South Carolina Board of Health and Environmental Control
Guide to Board Review
Pursuant to S.C. Code Ann. § 44-1-60
Effective April 11, 2013
The decision of the South Carolina Department of Health and Environmental Control (Department) becomes the final agency decision fifteen (15) calendar days after notice of the decision has been mailed to the applicant, permittee, licensee and affected persons who have requested in writing to be notified, unless a written request for final review accompanied by a filing fee in the amount of $100 is filed with Department by the applicant, permittee, licensee or affected person.
Applicants, permittees, licensees, and affected parties are encouraged to engage in mediation during the final review process.
If the Board declines in writing to schedule a final review conference, the Department’s 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 within thirty (30) calendar days after notice is mailed that the Board declined to hold a final review conference.
I. Filing of Request for Final Review
- A written Request for Final Review (RFR) and the required filing fee of one hundred dollars ($100) must be received by Clerk of the Board within fifteen (15) calendar days after notice of the staff decision has been mailed to the applicant, permittee, licensee, or affected persons. If the 15th day occurs on a weekend or State holiday, the RFR must be received by the Clerk on the next working day. RFRs will not be accepted after 5:00 p.m.
- RFRs shall be in writing and should include, at a minimum, the following information:
- The grounds for amending, modifying, or rescinding the staff decision;
- a statement of any significant issues or factors the Board should consider in deciding how to handle the matter;
- the relief requested; and
- a copy of the decision for which review is requested.
- RFRs should be filed in person or by mail at the following address:
South Carolina Board of Health and Environmental Control
Attention: Clerk of the Board
2600 Bull Street
Columbia, South Carolina 29201
Alternatively, RFRs may be filed with the Clerk by facsimile (803-898-3393) or by electronic mail (email@example.com).
- The filing fee may be paid by cash, certified check or credit card. If a RFR is filed by facsimile or electronic mail, the filing fee may be mailed to the Clerk of the Board and the envelope must be postmarked within the time allowed for filing a RFR.
- If there is any perceived discrepancy in compliance with this RFR filing procedure, the Clerk should consult with the Chairman or, if the Chairman is unavailable, the Vice-Chairman. The Chairman or the Vice-Chairman will determine whether the RFR is timely and properly filed and direct the Clerk to (1) process the RFR for consideration by the Board or (2) return the RFR and filing fee to the requestor with a cover letter explaining why the RFR was not timely or properly filed. Processing an RFR for consideration by the Board shall not be interpreted as a waiver of any claim or defense by the agency in subsequent proceedings concerning the RFR.
- If the RFR will be processed for Board consideration, the Clerk will send an Acknowledgement of RFR to the Requestor and the applicant, permittee, or licensee, if other than the Requestor.
- The Clerk will email the RFR to staff and Office of General Counsel and request a Department Response within
eight (8) working days. Upon receipt of the Department Response, the Clerk will forward the RFR and Department Response
to all Board members for review, and all Board members will confirm receipt of the RFR to the Clerk by email. If a Board
member does not confirm receipt of the RFR within twenty-four (24) hour period, the Clerk will contact the Board member
and confirm receipt. If a Board member believes the RFR should be considered by the RFR Committee, he or she will respond
to the Clerk's email within forty-eight (48) hours and will request further review. If no Board member requests further
review of the RFR within the forty-eight (48) hour period, the Clerk will send a letter by certified mail to the Requestor,
with copy by regular mail to the applicant, permittee, or licensee, if not the Requestor, stating the Board will not hold a
Final Review Conference. Contested case guidance will be included with the letter.
NOTE: If the time periods described above end on a weekend or State holiday, the time is automatically extended to 5:00 p.m. on the next business day.
- If the RFR is to be considered by the RFR Committee, the Clerk will notify the Presiding Member of the RFR Committee and the Chairman that further review is requested by the Board.
- Following RFR Committee or Board consideration of the RFR, if it is determined no Conference will be held, the Clerk will send a letter by certified mail to the Requestor, with copy by regular mail to the applicant, permittee, or licensee, if not the Requestor, stating the Board will not hold a Conference. Contested case guidance will be included with the letter.
II. Final Review Conference Scheduling
- If a Conference will be held, the Clerk will send a letter by certified mail to the Requestor, with copy by regular mail to the applicant, permittee, or licensee, if not the Requestor, informing the Requestor of the determination.
- The Clerk will request Department staff provide the Administrative Record.
- The Clerk will send Notice of Final Review Conference to the parties at least ten (10) days before the Conference.
The Conference will be publically noticed and should:
- include the place, date and time of the Conference;
- state the presentation times allowed in the Conference;
- state evidence may be presented at the Conference;
- if the conference will be held by committee, include a copy of the Chairman's order appointing the committee; and
- inform the Requestor of his or her right to request a transcript of the proceedings of the Conference prepared at Requestor's expense.
- If a party requests a transcript of the proceedings of the Conference and agrees to pay all related costs in writing, including costs for the transcript, the Clerk will schedule a court reporter for the Conference.
III. Final Review Conference and Decision
- The order of presentation in the Conference will, subject to the presiding officer's discretion, be as follows:
- Department staff will provide an overview of the staff decision and the applicable law to include [10 minutes]:
- Type of decision (permit, enforcement, etc.) and description of the program.
- Description of facility/site
- Applicable statutes and regulations
- Decision and materials relied upon in the administrative record to support the staff decision.
- Requestor(s) will state the reasons for protesting the staff decision and may provide evidence to support amending, modifying, or rescinding the staff decision. [15 minutes] NOTE: The burden of proof is on the Requestor(s)
- Rebuttal by Department staff [15 minutes]
- Rebuttal by Requestor(s) [10 minutes]
Note: Times noted in brackets are for information only and are superseded by times stated in the Notice of Final Review Conference or by the presiding officer.
- Parties may present evidence during the conference; however, the rules of evidence do not apply.
- At any time during the conference, the officers conducting the conference may request additional information and may question the Requestor, the staff, and anyone else providing information at the conference.
- The presiding officer, in his or her sole discretion, may allow additional time for presentations and may impose time limits on the Conference.
- All Conferences are open to the public.
- The officers may deliberate in closed session.
- The officers may announce the decision at conclusion of the Conference or it may be reserved for consideration.
- The Clerk will mail the written final agency decision (FAD) to parties within 30 days after the Conference. 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. The FAD will be sent by certified mail, return receipt requested.
- Communications may also be sent by electronic mail, in addition to the forms stated herein, when electronic mail addresses are provided to the Clerk. The above information is provided as a courtesy; parties are responsible for complying with all applicable legal requirements.
The above information is provided as a courtesy; parties are responsible for complying with all applicable legal requirements.