SC Administrative Law Court Decisions

Pursuant to S.C. Code Ann. §§ 1-23-110 and 1-23-111 (Supp. 2003), a public hearing was held on February 17, 2004, at the offices of the Administrative Law Court (Court) in Columbia, South Carolina, to determine the “need and reasonableness” of these proposed regulations. The proposed regulations establish rules and standards which apply and further clarify the guidelines for Environmental Certification in South Carolina.

On December 2, 2003, the South Carolina Department of Labor, Licensing & Regulation, Environmental Certification Board, (Board) filed a request for a hearing on the above proposed regulation. The Order and Notice of Hearing, setting a hearing date of February 17, 2004, was filed and served on the Agency. By letter filed February 5, 2004, the legislative coordinator notified the Court that the Board did receive a request for a hearing. At the public hearing, the Board and interested persons were given the opportunity to present written materials and oral testimony, all of which were incorporated into the record of the hearing.

The following Proponents of the proposed regulations participated in the public hearing:

Sharon A. Dantzler, Chief Deputy General Counsel, South Carolina Department of Labor, Licensing & Regulation

Valerie Betterton, Vice-Chair, Environmental Certification Board

Dona J. Caldwell, Administrator, Labor, Licensing & Regulation, Environmental Certification Board

Rebecca West, Board Member, Environmental Certification Board

The following Opponents of the proposed regulations participated in the public hearing:

John E. Young, representing Operators of Aiken County

Becky Dennis, Kiawah Island Utility

Jo Ellen Trueblood, Camden Water and Wastewater Supervisor

David Robison, Groundwater Association

K.C. Price, representing SJWD Water District (Startex, Jackson, Welford District)

John Boyer, representing SJWD Water District

Frank Eskridge, SC American Water Works Assoc. Water Utility Council and Greenville Water System

Stephen White, representing Lancaster County Water and Sewer District

Mark White, representing Lancaster County Water and Sewer District

James Matthews, Online Environmental

Sam Davis, Project Manager with Robert G. Bergin Engineers

Charles A. Hilton, Representing Breezy Hill Water

Bill Payne, representing Westinghouse-Savannah River Company

Donald Patrick Jackson, representing South Carolina Rural Water Association

Kevin G. Simpson, representing South Carolina Rural Water Association

Scott Harken, representing City of Belton

FINDINGS

Based upon the statements, testimony, exhibits, written comments, and applicable law, I find and conclude the following:

1.S.C. Code Ann. § 1-23-111 (B) (Supp. 2003), sets forth that this Court must make findings as to the need and reasonableness of the proposed regulations and “may include suggested modifications to the proposed regulations in the case of a finding of lack of need or reasonableness.”

2.The Notice of Drafting of the proposed regulations was published in the State Register on November 28, 2003.

3.The Board filed an Agency Transmittal Form with the Administrative Law Judge Court on December 2, 2003

4.The Notice of Proposed Regulation was published in the State Register on December 26, 2003, and included a “Notice of Public Hearing,” with a brief synopsis of the proposed changes.

5.A public hearing to allow the Board’s presentation and public comment was conducted on February 17, 2004, pursuant to S.C. Code Ann. § 1-23-111 (Supp. 2003), at which time this Court received oral testimony, exhibits, and written comments from the Board and interested persons.

6.The Opponents of the proposed regulations vehemently oppose the regulations with two particular areas of concern. The Opponents specifically object to the change in the continuing education requirements and the change in the level of supervision required. The Board proposed doubling the number of continuing education hours required from 12 hours every 2 years, to 12 hours every year. The Opponents strongly objected to this change and cited the costs involved. They were concerned not only about the costs of the programs required for meeting the education requirements, but also the cost to the operators in lost productivity due to time away from work. The Opponents, particularly those representing the smaller water districts, argued that the costs to the provider would be prohibitive. In addition, in the prior regulation, an operator could use a passing grade on an examination for certification above the operator’s current license level as part of the continuing education requirement. That provision had been removed in the proposed regulation.

7.In addition, the Opponents objected to the change in the supervision required for

trainee systems operators. The Proponents liken the change to apprentice well drillers, who actually hold a class “D” well driller license. Under SC Code Ann.§40-23-340 (B)(1), the requirement was that the apprentice had to operate under “accessible supervision”, which is defined in SC Code Ann. §40-23-20(2) as “supervision is on-site or immediately available to supervised persons via telephone, radio, or other electronic means.” The new regulation proposed as 51-7 would apply similar (in the view of the Board) requirements to trainee systems operators by requiring that they be under the “direct supervision” of a licensee. The Opponents objected to the nature of this supervision arguing that “direct supervision” required “over the shoulder” observation and requested that the supervision be “accessible” as defined above.

8.S.C. Code Ann. §§ 40-23-5 et seq. (2001 and Supp. 2003) sets forth the powers of the Environmental Certification Board. More specifically, S.C. Code Ann. § 40-23-60 (2001 and Supp. 2003) gives the Environmental Certification Board broad authority to promulgate regulations and adopt standards necessary to carry out its work. These regulations are found under 24A S.C. Code Ann. Regs. 51-1 through 16.

