Reference is to Printer's Date 4/1/13-H.
Amend the bill, as and if amended, by striking all after the enacting words and inserting:
/ SECTION 1. Timely resolutions of disputes with minimal delay regarding determinations and decisions made by the South Carolina Department of Health and Environmental Control promote economic development, ensure the protection of the State's natural resources and environment, and allow earlier implementation of healthcare projects for the benefit of the State's citizens. The current process imposes unreasonable and unnecessary delay which may be eliminated by allowing challenges to Department decisions to be made directly to the South Carolina Administrative Law Court.
SECTION 2. Section 44-1-60 of the 1976 Code, as last amended by Act 278 of 2010, is further amended to read:
"Section 44-1-60.
(A) All department decisions involving
the issuance, denial, renewal, suspension, or revocation of
permits, licenses, or other actions of the department which may
give rise to a contested case shall must
be made using the procedures set forth in this section.
(B) The department
staff shall comply with all requirements for public notice,
receipt of public comments and public hearings before making a
department decision. To the maximum extent possible, the
department shall use a uniform system of public notice of permit
applications, opportunity for public comment and public
hearings.
(C) The initial
decision involving the issuance, denial, renewal, suspension, or
revocation of permits, licenses, or other action of the
department shall be a staff decision. The staff's
decision involving the issuance, denial, renewal, suspension, or
revocation of permits, licenses, or other action of the
department must be in writing and shall constitute a decision by
the department as set forth in Subsection (D)(2). In making
such a staff written department
decision on any a permit, license,
certification or other approval, the department staff shall take
into consideration all material comments received in response to
the public notice in determining whether to issue, deny or
condition such permit, license, certification or other approval.
At the time that such staff decision is made,
The department shall issue a department decision,
and shall base its department decision on the
administrative record which shall consist of the application and
supporting exhibits, all public comments and submissions, and
other documents contained in the supporting file for the permit,
license, certification or other approval. The administrative
record may also include material readily available at the
department, or published materials which are generally available
and need not be physically included in the same file as the rest
of the record as long as such materials are specifically
referred to in the department decision. The department decision
need not be issued for routine permits for which no adverse
public comments have been received.
(ED)(1)
Notice of a department decision must be sent by
certified mail, returned receipt requested to the
applicant, permittee, licensee, and affected or
electronic mail to the last known mailing address or electronic
mail address to the applicant, permittee, or licensee, and
persons who have requested in writing to be notified.
Affected persons may request in writing to be notified
by regular mail or electronic mail in lieu of certified
mail. Notice of staff decisions for
which a department decision is not required pursuant to
subsection (DC) must be provided by
electronic mail or mail, delivery, or other
appropriate means to the applicant, permittee,
licensee, and affected persons who have
requested in writing to be notified.
(2)(a)
The staff written department
decision becomes the final agency decision fifteen calendar days
after notice of the staff department
decision has been mailed to the applicant, unless :
(i)
a written request for final review
accompanied by a filing fee is filed with the department by the
applicant, permittee, licensee, or affected person a
contested case is filed with the Administrative Law Court within
fifteen calendar days after notice of the department decision is
mailed to the applicant, permittee, or licensee, and persons who
have requested in writing to be notified of the department
decision and served upon the clerk of the board and applicant,
permittee, or licensee; or
(ii)
at the option of the applicant, permittee, or
licensee, a written request for review is filed with the board
by the applicant, permittee, or licensee within fifteen calendar
days after notice of the department decision.
(b)
If a request for review is made pursuant to item
(ii), the board shall conduct any informal review it considers
appropriate within sixty days of the request for review pursuant
to procedures established by the board. Upon issuance of a
written determination from the board, which must be the
department decision and must be issued no later than sixty days
from the date of the request for review, this decision becomes
the final agency decision fifteen calendar days after notice of
the decision has been mailed to the applicant, permittee, or
licensee unless a written request for a contested case is filed
with the Administrative Law Court within fifteen calendar days
after notice of the decision is mailed to the applicant,
permittee, or licensee, and persons who have requested in
writing to be notified of the department decision and served
upon the clerk of the board and the applicant, permittee, or
licensee.
(c)
Within ten days of receipt of the notice of
assignment from the Administrative Law Court, the permit or
license applicant may file a written request for remand to the
board for further review. The Administrative Law Court shall
grant this request for remand and shall retain jurisdiction over
the matter as a contested case, which must be stayed during the
remand. The board must conduct any informal review it considers
appropriate within sixty days of the order for remand pursuant
to procedures established by the board. At the conclusion of
the review or upon the expiration of the sixty-day remand
period, the department shall file a statement with the
Administrative Law Court and the parties setting forth
revisions, modifications, amendments, or changes, if any, to the
department decision.
(3)
The filing fee must be in the amount of one
hundred dollars unless the department establishes a fee schedule
by regulation after complying with the requirements of Article
1, Chapter 23, Title 1. This fee must be retained by the
department in order to help defray the costs of the proceedings
and legal expenses Administrative Law Court shall
give consideration to the provisions of Section 1-23-330
regarding the department's specialized knowledge.
