ORDERS:
ORDER REMANDING CASE BASED ON PARTIAL SUMMARY JUDGMENT
This
matter comes before the South Carolina Administrative Law Court (ALC or Court)
pursuant to S.C. Code Ann. § 1-23-600 (A) (as amended by 2008 S.C. Act No. 334)
and S.C. Code Ann. § 44-1-60(F)(2) (2008) upon the request for a contested case
hearing filed by Waste Management of Carolinas (Waste Management). Waste
Management contests the Final Agency Determination issued by Respondent South
Carolina Department of Health and Environmental Control (DHEC), which denied
Waste Management’s application for a permit to construct a municipal solid
waste transfer station. Afterwards, all of the parties filed a Motion for
Summary Judgment. Upon review of the issues raised, I find that summary
judgment should be granted concerning some of the issues raised and that this
case should be remanded to DHEC to process Waste Management’s permit
application.
STANDARD
OF REVIEW
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, provides that summary judgment shall be granted if it is shown
“that there is no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law.” See also 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). 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 Underwriters
Ins. Co., 357 S.C. 631, 594 S.E.2d 455 (2004). Summary judgment is also not
appropriate where further inquiry into the facts of the case is desirable to
clarify the application of the law. Wogan v. Kunze, 366 S.C. 583, 623
S.E.2d 107 (2005). On the other hand, the non-moving party may not rest upon
the mere allegations or denials of the pleadings, but a response by affidavit
or otherwise as provided in the rules must set forth specific facts creating a
genuine issue for trial. S.C.R. Civ. P. 56 (e); Moody v. McLellan, 295
S.C. 157, 163, 367 S.E.2d 449, 452-53 (Ct. App. 1988). Furthermore, summary
judgment should be granted “when plain, palpable and undisputed facts exist on
which reasonable minds cannot differ.” Bayle v. S.C. Dep’t of Transp.,
344 S.C. 115, 120, 542 S.E.2d 736, 738 (Ct. App. 2001).
UNDISPUTED
MATERIAL FACTS
On August 2, 2006,
Waste Management requested a consistency determination for a solid waste
transfer facility from the Department of Health and Environmental Control
(Department or DHEC). Thereafter, on September 6, 2006, the Department
notified Horry County and the Horry County Solid Waste Authority (SWA) that it
had made a preliminary finding of consistency regarding Waste Management’s
permit application. The County Plan in effect at the time Waste Management
filed its application was the 2001 Horry County Solid Waste Management Plan.
The SWA was created in
1990 to manage the solid waste activities of Horry County. It is governed by a
board appointed by county council and by the various municipalities with the
approval of county council. Prior to Waste Management’s application, the SWA
had submitted an application to the Department for a transfer station in August
of 2000. The Department never issued a permit and SWA re-submitted its
application in late 2006. SWA was under the impression that because they had
submitted their application first, they should receive the permit for a
transfer station. However, the Department does not apply a “first in line”
policy to applications for transfer stations.
On November 6, 2006,
the Department advised Waste Management that the proposed transfer station was
not inconsistent with the County Plan and issued a preliminary consistency
determination. Thereafter, the Department issued a similar preliminary
consistency determination for SWA’s proposed transfer station on December 6,
2006.
After both preliminary
consistency determinations were issued, the SWA Board approved a staff
recommendation to amend the 2001 plan to provide that no new transfer stations
would be allowed in the county. SWA submitted the amendment to the 2001 Solid
Waste Management Plan to the Department on February 27, 2007. In the interim,
the Department had placed Waste Management’s draft permit on public notice on
February 1, 2007, with the comment period ending March 2, 2007.
The
Department reviewed and adopted the amendment to the Solid Waste Management
Plan. The Department, in relying on the amended 2007 Solid Waste Management
Plan, then denied Waste Management’s permit application on June 19, 2007. The
reason given for this denial was that the application was not consistent with
the county plan as amended February 27, 2007, which did not allow for any more
transfer stations. Furthermore, the Department did not make an individual
assessment of need, it simply denied the permit because it was not consistent
with the plan.
DISCUSSION
The parties seek to
have this case resolved based upon their summary judgment motions. Clearly,
DHEC administers the South Carolina Solid Waste Policy and Management Act of
1991, S.C. Code Ann. §§ 44-96-10 to 44-96-470 (2002 & Supp. 2007) (the
Act). Furthermore, the ALC has subject matter jurisdiction to review DHEC’s
decision regarding the Act as a contested case pursuant to S.C. Code Ann. § 1-23-600(A)
(as amended by 2008 S.C. Act No. 334). More specifically, S.C. Code Ann. § 44-1-60(F)(2)
(2008) specifically authorizes the Court to hear this matter as a contested
case in accordance with the Administrative Procedures Act. In reviewing this
matter, the ALC serves as the finder of fact and makes a de novo determination
regarding the matters at issue. See S.C. Code Ann. § 1-23-505 (as
amended by 2008 S.C. Act No. 334); Brown v. S.C. Dep’t of Health &
Envtl. Control, 348 S.C. 507, 512, 560 S.E.2d 410, 413 (2002).
Here, as more fully
explained below, DHEC improperly commingled the determination of need with the
determination of whether the facility is consistent with the County’s Plan.
