On March 12, 2018, South Carolina Act No. 134 went into effect making changes to the procedures for lifting the automatic stay in contested cases before the South Carolina Administrative Law Court (“ALC”).  The changes clarify when and how a party may request, and the ALC may grant, a lift of the automatic stay in contested cases. 

S.C. Code Ann. § 1-23-600(H)(2) provides that a request for a contested case to review an agency order stays the order.  This language providing for the automatic stay remains unchanged.  The automatic stay preserves the status quo during a challenge to an agency decision.  For environmental permits, this means that the permittee cannot begin construction pending review.    

The recent changes address the circumstances in which a court may lift the automatic stay.  The changes include adding a ninety (90) day window after the filing of a contested case before a party may move to lift the automatic stay or for a determination of the applicability of the automatic stay.  For environmental permits, this ninety (90) day window will, of course, be in addition to the time it takes to obtain a final agency decision and for the request for a contested case hearing to be filed with the ALC.  A final agency decision for environmental permits is made when the Board of the South Carolina Department of Health and Environmental Control grants a request for a hearing and makes a decision on the permit, or when the Board declines to hear the request within a sixty day period from the initial agency decision. Any appeal to the ALC must be filed within 30 days of that final agency decision.  Pursuant to the new changes to the statute, the ALC must now hold a hearing thirty (30) days following the filing and service of any motion to lift the stay.

The most significant change is likely the change to the elements that the filer of the contested case must meet in order to retain the automatic stay if challenged.  S.C. Code Ann. 1-23-600(H)(4) previously provided that the court, upon motion, “shall lift the stay for good cause shown or if no irreparable harm will occur.”  In place of this language, the revised section (H)(4)(a) now provides that the court shall lift the stay unless the party that requested a contested case hearing proves the following four elements: 

1. the likelihood of irreparable harm if the stay is lifted,
2. the substantial likelihood that the party requesting the contested case and stay will succeed on the merits of the case,
3. the balance of equities weigh in favor of continuing the stay, and
4. continuing the stay serves the public interest.

S.C. Code Ann. 1-23-600(H)(4)(a).  This language is similar to the elements for obtaining a preliminary injunction in South Carolina courts, which are as follows:  (1) the applicant will suffer immediate, irreparable harm without the injunction; (2) the applicant has a likelihood of success on the merits; and (3) the applicant has no adequate remedy at law. See Scratch Golf Co. v. Dunes W. Residential Golf Props., Inc., 361 S.C. 117, 121, 603 S.E.2d 905, 908 (2004).  Case law regarding preliminary injunctions may provide some guidance for requests to lift an automatic stay under the new procedure.  For the automatic stay, the burden is on the party requesting the contested case to prove the elements for lifting the stay. 

The changes provide that the procedure to lift the automatic stay does not apply to cases involving hazardous waste under the South Carolina Hazardous Waste Management Act.  The new language provides that  the stay in such cases must not be lifted until the case is concluded and the ALC has issued its final order. 

The changes also add new language in S.C. Code Ann. 1-23-600(H)(4)(b) providing that, notwithstanding any other provision of law,  the ALC shall file a final decision on the merits of the case within twelve months of filing unless an extension is agreed upon by the parties or the ALC finds substantial cause.  This new language may result in a faster review process before the ALC.    

A copy of Act No. 134 is available on the South Carolina Legislature website here.