ORDERS:
ORDER OF DISMISSAL
This matter is before me pursuant to the request of the Petitioner, Kendall Clark d/b/a KC's
MHP, for a contested case hearing with regard to an Administrative Order issued by the Respondent,
South Carolina Department of Health and Environmental Control (DHEC). For the following
reasons, I conclude that the request for a contested case hearing was untimely filed 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 KC's Mobile Home Park #3 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
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 KC's Mobile
Home Park #3 of his failure to perform the required monitoring. Petitioner failed to perform the
monitoring or to issue the required public notices. Petitioner did issue one notice for the month of
March, 1998, but this notice was received by DHEC after its due date. 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 $1339.75.
After holding a telephonic 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 $1339.75; 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 $7980.00. The Administrative Order further advised the
Petitioner that the Order 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 21, 1998. On August 4, 1998, the Petitioner sent a request for a
contested case hearing to the Clerk of the DHEC Board. Petitioner's request was received by the
Clerk of the Board and filed on August 6, 1998.
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 21, 1998. Therefore, he had fifteen calendar days--until
August 5, 1998, in which to file his request for a contested case hearing with the Clerk of the DHEC
Board. Although Petitioner's request for a hearing was dated August 4, 1998, it was not actually
received by the Clerk of the DHEC Board until August 6, 1998. The letter does bear a stamp of the
Office of the Commissioner, dated August 5, 1998. However, the regulation specifically provides
that filing is not effective until the Clerk of the Board receives the request. Accordingly, Petitioner's
request was filed one day after the expiration of the fifteen day 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, 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 |