Nevertheless, just because the Department erred as a matter of law in the
procedure that it followed in denying a permit for Waste Management’s proposed
facility does not entitle Waste Management to judgment in its favor. In other
words, the only remedy that this Court could grant as a result of finding the
Department’s approach flawed would be to remand the case for another review by
the Department in keeping with the appropriate procedure and standards.
However, since the ALC hears these cases de novo, after an evidentiary hearing
on the merits of this case, the Court can factually and legally address these
issues, and decide whether a permit should be issued according to the proper
legal standards. In fact, “[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). Accordingly, summary judgment is not the appropriate
resolution of the issues emanating from the Department’s failure to properly
make its decision. Nonetheless, the issue regarding the application of Captain’s
Quarters Motor Inn v. S.C. Coastal Council, 306 S.C. 488, 413 S.E.2d 13
(1991), and S.C. Coastal Conservation League v. S.C. Department of Health
and Environmental Control, 363 S.C. 67, 610 S.E.2d 482 (2005), address
DHEC’s authority to regulate transfer stations under the Act. Therefore, those
issues, along with the issue necessary to elucidate the proper review of this
case by DHEC, are addressed in this Order.
Consideration
of Need
S.C. Code Ann. §
44-96-290(E) (2002) of the Act provides that “[n]o permit to construct a new
solid waste management facility or to expand an existing solid waste management
facility may be issued until a demonstration of need is approved by the
department.” “Solid waste management facility” is defined in the Act as
including transfer stations. See S.C. Code Ann. § 44-96-40(49) (2002). Therefore, the Act requires
that DHEC must perform a needs assessment for all proposed solid waste
facilities, including transfer stations, and to specifically determine whether
a transfer station is needed before issuing a permit authorizing the
construction of the facility. Regarding the determination of need, Section
44-96-290(E) further provides that:
The department shall promulgate regulations to
implement this section. These regulations must apply to all solid waste
management facilities which have not obtained all permits required for
construction.[2]
Thus, though the Act does not
specify the procedures DHEC must follow in determining the need for a facility,
it clearly requires that DHEC promulgate regulations to implement its determination.
It is undisputed that DHEC has promulgated regulations setting forth specific
criteria for need documentation for various disposal facilities in 25A S.C.
Code Ann. Regs. 61-107.17 (Supp. 2007), but those regulations contain no
criteria for determining need for transfer stations. Moreover, it is also undisputed
that DHEC failed to promulgate any regulation regarding the need for transfer
stations. Since there were no specific criteria to establish a demonstration
of need for Waste Management’s transfer station, DHEC incorporated the determination
of need into the requirement that it verify the consistency of the permit with
the existing Horry County Solid Waste Management Plan.
In Captain’s
Quarters Motor Inn v. S.C. Coastal Council, 306 S.C. 488, 413 S.E.2d 13
(1991), the S.C. Supreme Court addressed facts similar to this case in which a
South Carolina agency failed to promulgate regulations as mandated by the
General Assembly yet proceeded to regulate the subject matter circumscribed by
the statute. The court established the precedent that an agency’s issuance of
guidelines rather than promulgating regulations after the General Assembly
expressly mandated that they promulgate regulations rendered the formulated
test of the agency invalid. More recently, the Supreme Court again addressed
this issue under a different set of facts in S.C. Coastal Conservation
League v. South Carolina Department of Health and Environmental Control,
363 S.C. 67, 610 S.E.2d 482 (2005). In Coastal Conservation, the issue
was whether an island was so small as to be regulated under the Small Islands
Regulation. Though OCRM promulgated regulations concerning the subject matter
of its regulation, it failed to define “small island.” The Court found that
since the regulations provided no “benchmark for comparative size,” it thus afforded
DHEC an impermissible “unrestrained discretion” in deciding what islands were
small and covered by the more stringent criteria. Accordingly, the Court held
that since there was no promulgated test to determine whether an island is small,
the promulgated regulations were invalid. Applying this holding to the case at
bar, DHEC’s determination of need without any promulgated criteria to make that
determination as required by statute clearly appears void. Nevertheless, each
party presents various viewpoints to distinguish the application of the above
cases.
Waste
Management
Waste Management,
citing Captain’s Quarters, contends that pursuant to Section 44-96-290
of the Act, the Department must promulgate regulations establishing
criteria for determining need for all solid waste management facilities. Accordingly,
it argues that the Department’s failure to promulgate a demonstration of need
regulation for transfer stations does not allow the Department to defer to the
County in making this determination. Nevertheless, Waste Management does not
assert that the Department’s regulation of transfer stations is not invalid. Rather,
it argues that Coastal Conservation is distinguishable from this case
because the purposes of the regulations at issue in Coastal Conservation were different from the purposes of the regulations in this case.
In Coastal
Conservation, OCRM’s failure to define “small islands” presented an issue
in interpreting the regulation itself. In other words, the definition of
“small islands” established the criteria for evaluating whether the regulation
applied to the permit applications. Waste Management maintains that Coastal
Conservation is thus not applicable to this case because here the missing
regulatory language addresses only the specific criteria for evaluating the
need for the subject project rather than the application of the entire
regulation, itself. However, as Waste Management has clearly conceded, the
express requirement that the Department promulgate regulations defining “need”
for solid waste management stations involves the very purpose of Section
22-96-290(E). Furthermore, whether the function of the regulation is to
provide comprehensive criteria to determine whether a project is even subject
to regulation or the regulation is more narrowly drafted to establish specific
criteria for evaluating whether the project is needed, in either instance
specific criteria are essential to establish an objective basis to make the
determination rather than leaving the resolution of the decision to a
subjective or arbitrary basis.