9. The Board proposed to delete these Regulations and replace them with the proposed

Regulations 51-1 through 51-7. These proposed changes were noticed and published as indicated above. Several of the Opponents expressed objections to the timing and nature of the notice of these proposed changes. They testified that despite attending several Board meetings, that they were unaware of the specific nature of the proposed regulations until just a few days before the close of the comment period as noted in the State Register. 10.Following the public hearing on February 17, 2004, the Board, through its counsel,

sent a letter, dated April 9, 2004, to the Court stating that the Board had met on April 6 with several representatives of the various groups who had participated in the public hearing, and that “the Board had unanimously voted to support several changes to its proposed regulations. Since many of the issues raised at his meeting were also raised before you, the Board has asked that I convey to you their sense that these amendments are appropriate and should resolve any controversy between them and the licensed community.” A copy of the proposed changes to the proposed regulations was attached. The effect of the changes from the April meeting was to return to the status quo prior to the proposed regulation changes as presented at the public hearing in February. Specifically, the current proposal (April) would modify Reg. 51-4 F to allow twelve hours of continuing education every two years, and to allow in lieu of continuing education, “an applicant to take and pass the appropriate examination for his/her license or permit grade.” In addition, the direct supervision language was also modified as requested by the Opponents in February. There were other specific changes as well.

CONCLUSIONS

1.S.C. Code Ann. § 1-23-111 (B) (Supp. 2003) calls for a written report by the presiding Administrative Law Judge that includes “findings as to the need and reasonableness of the proposed regulation based on an analysis of factors listed in Section 1-23-115(C). . . , and other factors as the presiding official identifies and may include suggested modifications to the proposed regulation in the case of a finding of lack of need or reasonableness.” In essence, the public hearing serves to edify the agency as to potential problems with the regulations. To that end, Section § 1-23-111(C) provides that if the presiding Administrative Law Judge determines that the need for or reasonableness of the proposed regulation(s) has not been established, the agency must elect to:

(a)follow the suggestions of the Administrative Law Judge and submit the modified proposal for legislative approval;

(b)not modify the proposed regulations but submit the proposed regulations as originally drafted for legislative approval; or

(c)withdraw the proposed regulations.

2.S.C. Code Ann. §§ 40-23-5 et seq. (2001 and Supp. 2003) sets forth the powers of the Environmental Certification Board. More specifically, S.C. Code Ann. § 40-23-60 (2001 and Supp. 2003) gives the Environmental Certification Board broad authority to promulgate regulations and adopt standards necessary to carry out its work.

3.An agency is implicitly authorized to interpret, clarify and explain statutes by prescribing regulations to “fill in the details” for the complete and consistent operation and enforcement of the law within its expressed general purpose. An administrative regulation is valid so long as it is reasonably related to the purpose of the enabling legislation. Young v. S.C. Dep’t of Highways and Public Transportation, 287 S.C. 108, 336 S.E.2d 879 (Ct. App. 1985); Hunter & Walden Co. v. S.C. State Licensing Bd. For Contractors, 272 S.C. 211, 251 S.E.2d 186 (1978). A regulation which is beyond the authorization of the agency’s enabling legislation or which materially alters or adds to the law, however, is invalid. Society of Professional Journalist v. Sexton, 283 S.C. 563, 324 S.E.2d 313 (1984); Banks v. Batesburg Hauling Co., 202 S.C. 273, 24 S.E.2d 496 (1943).

4.“Reasonableness” is defined as “[f]air, proper, just, moderate, suitable under the circumstances. . . . [n]ot immoderate or excessive, being synonymous with rational, honest, equitable, fair, suitable, moderate, tolerable.” Black’s Law Dictionary, 1265 (6th ed. 1990). The word has been further defined to mean “agreeable to reason under the facts and circumstances of the case before the Court.” Ellis v. Taylor, 311 S.C. 66, 427 S.E.2d 678 (Ct. App. 1992).

5.Although the Board may have proposed reasonable and necessary regulations, the

procedure by which they did so is not reasonable. As our Supreme Court stated in Stono River Environmental Protection Association v. South Carolina Department of Health and Environmental Control, 305 S.C. 90, 406 S.E. 2d 340,

Administrative agencies are required to meet minimum standards of due process. S.C. Const. Art. 1 § 3: Smith & Smith, Inc., v. S.C. Public Service Commission, 271 S.C. 405, 247 S.E. 2d 677 (1978). Due process is flexible and calls for such procedural protections as the particular situation demands. Morrisey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed. 2d 4884 (1972). In our view, constitutional due process provisions, apart from the APA, are sufficient to confer the rights to notice and for an opportunity to be heard. “No 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 such instances the right to judicial review. S.C. Const., Art. 1, Section 22.” Id. at 92, 341.

The Board should have withdrawn their initially proposed amendments and submitted the April changes for additional public comments, especially in light of the Opponents’ complaints that they found out about the initial changes only at the last minute. The failure to seek such additional comment in this case constituted a violation of the Opponent’s due process rights. “The requirements of due process include notice, an opportunity to be heard in a meaningful way and judicial review,” Ogburn-Matthews v. Loblolly Partners, 332 S.C. 551, 505 S.E. 598 (Ct. App. 1998), citing Stono River, supra and S.C. Const. Art 1, § 22. (emphasis added.) I make this finding cognizant of the fact that many of the initial Opponents support the latest revisions of the Board. The dispute is with the process the Board utilized, not necessarily the results they reached.6.Based upon the above Findings and Conclusions, I find that while it is within the

authority of the Board to promulgate these proposed regulations and that the regulations are both reasonable and needed, that the process is violative of due process and the APA. Accordingly, the Board is requested to submit the current version of the proposed regulations to the public for public comment, followed by judicial review if necessary, and legislative approval.

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Carolyn C. Matthews,

Administrative Law Judge

July 7, 2004

Columbia, South Carolina