A contested case occurs where a party formally disagrees with an agency action. Agency actions that can be appealed include, but are not limited to, the issuance, denial, renewal, suspension, or revocation of permits and licenses. The initial decision made on any of these issues by DHEC staff is considered a “staff decision.” For routine permitting matters that have no adverse public comments, a staff decision is sufficient. For other permitting cases, an ensuing “department decision” is made. The department decision is rendered after consideration of public input and all related documentation (administrative record).
Requests For Review
Staff decisions become final decisions upon the passage of fifteen calendar days after notice of the staff decision is made, unless a written request for final review is submitted along with a filing fee by an applicant, permittee, licensee, or affected persons. Final review conferences are generally held during monthly Board meetings.
- No later than sixty calendar days after the date of receipt of a request for final review, a final review conference must be conducted by the Board, its designee, or a committee of three members of the Board appointed by the chair. If the Board declines in writing to schedule a final review conference or if a final review conference is not conducted within sixty calendar days, the staff decision becomes the final agency decision, and an applicant, permittee, licensee, or affected person may request a contested case hearing before the Administrative Law Court.
- Final review conferences are open to the public; however, the officers conducting the conference may meet in closed session to deliberate on the evidence presented at the conference. The burden of proof in a conference is upon the moving party. During the course of the final review conference, the staff must explain the staff decision and the materials relied upon in the administrative record to support the staff decision. The applicant or affected party shall state the reasons for protesting the staff decision and may provide evidence to support amending, modifying, or rescinding the staff decision. DHEC staff may rebut information and arguments presented by the applicant or affected party, and the applicant or affected party may rebut information and arguments presented by DHEC staff. Any final review conference officer may request additional information and may question the applicant or affected party, the staff, and anyone else providing information at the conference.
- After the final review conference, the Board, its designee, or a committee of three members of the Board appointed by the chair shall issue a written final agency decision based upon the evidence presented. The decision may be announced orally at the conclusion of the final review conference or it may be reserved for consideration. The written decision must explain the basis for the decision and inform the parties of their right to request a contested case hearing before the Administrative Law Court. In either event, the written decision must be mailed to the parties no later than thirty calendar days after the date of the final review conference.
- Within thirty calendar days after the receipt of the decision an applicant, permittee, licensee, or affected person desiring to contest the final agency decision may request a contested case hearing before the Administrative Law Court.
- Prior to the initiation of the final review conference, an applicant, permittee, licensee, or affected person must be notified of their right to request a transcript of the proceedings of the final review conference. If a transcript is requested, the applicant, permittee, licensee, or affected person making the request is responsible for all costs.
- An applicant, permittee, licensee, or affected person may file a request with the Administrative Law Court for a contested case hearing within thirty calendar days after:
- notice is mailed to the applicant, permittee, licensee, and affected persons that the board declined to hold a final review conference; or
- the sixty calendar day deadline to hold the final review conference lapses and no conference has been held; or
- the final agency decision resulting from the final review conference is received by the parties.
Types of Cases Frequently Contested
These types of cases are frequently contested and often discussed at monthly Board meetings.
- Certificate of Need
- Community Residential Care Facilities (i.e., nursing homes, assisted living facilities, etc.)
- OCRM – dock permits, dredging
- Environmental Permits