Moreover, the
ramification that Waste Management wishes to attribute to the holding in Coastal
Conservation is not as narrow as it sets forth. In Captain’s Quarters,
the Court’s holding was based upon the premise that “[a]s a creature of
statute, a regulatory body is possessed of only those powers expressly
conferred or necessarily implied for it to effectively fulfill the duties with
which it is charged.” Captain’s Quarters 413 S.E.2d at 490. Under that premise,
since Coastal Council did not heed the General Assembly’s specific admonition
to promulgate regulations for evaluating permit applications, the Court
determined that Coastal Council had overstepped its statutory authority in
“formulating and applying” a test to evaluate those applications without first
formalizing the test by regulation. Following that theory, the Court in Coastal
Conservation found that OCRM’s failure to promulgate a regulation defining
“small island” as it was required by the General Assembly allowed OCRM to
exercise unrestrained discretion, which is inconsistent with the requisites of
the statute. The reason the discretion was improper and the regulation was
therefore unreasonably vague was because OCRM Council had overstepped its
statutory authority in failing to formulate and apply a test to evaluate
those applications without first formalizing the test by regulation.
Accordingly, the two cases present both sides of the same coin – the failure to
promulgate criteria and the creation of criteria that are not promulgated. In
this case, DHEC violated the admonition set forth in both cases. As conceded
by all parties, DHEC failed to promulgate any test for determining need, thereby
failing to set forth a test as required by statute. Moreover, DHEC employed
criteria (albeit criteria that defers the decision to the county) that has not
been promulgated, thereby creating a test that was not promulgated by
regulation as required by the implementing statute. Both results are prohibited
under the holdings of Coastal Conservation and Captain’s Quarters.
Waste Management also
argues that the need for the promulgation of regulations in this case is
legally distinct from the need to promulgate regulations in Coastal
Conservation and Captain’s Quarters. Waste Management asserts that
although the statutory directive to promulgate regulations is mandatory in
these cases, the nature of the regulations to be promulgated is much more
specific. Waste Management thus appears to distinguish the significance of the
mandatory requirement that an agency promulgate regulations “it will follow in
evaluating permit applications” from a mandatory requirement that it promulgate
regulations for specifically determining need for all solid waste management facilities.
Waste Management’s argument is a distinction without a difference. The fact
that OCRM failed to establish the criteria for evaluating whether the
regulation applied to the entire permitting process or failed to established
the criteria for evaluating whether the project is needed, the result is the
same. Ultimately, in both instances, the regulation grants the agency
discretion to act without it first seeking promulgation of objective criteria
to guide its decision. Furthermore, the definition of need is just as vague as
the definition of small found lacking in Coastal, if not more so.
Waste Management next argues
that this case is legally distinct from Coastal Conservation because, in Coastal Conservation, OCRM actually promulgated regulations in
evaluating permit applications but failed to define “small island.” I do not
find that this is a distinction and even if it was one it is again a
distinction without a difference. In Coastal Conservation, though OCRM
promulgated regulations, it failed to adequately promulgate the regulation to
define the subject matter. Here, DHEC promulgated a detailed regulation
concerning the criteria for the operation of transfer stations. However,
though DHEC set forth detailed criteria for the documentation of need for other
facilities, it failed to do so for transfer stations. Whether an agency
partially enacts a regulation that is ultimately inadequate or simply fails to
enact any provision whatsoever is simply not pertinent. The effect is the same
as if it had not promulgated a regulation. Again, ultimately, in both
instances the regulation grants the agency discretion to act without it first
seeking promulgation of objective criteria to guide its decision.
Waste Management further
argues that the appropriate remedy in this case is established by the holding
in Captain’s Quarters.
In Captain’s Quarters, the Supreme Court addressed the application of S.C.
Code Ann. § 48-39-290(C), which allowed a seawall located seaward of the
setback line to be rebuilt at its original location after being damaged by a
natural disaster only if it was determined to be “less than fifty percent
damaged.” Captain’s Quarters, 413 S.E.2d at 13 (quoting Section
48-39-290(C)). After the court determined that the damage assessment test used
by Coastal Council had not been promulgated by regulation, it held that the
seawall owners were entitled to the permits to rebuild the damaged seawalls.
I do not find that the Court’s
resolution that the seawall owners could rebuild their seawall creates an
entitlement to a permit in this case. In Captain’s Quarters, the owners
were prohibited from rebuilding a seawall upon their property by Coastal
Council’s test, which was never promulgated as a regulation. The trial court
rejected Coastal Council’s test and found that the owners were entitled to
rebuild under the terms of Section 48-39-290(C). The issue on appeal was whether
the trial court erred by rejecting Coastal Council’s test. Upon concluding
that Coastal Council overstepped its statutory authority by applying the test without
formalizing it as a regulation, the court affirmed the trial court’s decision.
Thus, the Supreme Court did not construct a remedy in Captain Quarters;
it merely upheld a legal conclusion made by the trial court that led to the
remedy.
Here, in contrast, this
Court – the trial court – is hearing this matter de novo. More
importantly, the law clearly sets forth that “[n]o person shall operate a solid
waste management facility without a permit from the department.” S.C. Code
Ann. § 44-96-260 (A). Furthermore, “[n]o permit to construct a new solid waste
management facility or to expand an existing solid waste management facility
may be issued until a demonstration of need is approved by the department.” S.C.
