Fidelity and Guaranty Co., 322 S.C. 207, 470 S.E.2d 858 (Ct. App. 1996) (every citizen is presumed to have knowledge of the law and must exercise reasonable care to protect his interests). The knowledge that the quarry existed and was operating in the neighborhood was information sufficient to require further inquiry on the subject of its permits. There is no evidence in this case, however, that Petitioner or its members took any steps to ascertain the existence of the Construction Permits prior to filing its first Petition for Administrative Review on September 19, 2000. Accordingly, I find that Petitioner must be charged with constructive notice of the existence of the Construction Permits at least as of March 18, 1999. See Norris v. Greenville, S. & A. Ry. Co., 111 S.C. 322, 97 S.E. 848 (1919). Its request for a contested case hearing on the Construction Permits, made some eighteen months thereafter, and approximately five years after the issuance of the Construction Permits, is therefore untimely and must be dismissed.



Operating Permit

Petitioner further contends that the Operating Permit for the Sandy Flat Quarry, issued on

August 12, 1998, was issued without sufficient notice to allow the Petitioners their due process rights. Unlike the Construction Permits, DHEC was required to give public notice of the Operating Permit "by publication in a newspaper of general circulation in the area where the source is located or in the State Register and to persons on a mailing list developed by the Department, including those who request in writing to be on the list." 24A S.C. Code Ann. Regs. § 61-62 (II)(G)(5) (Supp. 2000). In accordance with this provision, the Operating Permit was the subject of public notice, which was published in The Greenville News on June 19, 1998. The notice is entitled "Notice of Proposed Issuance of a Conditional Major Operating Permit to Limit Potential to Emit, Davidson Mineral Properties, Inc. [Hanson's predecessor in interest] (Sandy Flats Quarry), 401 Keller Road, Taylors, South Carolina . . . ." The notice states that "[i]nterested persons are invited to. . . submit written comments on the proposed permit approvals within thirty (30) days of the date of this notice . . . ." It further provides that interested parties may request to be placed on a mailing list for notification of future public notices or hearings, and that requests for a contested case hearing may be filed after a final determination has been made on the permit. There is no evidence that the Petitioner or any of its members submitted any written comments, requested to be placed on DHEC's mailing list, or took any other steps to challenge the Operating Permit in 1998. Petitioner did not attempt any challenge to the Operating Permit until September 19, 2000, more than three years after it was issued and well beyond the fifteen-day limit established in Reg. 61-72.

Petitioner nonetheless argues that the notice by publication as provided in Reg. 61-62 was constitutionally insufficient, citing Mennonite Board of Missions v. Adams, 462 U.S. 791 (1983). In that case, the United States Supreme Court found that, in the case of a tax sale of property, notice by publication was insufficient and due process required the notice to be mailed to the "mortgagee's last known available address . . . ." Id. at 798. This decision was based on the recognition that "a mortgagee clearly has a legally protected property interest, [and that] he is entitled to notice reasonably calculated to apprise him of a pending tax sale." Id. Because the mortgagee had such a substantial interest in the property, and because the identity of the mortgagee and its address were reasonably identifiable, the Court held that notice by personal service or by mail was required.

To the extent that the Petitioner's claim in this regard constitutes an assertion that Reg. 61-62(II)(G)(5) was unconstitutionally applied to it rather than a challenge to the constitutionality of the regulation itself, this Division may rule on the claim. See Evans v. State, ___ S.C. ___, 543 S.E.2d 547 (2001). I find that the Mennonite case is not controlling in this instance. Unlike the mortgagee in Mennonite, the Petitioner has no direct interest in the Hanson property which is the subject of the Operating Permit. Moreover, the mortgagee in Mennonite was known and ascertainable, whereas in this case the class of potentially interested parties was unknown to DHEC and could not be easily ascertained. Thus, the notice by publication, as provided for in the regulation, was sufficient, and Petitioner must be charged with notice of the Operating Permit. See Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950) (notice by publication meets constitutional standards when the identity of interested persons is unknown); Save Our Dunes v. Alabama Dep't of Envtl. Management, Inc., 834 F. 2d 984 (11th Cir. 1987) (finding that notice by publication of a building permit was sufficient for potentially affected neighbors). "One cannot complain of a due process violation if he has recourse to a constitutionally sufficient administrative procedure but merely declines or fails to take advantage of it." Zaman v. S.C. State Bd. of Medical Examiners, 305 S.C. 281, 408 S.E.2d 213 (1991), cert. denied, 112 S.Ct. 200 (1991). Had the Petitioner responded to the public notice, its members could have received copies of the Operating Permit and could have filed a request for a contested case hearing in a timely manner. Having failed to do so, however, Petitioner is now foreclosed from challenging the Operating Permit.



ORDER

For all the foregoing reasons, the Respondents' Motions to Dismiss are hereby GRANTED.

AND IT IS SO ORDERED.





__________________________________

MARVIN F. KITTRELL

Chief Administrative Law Judge



October 12, 2001

Columbia, South Carolina

1. This case was brought prior to the amendment of ALJD Rule 11. That Rule states that "[i]n 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 receipt of the agency decision unless otherwise provided by statute. . . ."

2. This "Petition for Administrative Review" was initially transmitted to the Mining Council, which had jurisdiction over the Petitioner's concurrent appeal of DHEC's issuance of Mine Operating Permit No. 502 (Mine Permit) to Hanson for the Quarry. The Mining Council dismissed the Petition as untimely. On October 27, 2000, Petitioner filed a request for injunctive relief with the Division, requesting that the Division enjoin the proceedings before the Mining Council and that it entertain the Petitioner's request for a contested case hearing. On December 14, 2000, this Court issued an Order denying the Petitioner's request for an injunction and holding that the Mining Council was the proper forum to hear cases relating to mining permits. However, the Order further stated that "to the extent that the Petition pertains to air or water quality permits or other permits issued pursuant to the Pollution Control Act, the Division is the proper forum to hear contested cases with regard to these permits." Concerned Citizens for Sandy Flat v. S.C. Dep't of Health and Envtl. Control, 00-ALJ-07-0605-IJ (December 14, 2000). In that Order, this Court also required the Petitioner to file a Petition for Administrative Review with DHEC and to set forth in detail the jurisdictional basis for the Division to conduct a contested case hearing with regard to any permits challenged. Id. Petitioner then filed a "Supplement to Petition for Administrative Review" on December 21, 2000, seeking review of the Construction Permits and the Operating Permit.


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