ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter arises from a request for a contested case hearing by Petitioner, S & T Recycling, LLC (S & T Recycling), filed on April 12, 2006. S & T Recycling requests review of the decision of the South Carolina Department of Health and Environmental Control (Department) to approve Southeastern Associates Land-Clearing Debris and Yard Trash Landfill’s (Southeastern) notice of intent to amend its land-clearing debris (LCD) landfill permit under the State’s General Permit. Southeastern subsequently filed a motion for summary judgment on August 2, 2006, on the grounds that S & T lacked standing to bring this case.
A hearing concerning the summary judgment motion and the merits of the case was conducted on October 18, 2006.
BACKGROUND
This case involves two competitors who offer the disposal of land-clearing debris and yard trash via their permitted landfills in Lexington County. Both have requested approval for additional landfill operation and both cases have been appealed to the Administrative Law Court. The case involving S & T Recycling’s permit preceded this case. There, after the Department approved the operation of a land-clearing debris (LCD) landfill on Highway 378 in Lexington, South Carolina, Lexington County appealed to this Court arguing that the landfill was not consistent with its Solid Waste Plan. More specifically, Lexington County argued, in part, that its Plan did not authorize any further development of Land-Clearing Debris and Yard Trash Landfills in its county. This Court granted summary judgment in favor of the Respondents in that case on August 2, 2006, thereby approving the operation of S & T Recycling’s LCD landfill. See County of Lexington v. S.C. Dep’t of Health & Envtl. Control and S & T Recycling, LLC, Docket No. 05-ALJ-07-0509-CC. The case is now being reviewed by South Carolina Board of Health and Environmental Control.
ISSUES
S & T Recycling contests the approval of the Southeastern Landfill on the following grounds:
1. The December 23, 2005 amendment of the Lexington County Solid Waste Management Plan gives Lexington County the ultimate decision-making authority with respect to the Department’s determination of consistency pursuant to S.C. Code Ann. § 44-96-290(F);
2. The Department improperly requested verification from the County with respect to the Proposed Southeastern Landfill’s consistency with the County Plan, as amended on December 23, 2005; and
3. The Department’s authorization for the operation of the Southeastern’s LCD Landfill was improper during the pendency of the County of Lexington Appeal.
MOTION FOR SUMMARY JUDGMENT
Southeastern filed a motion for Summary Judgment on the grounds that the Petitioner lacked standing to request a contested case hearing in this matter. Rule 68 of the Administrative Law Court Rules provides that “[t]he South Carolina Rules of Civil Procedure may, where practicable, be applied in proceedings before the Court to resolve questions not addressed by these rules.” Rule 56(c), SCRCP, and the accompanying case law, set forth that a party may bring a motion for summary judgment. Summary judgment is appropriate when it is clear that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Gadson v. Hembree, 364 S.C. 316, 613 S.E.2d 533 (2005); Cisson Constr. Inc. v. Reynolds & Assoc. Inc., 311 S.C. 499, 429 S.E.2d 847 (Ct. App. 1993). In determining whether summary judgment is proper, the court must construe all ambiguities, conclusions, and inferences arising from the evidence against the moving party. Byers v. Westinghouse Elec. Corp., 310 S.C. 5, 425 S.E.2d 23 (1992). Summary judgment is not appropriate where further inquiry into the facts of the case is desirable to clarify the application of the law. Wogan, et al. v. Kunze, et al., 366 S.C. 583, 623 S.E.2d 107 (2005). Because it is a drastic remedy, summary judgment should be cautiously invoked to ensure that a litigant is not improperly deprived of a trial on disputed factual issues. Helena Chem. Co. v. Allianz Underwritters Ins. Co., 357 S.C. 631, 594 S.E.2d 455 (2004).
Southeastern contends that S & T Recycling lacks standing to request a contested case hearing in this matter because S & T Recycling was not adversely affected by the Department’s approval of the Proposed Southeastern Landfill. In other words, S & T Recycling has suffered no injury causally connected with the Department’s decision to approve the Proposed Southeastern Landfill. Generally, one must be a real party in interest to have standing. Charleston County Sch. Dist. v. Charleston County Election Comm’n, 336 S.C. 174, 181, 519 S.E.2d 567, 571 (1999). A real party in interest is one who has a real, material, or substantial interest in the subject matter of the action, as opposed to one who has only a nominal or technical interest in the action. Id. An economic interest, however, in the subject matter of the action is sufficient to establish standing. Henry v. Horry County, 334 S.C. 461, 463, 514 S.E.2d 122, 123 n. 1 (1999); see also Friends of the Earth, Inc. v. Laidlaw Env. Servs., 528 U.S. 167, 183-84 (2000) (finding that evidence that the defendant’s alleged conducted affected the plaintiff’s economic interest supported showing of injury in fact for standing); Bennett v. Spear, 520 U.S. 154, 176 (1997) (noting that the protection of commercial interest is sufficient to establish the plaintiff’s injury under the zone of interest analysis of standing). Here, both the Proposed Southeastern Landfill and the Proposed S & T Recycling Landfill are located in Lexington County and serve the land-clearing activities within the county. Accordingly, these landfills compete for the same volume of LCD waste in the Lexington County market area. S & T Recycling’s economic interest in the approval of a competitor’s landfill creates standing to request a contested case hearing in this matter.