Code Ann. § 44-96-260 (E). Therefore, Waste Management is not allowed to
receive a permit to engage in this restricted activity until DHEC
properly develops a test to document need.
Waste Management
further argues that since the Board did take action to promulgate a demonstration
of need regulation as required by Section 44-96-290(E) of the Act, it should be
presumed that the Board’s failure to include criteria for addressing transfer
stations was a deliberate decision not to restrict the number and the location
of transfer stations within a local planning area. Moreover, Waste Management
argues that a restriction on the number and location of transfer stations would
be contrary to the legislative intent for the Department to encourage a
regional approach to solid waste management. However, simply because the Board
failed to promulgate regulations does not mean that there is a logical
presumption that all transfer stations are needed. First, as explained above,
Section 44-96-290(E) clearly sets forth that DHEC must evaluate need in every
case. If that statute is to have meaning, it does not follow that the award of
a permit can be presumed without some evaluation of the need for that permit. See Lee v. Thermal Engineering Corp., 352 S.C. 81, 94, 572 S.E.2d 298, 305
(Ct. App 2002) (“Each word, clause, sentence, and section of a statute should
be given meaning.”).
In addition, Waste
Management’s assertion is based upon faulty reasoning. The fallacy of Waste
Management’s assertion is that they presume that the inverse of promulgating
regulations proves that no regulation is needed. This fallacy is referred to
as the fallacy of denying the antecedent and is illustrated in a hypothetical
syllogism as:
If A,
then B.
Not A.
Therefore,
Not B.
Ruggero J. Aldisert, Logic for
Lawyers: A Guide to Clear Legal Thinking 160 (National Institute for Trial
Advocacy 3d ed. 1997); see also Irving M. Copi, Introduction
to Logic 295 (5th ed. 1978). Stated in terms of syllogism Waste
Management’s arguments proceed as follows:
If the DHEC Board promulgated regulations, then it decided
that criteria were required to make need determinations.
The Board did not take action to promulgate regulations regarding
need determinations for transfer stations.
Therefore, the Board determined that no criteria were
required to make need determinations for transfer stations.
Other courts have also found this
reasoning to be faulty. For instance, in Crouse-Hinds Co. v. InterNorth,
Inc., 634 F.2d 690, 703 (2d Cir. 1980), the court held that:
The proposition that “A implies B” is not the equivalent of
“non-A implies non-B,” and neither proposition follows logically from the
other. The process of inferring one from the other is known as “the fallacy of
denying the antecedent.”
634 F.2d at 703 cited in Logic
for Lawyers.
Finally, I do not find
support for Waste Management’s reasoning that simply because the statute
encourages a regional approach that allowing an unrestricted number of transfer
stations would facilitate that approach to solid waste management. To the
contrary, allowing an unrestricted number of transfer stations would appear to
deter a regional approach.
Respondents
Respondents assert that
their “alternative theory” resolves the concerns presented as a result of the holdings in Captain’s Quarters and Coastal Conservation. In other words, Captain’s Quarters and Coastal Conservation are distinguishable from this case because here
there is a threshold or standard upon which need can be evaluated. Under their
theory, that “threshold’ derives from an application of S.C. Code Ann. §
44-96-80(A)(3) (2002 & Supp. 2007) to S.C. Code Ann. § 44-96-290(F) (2002
& Supp. 2007). S.C. Code Ann. § 44-96-80(A) sets forth the minimal
requisites for a county’s solid waste management plan. Section 44-96-80(A)(3)
further provides that a plan must provide “an analysis of the existing and new
solid waste facilities which will be needed to manage the solid waste generated
within that county or region during the projected twenty-year period.” Furthermore,
S.C. Code Ann. § 44-96-290 (F) requires, in part, that prior to issuing a
permit authorizing construction of solid waste facilities including transfer
stations, DHEC must determine whether or not the facility is “consistent with
local zoning, land use, and other applicable local ordinances, . . . the
local or regional solid waste management plan and the state solid waste
management plan.” (emphasis added). S.C. Code Ann. § 44-96-290(F) (2002).
Respondents concede
that DHEC’s need regulations must govern a need determination and may not be
supplanted by a county solid waste management plan. Nevertheless, they argue
that the requirement that DHEC assess need under the law exists only if the
State’s regulations preempt any contrary determination of need included in a
county plan. Accordingly, Respondents argue that because Section
44-96-80(A)(3) establishes the county must submit its need projections as part
of its solid waste management plan, any solid waste management permit
application must be evaluated to determine whether it is “consistent” with
those projections.
In this instance, Horry County included a comprehensive analysis of “need” in
its amended 2007 SWM plan in regards to a transfer station. That analysis
reflected that no transfer station was needed in the next 20 years. Since DHEC
was able to determine need from those projections, Respondents contend that
there is no necessity for a regulation to set forth the criteria for need. In
other words, DHEC properly “merged” its determination of need pursuant to
Section 44-96-290(E) with its determination of consistency pursuant to Section 44-96-290(F).
Respondents assert that their “alternative theory” resolves the tension between
subsections (E) and (F).
