SC Administrative Law Court Decisions

STATEMENT OF THE CASE

This contested case arises from the decision of the South Carolina Department of Health and Environmental Control (Department or DHEC) to grant a Municipal Solid Waste (MSW) Landfill Permit (the permit) to Republic Services of Kentucky, LLC (Republic) to operate the Union County Regional MSW Landfill, Facility ID #442441-1101. The permitted facility is to be located in the Cross Keys community in Union County, South Carolina. Petitioners Cross Keys Against National Garbage Organization (CKANGO), Hal Stribling and Sandra S. Satterfield are property owners in the area near the proposed facility who seek denial of the permit. A hearing was held before me on December 19 and 20, 2000 and January 4, 2001 at the Administrative Law Judge Division. The Proposed Orders were received from counsel for both parties by April 12, 2001.Order Granting Partial Summary Judgment

By Order dated November 16, 2000, I partially granted Respondents' joint motion for summary judgment, holding that the landfill met all location and design requirements and that it would conform with future surrounding property uses. I reserved ruling on whether the remaining conforming use provision set out in 25 S.C. Code Ann. Regs. 61-66 and R. 61-70 applied to this permit.

Order on Expert Witnesses

By Order dated November 28, 2000, I granted Respondents' motion prohibiting Petitioners from calling any of their expert witnesses to testify at the hearing because none had been timely and properly designated.

FINDINGS OF FACT

Having observed the witnesses and exhibits presented at the hearing and having closely passed upon their credibility, taking into consideration the burden of proof upon the Petitioners, I make the following Findings of Fact:General Findings

• Notice of the date, time, place, and nature of the hearing was timely given to all parties.

2. On June 8, 2000, DHEC issued a MSW Landfill Permit to Republic Services of Kentucky, LLC to construct and operate the Union County Regional MSW Landfill, Facility ID #442441-1101, at the end of Wildcat Road in the Cross Keys community of Union County. Following Petitioners' appeal of the permit decision, the landfill has not yet been constructed.

3. The permit requires, among other things, compliance with S.C. Code Ann. § 44-96-10 et seq. (Supp. 2000) and 25A S.C. Code Ann. Regs. 61-107.258 (Supp. 2000) and certain specific attached conditions including Regulation 61-107.258 Subpart E (Groundwater Monitoring and Corrective Action).

4. On March 25, 1997, Republic's predecessor, Addington Environmental, Inc. ("Addington"), entered into an Agreement for the Development and Operation of a Solid Waste Disposal Facility with Union County, pursuant to which Addington would construct and operate a Subtitle D regional landfill in Union County. Union County previously owned and operated an old unlined landfill that was shut down by DHEC on July 1, 2000. Because Petitioners' appeal of the permit decision has stayed construction of the new landfill, Union County's municipal waste is currently being collected at a temporary transfer station and shipped to the Palmetto Landfill in Spartanburg County.

5. The site of the landfill, and the properties immediately surrounding it, are currently production pine forest land owned by timber companies. The landfill site comprises approximately 600 acres, located in an unzoned area of Union County south of Highway 49, east of Highway 56 and north of the Enoree River. The landfill footprint (the portion of the site to be used for actual solid waste disposal) is approximately 83 acres.

6. Petitioner CKANGO is an association of property owners and residents in the area of the landfill.

7. Petitioner Sandra S. Satterfield is Vice-President of CKANGO and lives on Wildcat Road, approximately one mile from the proposed landfill footprint. She and her husband raise cattle.

8. Petitioner Hal Stribling is President of CKANGO and lives, with his wife, approximately 10 miles from the proposed landfill in Enoree. Mr. Stribling and his brother own approximately 40 acres of land at the intersection of Wildcat Road and South Carolina Highway 49 (approximately 2.5 miles from the landfill footprint) Mr. Stribling has expressed plans to build a retirement residence on that property at some point in the future, but he has no specific current plan to do so.

9. James W. Workman, Jr. is a member of CKANGO and lives on Cross Keys Road approximately two miles from the landfill footprint on Highway 49. Mr. Workman has a private airstrip on his property and often flies his personal single-engine airplane from his airstrip. Mr. Workman testified that the layout of his airstrip would require him to fly over the landfill site to takeoff or land, depending on the prevailing wind direction. Mr. Workman testified regarding his concerns that the landfill will attract large birds that could come in contact with his airplane while flying near the landfill site.

10. Van Stickles is the Director of State Parks of the South Carolina Department of Parks, Recreation and Tourism. Mr. Stickles explained that the Musgrove Mill State Historic Site is the site of a Revolutionary War battle and is located west of Highway 56 on approximately 400 acres both north and south of the Enoree River. The South Carolina Department of Parks, Recreation and Tourism has plans to build an education center and develop the Historic Site into a park. At the time DHEC issued the permit, the proposed Musgrove Mill State Park had not been built. The proposed Musgrove Mill State Park is located approximately 1.3 miles from the landfill site.

11. Walter Rummage is the Director of the Musgrove Mill Golf Club and testified the Musgrove Mill Golf Club is a private golf club located east of Highway 56 and running along the south bank of the Enoree River. The portion of the Musgrove Mill Golf course nearest the landfill is more than a mile away from the landfill footprint.

