South Carolina              
Administrative Law Court
Edgar A. Brown building 1205 Pendleton St., Suite 224 Columbia, SC 29201 Voice: (803) 734-0550

SC Administrative Law Court Decisions

CAPTION:
Converse Power Company vs. SCDHEC

AGENCY:
South Carolina Department of Health and Environmental Control

PARTIES:
Petitioner:
Converse Power Company

Respondent:
South Carolina Department of Health and Environmental Control
 
DOCKET NUMBER:
97-ALJ-07-0435-CC

APPEARANCES:
E.D. Sloan, Jr., President for Petitioner

Elizabeth Potter, Esquire for Respondent
 

ORDERS:

ORDER GRANTING MOTION TO DISMISS

This matter is before me on a Motion to Dismiss filed by the Department of Health and Environmental Control in the above referenced matter. A hearing on the motion was conducted on August 29, 1997. Based upon the record and the information presented, the motion to dismiss is granted and this matter is DISMISSED WITHOUT PREJUDICE.

The facts presented based upon the pleadings are that on May 10, 1997, Petitioner requested an application form for an "Aquaculture Permit." After numerous correspondence to determine the type of application Petitioner was requesting, the Department sent Petitioner an application for a SCDHEC Shellfish Program Permit as referenced in 24A S.C. Code Regs. 61-47 on May 29, 1997. At that time, the Department also informed Petitioner that other permits may be required depending upon the specific type of facility the Petitioner planned to operate. On May 30, 1997, Petitioner wrote a letter to the Department containing information purporting to be an application for an aquaculture permit. Apparently, DHEC's letter with the appropriate form and Mr. Sloan's letter of application crossed in the mail. No further action was taken by either party.

On July 21, 1997, the DHEC Board received a Petition for Administrative Review filed by Mr. Sloan alleging that DHEC "acted arbitrarily, capriciously, and/or unreasonably in not acting upon, or even acknowledging the application [for an aquaculture permit] by Converse." (emphasis added). The petition was forwarded to the Administrative Law Judge Division accompanied by the Motion to Dismiss on July 28, 1997. Subsequent to the filing of the documents with the Division, on August 4, 1997, the Department received a completed SCDHEC Shellfish Program Permit application form on behalf of Converse Power Corporation supplementing the written letter of application submitted by Converse on May 30, 1997. The appropriate person at DHEC responded to the application by letter dated August 25, 1997, which the parties received on August 29, 1997, just prior to the motion hearing.

The basis of the Department's motion is that the Division lacked subject matter jurisdiction of the proceeding because there has been no final agency action with respect to Petitioner's application. The Administrative Procedures Act requires an opportunity for a hearing in a contested case setting after the agency has issued a final decision subject to review. See South Carolina Baptist Hosp. v. S.C. Dep't of Health and Envtl. Control, 291 S.C. 267, 353 S.E.2d 277 (1987). In this case, there has been no final agency decision. Under the provisions of Regulation 61-47, "only a person who complies with the requirements of this Regulation shall be entitled to receive and retain such permit or certificate ... ." 24A S.C. Code Regs. 61-47F(1)(a). The regulation requires that an application for a permit or certificate shall be submitted in writing to the Department. Upon receipt of an application, the Department shall make inspections of the shellfish operations and issue the permit when inspection reveals that the applicable requirements have been met. 24A S.C. Code Regs. 61-47F(2)(f).

After receipt of the application form on August 4, 1997, DHEC has taken steps to evaluate the application submitted by Converse. Written information regarding that application was received by the parties on August 29, 1997. DHEC has not had the opportunity to evaluate the application and conduct the necessary inspections as required by the regulation. It is therefore premature to conduct a contested case hearing because the Department has not taken any action on the permit requiring review. "It would be premature for a court to decide the merits of a dispute when the agency responsible for making the decision has not yet had an opportunity to decide the merits of the case." South Carolina Baptist Hosp. v. South Carolina Dept. Of Health and Environmental Control, supra, 353 S.E.2d at 279.

The Petitioner has not exhausted his administrative remedies and any proceeding before this tribunal is not ripe for review. Petitioner has requested that the Division retain jurisdiction over the matter pending a decision by DHEC regarding the application. Since there has been no decision by the Department regarding the application, there is no action over which this tribunal may exercise jurisdiction. In the event the Department decision is adverse to Petitioner, all the rights to a contested case will vest and the Petitioner may seek review. Petitioner is not foreclosed from initiating an action for a contested case hearing at such time as the matter is ripe for review.

Therefore, it is ORDERED, that the Department's Motion to Dismiss is GRANTED, and the matter is DISMISSED WITHOUT PREJUDICE. Petitioner may seek a contested case hearing after the Department has had an opportunity to review the application for a shellfish permit and has issued a final agency decision on the matter.

AND IT IS SO ORDERED.

ALISON RENEE LEE

ADMINISTRATIVE LAW JUDGE

September 3, 1997

Columbia, South Carolina.


Brown Bldg.

 

 

 

 

 

Copyright © 2024 South Carolina Administrative Law Court