FINDINGS OF FACT
Having observed the witnesses and exhibits presented at the hearing and taking into consideration the burden of persuasion and the credibility of the witnesses, I make the following findings of fact by a preponderance of evidence:
Southeastern operates a sand mine and construction debris and land clearing debris landfill at Omar Court in Lexington County pursuant to Landfill Permit #322429-1201 and Mining Permit #1097. On November 11, 2005, Southeastern filed a notice of intent with DHEC to amend its permits to allow reclamation of the mined area by use of a LCD permit. On January 5, 2006, DHEC notified Southeastern that it had made a preliminary determination that the proposed landfill was consistent with the March 2001 Lexington County Solid Waste Management Plan as revised in August 2004.[1]
On February 1, 2006, Lexington County notified DHEC that Southeastern had followed the requirements adopted by Lexington County and was consistent with the amended plan.[2] On February 10, 2006, the Department issued an approval to Southeastern to operate a LCD Landfill under S.C. Reg. 61-107.11, Part II, General Permitting for the Disposal of Land-Clearing Debris and Yard Trash. In making its determination to approve the Permit, Jana White, Section Manager for the Division of Mining and Solid Waste Planning, consulted with the County concerning their view of whether the landfill was consistent with their Plan. See S.C. Code Ann. § 44-96-290(F) (Supp. 2005). However, the Department did not forego its independent review of whether Southeastern’s application was consistent with the plan.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude the following as a matter of law:
General Conclusions
1. The Administrative Law Court has jurisdiction over this contested case matter pursuant to S.C. Code Ann. § 1-23-600(B) (Supp. 2005). In contested case hearings, the Administrative Law Judge is the fact finder. Brown v. S.C. Dep’t of Health & Envtl. Control, 348 S.C. 507, 560 S.E.2d 410 (2002). In weighing the evidence and deciding the merits of the case, the Administrative Law Judge must make findings of fact by a preponderance of the evidence. Anonymous (M-156-90) v. State Bd. of Medical Examiners, 329 S.C. 371, 496 S.E.2d 17 (1998). Furthermore, Petitioner, as the party challenging the propriety of the issuance of Southeastern’s permit, bears the burden of proof in this case. See Leventis v. S.C. Dep’t of Health & Envtl. Control, 340 S.C. 118, 132-33, 530 S.E.2d 643, 651 (Ct. App. 2000) (holding that the burden of proof in administrative proceedings generally rests upon the party asserting the affirmance of an issue.). Accordingly, Petitioner must prove, by a preponderance of the evidence, that the authority to operate the Southeastern LCD Landfill did not meet the requirements of S.C. Code Ann. §§ 44-96-10, et seq. (Supp. 2005) and. 25A S.C. Regs. 61-107.11, Part II (Supp. 2005).
Consistency Determination in Light of the County’s Amendment
2. The South Carolina Solid Waste Policy and Management Act (Solid Waste Act), generally sets forth that “[n]o person shall operate a solid waste management facility without a permit from the department” and in accordance with requirements established by the Department. S.C. Code Ann. § 44-96-290 (A) and (B) (Supp. 2005). Before obtaining a permit for a new C&D Landfill, an applicant must demonstrate the need for a landfill to DHEC. S.C. Code Ann. § 44-96-290(E) (Supp. 2005). Furthermore, no such permit may be issued unless the proposed facility or expansion is:
a. consistent with local zoning, land use, and other applicable local ordinances; and
b. the proposed facility or expansion is consistent with the local or regional solid waste management plan and the state solid waste management plan
S.C. Code Ann. § 44-96-290(F) (Supp. 2005).
Petitioner argues that DHEC delegated its authority to Lexington County by taking into consideration the provision in Section V.H.1 of the County’s amended SWM plan. S & T contends that the December 2005 Amendment to the County Plan is contrary to the requirements of the Solid Waste Act because the County amended its Plan to give the County ultimate decision-making authority with respect to the Department’s consistency determination with respect to the local solid waste management plan. S & T further argues that the Department improperly requested verification from the County with respect to whether Southeastern Landfill’s was consistent with the County Plan thereby subverting its obligation to determine if the proposed landfill was consistent with the Plan.
In Southeast Resource Recovery, Inc. v. S.C. Dep’t of Health & Envtl. Control, 358 S.C. 402, 595 S.E.2d 468 (2004), the South Carolina Supreme Court addressed the meaning of Section 44-96-290(F). The South Carolina Supreme Court has held that the Department, not the host county, makes the final determination of consistency pursuant to S.C. Code Ann. § 44-96-290(F). Southeast Resource Recovery, Inc., 358 S.C. 402, 408-09, 595 S.E.2d 468, 471-72 (2004). Specifically, in Southeast Resource Recovery, the Court held that:
S.C. Code Ann. § 44-96-290(F) does not give a county veto authority over decisions made by DHEC. There is no statutory authority providing a county’s consistency determination is determinative of the ultimate permitting decision. Although 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.
Id. at 408, 595 S.E.2d at 469.
Here , in December 2005 the County did adopt an amendment to its Solid Waste Plan that requires that the Department must consult with the County to determine whether the applicant has complied with the requirements of Section V.H.1 of the December 2005 Amendment. The Amendment thus, arguably allows the County to be the “final arbiter” of the consistency determination because it reserves final approval regarding the County’s need for an LCD landfill within the County’s boundaries.
Nevertheless, the Department does not have the authority to change a county’s Solid Waste Plan. Rather, the Department must apply that plan in accordance with the terms of the Solid Waste Act. “All rules of statutory construction are subservient to the one that legislative intent must prevail if it can be reasonably discovered in the language used, and that language must be construed in the light of the intended purpose of the statute.” McClanahan v. Richland County Council, 350 S.C. 433, 438, 567 S.E.2d 240, 242 (2002). “In ascertaining the intent of the legislature, a court should not focus on any single section or provision but should consider the language of the statute as a whole.” Mid-State Auto Auction v. Altman, 324 S.C. 65, 69, 476 S.E.2d 690, 692 (1996). The language must also be read in a sense which harmonizes with its subject matter and accords with its general purpose. Mun. Ass’n of S.C. v. AT & T Commc’n of S. States, Inc., 361 S.C. 576, 606 S.E.2d 468 (2004).
As explained in Southeastern, the Department is the ultimate arbiter in determining if the proposed activity is in keeping with the County’s Plan. Accordingly, any interpretation of the language within that Plan must be in keeping with that assumption. Here, indeed, Ms. White did request documentation from the County verifying that Southeastern had complied with its Plan. However, the act of requesting verification does not establish that the Department was delegating its authority to Lexington County. Rather, the evidence reflected that the Department was gathering pertinent information in order to make an informed decision. Furthermore, the Department did not rely upon that verification in making its determination. Rather, the Department, itself, reviewed the Plan and determined the proposed landfill complied with the Plan.
More importantly, in Ross v. Medical University of S.C., 328 S.C. 51, 68, 492 S.E.2d 62, 71 (1997), the South Carolina Supreme Court held that:
Article I, § 22 requires an administrative agency provide notice and an opportunity to be heard, but does not require notice and an opportunity to be heard at each level of the administrative process. It mandates notice and opportunity to be heard at some point before the agency makes its final decision.
Furthermore, “[a]n adequate de novo review renders harmless a procedural due process violation based on the insufficiency of the lower administrative body.” Unisys Corp. v. S.C. Budget and Control Bd. Div. of General Services Info. Tech. Mgmt. Office, 346 S.C. 158, 174, 551 S.E.2d 263, 272 (2001).
The Administrative Law Court, as part of the executive branch of South Carolina government, provides notice and opportunity to be heard before the final administrative decision. See S.C. Code Ann. §§ 1-23-500, et seq. (Supp. 2005). Thus, even if Southeastern did not receive adequate review at the agency level, the adjudicatory hearing held before the Administrative Law Court satisfies the requirements of due process. In other words, even if the Department errantly looked to the County for verification of whether Southeastern’s landfill complied with the Plan, a proper review of that issue before the ALC renders harmless any failures in the Department’s review. Here, in fulfilling my function as fact finder, I have not relied upon the County’s verification that Southeastern Landfill is consistent with the County Plan but rather have reviewed the Plan and found this landfill in keeping with the Plan. Therefore, the Amendment’s language has not been interpreted as allowing the County to be the ultimate arbiter of whether the proposed landfill complies with its plan.
Standing
3. Respondents argue that Petitioner failed to establish standing. In Lujan v. Defenders of Wildlife, 504 U.S. 555, 112 S. Ct. 2130, 119 L.Ed.2d 351 (1992), the Court set forth that in analyzing whether a party has standing the burden of proof increases at the various stages of the proceeding. To establish standing after the conclusion of the evidence, the ALC must find that the evidence adduced during the hearing supports a determination of standing. Id. Although the facts supported an initial determination that S & T has standing to bring this case, the evidence presented at the hearing did not meet the burden of establishing standing. As set forth above, an economic interest in the subject matter of the action is sufficient to establish standing. That interest or “injury in fact,” however, must be “(a) concrete and particularized and (b) actual or imminent, not ‘conjectural’ or ‘hypothetical’.” Sea Pines Ass'n for Prot. of Wildlife, Inc. v. S.C. Dep’t of Natural Res., 345 S.C. 594, 550, 601 S.E.2d 287, 291 (2001) (quoting Lujan, 504 U.S. 555).
Here, Petitioner did not present any testimony that established any injury in fact or economic harm. Petitioner’s witness, Michael Sturkie, testified that he “felt like” it was “unfair trade practice” that Southeastern could get a permit but S & T could not get a permit. However, Mr. Sturkie was not referring to any action of the Department but rather Lexington County’s refusal to issue S & T a zoning permit. Furthermore, Mr. Sturkie testified that S & T had spent a substantial amount of money in engineering and attorneys. However, that testimony did not relate to any harm caused by the issuance of a permit to Southeastern. In sum, the evidence did not establish that the proposed LCD landfill has clearly adversely affected S & T Recycling’s market position. Moreover, Mr. Sturkie’s statement that this situation is “unfair” is not enough to prove that S & T has been adversely affected by Southeastern receiving landfill permit approval.
Request for Stay or Injunctive Relief
4. S & T Recycling contends that the Department’s authorization for the operation of Southeastern’s LCD Landfill was improper during the pendency of the County of Lexington’s appeal of its permit. In the S & T permit matter, the County has argued that the language of Section V.H of the pre-amendment County Plan precludes the permitting of additional LCD landfills in the County. Specifically, Section V.H of the pre-amendment County Plan provides that the County “does not anticipate the development of any Land-Clearing Debris and Yard Trash Landfills as defined in the SCDHEC Regulations R.61-107.11 Part II.” This language is carried forward in full in Section V.H of the December 2005 Amendment to the County Plan. Accordingly, if on appeal the Department’s approval of the proposed S & T Recycling Landfill is reversed based upon that language, the basis for such reversal should be equally applicable to the proposed Southeastern Landfill.
However, the Department is obligated to consider properly made permit request when submitted. See S.C. Code Ann. § 44-96-260 (2) (Supp. 2005). In carrying out that responsibility landfill applicants are “entitled to be treated in the same manner as other applicants.” Weaver v. S.C. Coastal Council, 309 S.C. 368, 375 423 S.E.2d 340, 344 (1992). Enjoining the Department from issuing any additional LCD permits in Lexington County prior to a final decision in the appeal regarding S & T’s permit would unfairly hold the LCD landfill permitting process in abeyance for all applicants during S & T’s appeal. Furthermore, none of the parties in this case argue that Section V.H prohibits the development of LCDs in Lexington County or that the Plan was incorrectly applied by the Department to approve the Southeastern permit. Thus, Petitioner is asking this Court to enjoin Southeastern and other potential applicants from pursuing permits, though the Petitioner, the Respondents and this Court view Section V.H as authorizing the development of additional LCD landfills in Lexington County. I have found no authority that a state agency may hold a permit issuance in abeyance based upon the fact that there is on-going litigation involving an entity that has the same type of business as the applicant who is pursuing a permit. Enjoining the Department under these circumstances would result in this Court finding that it is proper to enjoin third parties from a statutorily authorized lawful and proper activity. Moreover, an injunction would be based upon the conjecture that the courts above the ALC will find that this Court errantly interpreted the law. I do not find it wise to tie my own Gordian knot. Therefore, I deny Petitioner’s request.
ORDER
IT IS THEREFORE ORDERED that Southeastern Associates’ Land-Clearing Debris permit is APPROVED.
AND IT IS SO ORDERED.
_______________________________
Ralph King Anderson, III
Administrative Law Judge
December 13, 2006
Columbia, South Carolina
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