SC Administrative Law Court Decisions

This matter comes before me upon a Motion to Dismiss and a Motion for Summary Judgement filed by Respondent Neal Rogers ("Rogers"). A hearing on the motion was held on July 15, 1997 at the Administrative Law Judge Division ("ALJD") offices, Columbia, South Carolina. For the reasons set forth below, both the Motion to Dismiss and the Motion for Summary Judgment are denied.

Respondent Rogers operates a farm in the town of Fork, Dillon County, South Carolina. On April 26, 1978, the Department of Health and Environmental Control ("Department") issued Rogers a permit to raise hogs on his farm. Although there is a dispute as to when Rogers ceased to operate the hog farm, Rogers' own affidavit indicates that the farm ceased operation in 1994. In 1995, Rogers applied for a construction permit to expand his existing waste storage lagoon so that he could resume raising hogs on his farm. The Department issued a Permit to Construct, No. 17,854-AG on March 23, 1995. The Permit called for the construction of a wastewater treatment and collection system, and included a reference to building four additional hog houses as part of the project description.

Although the lagoon expansion was completed in June of 1995, the barns had not been built and Rogers requested an extension of permit 17,854-AG to allow for completion of the project. Following the extension, Rogers entered into an agreement with C & W Hog Farms to purchase the farm and transfer the permit. On February 13, 1997, the Department transferred the permit to C & W Hog Farms. The Petitioners filed a request for a contested case hearing regarding the transfer of the permit and the original issuance of the permit on February 27, 1997. On March 13, 1997, C & W Hog Farms withdrew its transfer request and the Department, by letter dated March 26, 1997, informed Rogers that he was once again the permittee. In this same letter, the Department notified Rogers that he had to request a final extension in order to keep the permit from being canceled, as the previous extensions had expired.

MOTION TO DISMISS

Rogers bases his Motion to Dismiss on several grounds, alleging that the action is moot, that the Division does not have subject-matter jurisdiction to hear this matter, that the case was not timely filed by the Petitioners, and that the Confined Swine Feeding Operations Act does not apply to his farm.

Mootness

Rogers contends that the Petitioners' case is moot because the construction of the lagoon was completed prior to the filing of this contested case, and that the requests for extensions of the completion date were merely "administrative" measures designed to keep the permit "active." "Generally, an action is considered 'moot' when it no longer presents a justiciable controversy because issues involved have become academic or dead." Black's Law Dictionary 1008 (6th ed. 1990). The Petitioners contend that construction is not complete, because the project has not been certified as complete pursuant to the 1994 DHEC guidelines, nor has the Department issued a Permit to Operate the hog facility. Furthermore, Petitioners contend that both Rogers and C & W Hog Farms received extensions on the construction permit to give them time to complete the project and receive operational approval.

Generally, the decisions and orders of an administrative agency must be regarded as reasonable and correct 73A C.J.S. Public Administrative Law and Procedure §153 (1983). Therefore, it must also be presumed that an agency would not take unnecessary or uncalled for actions. If, as Rogers alleges, construction was complete in June, 1995, then no extensions from DHEC would have been necessary. Rogers, as the moving party, bears the burden of proof in demonstrating that the matter is moot. Given the contradictory nature of the evidence, it is clear that the project's completion still presents a justiciable controversy and that this action should go forward.

Lack of Subject Matter Jurisdiction

Rogers also alleges that the ALJD does not have subject matter jurisdiction to hear this case, because extensions of permits are not licensing matters subject to a contested case hearing under the Administrative Procedures Act ("APA"). Rogers bases this contention on the holding in Triska v. Department of Health and Environmental Control, 292 S.C. 190, 355 S.E.2d 531 (1987), where the Court held that a 401 Water Quality Certification was not a "contested case" proceeding under the APA and that the APA's notice and opportunity to be heard requirements did not apply. However, the factual circumstances of Triska bear no resemblance to the factual circumstances of this action, as Triska dealt with a 401 Water Quality Certification, which was not subject to the APA contested case requirements. The Court found that the federal Clean Water Act provided an adequate administrative remedy to the Department if they sought review of the certification. Id. 292 S.C. at 196, 355 S.E.2d at 534. The instant case concerns the issuance and subsequent extension of a construction permit, which is a licensing matter subject to the procedural requirements of the APA. S.C. Code Ann. §§ 1-23-310 et seq. (Supp. 1996). As a result, this tribunal finds that the procedures set forth in the APA are applicable in this matter, and contested case jurisdiction is properly vested in the ALJD.

