SC Administrative Law Court Decisions

This matter comes before me upon Petitioners' request for a contested case hearing to challenge the order of the Department of Health and Environmental Control (DHEC) closing Respondent Jim Miller's landfill in Edgefield County. DHEC has moved to dismiss this case for lack of jurisdiction on the grounds that Petitioners did not timely file their request for a contested case hearing in this matter. For the reasons discussed below, I find that this tribunal's jurisdiction has not been invoked by Petitioners and that this case must, therefore, be dismissed.

JURISDICTIONAL FACTS

DHEC first sanctioned Respondent Miller for the unpermitted disposal of construction and demolition debris in Administrative Order 99-19-SW, which was issued on December 16, 1999. ⁽¹⁾ On October 24, 2000, Petitioners wrote DHEC to raise their concerns regarding the adequacy of the closure requirements DHEC imposed on Respondent Miller's unpermitted landfill. In response, DHEC personnel conducted a compliance inspection of the site on October 26, 2000. Finding the site in satisfactory condition, DHEC amended Order 99-19-SW on November 9, 2000 to liberalize the cover requirements of the original order and to reduce the fine owed by Respondent Miller to DHEC under that order. By letter dated November 17, 2000, DHEC responded to Petitioners' concerns as set forth in their October 24 letter, informed Petitioners of the inspection and amended order, and enclosed copies of the original administrative order and the order amendment. Petitioners received this letter on November 19, 2000. (Pet'rs' Mot. to Uphold Appeal at 1.) Some nine months later, on August 28, 2001, Petitioners wrote DHEC to request review of DHEC's amended order before the ALJD. DHEC contends that this request was untimely, and that, accordingly, this tribunal's jurisdiction has not been properly invoked.ANALYSIS

The failure of a party to timely file a request for a contested case hearing deprives this tribunal of jurisdiction over the matter. That is, the timely filing of a request for a contested case hearing, like the timely filing of a notice of appeal, is a jurisdictional requirement, and this tribunal has no authority to extend or expand the time in which that filing must be made. See Sadisco of Greenville, Inc. v. Greenville County Bd. of Zoning Appeals, 340 S.C. 57, 530 S.E.2d 383 (2000); Mears v. Mears, 287 S.C. 168, 337 S.E.2d 206 (1985); Stroup v. Duke Power Co., 216 S.C. 79, 56 S.E.2d 745 (1949). In the instant case, the period in which the Petitioners could timely file their request for a contested case hearing is governed by the 1998 version of ALJD Rule 11 and DHEC's regulations regarding contested case procedures.

The version of ALJD Rule 11 in effect when DHEC issued its amended order provides that "[a] request for a contested case hearing shall be filed with the affected agency within the time frame authorized by that agency." ALJD Rule 11 (1998). ⁽²⁾ The "time frame authorized" by DHEC for such requests is found in Section 201A of Regulation 61-72, which requires that "any such Petition [for administrative review] 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." 25 S.C. Code Ann. Regs. 61-72 § 201A (Supp. 2000). Under the plain language of these rules, Petitioners were required to file their request for a contested case hearing to challenge DHEC's amended order within the 15 days following their receipt of that order. Here, Petitioners concede that they received the amended order on November 19, 2000. Thus, for their contested case request to be timely and for this tribunal's jurisdiction to be properly invoked, Petitioners must have filed their request with DHEC by December 4, 2000. Petitioners, however, did not file their request for a contested case hearing until August 28, 2001.

Petitioners contend that such a literal interpretation of Regulation 61-72 is inappropriate. They argue the real intent of the regulation is to require that requests for review of an order be made at any time before the fifteen-day period after the receipt of the order has elapsed. Under this interpretation, a challenge made to a DHEC order before the order is even issued is a timely appeal of that order, as the objection was made before fifteen days had passed after the receipt of the order. Accordingly, Petitioners maintain that their October 24, 2000 letter to DHEC, in which they raised concerns about the closure requirements of the landfill, is a timely appeal of DHEC's subsequent order of November 9, 2000. This interpretation of Regulation 61-72 is not only impermissible given the plain language of the regulation, but also illogical given the nature of the administrative process.