“The cardinal rule of
statutory construction is to ascertain and effectuate the intent of the
legislature.” Charleston County School Dist. v. State Budget and Control
Bd., 313 S.C. 1, 5, 437 S.E.2d 6, 8 (1993); Olson v. Faculty House of
Carolina, Inc., 344 S.C. 194, 205, 544 S.E.2d 38, 44 (Ct. App. 2001)
(“The quintessence of statutory construction is legislative intent.”). The
legislature’s intent should be ascertained primarily from the plain language of
the statute. State v. Landis, 362 S.C. 97, 606 S.E.2d 503 (Ct. App.
2004). In other words, “[w]hat a legislature says in the text of a statute is
considered the best evidence of the legislative intent or will.” Wigfall v.
Tideland Utilities, Inc., 354 S.C. 100, 110, 580 S.E.2d 100, 105 (2003) (quoting
Norman J. Singer, Sutherland Statutory Construction § 46.03 at 94 (5th ed.1992)). The statute 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 Communications of S. States, Inc., 361 S.C. 576, 606 S.E.2d 468
(2004). Finally, “the determination of legislative intent is a matter of law.” Charleston County Parks, 459 S.E.2d at 843.
Though Respondents’ arguments
are intriguing, I find that, viewing the statute as a whole, the need
determination and the consistency determination are separate factors which should
not be merged under Section 44-96-290 (F) to determine the granting of a permit
in this case. The tension that Respondents’ claim exists derives not from the
overlapping criteria of Sections 290 (E) and (F), but from the misapplication
of those criteria. The determination of need is made within the context of a
county or region’s assessment in the solid waste plan but should not be made by
the plan. Clearly, Sections 290 (E) and (F) separately set forth the
requirement that DHEC determine need and consistency with the local or regional
solid waste management plan. Logically, if need can be determined solely from
each county or regional plan, the requirement that DHEC develop specific criteria
for any facility would be unnecessary.
Nonetheless, DHEC has made the
consideration of need subservient to the analysis of consistency
determination. Allowing that determination to be subservient to the
consistency analysis allows a county’s assertion of need to become binding, as
occurred in this case.
In Southeast
Resource Recovery, the Supreme Court addressed a similar abdication of DHEC
responsibilities to the counties as exists here. In addressing DHEC’s
consideration of a solid waste facility pursuant Section 290 (F), the Court
explained that:
DHEC's practice has been to delegate to the counties the
authority to determine consistency through the counties' issuance of LOCs. We
conclude this delegation of authority is impermissible. 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.
Southeast Resource Recovery,
Inc. v. S.C. Dep’t of Health and Envtl. Control, 358 S.C. 402, 408,
595 S.E.2d 468, 471 (2004).
Though DHEC argues that
it independently determined whether Waste Management’s permit application was
consistent with Horry County’s plan, the inclusion of need as a component of
the plan granted the county total authority to determine need simply, as it did
it this case, by setting forth in the plan that the facility is not needed. If
indeed the county’s assessment is a binding requirement, then need cannot be a
dispositive factor in making a consistency determination. Respondents
interpretation that need is a consideration would thus, in all practicality,
render the consistency determination of Section 290 (E) meaningless. In other
words, if the determination of need is based upon its consistency with the
plan, the determination of need is no longer made based upon the evidence, but
simply from the County own projections of the plan. See Denene, Inc.
v. City of Charleston, 352 S.C. 208, 212, 574 S.E.2d 196, 198 (2002)
(citation omitted) (“The Court must presume the legislature did not intend a
futile act, but rather intended its statutes to accomplish something.”).
Moreover, the reason
the so-called tension exists is because DHEC failed to promulgate regulations
as required by the General Assembly.
Rather than promulgate regulations with respect to transfer stations, DHEC instead
in effect used an alternative test - deferring to the County’s assessment of
need and information provided in the local solid waste management plan. However,
the holdings of Captain’s Quarters and Coastal Conservation provide that DHEC’s “alternative test” may not be employed if it has not been
promulgated by regulation. Obviously, when DHEC promulgates regulations
setting forth the criteria for determining the need of these facilities, that
tension will be resolved. Indeed, the fact that there is an issue concerning
the determination of need under subsections (E) and (F) emphasizes the
importance of DHEC implementing a specific regulation setting forth the
criteria to determine need as required by the General Assembly.
Respondents further
argue that this case is fundamentally different from the issue in Coastal
Conservation because DHEC’s action does not constitute unrestrained
discretion or application of a term for which there was no benchmark. Under
Respondents “alternative theory” there indeed is a benchmark, it’s just one
that relinquishes DHEC of its proper authority. As noted above, I find that
approach to be error. Additionally, applying the law in accordance with
legislative intent, there are no sufficient benchmarks for determining need.
In fact, the very facts of this case emphasize the importance of a completely
independent need assessment by DHEC. Once the county’s solid waste management
plan was amended, DHEC simply adopted the amendment and retroactively applied
it to Waste Management’s application without an independent consideration of
need. Moreover, if the statute itself provided sufficient benchmarks for
determining need, the General Assembly’s requirement that DHEC promulgate
specific regulations would be totally unneeded and an exercise in futility. See Denene, 352 S.C. at 212, 574 S.E.2d at 198.
