South Carolina              
Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
W. Gerald Wellborn vs. SCDHEC

AGENCY:
South Carolina Department of Health and Environmental Control

PARTIES:
Petitioner:
W. Gerald Wellborn


Respondent:
South Carolina Department of Health and Environmental Control
 
DOCKET NUMBER:
97-ALJ-07-0260-CC

APPEARANCES:
n/a
 

ORDERS:

ORDER OF DISMISSAL

This matter is before me on a motion filed by the South Carolina Department of Health and Environmental Control (DHEC or Department). The Department filed a motion to dismiss for lack of jurisdiction. The motion hearing was conducted on Tuesday, July 15, 1997.

DHEC'S MOTION TO DISMISS

DHEC moves to dismiss Welborn's petition based on two grounds: failure to timely file the petition and failure to follow the procedures outlined in 25 S.C. Code Regs. 61-72. On June 29, 1994, DHEC issued a letter to Petitioner allowing him to continue operating under expired waste tire hauler certificate WT013 until he received further notice from the Department. DHEC notified Petitioner that he was no longer allowed to operate as a waste tire hauler under the June 29th letter by a certified letter from Carolyn L. Keisler dated April 24, 1997(April 24th letter).

The Petitioner's secretary, Darlene Myers, signed for and delivered to the Petitioner, the April 24th letter on April 28, 1997. In response to DHEC's April 24th letter the Petitioner stated in a letter dated May 3, 1997 that he wished to contest DHEC's decisions. However, this letter from the Petitioner was postmarked May 16, 1997 and stamped received by the Bureau of Solid and Hazardous Waste Management on May 19, 1997 and by the Commissioner's Office on May 21, 1997. DHEC argues that the petition was not timely filed with DHEC.

To be afforded an adjudicatory hearing, a person is required to file a petition with the DHEC Board within fifteen days of actual or constructive notice of a DHEC staff decision. 25 S.C. Code Regs. 61-72, § 201 A. (Supp. 1996). The filing of a petition within the time established by Section 201(A) or applicable substantive regulation or law is necessary to give jurisdiction to conduct administrative review. 25 S.C. Code Regs. 61-72, § 201 B. (Supp. 1996). There is no evidence or any allegation by the Petitioner that he did not have actual or constructive notice on April 28, 1997 of the Department's decision to terminate his waste tire hauling certificate.

Based on the fact that the Petitioner admitted he received the April 24th letter on April 28, 1997, I find that the Petitioner had actual knowledge of the Department's decision on April 28, 1997. Therefore, the fifteen day time limit started to run on April 28, 1997. The last day to file a petition with the DHEC Board was May 13, 1997. Because DHEC did not receive the letter until May 19, 1997 at the earliest, the petition was not timely filed and DHEC's motion to dismiss is GRANTED.

AND IT IS SO ORDERED.

This the twenty-fourth day of July, 1997.



______________________________

Marvin F. Kittrell

Chief Administrative Law Judge


Brown Bldg.

 

 

 

 

 

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