SC Administrative Law Court Decisions

This matter comes before the undersigned pursuant to Petitioner's request for a contested case hearing. In his request, Petitioner challenges the decisions and actions of the South Carolina Department of Health Environmental Control (Respondent) as set forth in its letter of May 9, 2002 (letter), a copy of which was attached to the agency transmittal. ⁽¹⁾ On June 14, 2002, the Respondent filed, among other things, a Motion to Dismiss this case. For the reasons set forth herein, Respondent's Motion to Dismiss is granted.

Petitioner is a tire recycling/waste tire processing facility which has, in the past, appeared on Respondent's Waste Tire Facility Rebate List. After DHEC's Board issued an Order removing Petitioner from the List and establishing certain conditions that Petitioner must satisfy before Petitioner will be returned to the List, Petitioner appealed to circuit court, which affirmed the Board's Order. Currently, Petitioner has an active appeal of Respondent's July 27, 2000 Order pending before the Court of Appeals. After DHEC employees conducted an inspection of Petitioner's facility in April 2002, Respondent made an offer of compromise in a May 9, 2002 letter that would have allowed Petitioner to be returned to the Rebate List without fully complying with the July 2000 Order. In his written response to the May 9 letter, Petitioner disagreed with DHEC's actions and decisions as listed in the May 9 letter and requested a contested case hearing. Subsequently, DHEC withdrew its May 9, 2002 letter and the proposed compromise contained therein.

Because the May 9, 2002 letter and the proposed compromise have been withdrawn, all of Petitioner's allegations pertaining to the contents of the letter are now moot. ⁽²⁾ An issue is moot when a "judgment, if rendered, will have no practical legal effect upon the existing controversy." Mathis v. South Carolina State Highway Dept., 260 S.C. 344, 346, 195 S.E.2d 713, 715 (1973). In the instant case, the agency action at issue is an offer of compromise contained in DHEC's May 9 letter, which DHEC subsequently withdrew. The offer of compromise no longer exists. With respect to a withdrawn offer of compromise, the undersigned can make no judgment having a "practical legal effect." Accordingly, the Respondent's motion to dismiss is granted.

Because this matter is dismissed, all other motions, writs, petitions and complaints filed by either party in this case are hereby deemed denied.

IT IS THEREFORE ORDERED that the above-captioned case is hereby dismissed with prejudice and the contested case hearing scheduled for July 22, 2002 is cancelled.

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C. DUKES SCOTT

ADMINISTRATIVE LAW JUDGE

June 27, 2002

Columbia, South Carolina

1. In his Return, Petitioner asserts that the only issue before the Division is DHEC's alleged oral agreement on April 10, 2002, to place Petitioner back on the Rebate List. However, the only issue transmitted by the Department, and the only issue over which the Division could possibly have any jurisdiction whatsoever, is the May 9, 2002 letter from DHEC to Petitioner.

2. In its motions filed on June 14, 2002, Respondent set forth several grounds, including mootness, for the dismissal of this action. However, because this case is dismissed based on mootness, no other motions or grounds for dismissal need be addressed.