Respondent Horry County also argues that the issues in this case are fundamentally different than those
addressed in Captain’s Quarters because DHEC did not apply an internal
policy, as in Captain’s Quarters. Indisputably, DHEC applied
what is referred to above as the “alternative theory,” rather than promulgate
regulations. No evidence was presented that the alternative theory is a formal
policy or that it has ever even been a written guideline. Since that theory
was not promulgated or published, it certainly appears “internal.”
Furthermore, this argument
ignores the legal theory that provided the basis for the Court’s decisions in Captain’s
Quarters and Coastal Conservation. In both cases, the foundation of
the court’s decision was that “[a]s a creature of statute, a regulatory body is
possessed of only those powers expressly conferred or necessarily implied for
it to effectively fulfill the duties with which it is charged.” Captain’s
Quarters, 413 S.E.2d at 490; Coastal Conservation 610 S.E.2d at
485. As explained above, it is that premise that is equally applicable to this
case. By failing to promulgate a mandated regulation, DHEC has failed to
acquire the authority to “effectively fulfill the duties with which it is
charged.” Without proper regulatory authority, DHEC’s actions are void.
Moreover, the notion that, when faced with the issue of the implication of a
statute that requires the promulgation of a regulation to control its
implementation, an informal, unwritten policy would be more acceptable than a
written policy is logically unsound. Though DHEC may not have applied a formal
written policy, they utilized their unwritten view of how need should be
determined. Reliance upon an unwritten policy is even more adverse to the
legislative pronouncement to promulgate written regulations than the formal
policy rejected in Captain’s Quarters.
Quizzically, DHEC
argues the opposite viewpoint. The DHEC staff argues that its amorphous
interpretation of assessing need is entitled to the propriety of legal
deference. In Conservation League, the court recognized that “[c]ourts
defer to the relevant administrative agency’s decisions with respect to its own
regulations unless there is a compelling reason to differ.” 610 S.E.2d at 486.
Nevertheless, this deference has limits.[10]
For instance, it is the interpretations of DHEC’s Board, not its staff, which
is entitled to deference from the courts. Cf. id. (“The Panel,
not OCRM staff, is entitled to deference from the courts.”). Additionally, in Etiwan
Fertilizer Co. v. S.C. Tax Commission, 217 S.C. 354, 60 S.E.2d 682 (1950) the
Supreme Court stated that:
We have held in many cases that where the construction of the
statute has been uniform for many years in administrative practice, and has
been acquiesced in by the General Assembly for a long period of time, such
construction is entitled to weight, and should not be overruled without cogent
reasons.
60 S.E.2d at 684 (emphasis added). Thus,
an underlying requirement to draw upon the agency deference doctrine is that the
construction of the statute has been uniform for many years so as to lead to
the conclusion the General Assembly has acquiesced to that construction.
DHEC nonetheless argues
that its decision in this case constitutes an interpretation by DHEC’s Board
that is entitled to deference. DHEC (or at least its staff) asserts that since
the applicant appealed the staff’s decision and DHEC’s Board determined not to
hold a final review conference pursuant to S.C. Code Ann. § 44-1-60(F) (Supp.
2007), its view regarding the law supporting its decision should be given
deference. DHEC’s staff provided no evidence that DHEC’s Board considered the
issue of whether the views of DHEC’s staff regarding Section 44-96-290(E)
established a threshold or standard upon which need could be evaluated.
Moreover, I do not find that the Board’s decision not to hold a final review
conference operates as a determination of the Board’s construction of the
statute or regulations involved in this case. The deference due to the
construction of a statute or regulation is reserved for instances in which the
Board formally adopts such a construction, not instances in which there is
merely the ratification of a decision without any formal review.
Finally, DHEC argues
that public policy dictates that DHEC be allowed to evaluate need for a
transfer station in order to either grant or deny a permit for this type of
facility even though it failed to promulgate a regulation as required by
Section 44-96-290(E). The Act does reflect a public policy that DHEC regulate
solid waste facilities. See S.C. Code Ann. § 44-96-290(A) (2002) (“No
person shall operate a solid waste management facility without a permit from
the department.”); § 44-96-240 (the purposes of the Act includes ensuring “that
all solid waste management facilities in this State are sited, designed, constructed,
operated, and closed in a manner that protects human health and safety and the
environment.”); and § 44-96-20(B)(1) (2002). However, the General Assembly has
equally established a determination of public policy that DHEC was mandated to
promulgate regulations to implement the demonstration of need required prior to
its approval of a solid waste facility. “Once the legislature has made [a]
choice, there is no room for the courts to impose a different judgment based
upon their own notions of public policy.” S.C. Farm Bureau Mut. Ins. Co. v.
Mumford, 299 S.C. 14, 19, 382 S.E.2d 11, 14 (Ct. App. 1989).
Moreover, if courts were to allow agencies to ignore the General Assembly’s
demand that they implement regulations to carry out their functions, the demand
would be rendered meaningless. That too would be a violation of public policy.
Validity
of Delegation of Powers from Horry County to SWA
S.C. Code Ann. §
44-96-80(A) (2002) provides that “[n]ot later than fifteen months after the
date on which the department submits its state solid waste management plan to
the Governor and to the General Assembly, the governing body of each county, if
the county intends to submit a single county plan, or the governing bodies of
the counties in a region, if two or more counties intend to submit a regional
plan, in cooperation with the local governments located in the county or
region, shall prepare a solid waste management plan for the area within that
county or region.”
Waste Management argues
that Horry County did not have the authority to delegate its power to prepare a
solid waste management plan to the Horry County Solid Waste Authority (SWA).
