ORDERS:
ORDER OF DISMISSAL
This matter comes before me pursuant to S.C. Code Ann. §§ 49-1-10, et seq., §§ 1-23-310, et seq., and 23A S.C. Code Regs. 19-450 et seq. (Supp. 1994). Petitioner appeals the South
Carolina Department of Health and Environmental Control ("Department") proposed construction
in Navigable Waters (Permit No. 95-047) for the City of Union, South Carolina, to install a
wastewater outfall diffuser in Big Browns Creek, Union County.
The Department moved this tribunal to dismiss this action on the ground that the Petitioner was
not an aggrieved party pursuant to 23A S.C. Code Regs. 19-450.11(A) and, therefore, lacked
standing to pursue this appeal. The motion for dismissal was granted by Order from the bench.
The Order entered into the record is hereby incorporated into this written Order.
23A S.C. Code Regs. 19-450.11(A) (Supp. 1994) provides:
Any person actually aggrieved in a manner or to a degree significantly different from the
general public by the initial decision of the Director of General Services on behalf of the
Board to grant or deny a permit under this regulation may appeal that decision to the
Board. One objecting only to the highland use of the property, or on grounds other than the impact the proposed activity will have on navigable waters or the economy or natural
resources of the state, or who has not submitted written comments on the project including
any proposal for replacement/compensation is not an aggrieved party within the meaning of
these regulations. (emphasis added).
Petitioner neither made written public comment nor appealed the proposed decision because of
the impact the proposed activity will have on navigable waters or the economy or natural
resources of the State. Therefore, she is not an aggrieved party.
The Department complied with the procedural notice requirements. 23A S.C. Code Regs.
19-450.5(B)(6) provides that notice must be in a newspaper of general circulation in the county
where the encroachment is sought at least once in each of two consecutive weeks. However, 23A
S.C. Code Regs. 19-450.15 (Supp. 1994) allows for expedited procedures when the project will
have a negligible impact on navigable waters. Petitioner did not object at the hearing to the
Department's characterization of the project as a minor project. S.C. Code Regs. 19-450.15
(Supp. 1994) only requires that one public notice of the application be made and that 15 (fifteen)
days be allowed for public comment.
In compliance with S.C. Code Regs. 19-450.15 (Supp. 1994), notice was made in the Union
Daily Times, a newspaper of general circulation in Union County, moreover, the only paper in
Union County. Petitioner did not submit any public comment.
Petitioner timely filed notice of appeal pursuant to 23A S.C. Code Regs. 19-450.11(B) (Supp.
1994). However, the Notice of Appeal did not state any grounds of appeal as required by 23A
S.C. Code Regs. 19-450.11(B) (Supp. 1994). Further, at the hearing of this matter, the Petitioner
stated on the record that her grounds for appeal were (1) a viable alternative to the project existed
and (2) harm may result to Petitioner's property from the proposed project. Even if the grounds
proffered in Petitioner's Prehearing Statement or at the hearing of this matter are accepted as
timely, this tribunal finds that the grounds proffered by the Petitioner do not give her standing as
an aggrieved party under 23A S.C. Code Regs 19-450.11(A) (Supp. 1994).
23A S.C. Code Regs. 19-450.11(A) (Supp. 1994), entitled "Persons Who May Appeal", may be
viewed as a two prong test, with satisfaction of either prong entitling the party to an appeal.
Petitioner did not satisfy either prong. That is, she neither appealed on the grounds that the
proposed project would impact the navigable waters or the economic or natural resources of the
State, nor did she submit written public comment on the project.
IT IS THEREFORE ORDERED that Petitioner is not an aggrieved party and this matter is
hereby dismissed.
At the conclusion of the administrative review the Respondent, the City of Union, moved this
tribunal to lift the automatic stay imposed by S.C. Code Regs. 61-72 § 205(A) (Supp. 1994).
IT IS FURTHER ORDERED that the automatic stay imposed by S.C. Code Regs. 61-72 §
205(A) (Supp. 1994) is lifted pursuant to S.C. Code Regs. 61-72 § 205(C) (Supp. 1994).
AND IT IS SO ORDERED.
______________________________
JOHN D. GEATHERS
Administrative Law Judge
Edgar A. Brown Building
1205 Pendleton Street
Columbia, South Carolina 29201
November 16, 1995
Columbia, South Carolina |
