ORDERS:
ORDER
INTRODUCTION
This
contested case is before the Administrative Law Court (“ALC” or “Court”) upon
remand from the Board of the South Carolina Department of Health and
Environmental Control (“Board”). The issue before the Court is whether the
South Carolina Department of Health and Environmental Control (“Department”) properly
determined the final disposal capacity for a proposed landfill to be
constructed by T&T Disposal, LLC (“T&T”) in Jasper County.
Oakwood Landfill, Inc. and Hickory Hill Landfill, Inc. (“Petitioners”) maintain
that the permit must be revised to limit the final disposal capacity to 2.2 million
cubic feet rather than the 1,819,000 cubic yards approved by the Department.
More
specifically, Petitioners argue that Jasper County’s Letter of Consistency
called for a final disposal capacity of 2.2 million cubic feet and that the
Department failed to provide proper public notice prior to issuing the permit
allowing for a greater disposal capacity than that referenced in Jasper County’s Letter of Consistency. The Department and T&T assert that the capacity
determination must be made by the Department and that the public notice
supported the capacity determination stated in the permit. Further, they
maintain that the capacity determination in the permit was proper.
The undersigned heard oral arguments on August 2, 2006. Based upon
a review of pertinent portions of the transcript of the October 28 and 29, 2004
hearing before the Honorable Ray N. Stevens, pertinent exhibits presented at
that hearing, the parties’ oral arguments before the undersigned and their
proposed orders subsequently filed with this Court, I make the following
Findings of Fact and Conclusions of Law.
FINDINGS
OF FACT
Based
on the preponderance of the evidence, this Court makes the following Findings
of Fact:
Filing and
Public Hearing
1. In
2002, T&T filed with the Department an administratively complete permit
application requesting a Construction and Demolition, and Land-Clearing Debris (C&D/LCD)
Landfill permit (“the permit”) to construct a landfill in Jasper County.
The dimensions for the landfill contained in the permit application
corresponded to a capacity of 1,819,000 cubic yards.
2. A
public hearing was conducted for this project on October 27, 2003 and a
verbatim transcript was made.
3.
Petitioners assert that the decision to issue a permit for the facility with a
final disposal capacity of 1,819,000 cubic yards was contained only in the
final permit, and that members of the public were not given sufficient advance
notice and opportunity to comment on this permit term.
4. The
transcript of the public hearing indicates that the Department’s staff notified
the public that the proposed facility would have an estimated disposal capacity
of 1,819,000 cubic yards.
5. Further,
the transcript of the public hearing indicates that George Gibbons, District
Manager for Petitioners, was heard on the issue of the proposed facility’s
final disposal capacity during the course of the public hearing.
6. Bob Gill, Manager of the Facility Engineering Section of the Department’s Bureau
of Land and Waste Management, stated at the public hearing “The design capacity
for the facility is 1,819,000 cubic yards of waste. The landfill has a life
expectancy ranging from eight to 36 years … .” The transcript establishes
that the issue of Jasper County’s reference to a capacity of 2.2 million cubic
feet in a Letter of Consistency was fully discussed during the public
hearing. 7. The Department gave members of the general
public, and specifically Petitioners, advance notice that the facility’s
disposal capacity would be 1,819,000 cubic yards and provided the public in
general, and specifically Petitioners, sufficient opportunity to be heard prior
to issuance of the permit and in the course of the contested case hearing
before this Court.
Permit
Issuance, Order and Appeal
8. On
January 14, 2004, the Department issued the C&D/LCD landfill permit to
T&T. Based on the design of the facility and its permitted disposal rate,
the Department stated in the permit that the facility would have a final
disposal capacity of approximately 1,819,000 cubic yards.
9. On
January 30, 2004, Petitioners requested a contested case hearing. Among the
issues in the case was the issue of disposal capacity.
10. The
case was assigned to Judge Stevens, who conducted a hearing on October 28 and
29, 2004. On March 15, 2005, Judge Stevens issued a final order and decision,
reversing the Department’s decision to issue the permit; however, in his order
Judge Stevens did not make any findings of fact or conclusions of law regarding
the disposal capacity for the facility.
11. On
April 14, 2005, the Department and T&T appealed to the Board Judge Steven’s
final order and decision.
12. On
March 30, 2006, the Board upheld the issuance of the permit and remanded the
matter to this Court on the sole issue of the allowable maximum capacity
for the landfill.
Actions by Jasper County
13. Jasper County issued a Letter of Consistency on October 29, 1997; the letter did not
purport to place a disposal capacity limitation on the facility.
14. Two
subsequent Letters of Consistency signed by Henry Moss, the Jasper County Administrator, called for a final disposal capacity of 2.2 million cubic feet. The content in
these two letters referring to a final disposal capacity of 2.2 million cubic
feet was not voted on or approved by Jasper County Council. They were authored
and issued by the Jasper County Administrator acting unilaterally.
15. The
Jasper County Administrator testified at the contested case hearing before
Judge Stevens that he did not feel it necessary to take the issue of the
landfill disposal capacity to Jasper County Council for a vote before sending
the 2000 and 2002 letters because nothing with regard to the facility had
changed other than its ownership.
16. Jasper County Council never directed its Administrator to place the “cubic feet” language
in any document. Further, the “cubic feet” language was not derived from any
deliberative or analytical solid waste planning effort by Jasper County.
17. The
Department’s staff testified at the contested case hearing that the final
disposal capacity of a landfill facility is a design parameter that must be
determined by the Department and not by any other party such as a county.
18. A
landfill’s final disposal capacity is an entirely separate and distinct issue
from the facility’s allowable disposal rate (i.e., how much waste a
facility may accept in a particular month or year).