Specifically, Waste Management argues that “[a] political subdivision, to which
police power has been delegated, may not then divest itself of such power by
contract or otherwise.” As support for that proposition, Waste Management
cites Curtis Martin Investment Trust v. Clay, 274 S.C. 608, 266 S.E.2d
82 (1980). In that case, the Supreme Court reviewed the validity of an
agreement between the North Charleston Sewer District, a corporate political
entity created by state law, and a private individual that reserved to the
individual the power to approve or disapprove for connection to the Northwoods
sewer system any project other than single family dwellings and certain small
commercial establishments. The court held that the agreement was invalid,
explaining in part:
The situation in this case is intolerable. Here, the
corporate political entity has given a private party the power to arbitrarily
approve or disapprove potential users of a system belonging to the corporate
political entity. The abdication by the commissioners of their statutory and
constitutional responsibility to act for the public welfare to a private party
who has no duty to give the public welfare any deliberation was improper. The
police power of a corporate political entity cannot be exercised for private
purposes or for the benefit of particular individuals or classes.
Curtis Martin, 274 S.C. at
612, 266 S.E.2d at 84-85. All of the parties in
this matter have stipulated that the power delegated to SWA was police power.
SWA, however, argues that Curtis Martin is distinguishable from the
present case. Specifically, it argues that SWA is a public agency and that,
therefore, it was permissible for Horry County to delegate its Section
44-96-80(A) powers to SWA.
Is
SWA a Public or Private Entity?
SWA relies on Wells
v. Cumberland County Hospital System, 564 S.E.2d 74 (N.C. Ct. App. 2002)
for the proposition that it is a public agency. In that case, a patient’s
guardian brought a medical negligence action against a non-profit hospital. The
hospital was organized as a municipal hospital and was governed by a board of
trustees appointed by the county. The hospital filed a motion for a change of
venue pursuant to N.C. Gen. Stat. § 1-77(2), a statutory provision setting
forth venue for actions against public officers. The trial court granted the
hospital’s motion. On appeal, the North Carolina Court of Appeals affirmed the
trial court’s decision to grant the motion, concluding that the hospital was a
“public officer” within the meaning of § 1-77(2).
Wells, however,
is distinguishable from the present case. In Wells, the court was
determining whether a private non-profit hospital was a “public officer” within
the meaning of a statutory venue provision for actions against public officers.
Here, in contrast, this Court must determine whether SWA is public or private
in the context of evaluating the authority of Horry County Council to delegate
powers to SWA. Because of the dissimilarities between Wells and the
present case, it is necessary to look beyond Wells for guidance on this
issue.
There have been several
cases in which South Carolina courts have ruled on the issue of whether an
entity that was delegated power by the legislature was “private.” For
instance, as discussed above, in Curtis Martin, 274 S.C. 608, 266 S.E.2d
82, the court, in reviewing the lawfulness of a delegation of police power,
concluded that an individual - whose sole discernible connection to the applicable
public body was the fact that he sold a sewer system to it - was a “private
party.” Moreover, in Gold v. S.C. Board of Chiropractic Examiners, 271
S.C. 74, 245 S.E.2d 117 (1978), the court, in reviewing a delegation of
appointive power, determined that the South Carolina Chiropractic Association -
which the parties stipulated was “a private organization having no official
standing as a branch or agency of government” - was “private.” Finally, in Eastern
Federal Corp. v. Wasson, 281 S.C. 450, 316 S.E.2d 373 (1984), the court, in
reviewing a delegation of legislative power, determined that the Motion Picture
Association of America - which the court described as a “voluntary organization
of the major film producers in the United States”- was “private.”
In the present case, SWA
was formed by Horry County, and it is subject to dissolution at the discretion
of Horry County Council. Moreover, SWA is governed by a board appointed by
Horry County Council and by the various municipalities with the approval of
Horry County Council. Furthermore, SWA’s annual budget, as well as any capital
expenditure in excess of $50,000, is subject to approval by Horry County
Council. Certainly, SWA is quite different than other entities that have been
called “private” in similar contexts.
Nevertheless, while
Horry County Council has substantial control over the composition and budget of
SWA, SWA has the power to amend Horry County’s plan without any input from the
Council. Moreover, under the 2007 plan, it does not appear that SWA is
required to hold public hearings or receive comments from the public before
amending the plan.
As Curtis Martin makes clear, one of the primary reasons why delegating
police power to a private party is objectionable is because a private party “has
no duty to give the public welfare any deliberation.” Therefore, it is
questionable whether SWA is a public entity for the purposes of police-power
delegation. However, as explained below, this issue need not be resolved
since, even if SWA was a public entity, Horry County’s delegation of its §
44-96-80(A) powers to SWA was nonetheless unlawful.
Was
Horry County Authorized to Delegate its Section 44-96-80(A) Powers to
SWA?
A county’s powers are
derived from the State Constitution and laws of the General Assembly. See S.C. Const. art. VIII, § 7 (“The General Assembly shall provide by general law
for the structure, organization, powers, duties, functions, and the responsibilities
of counties.”); Hospitality Ass’n of S.C., Inc. v. County of Charleston,
320 S.C. 219, 226, 464 S.E.2d 113, 117 (1995) (Article VIII of the State
Constitution essentially leaves it to the General Assembly to decide what
powers local governments should have). Therefore, in determining whether an
action taken by a county was lawful, courts must look to see whether the State
Constitution or a law of the General Assembly authorized the action.