( FE)
A person to whom an emergency order is issued by the
department may apply directly to the Administrative Law Court
for relief and must be afforded a hearing within forty-eight
hours. Regardless of whether a hearing is held, the department
must revoke all emergency orders as soon as conditions or
operations change to the extent that an emergency no longer
exists.
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 requests
pursuant to subsection (G) a contested case hearing before the
Administrative Law Court. The department shall set the place,
date, and time for the conference; give the applicant and
affected persons at least ten calendar days' written notice of
the conference; and advise the applicant that evidence may be
presented at the conference. The final review conference must
be held as follows:
(1)
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.
The 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 the 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.
(2)
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, in accordance with the Administrative Procedures Act.
The court shall give consideration to the provisions of Section
1-23-330 regarding the department's specialized knowledge.
(3)
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.
(G) 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:
(1)
notice is mailed to the applicant, permittee, licensee, and
affected persons that the board declined to hold a final review
conference; or
(2)
the sixty calendar day deadline to hold the final review
conference lapses and no conference has been held; or
(3)
the final agency decision resulting from the final review
conference is received by the parties.
(H) Applicants,
permittees, licensees, and affected persons are encouraged to
engage in mediation during the final review process.
(I) The department may
promulgate regulations providing for procedures for final
reviews.
(J) Any statutory
deadlines applicable to permitting and licensing programs
administered by the department must be extended to all for this
final review process. If any deadline provided for in this
section falls on a Saturday, Sunday, or state holiday, the
deadline must be extended until the next calendar day that is
not a Saturday, Sunday, or state holiday."
SECTION 3. All statutes and regulations must be interpreted to conform with this statutory amendment to allow challenges to department decisions to be filed directly to the South Carolina Administrative Law Court, and to the extent any existing provision in statute or regulation conflicts with this statutory amendment that provision is superseded.
SECTION 4. The repeal or
amendment by this act of any law, whether temporary or
permanent, does not affect pending actions, rights, duties, or
liabilities founded on it, or alter, discharge, release, or
extinguish any penalty, forfeiture, or liability incurred under
the repealed or amended law. After the effective date of this
act, all laws repealed or amended by this act must be taken and
treated as remaining in full force and effect for the purpose of
sustaining any pending or vested right, civil action, special
proceeding, or appeal existing as of the effective date of this
act, and for the enforcement of rights, duties, penalties,
forfeitures, and liabilities as they stood under the repealed or
amended laws.
SECTION 5. If any
section, subsection, item, subitem, paragraph, subparagraph,
sentence, clause, phrase, or word of this act is for any reason
held to be unconstitutional or invalid, such holding shall not
affect the constitutionality or validity of the remaining
portions of this act, the General Assembly hereby declaring that
it would have passed this act, and each and every section,
subsection, item, subitem, paragraph, subparagraph, sentence,
clause, phrase, and word thereof, irrespective of the fact that
any one or more other sections, subsections, items, subitems,
paragraphs, subparagraphs, sentences, clauses, phrases, or words
hereof may be declared to be unconstitutional, invalid, or
otherwise ineffective.
SECTION 6. This act takes effect upon approval by the Governor. /
Renumber sections to conform.
AMEND THE TITLE TO READ:
/ TO AMEND SECTION 44-1-60, AS AMENDED, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO REQUESTS FOR FINAL REVIEW OF DEPARTMENT OF HEALTH AND ENVIRONMENTAL CONTROL DECISIONS BY THE DEPARTMENT BOARD, SO AS TO PROVIDE THAT A PARTY MAY REQUEST A CONTESTED CASE HEARING ON A DEPARTMENT DECISION BEFORE THE ADMINISTRATIVE LAW COURT OR MAY REQUEST A REVIEW OF THE DEPARTMENT DECISION BY THE BOARD; TO PROVIDE THAT IF A REVIEW BY THE BOARD IS REQUESTED, THE BOARD HAS SIXTY DAYS WITHIN WHICH TO CONDUCT ITS REVIEW AND ISSUE A DETERMINATION WHICH BECOMES THE FINAL AGENCY DECISION UNLESS A REQUEST FOR A CONTESTED CASE HEARING IS REQUESTED BEFORE THE ADMINISTRATIVE LAW COURT; TO PROVIDE THAT IF A CONTESTED CASE HEARING IS REQUESTED, THE PARTY MAY REQUEST THE ADMINISTRATIVE LAW COURT TO REMAND THE CASE TO THE BOARD FOR FURTHER REVIEW; TO PROVIDE THAT UPON REMAND, THE BOARD HAS SIXTY DAYS WITHIN WHICH TO CONDUCT ITS REVIEW AND ISSUE A STATEMENT WITH THE ADMINISTRATIVE LAW COURT AND THE PARTIES PROVIDING REVISIONS OR MODIFICATIONS, IF ANY, MADE TO THE DEPARTMENT DECISION; AND TO PROVIDE THAT IF AN EMERGENCY ORDER IS ISSUED BY THE DEPARTMENT, THE PERSON AGAINST WHOM IT IS ISSUED MAY APPLY TO THE ADMINISTRATIVE LAW COURT FOR RELIEF AND MUST BE AFFORDED A HEARING WITHIN FORTY-EIGHT HOURS. /