19. Based
on the dimensions of the facility and mandatory buffers and setbacks, T&T’s
proposed facility has a final disposal capacity of approximately 1,819,000
cubic yards.
CONCLUSIONS OF LAW
Based
on the foregoing Findings of Fact, the Court makes the following Conclusions of
Law:
1. Pursuant to the South Carolina Solid Waste Policy and Management Act (SWPMA), S.C. Code Ann. §
44-96-290(H), “Permits issued under this section shall be effective for the
design and operational life of the facility, to be determined by the
[D]epartment, subject to the provisions of this article… .”
2. The regulatory
limitations on a facility’s final disposal capacity under state law are
contained in 25A S.C. Code Ann. Regs. 61-107.11 (Supp. 2005), which imposes
final capacity restrictions based on a facility’s design, including its size,
dimension, layout, setbacks, buffers, and depth to groundwater.
3. Under S.C. Code Ann. §
44-96-320(A), the Department is the sole agency with the authority to
promulgate regulations governing the design of landfill facilities, and
therefore, it is the only entity with the authority to determine a landfill’s
final disposal capacity.
4. Pursuant to 25A S.C.
Code Ann. Regs. 61-107.11, Part IV.A.5 (Supp. 2005), the Department may use
information in a county’s Letter of Consistency as one of a number of items
used to set a facility’s rate of disposal only.
5. The issue of disposal
capacity in the 2000 and 2002 letters from the Jasper County Administrator to the Department (Exhibits 18 and 19) is immaterial as under Southeast
Resource Recovery, Inc. v. South Carolina Dept. of Health and Environmental
Control, 358 S.C. 402, 595 S.E. 2d 468 (2004), the Department, not the
county, is charged with the duty of making decisions regarding landfill
facility design under SWPMA.
6. The application of a
final disposal capacity of 2.2 million cubic feet for this facility as urged by
Petitioners would create an absurd result as it would allow the facility to
operate for only four to five months, well below the design life of the
facility and contrary to section 44-96-290(H).
7. The Department properly
set the permit disposal capacity at 1,819,000 cubic yards based on the
facility’s operational life and design.
8. Petitioners claim that
counties cannot properly discharge their planning duties under SWPMA unless
they have the authority to impose both a limit on rate of disposal and either a
time limit or a volumetric limit on a particular facility. However, to allow
either a time limit (life of facility) or a volumetric limit (final disposal
capacity) – such as a condition limiting disposal to 2.2 million cubic feet as
in this case – would violate the “permit for operational life” requirement
under S.C. Code Ann. § 44-96-290(H) and would be invalid as a matter of law.
9. Neither SWPMA nor its
implementing regulations contain any clear mandate requiring a public notice or
public comment period before a nonhazardous solid waste landfill permit is
issued. See Cross Keys Against National Garbage Organization,
et. al. v. SCDHEC and Republic Services of Kentucky, LLC.,
00-ALJ-07-0373-CC (Matthews, July 19, 2001) (The Department has no obligation
under SWPMA to require a public comment period or to take public comments); but cf. 25 S.C. Code Ann. Regs. 61-79.124 (Supp. 2005)(regulations
mandating public notice and comment periods for hazardous waste landfills).
10. S.C. Code Ann. §
44-96-290(D)(5) requires the Department to “promulgate regulations for the
permitting of solid waste management facilities which shall, at a minimum,
address … public notice and public hearing requirements consistent with the
requirements of the South Carolina Administrative Procedures Act … .”
11. S.C. Code Ann.
§1-23-370(a) states “[w]hen the grant, denial or renewal of a license is
required to be preceded by notice and opportunity for hearing, the provisions
of this article and Article 1 concerning contested cases apply.”
12. It is
not necessary for this Court to determine whether Section 44-96-290(D)(5) and
Section 1-23-370(a), when read together in the context of a nonhazardous solid
waste landfill permit, require pre-issuance public hearings or merely public
notice and an opportunity for a party with standing to request a contested case
hearing as the public notice and hearing procedures used by the Department.
Petitioners were given ample opportunity to review the application and provide
comments. Further, due process requirements were met when Petitioners were
provided the contested case hearing.
13. Petitioners’ claim that
the general public lacked notice and an opportunity to be heard are
contradicted by the record. A public hearing was conducted and notice of the
facility’s proposed disposal capacity was discussed at the hearing.
14. Further,
Petitioners cannot claim they have suffered any prejudice regarding the issue
of final disposal capacity because they raised this issue at the public hearing
and in the course of the contested case hearing. Absent a showing of
prejudice, simply alleging a defect in the Department’s procedure is not
sufficient. See Ballenger, et al. v. S.C. Dep’t of Health and Env’tl
Control, 331 S.C. 247, 254, 500 S.E.2d 183, 186 (Ct. App. 1998).
15. There
is no regulatory requirement for public notice and hearing prior to issuance of
a solid waste permit such as the one involved in this case. Nonetheless, the
record establishes that public notice and a public hearing were part of the
Department’s process. Further, proper notice of the proposed 1,819,000 cubic
yards was included in the permit notice and an opportunity to comment on the
capacity issue was provided to the general public. Based on the record, there
is no basis for finding a violation of due process.
ORDER
Based
upon the Findings of Fact and Conclusions of Law, this Court finds and
concludes that the Department properly set the permit disposal capacity at 1,819,000
cubic yards.
AND IT IS SO
ORDERED.
____________________________________
The
Honorable Marvin F. Kittrell
Chief Administrative Law Judge
August 28, 2006
Columbia, South Carolina
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