SC Administrative Law Court Decisions

STATEMENT OF THE CASE

This is a contested case brought by Petitioner John E. Taylor (Taylor) challenging the South Carolina Department of Health and Environmental Control's (DHEC) denial of a permit pursuant to the South Carolina Solid Waste Policy and Management Act, S.C. Code Ann. §§ 44-96-10, et seq. (2002) and S.C. Code Ann. §§ 1-23-600, et seq. (2005). Petitioner Taylor submitted an application to DHEC for a permit to construct a "Construction, Demolition, Land-Clearing and Debris Landfill" (C&D Landfill) on property owned by Petitioner at Highway 908 in Marion County (County) on January 16, 2004. DHEC denied Petitioner's permit application after applying the Solid Waste Management Plan (Plan) put forth by Marion County. A hearing was held in this matter on May 18, 2005 at the offices of the Administrative Law Court (ALC or Court) in Columbia, South Carolina.

FINDINGS OF FACT

Having observed the witnesses and exhibits presented at the hearing and closely passed upon their credibility, taking into consideration the burden of persuasion of the Petitioner and the Respondents, I make the following findings of fact by a preponderance of evidence:

1. Notice of the time, date, place and subject matter of the hearing was given to Taylor, DHEC and Marion County.

Background

2. Petitioner is seeking a permit from DHEC for the construction of a C&D Landfill on Highway 908 in Marion County, South Carolina. In November 2001, Petitioner received DHEC's approval of his demonstration of need application for a C&D Landfill in Marion County. The County of Marion issued a letter of consistency (LOC) to Petitioner in response to that application on January 28, 2002.[1] Petitioner subsequently undertook substantial design, development and field work to establish the environmental impact, as well as various other engineering needs, for the proposed C&D Landfill. With that information, Petitioner submitted a permit application to DHEC on September 26, 2002, for the proposed C&D Landfill. On October 16, 2002, DHEC notified Petitioner that the permit application was administratively complete.[2]

First Denial

3. On November 13, 2002, Marion County notified the applicant and DHEC that the County’s 2000 Solid Waste Management Plan (2000 Plan) had not been adopted by a vote of the Marion County Council.[3] The County further advised that it was rescinding the LOC it previously issued because the 2000 Plan was never properly implemented, and that the County's 1994 Solid Waste Management Plan (1994 Plan), which did not allow private landfills was thus in effect.[4] Afterwards, DHEC informed Petitioner that his application was administratively incomplete because of Marion County's revocation of its LOC.

Petitioner subsequently sued Marion County in Circuit Court on November 21, 2003, seeking, in part, reinstatement of the LOC. At some time during 2003, Marion County adopted the 2000 Plan, allowing private landfills, and accordingly the Highway 908 C&D Landfill. Marion County then settled the lawsuit with Petitioner by issuing a new LOC.[5]

Second Denial

4. After DHEC was informed that Marion County had formally adopted the 2000 Plan, it once more began reviewing of the Highway 908 application on December 17, 2003. Nevertheless, despite the lawsuit settlement and reissuance of the LOC, Marion County again sought to block the C&D Landfill to appease local residents. In the spring of 2004, Marion County political leaders met with representatives of DHEC to determine how to block Petitioner's application for this C&D Landfill permit. DHEC officials informed those present that DHEC would stop its review of the C&D landfill application if Marion County amended its Solid Waste Management Plan to disallow private landfills. On March 25, 2004, this information was reported to the Marion County Council at its regularly scheduled meeting.

Marion County then undertook steps to amend the 2000 Plan. The new Plan -- the 2004 Plan -- was revised by Alliance Consulting Engineers, Inc., in April 2004 and made available for the public to read by May 3, 2004. The 2004 Plan predictably prohibited the Highway 908 Landfill. On May 13, 2004, Alliance Consulting Engineers informed DHEC that Marion County had amended its Solid Waste Management Plan, and enclosed a copy of the 2004 Plan. DHEC considered the 2004 Plan in effect based upon the assertion of Deepal Eliatamby, an engineer with Alliance Consulting Engineers, that the 2004 Plan had received the requisite three (3) readings needed to pass an ordinance in Marion County.[6] As expected, DHEC then discontinued review of the Highway 908 Landfill application because it was not consistent with the 2004 Plan. More specifically, DHEC placed the application “on hold” until the outcome of the litigation against Marion County was determined.

