Triska v. Department of Health and Environmental Control, 22692

Decision Date08 December 1986
Docket NumberNo. 22692,22692
Citation355 S.E.2d 531,292 S.C. 190
CourtSouth Carolina Supreme Court
Parties, 25 ERC 2139 Ralph TRISKA, Respondent, v. DEPARTMENT OF HEALTH AND ENVIRONMENTAL CONTROL, Murrells Inlet Concerned Citizens Association, A.T. Quantz, David H. Michaux, III, and Dr. H.P. Worrell, Appellants. . Heard

Gen. Counsel Walton J. McLeod, III, Staff Counsel John Harleston, S.C. Dept. of Health and Environmental Control, Atty. Gen. T. Travis Medlock and Senior Asst. Atty. Gen. Kenneth P. Woodington, Columbia, for appellant Dept. of Health and Environmental Control.

Hardwick Stuart, Jr., James H. Quackenbush, Jr., and Theodore Von Keller, Adams, Quackenbush, Herring & Stuart, P.A., Columbia, for appellants Murrells Inlet Concerned Citizens Ass'n, A.T. Quantz, David H. Michaux, III, and Dr. H.P. Worrell.

Ellison D. Smith, IV, and E. Jeannette Heyward, Long, Smith and Jordan, Charleston, for respondent.

FINNEY, Justice:

This appeal is from an order of the trial court which reversed an October 17, 1984, decision of the appellant South Carolina Department of Health and Environmental Control (DHEC). In its October 17, 1984, decision DHEC revoked a 401 Water Quality Certification granted by the agency in November 1979. We affirm the order of the trial court.

In 1979 respondent Ralph Triska applied to DHEC, the South Carolina Coastal Council, and the Army Corp of Engineers for the necessary certification and permits to construct a marina at Smith's Landing in Murrells Inlet. DHEC held public hearings and on November 8, 1979, issued Triska a 401 Water Quality Certification, with certain conditions, certifying that the proposed project was in conformity with the applicable water quality standards specified in Section 401 of the Federal Clean Water Act of 1977, 33 U.S.C.A., § 1341. At the time, no one contested certification of the project. After obtaining the 401 Certification from DHEC, which is a prerequisite to issuance of permits by the Army Corp of Engineers and the Coastal Council, Triska submitted permit requests to these agencies.

The permit request before the South Carolina Coastal Council was contested by the appellant Murrells Inlet Concerned Citizens Association (Murrells Inlet Association) in an adjudicatory hearing. After hearing all the testimony, Coastal Council granted Triska a permit authorizing alterations in the Murrells Inlet coastal zone area for purposes of constructing the marina.

The Army Corp of Engineers was in the process of reviewing the permit when, in April 1982, DHEC notified the Army Corp of Engineers and Triska that it was suspending 401 Certification pending a limited internal agency review of three issues: 1) disposal of spoil from excavation and dredging; 2) applicability of the "dead-end canal" concept to the marina basin; and 3) adequacy of depth in the natural channel in Main Creek approaching the marina site. DHEC requested the Corp of Engineers to withhold action on the permit until the outcome of its internal review. There was no public notice of DHEC's review of the project nor were comments solicited from other federal and state agencies.

On May 4, 1982, DHEC decided that no further review was necessary and reinstated Triska's 401 Certification with certain modified conditions, which were accepted by Triska. DHEC's review was primarily limited to existing data; however, it utilized a depth study of Main Creek conducted by the Army Corp of Engineers. On the following day, the Army Corp of Engineers issued its permit authorizing construction of the marina.

On May 14, 1982, the Murrells Inlet Association filed a petition with DHEC for an adjudicatory hearing to challenge reinstatement of the 401 Certification. Over the objection of DHEC's staff and Triska, DHEC granted the Association's petition for an adjudicatory hearing. On March 24, 1983, DHEC's Board reviewed the hearing record, suspended the 401 Certification, and directed its staff to conduct a complete review of the project.

In May, 1983, DHEC gave public notice of its review of the 401 Certification and solicited comments from the public and other agencies. In July and August of 1983, DHEC staff performed a limited water quality study of an existing marina complex in Murrells Inlet near the proposed Triska marina site and prepared a written report for submission to the DHEC Board.