12. Janice Stevens is the founder of the 11-member True Grits Hunt Club. The True Grits Hunt Club leases 743 acres bordering the landfill site from International Paper Company for hunting purposes. True Grits has a one-year lease to hunt on the International Paper Company property; the lease is renewable at International Paper's discretion. Ms. Stevens testified she did not know if True Grits would continue to renew its lease.

13. South Carolina Representative Donnie Wilder testified regarding his interest in the planned Musgrove Mill State Park and proposed Palmetto Trail greenway to run along the Enoree River approximately one mile from the landfill site.

14. Art Braswell is the Director of DHEC's Division of Mining and Solid Waste Management. Mr. Braswell was offered by DHEC, and qualified as an expert in the fields of municipal solid waste facility permitting, compliance and enforcement. Mr. Braswell oversaw the issuance of the permit, including the consistency, demonstration of need and other permit requirements and concluded that all of these were met by Republic.

15. Juli Blalock is an environmental engineer for DHEC who served as project manager for the Union County landfill. In that capacity, she oversaw the administrative and technical review of the permit application and concluded, in her opinion, it met the requirements of Regulation 61-107.258. Ms. Blalock was offered by DHEC, and accepted, as an expert in civil and environmental engineering permitting requirements and the permitting process for Subtitle D municipal solid waste landfills in South Carolina.

16. Bill Hodges is a civil environmental engineer and a principal with the firm of Hodges, Harbin, Newberry & Tribble. Mr. Hodges has worked on more than 1,000 municipal solid waste landfill permitting, design and operation projects. He served as the project manager for Republic's permit application. Mr. Hodges was offered by Republic, and qualified, as an expert witness in civil and environmental engineering and the permitting, design and operation of Subtitle D municipal waste landfills. Mr. Hodges handled many aspects of the permit application including the operational plan.

Alleged Offsite Impacts

17. Petitioners presented testimony as to their concerns that the landfill would create traffic problems, lower their property values, negatively affect wildlife, attract buzzards, create noise, water contamination and produce odors and dust that would affect their residences, the park and golf course all located a mile or more away from the landfill site. Petitioners presented no expert testimony, however, that these alleged anticipatory offsite impacts would actually occur. The lay testimony offered by Petitioners regarding future offsite impacts reflected individual concerns; Petitioners presented no evidence that the offsite impacts they feared would actually and inevitably occur at these properties or properties they may use. Further, Petitioners stipulated that any evidence offered regarding concerns about surface and groundwater contamination was offered solely to establish Petitioners' standing and could not be used for any other purpose.

18. The actual permitted landfill footprint that will accept waste comprises approximately 83 acres within an approximately 600-acre site that will be controlled by Republic. Republic's construction and operational plan calls for the hundreds of acres surrounding the actual landfill footprint to remain as pine forest - - thereby providing a natural vegetative sound, odor, dust and sight buffer for the landfill units. The area of the landfill footprint is also located topographically lower than the surrounding area, which will help minimize sounds, dust or odors from traveling beyond the landfill property.

19. DHEC's technical location and design requirements, Republic's compliance with which was disposed of by this Court's Partial Summary Judgment Order, the permit and related conditions are intended to prevent the potential for all of the above offsite impacts from the landfill. ⁽¹⁾ In addition, operational requirements for Republic's landfill, as contained in the Operational Plan, are intended to prevent odor, dust, vectors and water contamination by requiring, among other things, daily and intermediate soil cover; limiting the size of the working face of the landfill; screening waste before it is placed into the landfill cells; run-on, run-off controls; surface water protection requirements and utilizing water trucks to spray unpaved areas within the landfill site. Other requirements for Republic's landfill, as contained in the permit, require Republic to prevent groundwater contamination at a distance of 150 feet from the landfill footprint through an extensive monitoring well network, sampling requirements and, if required, groundwater assessment and remediation. DHEC makes periodic inspections of permitted landfills in South Carolina and, if warranted, based upon the environmental compliance history of the permittee, may impose additional requirements on the landfill to prevent any problems with, for example, odors, dust, vectors or water contamination. DHEC also has the authority to impose fines and bring enforcement actions against Republic if it does not comply with its permitted operational requirements, including imposing fines of up to $10,000 per day under S.C. Code Ann. § 44-96-450 (Supp. 2000). DHEC can also modify the permit to prevent violations of the regulations. See S.C. Code Ann. § 44-96-420 (Supp. 2000).

20. Petitioners presented no evidence that the permit conditions, applicable South Carolina regulations regarding MSW landfills, and DHEC's enforcement and compliance authority would be unable to prevent the offsite impacts Petitioners' witnesses alleged might occur in the future.

21. Mr. Braswell opined that if the landfill is operated in compliance with applicable South Carolina regulations and permit conditions, there should be a minimal potential for odors or dust from the landfill to travel more than a mile through the buffers offsite to the nearest residence. Mr. Braswell testified that should DHEC receive valid complaints concerning dust, odors, or vectors, DHEC can address those issues through compliance and enforcement activities including modifying the permit. Mr. Braswell also testified that DHEC concluded as part of its permitting process in this instance that the permit contained such conditions as to allow operation of the landfill without presenting any substantial hazard to human health or to the environment.

22. Ms. Blalock stated that given the landfill location, design and permit requirements and operational requirements, she would not expect any offsite odor, dust or vector problems. Ms. Blalock also opined that the purpose of the groundwater monitoring plan for the landfill was to detect any groundwater contamination should the liner system fail and that if any contamination was detected, an assessment and, if necessary, corrective action (i.e., groundwater cleanup) would be required.

23. Petitioners also complained of increased truck traffic that they feared would result from the operation of the landfill. However, Mr. Braswell testified that DHEC has no authority to specifically address offsite truck traffic through the permit. As such, I find that Petitioners' concerns over truck traffic are not grounds to deny the permit. Petitioners also complained of potential dust or odors that may arise from the truck traffic. ⁽²⁾ Petitioners failed to provide any evidence that any dust or odors generated by truck traffic would actually occur at their properties or at concentrations that would lead to an adverse health impact. Ms. Blalock explained that the rock roadways at landfills generally help to get rid of dust or dirt from trucks. Mr. Braswell and Ms. Blalock testified that some facilities that have had actual dust problems from trucks have installed truck washes to resolve that issue.

24. Respondents introduced into evidence a Negotiated Concessions agreement entered into by Addington, Union County and the Citizens Facility Issues Committee - chaired and signed by Petitioner Satterfield on October 28, 1999. The Negotiated Concessions agreement was executed after meetings and negotiations held pursuant to the Facility Issues Negotiation ("FIN") Process set forth at S.C. Code Ann. § 44-96-470(O) (Supp. 2000). Pursuant to the Negotiated Concessions agreement, Republic and Union County agreed to certain issues related to the operation of the Union County landfill, including: Republic's construction of certain road improvements in the vicinity of Wildcat Road; Republic's construction of bus safety stops; Union County's reconfiguration of Pecan Road to address traffic concerns; Republic's payment of up to $230,000 to extend municipal water service to residents in the vicinity of the landfill; limits on the hours of operation of the landfill; Republic's payment of $10,000 for recreational improvements in the vicinity of the landfill; Republic's funding of a county recycling facility; Republic's marking of springs located at the landfill site; Republic's agreement to notify the Citizen Facilities Issues Committee of any request for expansion or modification of the landfill; and Republic's agreement to review truck safety with its landfill customers' solid waste managers. Such concessions tend to undercut Petitioners' claims of the inevitability of offsite impacts.

Demonstration of Need

25. Petitioners alleged that DHEC erred in determining that the demonstration of need requirement of S.C. Code Ann. § 44-96-290(E) (Supp. 2000) had been met. Mr. Braswell testified that at the time of the issuance of the permit, no "Demonstration of Need" regulation existed because the previous regulation had been stricken as unconstitutional. Thus, DHEC relied upon the solid waste planning process to determine the need for new solid waste management facilities. Mr. Braswell testified DHEC generally relied on the assessment of the individual counties and on regional solid waste planning councils to evaluate whether there is a need for a given facility, combined with DHEC's own evaluation of the State Plan and needs. In this case, DHEC requested specific information from Union County concerning the need for the landfill. The Catawba Regional Planning Council submitted a letter dated September 24, 1998, demonstrating that the proposed Union County landfill was consistent with the regional plan. The Union County Supervisor provided a response dated April 3, 2000, asserting a need for the landfill. ⁽³⁾ DHEC also considered the 1999 State Solid Waste Management Plan, which included the Union County landfill in its capacity plans.

26. In addition to the review of the Union County letter of need, the Catawba Regional Planning Council's letter, the Catawba Regional Solid Waste Management Plan and the 1999 State Solid Waste Management Plan, Mr. Braswell testified that DHEC also considered the growing commercialization and industrialization of the Upstate area, the trend toward regional landfills, the fact that the Anderson Regional Landfill has not been able to obtain a permit for expansion of its facility and has run out of capacity, the fact that the Palmetto Landfill in Spartanburg County has already exceeded its waste capacity for the current year, and the fact that DHEC is required to consider needs going forward for a 20-year period. (Tr. Vol. II, pp. 431-432)

27. Petitioners presented no evidence which demonstrated that there was no need for the landfill, or that DHEC should not have relied upon the letters provided by Union County and the Catawba Regional Planning Council, and the Catawba Regional Solid Waste Management Plan or the 1999 State Solid Waste Management Plan and the other information reviewed by DHEC in making its determination with regard to need. Petitioners did offer evidence in the form of letters from Newberry, Cherokee and Laurens Counties stating that they are currently under contract with other municipal waste haulers and landfills. Mr. Braswell noted, however, that each of these letters from those counties only indicated that they had no immediate plans to use the Union County landfill because of their current short-term contracts, but would utilize whichever landfill best met the needs of each county once their current contracts expire.

28. Pursuant to the contract between Addington and Union County, Republic can collect waste from North Carolina, Georgia and South Carolina for disposal at the Union County landfill.

29. Petitioners also alleged DHEC erred by failing to apply the new demonstration of need regulation, Regulation 61-107.17, to the Union County landfill. On this issue, Mr. Braswell testified that:

(a) DHEC's practice is to apply the new demonstration of need regulation only to permits issued after June 23, 2000;

(b) DHEC granted the subject permit on June 8, 2000;

(c) The new demonstration of need regulation, S.C. Code Ann. Regs. 61-107.17, became effective on June 23, 2000, two weeks after the decision to grant the permit was made;

(d) The permit's effective date of June 27, 2000 was after Regulation 61-107.17 became effective. Mr. Braswell testified that DHEC followed the practice of having a period between the issuance date and the effective date of a permit in an effort to prevent a permittee from starting construction until after the period to challenge the permit had run;

(e) At the time of the decision to issue the permit, no demonstration of need regulations were in existence;

(f) At the time of the DHEC decision to issue the permit, on June 8, 2000, Regulation 61-107.17 was still undergoing legislative review by the South Carolina General Assembly

(g) At the time of the permit decision, DHEC staff had no way of knowing if Regulation 61-107.17 would become effective, as the objection of any one member of the General Assembly would have prevented the legislative review period from expiring, and prevented the regulation from becoming effective during the 2000 session.

Superceded Conforming Use Regulations

30. Petitioners contend that DHEC should have applied the conforming use requirements of 25 S.C. Code Ann. Regs. 61-70 and 61-66 leading to a determination that the Union County landfill does not conform. In an effort to substantiate their assertions that DHEC erred in not applying the "conforming use" requirements of Regulations 61-70 and 61-66 to the subject permit, Petitioners presented testimony from Mr. Wilder, Ms. Satterfield, Mr. Stribling, Mr. Rummage, Mr. Stickles, Ms. Stevens and Mr. Workman that in their personal opinions, and without knowledge as to how the proposed landfill would actually be operated, the proposed landfill did not conform with the surrounding environment and future land uses. None of the foregoing individuals were offered as experts in engineering, environmental regulation, landfill permitting, land use, planning, zoning or any other field. Further, Petitioners failed to offer any testimony as to any conformity "test" that would appropriately be applied to determine whether pursuant to Regulations 61-70 and 61-66 the proposed landfill could be measured. ⁽⁴⁾

31. Mr. Braswell testified that Regulation 61-66 was inapplicable to municipal solid waste landfills such as the subject proposed facility and explained that DHEC had applied Regulations 61-66 and 61-70 in the Helena Industrial Waste Landfill matter because it involved an industrial waste landfill and the industrial waste landfill regulation was pending. Mr. Braswell also testified that Regulation 61-70 was promulgated in the early 1970s, at a time when little or no zoning or land use restrictions were in place in South Carolina. Mr. Braswell testified that Regulation 61-107.258 established "state of the art" requirements regarding the permitting of municipal waste landfills including location requirements and since Regulation 61-107.258 was promulgated, DHEC does not apply Regulation 61-70 to municipal waste landfills. ⁽⁵⁾

32. Mr. Braswell testified that DHEC currently addresses the conforming use issue by assessing any zoning or land use restrictions applicable to the area and the proposed landfill's compliance with the applicable buffer requirements. Mr. Braswell testified that the conformity test DHEC had employed pursuant to Regulation 61-70 was to review local zoning and land use requirements as well as property uses within one-fourth mile of the proposed landfill footprint.

33. Mr. Braswell testified that DHEC considered in reviewing the Republic application (a) the fact the property was unzoned; (Resp. Ex. 8) (b) the property was subject to no other land use restrictions; (c) the applicable buffer requirements under Regulation 61-107.258; (Tr. Vol. II, p. 452) (d) the fact that other natural buffers and topological features tended to screen the facility; (e) the fact that surrounding property uses were agricultural or silvacultural; and (f) the proximity of the Musgrove Mill park, of residences and of the golf course. Based on these considerations, DHEC concluded the proposed landfill conformed.

34. Mr. Braswell testified that a lack of any zoning in the area rendered DHEC unable to predict conformity with any future use of the surrounding area.

35. Mr. Braswell also testified there is nothing that would restrict the landfill site or the surrounding area from being used for numerous other purposes including a chemical plant, poultry or hog operation, etc. DHEC consulted with the South Carolina Department of Parks, Recreation and Tourism regarding the location of the landfill.

36. Mr. Workman testified to his concerns regarding the proximity of the landfill site to the private airstrip on his property. DHEC reviewed the distance from the landfill to Mr. Workman's airstrip and the type of airstrip Mr. Workman had and determined that the landfill met all location requirements.

37. Mr. Braswell testified that there was no zoning or other land use requirement in the area of the proposed landfill and that DHEC determined the proposed landfill met the consistency requirements.

Due Process

38. Petitioners allege their due process rights were violated because the DHEC permit file was not available in the DHEC Spartanburg office until May 16, 2000 and that certain documents were added to the permit application file on, near or after the date of issuance of the permit.

39. Petitioner Satterfield first contacted DHEC with her concerns over the proposed landfill in 1999. Throughout the entire permitting process, Petitioner Satterfield often had daily contact with Ms. Blalock at DHEC voicing her concerns with the landfill permit application and to request documents and information on the permitting process. Mr. Braswell and Ms. Blalock provided Petitioner Satterfield and other members of CKANGO with documents from the DHEC file as requested and were responsive to the inquiries. Petitioners actually commended Ms. Blalock on her responsiveness.

40. On May 4, 2000, DHEC provided public notice of the availability of draft permit and application materials in both the Columbia and Spartanburg DHEC offices. Petitioners Satterfield and Stribling testified that the file maintained at DHEC's Spartanburg District Office was often unavailable or incomplete. However, Petitioner Stribling did review the complete permitting file at the Spartanburg office on May 16, 2000 and on June 8, 2000. Petitioner Stribling also reviewed the copy of the permitting file that Union County maintained. Petitioners were aware the DHEC file was available in Columbia. Petitioners did not go to Columbia to review DHEC's file until after the permit had been issued and Petitioners had filed their Petition for Administrative Review. Petitioners had no complaints concerning access to the file after June 8, 2000.

41. On May 18, 2000, DHEC held a public hearing on Republic's permit application and the draft permit, at which time approximately 200 citizens, including Petitioners Stribling, Satterfield and other members of CKANGO voiced their objections to the permit application and proposed landfill. In response to requests from the public, DHEC extended the public comment period on the permit application from May 25, 2000 until June 2, 2000. DHEC received numerous comments in writing from the public regarding the proposed landfill between the May 18, 2000 public hearing and the close of the comment period. Despite the opportunity to do so, Mr. Stribling and CKANGO did not provide any additional comments between May 18, 2000 and the close of the comment period.

42. At the hearing, Petitioners complained that certain documents in DHEC's file were stamped "received" after the June 8, 2000 issuance date of the permit. Petitioners also complained that a memorandum from Jane Mundell of DHEC's Division of Hydrology approving final permit conditions on groundwater monitoring was dated June 8, 2000, and such documents were not available for review by Petitioners prior to issuance of the permit. ⁽⁶⁾ Mr. Braswell explained that DHEC requested multiple clean copies of revised documents from the engineers and consultants for Republic so that extra copies would be available for the public, and that these extra copies were stamped received with later dates, but the original revisions were received by DHEC prior to issuance of the permit. ⁽⁷⁾ Mr. Braswell also explained that the June 8, 2000 memorandum from Jane Mundell complained of by Petitioners addressed landfill closure and post-closure monitoring requirements and did not affect issuance of the permit to operate this landfill.

43. On June 7, 2000, DHEC received a letter advising that through a merger, Addington had become Republic (with no change in corporate structures, officers or financial assurance obligations), and asking that the permit be issued in the name of Republic, rather than Addington. Mr. Braswell had been informed a few weeks prior that Addington's name was being changed to Republic as part of an intra-company merger. He then requested that Republic submit a letter documenting the change. He was satisfied with Republic's response. DHEC received and approved a disclosure statement from Addington prior to issuance of the permit and later received a new disclosure statement from Republic after the permit was issued. ⁽⁸⁾ Mr. Braswell testified that DHEC has received numerous requests for changes in the names of MSW landfill permittees over the last few years due to mergers in the waste industry and found nothing unusual about Republic's request. He testified that the timing of the merger or submittal of the notice letter had no effect on DHEC's decision to issue the permit.

DISCUSSION AND CONCLUSIONS OF LAW

General Findings

Based upon the Findings of Fact and applicable law, I conclude, as a matter of law:

1. This Court has jurisdiction in this case pursuant to S.C. Code Ann. § 1-23-600(E) (Supp. 2000).

2. The standard of proof in weighing the evidence and making a decision on the merits at a contested case hearing is a preponderance of the evidence. Petitioners have the burden of proof to establish by a preponderance of the evidence that DHEC committed a material error in issuing the permit. As to their alleged anticipatory offsite impact claims, Petitioners have the burden to prove by a preponderance of the evidence that the alleged offsite impacts will inevitably occur at their properties, or property they use, and were not and could not be adequately addressed by DHEC in the permit, through the applicable regulations or through DHEC enforcement and compliance authorities. Strong v. Winn-Dixie Stores, 240 S.C. 244, 125 S.E.2d 628 (1962).

3. This tribunal will not substitute its judgment for that of the agency on appeal as to the weight of the evidence on questions of fact. S.C. Code Ann. § 1-23-380(A)(6) (Supp. 2000).

4. Under the Administrative Procedures Act, the decision of an administrative agency will not be overruled on appeal unless clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record. S.C. Code Ann. § 1-23-380 (A)(6)(e) (Supp. 2000).

5. S.C. Code Ann. § 44-96-290(E) (Supp. 2000) requires that DHEC approve a demonstration of need made by the County. DHEC did promulgate regulations concerning demonstration of need, but they have been declared unconstitutional and the General Assembly has since repealed them. At the time of the permit decision, there were no applicable regulations for demonstrations of need. For this reason, the Court may consider any relevant evidence showing need for the facility. Democratic Reform at Big Creek, et al. v. S.C. DHEC, et al., 98-ALJ-07-0556-CC (March 8, 1999). DHEC employed an acceptable practice to determine compliance with the demonstration of need requirement. That practice was followed in this instance and supports the DHEC decision to issue the permit. In the absence of any specific regulations, this Court considered all relevant evidence and materials in determining what demonstrates sufficient need for a landfill facility. I find that the needs determination made by DHEC for this landfill was sufficient and that a proper need for the facility exists under the totality of the circumstances. Therefore, I find that Petitioners have failed to prove by a preponderance of the evidence that the demonstration of need for the Union County landfill was inadequate.

6. The new demonstration of need regulation is inapplicable to this permit. The General Assembly promulgated a new demonstration of need regulation, S.C. Code Ann. Regs. 61-107.17, after DHEC issued the permit to Republic. Regulation 61-107.17 did not become effective until published in the State Register on June 23, 2000. Regulation 61-107.17(C)(1) provides, in pertinent part, that "no permit to construct a new solid waste disposal facility . . . shall be issued until a demonstration-of-need is approved by [DHEC]. . . ." DHEC issued the permit to Republic on June 8, 2000 before the effective date of Regulation 61-107.17 and, therefore, did not apply Regulation 61-107.17 to Republic's permit application.

7. New statutes or regulations must be construed to apply prospectively, unless there is a specific provision in the enactment, a clear legislative intent to the contrary, or where the legislation is remedial or procedural in nature. South Carolina Dep't. of Revenue v. Rosemary Coin Machines, Inc., 339 S.C. 25, 528 S.E.2d 416, 418 (2000); Carolina Power & Light Co. v. Town of Pageland, 321 S.C. 538, 543, 471 S.E.2d 137, 140 (1996); American Nat'l Fire Ins. Co. v. Smith Grading and Paving Co., 317 S.C. 445, 448, 454 S.E.2d 897, 899 (1995); Snavely v. Perpetual Fed. Sav. Bank, 306 S.C. 348, 412 S.E.2d. 382, 384 (1991); David E. Shipley, South Carolina Administrative Law 4-50 (1983). The language of Regulation 61-107.17 contains no express provision stating that it is to be applied retroactively. There is no clear legislative intent present showing that Regulation 61-107.17 is to be applied retroactively. Regulation 61-107 is not intended to act as any sort of remedy, nor is it merely a procedural regulation. There is no legal basis for requiring DHEC to retroactively apply Regulation 61-107.17 to the subject permit. Indeed, there was no practical way DHEC could have applied the regulation to the permit, as there was no way for DHEC staff to know at the time whether it would ever be enacted.

8. The pending ordinance doctrine states that in the context of zoning, a reviewing body may reject an application for a building permit for a land use in a newly zoned area when the use is repugnant to a pending and later enacted zoning ordinance. Stratos v. Town of Ravenel, 297 S.C. 309, 376 S.E.2d 783 (1989); Continental Southeastern Group v. City of Folly Beach, 290 S.C. 206, 348 S.E.2d 837 (1986); see also Scott v. Greenville County, 716 F.2d 1409 (4th Cir. 1983). The pending ordinance doctrine has never been applied to any permitting situation other than zoning, and zoning is a unique regulatory process, entirely unlike environmental regulations in the ways they are proposed, passed, applied, and reviewed. Zoning law is different from environmental permitting in that with regard to zoning, a property owner may generally continue a nonconforming use when property is zoned. Vulcan Materials Co. v. Greenville County Board of Zoning Appeals, 342 S.C. 480, 536 S.E.2d 892 (Ct. App. 2000); Pure Oil Division v. City of Columbia, 254 S.C. 28, 173 S.E.2d 140 (1970). At the time the permit decision was made, Regulation 61-107.17 was not "pending" within the meaning accorded by the pending ordinance doctrine. Unlike pending ordinances, at the time of the permit decision, DHEC did not know whether Regulation 61-107.17 would become effective, as the actions of a third party could have stopped it from becoming effective.

9. The fact that the subject permit had an "effective date" of June 27, 2000, does not mean that Regulation 61-107.17 should have been applied to the permit. The plain language of Regulation 61-107.17 evidences this. When the provisions of a regulation are clear and unambiguous, its terms should be read and applied literally. See, e.g., Gentry v. Yonce, 337 S.C. 1, 522 S.E.2d 137, 143 (1999); Mosteller v. County of Lexington, 336 S.C. 360, 520 S.E.2d 620, 622 (1999). The plain language of Regulation 61-107.17 states that it became effective on June 23, 2000, and that after that date "no permit to construct a new solid waste disposal facility shall be issued [without requiring compliance with the new regulation]." As this permit had been issued on June 8, 2000, before the new regulation came into effect, it cannot be applied to deny the permit.

10. Republic raised the issue of the constitutionality of Regulation 61-107.17 and the Solid Waste Management and Policy Act under the Commerce Clause of the United States Constitution. Having determined that Regulation 61-107.17 does not apply to Republic's permit application, I do not need to decide the constitutional issue raised by Republic.

Alleged Offsite Impacts

11. At the hearing, Petitioners voiced concerns that the proposed operation of the Union County landfill would create traffic problems, lower their property values, negatively affect wildlife and water resources, attract buzzards and other vectors, create noise, contaminate water and produce odors and dust. Respondents contend that issues related to such "nuisance" factors are not properly addressed within the scope of the permit appeal and are not within the jurisdiction of the Administrative Law Judge Division. Respondents nonetheless presented expert testimony and documentary testimony which established that, if operated in accordance with the permit conditions, operational plan and South Carolina law, the landfill will not inevitably cause the alleged offsite impacts complained of by Petitioners.

12. This Court's consideration of Petitioners' challenge to the issuance of the permit is limited to issues of environmental and health protection and pollution control. DHEC is ultimately responsible for regulating and controlling the operation of the Union County landfill and any resulting impacts to the environment, including odors, dust, litter, vectors and water contamination. DHEC acknowledges its responsibility by addressing these impacts in its permitting regulations as well as in the conditions it included and incorporated into this permit.

13. While DHEC's authority is broad, in the absence of a duty related to the health and welfare of the public, neither DHEC nor the Administrative Law Judge Division is charged with the responsibility of establishing the land use mix within an area. Land use decisions are primarily the responsibility of the local zoning authorities, who exercise wide discretion in decision making, and jurisdiction over zoning dispute vests in the circuit court. See Bear Enterprises v. County of Greenville, 319 S.C. 137, 459 S.E.2d 883 (Ct. App. 1995); Rushing v. City of Greenville, 265 S.C. 285, 217 S.E.2d 797 (1975). Here, Union County has no zoning or land use regulations that would prohibit the location of the landfill.

14. Furthermore, South Carolina Supreme Court stated the following concerning the Petitioners' burden of proof to establish a right to relief:

It is not enough to show that the anticipated acts threatened to or may become a nuisance, but the evidence must show that a nuisance is inevitable from the proposed use of the premises or will necessarily result. If the proposed business may be operated in such a way as not to constitute a nuisance, an injunction will not be issued.

Strong v. Winn-Dixie Stores, 240 S.C. 244, 125 S.E.2d 628, 633 (1962).

15. Petitioners allege that their due process rights were violated because they were not able to completely review DHEC's permitting file at the Spartanburg District office before May 16, 2000. Petitioners also complained that certain documents were added into DHEC's file near or at the time after the permit was issued on June 8, 2000, including that the name of the permittee was changed from Addington to Republic. Finally, Petitioners also complained that the public comment period should have been extended from June 2, 2000 to July 2, 2000. Petitioners failed to show any adverse impact to their opportunity to comment upon or challenge the permit based upon these allegations.

16. I find that DHEC has no obligation under the South Carolina Solid Waste Management and Policy Act or its implementing regulations to require a public comment period or to take public comments as a prerequisite to granting a MSW landfill permit. This is in contrast with the public comment steps DHEC is required to take in connection with a hazardous waste landfill under Regulation 61-79.124. Nonetheless, I find that DHEC provided Petitioners with ample opportunity to review and comment on Republic's permit application and the proposed landfill. Furthermore, the extensive hearing process provided to Petitioners by the Administrative Law Judge Division satisfied any due process requirements Petitioners may have had in this context. Leventis v. South Carolina Dep't of Health and Environmental Control, 340 S.C. 118, 530 S.E.2d 643 (S.C. App. 2000).

17. Throughout the permitting process, DHEC's file was available for public review in Columbia. Petitioner Satterfield and other members of CKANGO requested documents related to the landfill from Juli Blalock and were timely faxed and mailed documents. Juli Blalock had almost daily contact with Petitioner Satterfield and answered questions about the permitting process. In response to public interest, DHEC held a public hearing on May 18, 2000, at which more than 200 people attended. In response to the public's request, DHEC extended the public comment period until June 2, 2000. I find that DHEC went well beyond the minimum requirements of due process and of the state regulations in providing Petitioners with notice of the decision and an opportunity to be heard.

18. Petitioners allege DHEC erred by failing to apply the "conforming use" requirements of Regulation 61-70. Those requirements were promulgated in 1972 under "Section 9 of the General Appropriations Act 1971-2."

19. In 1991, the General Assembly passed the South Carolina Solid Waste Policy and Management Act. The same year, DHEC promulgated and the General Assembly approved a separate, new set of solid waste management regulations at 25A S.C. Code Ann. Regs 61-107 et. seq. pursuant to the requirements of the Solid Waste Policy and Management Act. These new regulations were not promulgated under the same authority as the 1972 regulations. While Regulation 61-70 devoted only 94 words to location requirements for sanitary landfills, Regulation 61-107.258 devotes substantially more detail to the subject, some six full pages. While the old regulatory scheme consisted of only six and a half pages, Regulation 61-107.258 comprises some 58 pages of text. The enactment of the Solid Waste Policy and Management Act and S.C. Code Ann. Regs. 61-107 was a major regulatory change and a substantial revision to the Code, and to solid waste regulations.

20. The enactment of the Solid Waste Policy and Management Act and Regulation 61-107 was not undertaken as a modification to the existing permitting scheme found at Regulations 61-66 and 61-70. Instead, it created a new set of programs to deal conprehensively with the generation, collection, processing, and disposal of every kind of solid waste in South Carolina. The Solid Waste Policy and Management Act and Regulation 61-107 was intended to, and does, encompass the entire legislative field of solid waste management. There is an exception to the general rule disfavoring implied repeal of one statute by the enactment of another. Where the enactment of a legislative revision is designed to encompass an entire subject of legislation, this enactment operates to repeal a previous act dealing with the same subject matter, despite the absence of a repealing clause. Independence Ins. Co. v. Independent Life & Acc. Ins. Co., 218 S.C. 22, 61 S.E.2d 399 (1950).

21. In the case of broad legislative revisions, all parts and provisions of the former act that are omitted from the revision are repealed, even though the omission may have been inadvertent. Independence Ins. Co., 61 S.E.2d. at 399. Where the later act covers the whole subject matter of the earlier act, and does not purport to amend it, and was plainly intended as a substitute, the later enactment repeals the earlier one. This rule applies in the case of broad legislative revisions regardless of whether the old and new enactments are inconsistent or repugnant to each other. Independence Ins. Co., 61 S.E.2d at 399. DHEC formally began the process to repeal Regulation 61-70 by publishing a Notice of Drafting on March 24, 2000, the synopsis for which specifically provides that, "The standards for Regulation 61-70 are antiquated and obsolete, and have effectively been superceded by standards promulgated in ... R. 61-107.258 (municipal solid waste landfills)." Notice was then published in the June 23, 2000 South Carolina Register, approved by the DHEC Board on August 10, 2000 and filed on August 11, 2000. South Carolina State Register, Doc. 2530. The repeal process continues through the 2001 legislative session. DHEC stopped using Regulation 61-70 on municipal solid waste landfills once Regulation 61-107.258 was promulgated and Regulation 61-70 was only applied to industrial landfills in conjunction with Regulation 61-66 until the industrial waste landfill regulations became effective. The fact that DHEC considers the conforming use and other requirements of Regulation 61-70 to be superceded by the enactment of the Solid Waste Policy and Management Act and Regulation 61-107, and the fact that DHEC has begun the process for repeal of Regulation 61-70 is evidence that Regulation 61-107 was intended as a substitute or replacement for Regulation 61-70.

22. I find that the requirements of Regulation 61-70 were repealed as a result of the enactment of the Solid Waste Policy and Management Act and Regulation 61-107.258 as to municipal solid waste landfills.

23. It is not enough for Petitioners to show that DHEC made a technical error in the permitting process. Unless Petitioners can also show that they were prejudiced by DHEC error, the permit decision may not be reversed. Ballenger, et. al. v. SCDHEC, 331 S.C. 247, 500 S.E.2d 183, 186,, 250 (Ct. App. 1998).

ORDER

Based upon the foregoing Findings of Fact and Discussion and Conclusions of Law, I find that the Department of Health and Environmental Control properly granted this permit. It is hereby ordered that DHEC shall issue Municipal Solid Waste Landfill Permit #442441-1101 to Republic, as written.

AND IT IS SO ORDERED.

______________________________

Carolyn C. Matthews

Administrative Law Judge

July 19, 2001

1. Including design and location controls such as: liner systems, depth to groundwater systems, distances to surface waters and other design and engineering to protect groundwater and surface water and to control odors, dust and vectors. Petitioners alleged that Petitioners' Exhibit 32 indicates that all MSW landfill upper liners have some rate of leakage. Petitioners failed to present any expert testimony interpreting this exhibit. Petitioners also failed to establish that the upper liner to be utilized at the Union County Landfill was one of the upper liners reviewed in this exhibit or that the entirety of the liner system required to be utilized by Republic at this landfill (i.e., made up of an upper liner, leachate collection system, two feet of compacted soil with a hydraulic conductivity of less than 10^-7 cm/sec, etc.) would leak. Petitioners failed to provide any evidence that any form of groundwater contamination would actually occur as a result of the operation of the landfill, either on or off the landfill site, or at any concentration that would exceed the groundwater standards and pose an adverse impact to human health or the environment. However, I find that the regulations at Regulation 61-107.258 contemplate the possibility of leakage from a landfill constructed in accordance with the technical requirements thus leading to the groundwater monitoring and corrective action requirements included in those regulations and that were made a part of the permit.

2. Mr. Stribling also testified his wife would cough if exposed to diesel exhaust fumes of an excessive nature while riding in a car behind a truck. Petitioners failed to present any evidence linking this testimony to any element of DHEC's permitting decision. Ms. Stribling lives 10 miles from the landfill and not on any specified route to the landfill.

3. Respondents also presented these letters and other materials supporting Mr. Braswell's testimony that Republic had also met the consistency requirements. Petitioners failed to present any evidence that the County's response was in any way deficient.

4. To the extent Petitioners' allegation on the conforming use issue is based upon their anticipatory offsite impacts allegations, the failure of Petitioners to meet their burden to establish such impacts are inevitable is equally fatal to this allegation. Petitioners' concerns are adequately covered in the permitting requirements and DHEC's compliance and enforcement authorities.

5. A review of these regulations shows that all substantive areas of Regulation 61-70 are covered in more detail in the Regulation 61-107.258 requirements met by Republic.

6. Petitioners also submitted Petitioners' Exhibit 21 and 26 in an effort to show additional materials were submitted to the permit file after March 13, 2000. The additional information responsive to Petitioners' Exhibit 21 was Respondents' Exhibit 7 (April 3, 2000 Union County letter of consistency) and Respondents' Exhibit 8 (Union County zoning letter). Petitioners' Exhibit 26 included a demonstration for the permitted facility for an overall capacity of 12,000,000 cubic yards and an annual disposal rate of 730,000 tons of MSW per year (and also referenced Resp. Ex. 2, 4, 9). Petitioner's Exhibit 26 indicated additional information in support of a 250,000 tons of MSW per year disposal rate would be provided. However, the permit granted allows for an annual allowable disposal rate of 730,000 tons per year and thus Petitioners' Exhibit 26 was sufficient and Petitioners offered no evidence to the contrary. Mr. Braswell's testimony on Republic's compliance with the consistency and demonstration of need requirements further makes it clear that no additional information was required with respect to this issue.

7. Such a document, Petitioners' Exhibit 25, reflects the documents included in the permit application in compliance with Regulation 61-107.258.

8. Petitioners failed to present any evidence that the new disclosure statement was in any way different from the original one except as to the new name.