5. Thereafter, Petitioner filed an action in Circuit Court seeking enforcement of the December 2003 settlement agreement reached between Marion County and Petitioner. The Honorable John M. Milling ruled in that action that the 2004 Plan was not yet in effect. Citing S.C. Code Ann. §§ 44-96-80(B) and 44-96-80(O) (2002), Judge Milling held that the 2004 Plan was not effective until one hundred eighty (180) days after it was passed by Marion County. Judge Milling further held that:

the May 2004 amendment cannot and should not be considered by DHEC as a statutorily enacted amendment that would negatively impact [P]etitioner's application. Therefore, there is nothing to prevent DHEC from processing [P]etitioner's application.

Nevertheless, DHEC formally denied Petitioner's application for the Highway 908 C&D Landfill on August 17, 2004. In denying Petitioner's application, DHEC concluded that since it was not a party to the Motion to Enforce Settlement, it was not bound by Judge Milling’s Order. Furthermore, DHEC determined that the 2004 Plan was effective when it was submitted in May 2004, and that the proposed Highway 908 C&D Landfill was ultimately inconsistent with the 2004 Plan.

Adoption of the 2004 Plan

6. According to the minutes of Marion County Council, a second reading of the 2004 Plan occurred at the April 13, 2004 meeting of Marion County Council and a third reading and final passage occurred at the May 10, 2004 meeting. Both the second and third readings appear in the minutes in the following form: “Motion was made by [Councilman], seconded by [Councilman 2], and carried unanimously, to approve (second, third) reading on an Ordinance for the Solid Waste Plan.” Nevertheless, the minutes of Marion County Council do not show a first reading of the 2004 Plan in that parlance. Rather, the March 25, 2004 minutes simply reflect that a motion was made and carried that the Plan be amended. That motion, however, does not reference that the proposed ordinance received first reading. Moreover, at that time no amended written (or even verbal) Plan existed. Furthermore, on April 13, 2004, after Marion County contends that two public readings had already occurred, County Administrator Rogers informed Council “the Solid Waste Plan will be available for the public to read by May 3, 2004.” The future tense of the Administrator's statement shows that the 2004 Plan was not even prepared until after the first two alleged readings. Mr. Rogers' testimony also confirmed that a draft of the 2004 Plan was not available until May 2004. Therefore, the 2004 Plan never became effective because Marion County failed to give the proposed Plan three public readings at council meetings as required by statute.

CONCLUSIONS OF LAW

Based upon the above findings of fact, I conclude the following as a matter of law:

1. S. C. Code Ann. §§ 1-23-600, et seq. (2005) grants jurisdiction to the Administrative Law Court to hear this contested case.

2. S.C. Code Ann. §§ 44-96-10, et seq. (2002), otherwise known as the South Carolina Solid Waste Policy and Management Act, sets forth the general requirements for regulating solid waste facilities in South Carolina. Before obtaining a permit for a new C&D Landfill, an applicant must demonstrate the need for a landfill to DHEC. Section 44-96-290(E). After obtaining a “demonstration of need” from DHEC, an applicant must provide DHEC with a letter of consistency from the county that will host the proposed landfill. Section 44-96-290(F). Nevertheless, “[a]lthough Section 44-96-290(F) requires a proposed facility comply with local standards, it does not designate the county as the final arbiter on whether the proposed facility complies with its local zoning, land use, and other ordinances.” Southeast Resource Recovery, Inc. v. S.C. Dep't. of Health and Environmental Control, 358 S.C. 402, 407, 595 S.E.2d 468, 471 (2004). Rather, DHEC (and the ALC if a contested case hearing is held) makes the determination as to whether the proposed facility is “consistent with local zoning, land use, and other applicable local ordinances.” Section 44-96-290(F).

Procedure for Implementing a Solid Waste Management Plan

3. Marion County contends that there is no requirement in the South Carolina Solid Waste Policy and Management Act that a county adopt its Solid Waste Management Plan in the form of an ordinance. Therefore, Marion County contends that it is not required to adhere to the procedure set forth in S.C. Code Ann. § 4-9-120 (1986) in adopting a plan but rather is only required to approve a plan. Nevertheless, Marion County did not explain the proper procedure for approving a Solid Waste Management Plan.

“County boards can proceed in the exercise of their powers only by the means of orders, ordinances, or resolutions.” 20 C.J.S. Counties § 87 (1990). Accordingly, if the County is not required to pass an ordinance, the only other logical means of approving a Solid Waste Management Plan would be by resolution. However, in Glasscock Company, Inc. v. Sumter County, 361 S.C. 483, 488-489, 604 S.E.2d 718, 721 (Ct. App. 2004), the Court in addressing the awarding of Waste Management contracts held that:

Glasscock misapprehends the generally accepted function of resolutions as distinguished from ordinances in the conduct of local government legislation. Resolutions do not normally have mandatory or binding effect. Rather, the passage of resolutions is generally considered to be merely directory. See Central Realty Corp. v. Allison, 218 S.C. 435, 446, 63 S.E.2d 153, 158 (1951) (holding that " it seems to be well settled that a resolution is not a law, and in substance there is no difference between a resolution, order, and motion"); see also 56 Am Jur.2d Municipal Corporations § 296 (2000) (commenting that "an ordinance is distinctively a legislative act, while a resolution may simply be an expression of opinion or mind concerning some particular item of business coming within the legislative body's official cognizance ..."); 62 C.J.S. Municipal Corporations § 247 (Supp.2004) (commenting that "a resolution ordinarily is an act of a special or temporary character, not prescribing a permanent rule of government, but is merely declaratory of the will or opinion of a municipal corporation in a given matter ...").

S.C. Code Ann. § 4-9-30(14) (1986) provides that counties have the authority “to enact ordinances for the implementation and enforcement of the powers granted in this section. . . .” Section 4-9-30 further grants counties the authority to: “(3) to make and execute contracts; (11) to grant franchises; [and] (17) to exercise such other powers as may be authorized for counties by the general law.”

Moreover, Marion County has clearly complied with its responsibility of submitting Solid Waste Management Plans in the past by the passage (or attempted passage) of ordinances. In fact, the 2000 Plan which Marion County seeks to amend or replace with the 2004 Plan was ultimately approved by passing an ordinance. “[O]rdinances cannot ordinarily be amended or repealed by a mere resolution. Instead, a new ordinance must be passed.” Simpkins v. City of Gaffney, 315 S.C. 26, 29, 431 S.E.2d 592, 594 (Ct. App. 1993). Therefore, the appropriate method to approve a Solid Waste Management Plan appears to be by passing an ordinance implementing a new Plan. Nevertheless, even if there is more than one proper method to implement a Solid Waste Management Plan, since the County implemented the previous Plan by ordinance, any subsequent revision must also occur by ordinance.

4. Marion County also argues that since Section 44-96-80(B) requires each county to submit their Plans to DHEC for review before the county begins implementation of the Plan, the County’s Plan is not legislative and thus no ordinance is necessary for the implementation of the Plan. In other words, if the County’s ordinance established the Solid Waste Management Plan, State review would not be necessary. Again, as explained above, the County did not set forth what would be a lawful means of implementing a Plan under its theory. Moreover, though Section 44-96-80(B) does require each county to submit their Plan to DHEC for its review before the county begins implementation, it does not require DHEC’s approval of the Plan. Nor does the statute preempt a county’s authority to determine how it shall dispose of solid waste. Rather, Section 44-96-80 (B) provides that “the department shall have one hundred eighty days from the date on which a plan is submitted to review the plan and provide comments to the submitting entity.” Thus, Section 44-96-80 (B) merely provides a time frame for DHEC to make comments to a county in light of its duty to oversee the waste disposal for the State of South Carolina at large. DHEC’s right to comment upon a Plan does not, by any means, reflect how the Plan must be approved or provide that DHEC may override the wishes of a county.

5. Marion County, citing Southeast Resource Recovery, supra, further argues that since the Plan is not enforced by the County, there is no need to implement the Plan by legislative ordinance. Instead, Marion County contends that DHEC, itself, implements the Plan through the requirements of Section 44-96-290(F). Section 44-96-290 (F) provides that:

No permit to construct a new solid waste management facility or to expand an existing solid waste management facility within a county or municipality may be issued by the department unless the proposed facility or expansion is consistent with . . . the local or regional solid waste management plan . . . .

Marion County misinterprets the holding in Southeast Resource Recovery relating to the implication of Section 44-96-290(F). Southeast Resource Recovery simply explained that the Department cannot shift its responsibility of ensuring that permitted projects comply with a county’s Plan. Nevertheless, the responsibility of implementing the Solid Waste Management Plan though a procedurally proper means is still clearly charged to the County.

Legality of the Marion County Ordinance Adopting the 2004 Plan

6. S.C. Code Ann. § 4-9-120 (1986) sets forth, in part:

A County Council shall take legislative action by ordinance which may be introduced by any member. With the exception of emergency ordinances, all ordinances shall be read at three public meetings of council on three separate days with an interval of not less than seven days between the second and third readings.

A County Council shall record all proceedings in the form of a journal of minutes. Sections 4-9-110 & 4-9-120 (1986). The minutes of a council meeting may not be explained, enlarged, or contradicted by parol evidence unless the minutes are incomplete or ambiguous. The Court must undertake a plain reading of the minutes to determine whether they are incomplete or ambiguous. Berkeley Electric Cooperative, Inc. v. Town of Mt. Pleasant, 308 S.C. 205, 417 S.E.2d 579 (1992). When minutes are silent on an issue, no ambiguity is created by such silence. Davis v. Orangeburg-Calhoun Law Enforcement Commission, 344 S.C. 240, 542 S.E.2d 755 (Ct. App. 2001).