In December 1983, the DHEC Board ordered that the adjudicatory hearing which it had earlier granted be reopened to allow the DHEC staff study and any other new information to be included in the hearing record. An adjudicatory hearing was held September 10, 1984, at which time the Murrells Inlet study performed by DHEC staff in July and August of 1983 and other related testimony were allowed. Triska participated in the hearing, but objected to DHEC's jurisdiction. After reviewing the record and hearing from Triska, Murrells Inlet Association, and DHEC staff, the DHEC Board issued a written order on October 17, 1984, revoking Triska's 401 Certification.

Triska appealed to the trial court for review pursuant to the Administrative Procedures Act, S.C.Code Ann. § 1-23-380 (1976). The court held that DHEC unlawfully revoked the Certification, and accordingly, it reinstated the 401 Certification.

The central issue to be decided by this Court is whether DHEC has authority to review, suspend and revoke a 401 Certification after it has been granted by the agency and the appeals process expired. We conclude that DHEC is without such authority.

DHEC is a state administrative agency and can only exercise those powers which have been conferred upon it by the South Carolina General Assembly. South Carolina Tax Commission v. South Carolina Tax Board of Review, 278 S.C. 556, 299 S.E.2d 489 (1983). DHEC must also follow its own regulations and the provisions of the Administrative Procedures Act, supra, in carrying out the legitimate purposes of the agency. See Lark v. Bi-Lo, Inc., 276 S.C. 130, 276 S.E.2d 304 (1981); and S.C.Code Ann. § 1-23-380, (1976). Any action taken by DHEC outside of its statutory and regulatory authority is null and void. 73A C.J.S. Public Administrative Law and Procedure, § 117 (1983).

Section 401 Certification is a reference to that certification provided in 33 U.S.C.A., § 1341, which states in relevant part "any applicant for a federal license or permit to conduct any activity including, but not limited to, the construction or operation of facilities, which may result in any discharge into the navigable waters, shall provide the licensing or permitting agency with a certification from the state in which the discharge originates ... that any such discharge will comply with" specific substantive provisions of the Clean Water Act of 1977. 33 U.S.C.A. § 1341(a). DHEC is required within one year to certify to the Army Corp of Engineers (the permitting agency) that the proposed project will not violate applicable water quality standards and if DHEC fails to do so, the certification requirement will be deemed to have been waived and the Army Corp of Engineers may proceed to act on the permit. 33 U.S.C.A. § 1341(a)(1).

It is the opinion of the Court that DHEC does not have statutory, regulatory or federal authority to suspend or revoke a 401 Certification after it has been granted by the agency and the appeals process expired. DHEC argues that under S.C.Code Ann. § 48-1-10 through -350 (1976), the "Pollution Control Act," it has authority to suspend and revoke a "permit," S.C.Code Ann. § 48-1-50(5) (1976), and therefore, a 401 Certification should be...

To continue reading

Request your trial
18 cases
  • Ogburn-Matthews v. Loblolly Partners
    • United States
    • South Carolina Court of Appeals
    • 3 Agosto 1998
    ...634 F.2d 248 (5th Cir.1981)). An administrative board must follow its own rules and regulations. Triska v. Department of Health and Envtl. Control, 292 S.C. 190, 355 S.E.2d 531 (1987). An administrative agency's failure to follow its own rules and regulations does not create a constitutiona......
  • Solebury Tp. v. Dep
    • United States
    • Pennsylvania Supreme Court
    • 20 Agosto 2007
    ...has been issued is only proper in accordance with the itemized reasons of Section 401(a)(3)); Triska v. Department of Health and Environmental Control, 292 S.C. 190, 355 S.E.2d 531, 533-34 (1987) (concluding that the state environmental agency lacked authority to revoke a water quality cert......
  • Summit Hydropower Partnership v. Commissioner of Environmental Protection
    • United States
    • Connecticut Supreme Court
    • 3 Agosto 1993
    ...follow that he is statutorily required to provide a hearing to make those determinations. See Triska v. Department of Health & Environmental Control, 292 S.C. 190, 196-97, 355 S.E.2d 531 (1987) (court did not find that § 401 of the federal CWA required that the agency determine a party's ri......
  • Garris v. GOV. BD. OF SC REINSURANCE
    • United States
    • South Carolina Supreme Court
    • 29 Diciembre 1998
    ...of Georgetown County v. Litchfield-by-the-Sea, 305 S.C. 424, 426, 409 S.E.2d 378, 380 (1991); Triska v. Dep't of Health and Envtl. Control, 292 S.C. 190, 196, 355 S.E.2d 531, 534 (1987). No statute explicitly requires Facility to hold a hearing before revoking an agent's status as a designa......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT