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 Petitioners' requests for a contested case hearing were untimely filed. No response to the Motion
to Dismiss has been filed by either of the Petitioners. 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 Petitioners owned a public water system which serves the Seven Palms 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 Petitioners were required to monitor the levels of bacteria,
nitrite and other inorganic contaminants, volatile synthetic organic chemicals, and synthetic organic
compounds 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 Petitioners that they must notify the residents of Seven Palms
Mobile Home Park of their failure to perform the required monitoring. Petitioners failed to perform
the monitoring or to issue the required public notices. In addition, DHEC alleges that the Petitioners
failed to pay State Safe Drinking Water Fees for the fiscal years 1994, 1995, and 1996, in the total
amount of $2468.00.
After holding an enforcement conference and a telephone conference with the Petitioners,
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 $2468.00;
requiring that the monitoring be performed; requiring that public notice of Petitioners' failure to
monitor the system be issued; and imposing a civil penalty of $18,600.00. The Administrative Order
further advised the Petitioners that it would become a final order unless the Petitioners 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 Petitioners on July 13, 1998, by certified mail, and
received by the Petitioner Driver on July 15, 1998, and by the Petitioner Clark on July 21, 1998. On
August 4, 1998, the Petitioner Driver filed a request for a contested case hearing with the Clerk of
the DHEC Board, and the Petitioner Clark filed a similar request with the Clerk of the Board by
letter dated August 4, 1998, and received in the office of the Clerk 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 Driver
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. The Petitioner Clark received the Administrative Order
on July 21, 1998. He thus had until August 5, 1998, in which to file his request with the Clerk.
Although Petitioner Clark's request for a hearing is dated August 4, 1998, the Clerk of the Board did
not receive it and stamp it filed until August 6, 1998. Since the regulations require actual receipt by
the Clerk in order for filing to be perfected, Petitioner Clark's filing was one day late.
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 as to both Petitioners.
AND IT IS SO ORDERED.
_____________________________________
Marvin F. Kittrell
Chief Judge
Columbia, South Carolina
September 9, 1998 |