Even if this tribunal were to assume, arguendo, that Rogers' permit did not meet the definition of contested case as set forth in S.C. Code Ann. § 1-23-310(2) (Supp.1996), the Supreme Court has held that in the absence of a specific statutory or regulatory requirement for a contested case hearing, constitutional due process considerations may require an adjudicatory proceeding. "Administrative agencies are required to meet minimum standards of due process." Stono River Environmental Protection Assoc. v. DHEC, 305 S.C. 90, 406 S.E.2d 340 (1991). The Court in Stono River found the following provision of the S.C. Constitution applicable:

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.

The Court determined that "constitutional due process provisions, apart from the APA, are sufficient to confer the rights to notice and for an opportunity to be heard." Stono River, 305 S.C. at 94, 406 S.E.2d at 342. Based upon these rulings, there can be no doubt that citizens who are aggrieved by the actions of a state agency are still protected by the fundamental requirements of due process, and have a right to judicial review of their grievance. The Department recognized this need by amending S.C. Code Regs. 61-72 §102 (Supp. 1996), adding procedures for hearings that are not required under any statute or regulation, but are required under state or federal constitutional provisions. The Petitioners' right to quiet enjoyment of their property has been affected by the Department's decision to grant and extend this construction permit. Until now, the Petitioners have not had an opportunity for judicial review of their grievances. This tribunal finds that the provisions of Regulation 61-72 and the South Carolina Constitution call for a hearing before the ALJD, as the agency charged with hearing contested cases related to licensing and permitting matters, to afford both sides an opportunity to be heard.

Timeliness of Filing

Rogers contends that the Petitioners failed to timely file their request for a hearing and are now barred from pursuing this action. Rogers bases his allegation on the provisions of S.C. Code Regs. 61-72, §201 (Supp. 1996), which states that any petition for administrative review must be filed within fifteen (15) days of actual or constructive notice of a final staff decision. The permit was issued on March 23, 1995, but the Petitioners did not file their request for a hearing with the Department until February 27, 1997. Although Rogers admits that he never provided the Petitioners with actual notice of the permit, he contends that the Petitioners had constructive notice of the permit in 1995 and failed to seek administrative remedies at that time. Rogers alleges that the presence of heavy equipment and the visibility of his lagoon from neighboring properties was sufficient to put the Petitioners on notice regarding the issuance of the permit.

The burden of proving notice rests with the party asserting its existence. See 66 C.J.S. Notice § 21 at 674 (1950). A motion to dismiss for lack of subject matter jurisdiction may be supported by, and a court may consider, affidavits or other evidence proving lack of jurisdiction. Woodard v. Westvaco Corporation, __ S.C. __, 433 S.E.2d 890 (Ct. App. 1993), vacated on other grounds, __ S.C.__, 460 S.E.2d 392 (1995). Furthermore, the pleadings presented to this tribunal, i.e., affidavits, memoranda, and exhibits, should be viewed in a light most favorable to Petitioner, the nonmoving party. See Fuller-Ahrens Partnership v. S.C. Dept. of Highways and Public Transportation, 311 S.C. 177, 427 S.E.2d 920 (Ct. App. 1993). Rogers alleges that the Petitioners had constructive notice of the permit's issuance because of the presence of heavy equipment and the digging activities on his property. However, this tribunal must consider the affidavits and memoranda submitted by the Petitioners indicating that the presence of such equipment on Rogers' property was not unusual because Rogers regularly conducts logging activities on his property. "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). The presence of heavy equipment or digging on Rogers' property was not sufficient to put Petitioners on inquiry that further investigation was required.

Rogers has failed to meet his burden of proof in demonstrating that the Petitioners had actual or constructive notice of the permit prior to February 13, 1997. Furthermore, the Petitioners offered affidavits indicating that they acted with due diligence to investigate the issuance of the permit, and timely filed this action after receiving a copy of the permit from the Department. I therefore find that this matter should not be dismissed for being untimely filed.