The evidence established that Marion County Council is aware of the proper manner for recording a first reading of an ordinance in its minutes. The minutes of June 26, 2003 show several examples of first readings of new ordinances by Marion County Council. Additionally, the same clerk prepared the minutes for the March 25, April 13, and May 10, 2004 meetings. Looking within the four corners of the minutes to determine the actions of County Council, the minutes memorialize a reading of the 2004 Plan on April 13 and May 10; however, there is no record of a reading of an ordinance on March 25 or at any time before April 13, 2004. Rather, the March 25, 2004 minutes reflect that a motion was made and carried that the County's Solid Waste Management Plan be amended.

Nevertheless, Marion County argues that a county council can introduce and properly read an ordinance by reading its title only. In support of that proposition, Marion County cites Attorney General Opinion 1986 WL 289774 (S.C.A.G.). Indeed that Opinion did find that “the reading of a proposed ordinance by title would be sufficient, if the title of the proposed ordinance sufficiently states the purpose of the ordinance.” However, that Opinion also set forth that: “Where the title of an ordinance discloses its object, the reading of the title is equivalent to reading the ordinance.” Furthermore, the Opinion explicated that:

The purpose of a reading of a bill or proposed ordinance is to apprise members of a legislative body of what they are voting on. (citations omitted). Further, such a reading is a restriction imposed on the passage of bills to prevent hasty and inconsiderate legislation, surprise, and fraud. In discussing how the reading process was to be carried out, the Iowa Supreme Court discussed the purpose of a reading and stated that ‘before each vote every voting member would at least hear every provision of the bill immediately before casting his vote . . . . [T]he better practice would be to orally read the ordinance or title, rather than to rely upon written publication. Again, due to the scarcity of authority, this response is not completely free from doubt.

Here, though Marion County was apparently expeditiously attempting to represent the interests of its constituents, what it contends was the first reading of the 2004 Plan occurred before any new Plan was drafted. Other than an oral motion to amend the Plan, no Plan existed in writing for the County Council (or the public) to review so as to understand the implication of its vote.

Therefore, based upon the facts before me, I find that the ordinance implementing the 2004 Plan did not properly receive a first reading. Accordingly, since there is no evidence that three readings of the 2004 Plan were made by the Marion County Council, it failed to properly adopt the that Plan. Thus, the 2004 Plan does not constitute the Solid Waste Management Plan of Marion County. Consequently, it appears that the 2000 Plan is the Plan that is applicable to the Petitioner’s C&D Landfill permit application and as such is the Plan that should have been considered and reviewed by DHEC in this case.

180 Day Review Period

7. Even if the 2004 Plan had been properly adopted by Marion County, the Plan would not have been effective until the expiration of one hundred eighty (180) days following its submission to DHEC. Section 44-96-80 enacted the initial protocol for establishing the Solid Waste Management Plans for the State’s counties or regions. Specifically, it provides that:

Each county or region shall submit its solid waste management plan to the department for review. The department shall have one hundred eighty days from the date on which a plan is submitted to review the plan and provide comments to the submitting entity. At the end of the one hundred eighty-day review period, the county or region shall begin implementation of its solid waste management plan. Such plan must be implemented not later than one year after the end of the one hundred eighty-day review period.

Consequently, an initial county Solid Waste Management Plan was only effective upon the conclusion of one hundred eighty (180) days after the Plan's submission to DHEC for review.

More importantly, this rule is also applicable to any amendments to the Plan, as well. Section 44-96-80(O) provides that: “Any amendments to a county or regional solid waste management plan must be adopted and implemented in the same manner as provided for in the initial plan.” (emphasis added). Therefore, the 2004 Plan would not have been effective until the expiration of one hundred eighty (180) days following its submission to DHEC. Until the one hundred eighty (180) day review period passed, any permit applications submitted to DHEC must be considered under the prior effective Solid Waste Management Plan filed with DHEC. Accordingly, Marion County’s amendment to its Plan was not effective upon receipt by DHEC and should not have been considered when reviewing Petitioner's permit application. Rather, DHEC should have considered Petitioner's permit application under the Plan which was in effect at the time of Petitioner's application.

ORDER

Based upon the above findings of fact and conclusions of law, it is hereby:

ORDERED that DHEC resume review of Petitioner's application under the 2000 Plan.

AND IT IS SO ORDERED.

_________________________________

Ralph King Anderson, III

Administrative Law Judge

August 5, 2005

Columbia, South Carolina