ORDERS:
ORDER OF DISMISSAL
This matter is before me pursuant to the Motion of the Respondent, South Carolina
Department of Health and Environmental Control (DHEC) to dismiss this matter on the grounds that
the Petitioner's request for a contested case hearing was untimely filed. No response to the Motion
to Dismiss has been filed. For the following reasons, I conclude that the Motion to Dismiss must
be granted and this case must be dismissed for lack of subject matter jurisdiction.
STATEMENT OF THE CASE
The Petitioner owns a public water system which serves AJ's Mobile Home Park in Berkeley
County, South Carolina. In accordance with S.C. Code Ann. Regs. 61-58, the State Primary
Drinking Water Regulations, the Petitioner was required to monitor the levels of bacteria, lead,
copper, and nitrate on a monthly basis, and to submit the results of the monitoring to DHEC. On
numerous occasions, DHEC staff issued Notices of Violation to the Petitioner for failure to perform
the required monitoring, and advised the Petitioner that he must notify the residents of AJ's Mobile
Home Park of his failure to perform the required monitoring. Petitioner failed to perform the
monitoring or to issue the required public notices. In addition, DHEC alleges that the Petitioner has
failed to pay State Safe Drinking Water Fees for the fiscal years 1997 and 1998, in the total amount
of $1284.88.
After holding an enforcement conference with the Petitioner, DHEC was unable to resolve
this matter. Therefore, an Administrative Order was issued on July 8, 1998, requiring the payment
of the State Safe Drinking Water Fee in the total amount of $1284.88; requiring that the monitoring
be performed; requiring that public notice of Petitioner's failure to monitor the system be issued; and
imposing a civil penalty of $11,520.00. The Administrative Order further advised the Petitioner that
it would become final unless the Petitioner filed a request for a contested case hearing with the Clerk
of the DHEC Board within fifteen calendar days of receipt of the Administrative Order.
The Administrative Order was sent to the Petitioner on July 13, 1998, by certified mail, and
received by the Petitioner on July 15, 1998. On August 4, 1998, the Petitioner filed a request for a
contested case hearing with the Clerk of the DHEC Board.
DISCUSSION
The Administrative Law Judge Division (ALJD) has jurisdiction over contested cases
involving DHEC, pursuant to S.C. Code Ann. § 1-23-600(B) (Supp. 1997). A contested case is
initiated by filing a request for a contested case hearing with the affected agency "within the time
frame authorized by that agency." ALJD Rule 11. Accordingly, in this case, the request for a
hearing had to be filed with the Clerk of the DHEC Board within fifteen days of receipt of the
Administrative Order, pursuant to S.C. Code Ann. Regs. 61-72 § 201(A) (Supp. 1997). Moreover,
the regulations require that the Clerk of the Board actually receive the request in order for filing to
be effective. S.C. Code Ann. Regs. 61-72 § 301 (Supp. 1997). In this case, the Petitioner
received the Administrative Order on July 15, 1998. Therefore, he had fifteen calendar days--until
July 30, 1998, in which to file his request for a contested case hearing with the Clerk of the DHEC
Board. However, his request for a hearing was not filed until August 4, 1998, five days after the
expiration of the fifteen-day time period.
A threshold question in every case is whether the court has subject matter jurisdiction over
the matter in question. Issues relating to subject matter jurisdiction may be raised at any time, cannot
be waived by the parties, and may be considered by the court on its own motion. See Johnson v.
State, 319 S.C. 62, 459 S.E.2d 840 (1995). The failure to file a request for a contested case hearing
within the allowable time frame divests the Division of jurisdiction to hear the matter. See Botany
Bay Marina v. Townsend, 296 S.C. 330, 372 S.E.2d 584 (1988). In addition, this court has no
authority to expand the time in which the request for a hearing must be filed. See Mears v. Mears,
287 S.C. 168, 337 S.E.2d 206 (1985). Accordingly, this case must be dismissed for lack of subject
matter jurisdiction.
ORDER
For all the foregoing reasons, the Respondent's Motion to Dismiss is hereby granted and this
case is dismissed for lack of subject matter jurisdiction.
AND IT IS SO ORDERED.
_____________________________________
Marvin F. Kittrell
Chief Judge
Columbia, South Carolina
September 9, 1998 |