Applicability of the Confined Swine Feeding Operations Act

Rogers contends that the Confined Swine Feeding Operations Act ("Act"), S.C. Code Ann. § 47-20-10 et seq. (Supp. 1996), does not apply to the instant case because his permits were issued in 1978 and 1995, long before the Act's June 30, 1996, effective date. S.C. Code Ann. §48-1-30 (Rev. 1987) mandates that the Department promulgate regulations to implement the Pollution Control Act, to govern the Department's procedure with respect to meetings, hearings, filing of reports, the issuance of permits, and all other matters relating to procedure. As of this date, no regulations detailing guidelines and procedures for agricultural facility permitting, and the waste disposal systems for those facilities, have been adopted by the General Assembly. Instead, the Department has continued to use the 1994 Agricultural Permitting Guidelines as the criteria for issuing agricultural waste disposal permits. However, the 1994 Permitting Guidelines issued to provide guidance for the issuance of agricultural facility permits are not promulgated regulations, and therefore, do not have the force and effect of law. See Captain's Quarters Motor Inn, Inc. v. South Carolina Coastal Council, 306 S.C. 488, 413 S.E.2d 13 (1991). As a result, in an administrative proceeding challenging the issuance of a permit, an Administrative Law Judge must consider all relevant evidence and materials when deciding what procedures would provide "reasonable" notice and an opportunity to be heard.

Based on filings submitted by the Department, it is clear that Rogers' 1978 permit expired when he ceased operation of his farm. DHEC Response to Scheduling Conference p.2. While there is some contradictory evidence as to when operations ceased at the farm, Rogers admits that his operations ceased no later than 1994. As a result, the 1995 construction permit should have been treated as a new permit, and the Petitioners should have been afforded notice and an opportunity to be heard, as required by the provisions of S.C. Const., Art. 1, Section 22. This tribunal may, in deciding what would constitute "reasonable" notice, look to any materials that could serve as examples of "reasonable" notice. Such materials would include the 1994 Permitting Guidelines, as they reflect the Department's definition of "reasonable," but may also include the Confined Swine Feeding Operations Act, which provides an example of the Legislature's definition of "reasonable." Thus, even though the Act did not have the force of law as a legislative mandate when the 1995 permit was issued, this tribunal may still look to its provisions to determine whether or not the Petitioners were afforded due process when the 1995 permit was issued. Therefore, dismissal of the issues relating to the Act would be inappropriate at this stage of the proceedings.

SUMMARY JUDGEMENT

Rogers requested summary judgement in the alternative if the motion to dismiss was denied. The S.C. Supreme Court has previously held that:

Summary judgement can only be granted in those cases where plain, palpable, and indisputable facts exist on which reasonable minds cannot differ. All ambiguities, conclusions, and inferences arising in and from the evidence must be construed most strongly against the movant for summary judgement.

Williams v. Chesterfield Lumber Co., 267 S.C. 607, 230 S.E.2d 447 (1976).

The grant of summary judgement is appropriate only if it is clear that no genuine issue of material fact exists, that inquiry into the facts is not desirable to clarify the application of the law, and that the movant is entitled to judgement as a matter of law.

Standard Fire Ins. Co. v. Marine Contracting and Towing Co., 301 S.C. 418, 392 S.E.2d 460 (1990). Rogers' motion does not meet the criteria for summary judgement, as there are genuine issues of material fact regarding the issuance of the permit and its impact on the community. Furthermore, it is in the interests of the Petitioners and the state as a whole to examine and clarify the application of the Pollution Control Act to hog farm operations. Therefore, summary judgement should not be granted.

IT IS THEREFORE ORDERED THAT, for the reasons set forth above, Respondent Neal Rogers' Motion to Dismiss is denied. Respondent Rogers' Motion for Summary Judgment is likewise denied. This matter shall proceed before the ALJD and a hearing will be held forthwith.

AND IT IS SO ORDERED.

_____________________

Marvin F. Kittrell

Chief Judge

August 25, 1997