First, the language of Section 201A of Regulation 61-72 is clear and unambiguous. The petition for review must be filed within fifteen days "following receipt of an administrative order." 25 S.C. Code Ann. Regs. 61-72 § 201A (emphasis added). As South Carolina courts have consistently noted, "[w]hen the terms of a statute are clear and unambiguous, the Court must apply them according to their literal meaning. Furthermore, 'in construing a statute, words must be given their plain and ordinary meaning without resort to subtle or forced construction to limit or expand the statute's operation.'" Brown v. State, 343 S.C. 342, 348, 540 S.E.2d 846, 850 (2001) (citations omitted); see also Rowe v. Hyatt, 321 S.C. 366, 468 S.E.2d 649 (1996); First Baptist Church of Mauldin v. City of Mauldin, 308 S.C. 226, 417 S.E.2d 592 (1992). These rules of statutory construction apply equally to the interpretation of regulations. See Edge v. State Farm Ins. Co., 345 S.C. 136, 139, 546 S.E.2d 647, 648 (2001) ("The words of a regulation must be given their plain and ordinary meaning without resort to subtle or forced construction to limit or expand the regulation's operation."). The plain language of Regulation 61-72 required that Petitioners file their request for a contested case hearing within the fifteen-day period following their receipt of the amended order. And clearly, a request filed either before or after that fifteen-day period would be untimely. This construction is compelled by the clear and unambiguous language of the Regulation, and this tribunal finds no grounds upon which to adopt a different construction.

Second, the interpretation of Regulation 61-72 put forth by Petitioners would frustrate the entire process of administrative review. Beyond the plain illogicality inherent in the proposition of challenging an order that has not yet been issued, a rule that allowed comments made during the agency decision-making process to constitute timely filings for contested case hearings of the not-yet-made decision would compromise the efficiency of the administrative process. Rather than limiting requests for review of agency decisions to those requests based on concrete objections to an order and filed within a reasonable time after the issuance of that order, such a system would instead allow every speculative objection to a potential agency action to become a timely appeal of the agency's eventual decision, no matter when the objecting party actually decides to request a contested case hearing. Such an unwarranted and unworkable expansion of the contested case procedures of South Carolina's Administrative Procedures Act (APA) would upset the delicate balance between governmental efficiency and individual rights set up in that act. See Model State Admin. Proc. Act, Prefatory Note (1981) ("[T]his proposed act is drafted so as to assure a fair balance between the urgent need for efficient, economical, and effective government on the one hand, and a responsible administrative process in which persons may adequately protect their interests against improper or unwise government action on the other."); see also Dep't of Health & Mental Hygiene v. Chimes, Inc., 681 A.2d 484, 485 (Md. 1996) (noting that Maryland's version of the Model APA "sought to balance the State's interest in efficient government against the individual's interest in fairness"). Neither the plain language of Regulation 61-72 nor the basic structure of the APA supports Petitioners' interpretation of the timely filing requirements for requesting contested case hearings.

CONCLUSION AND ORDER

Petitioners in this case request a contested case hearing to challenge DHEC's amendment of Administrative Order 99-19-SW, issued on November 9, 2000, and received by Petitioners on November 19, 2000. Under ALJD Rule 11 (1998) and 25 S.C. Code Ann. Regs. 61-72 § 201A, Petitioners were required to file their request by December 4, 2000. Because Petitioners did not file their request for a contested case hearing until August 28, 2001, their request is untimely and the jurisdiction of this tribunal has not been invoked.

IT IS THEREFORE ORDERED that DHEC's Motion to Dismiss is GRANTED and that this case is hereby DISMISSED for lack of jurisdiction.

AND IT IS SO ORDERED.

______________________________

JOHN D. GEATHERS

Administrative Law Judge

October 16, 2001

Columbia, South Carolina

1. Respondent Miller sought review of this order before the Administrative Law Judge Division (ALJD), and the order was upheld in its entirety by this tribunal on June 13, 2000. See S.C. Dep't of Health and Envtl. Control v. Jim Miller, No. 00-ALJ-07-0012-CC (S.C. Admin. Law Judge Div. June 13, 2000).

2. Rule 11 has since been amended to provide a thirty-day period after the receipt of an agency decision for filing a request for a contested case hearing, regardless the period specified by the affected agency. See ALJD Rule 11 (2001) (effective May 1, 2001). Under either version of Rule 11, however, Petitioners have failed to timely file their request for a contested case by waiting nearly nine months to make their request.