Here, S.C. Code Ann. §
4-9-30(6) (1986) grants county governments the power to “establish such
agencies, departments, boards, commissions and positions in the county as may
be necessary and proper to provide services of local concern for public
purposes” and to “prescribe the functions thereof.” Importantly, the U.S.
Supreme Court has expressly held that waste disposal is “a typical and
traditional concern of local government.” See United Haulers,
127 S.Ct. at 1798. Thus, it appears that Horry County was permitted to create
a local agency, department, board or commission to provide services relating to
waste disposal.
Nevertheless, assuming arguendo that SWA, a non-profit corporation, constituted an agency, board or commission
of Horry County, such assumption does not necessarily mean that Horry County was permitted to
delegate its Section 44-96-80(A) powers to SWA. S.C. Code Ann. § 5-7-30 (2007)
expressly prohibits counties from enacting regulations, resolutions, or ordinances
that are inconsistent with the Constitution and general law of this State. In
this case, there are at least two provisions of the Act that demonstrate that
the General Assembly did not intend for Horry County to delegate its Section
44-96-80(A) powers to SWA. The first one is S.C. Code Ann. § 44-96-80(K)
(2002), which provides that only “[t]he governing body of a county” is
authorized to enact ordinances pursuant to the Act. In this case, Horry County’s solid waste management plan acted very much like an ordinance in that it
effectively prohibited the construction of new transfer stations in Horry County. See Black’s Law Dictionary 1125 (7th ed. 1999)
(defining “ordinance” to include governmental exercises of power that prohibit
certain actions or conduct). The second provision is S.C. Code Ann. § 44-96-40
(2002), which defines “county solid waste management plan” as “a solid waste
management plan prepared, approved, and submitted by a single county pursuant
to Section 44-96-80.” Section 44-96-40 notably makes no reference to agencies
or boards of a county; rather, it defines “county solid waste management
plan” as a plan prepared, approved, and submitted by a county.
Furthermore, even
absent Sections 44-96-80(K)and 44-96-40, a county simply does not have
unlimited authority to delegate its powers. As 20 C.J.S. Counties § 82
(1990) explains:
The right of a county board to delegate its authority depends
on the nature of the duty to be performed. Powers involving the exercise of
judgment and discretion are in the nature of public trusts and cannot be
delegated to a committee or agent. Duties which are purely ministerial and
executive and do not involve the exercise of discretion may be delegated by the
board to a committee or to an agent, an employee, or a servant.
Put differently, a county board’s
power to make basic policy choices – i.e., its “legislative authority” – may
not be delegated to a committee or agent. See Gilstrap v. S.C.
Budget and Control Bd., 310 S.C. 210, 216, 423 S.E.2d 101, 105 (1992) (law which,
in effect, gives an administrative body “an absolute, unregulated, and undefined
discretion” bestows arbitrary powers and is an unlawful delegation of
legislative powers); Pennsylvanians Against Gambling Expansion Fund v.
Commonwealth, 877 A.2d 383, 417 (Pa. 2005) (prohibition against the
delegation of “legislative power” requires that the basic policy choices be
made by the applicable legislative body). Importantly, this rule applies
regardless of whether the proposed delegate is a private or public entity. See, e.g., Touissant v. State Bd. of Medical Examiners, 285 S.C. 266,
268, 329 S.E.2d 433, 435 (1985) (“It is well settled that the power to
legislate cannot be delegated to private persons or corporations ... nor
to any other body.”) (emphasis added); S.C. State Highway Dep’t v.
Harbin, 226 S.C. 585, 86 S.E.2d 466 (1955) (provision of statute
authorizing the State highway department to suspend or revoke a driver’s
license for cause satisfactory to it was an unlawful delegation of legislative
power).
While involving a city
rather than a county ordinance, Richards v. City of Columbia, 227 S.C.
538, 88 S.E.2d 683 (S.C. 1955), illustrates the foregoing principles well. In
that case, the General Assembly enacted a statute calling for municipalities to
adopt ordinances relating to the repair, closing, and demolition of dwellings
unfit for human habitation. Pursuant to the statute, the City of Columbia enacted an ordinance that, among other things, established a “Rehabilitation
Director” position and created an enforcement agency called the “Commission for
Urban Rehabilitation.” The Commission was composed of five city electors, who
were appointed by the Mayor with the approval of Council and who were subject
to termination at the pleasure of Council. The ordinance vested the Rehabilitation
Director and the Commission with the power to determine the unfitness of
dwellings for human habitation. Shortly after the ordinance was enacted, two rental
property owners brought an action challenging its constitutionality. The trial
court rejected the owners’ arguments and upheld the constitutionality of the
ordinance. However, on appeal, the Supreme Court held that the portion of the
ordinance delegating the City’s power to determine the unfitness of dwellings
to the Rehabilitation Director and the Commission was unconstitutional since it
did not contain “a sufficiently definite standard or yardstick” for making the
determination. 88 S.E.2d at 691. In concluding that the delegation was
unconstitutional, the court did not discuss whether the Rehabilitation Director
or the Commission was a private entity.
Similar to the
situation in Richards, in the present case, Horry County delegated to
SWA the power to determine Horry County’s need for additional transfer
stations. Additionally, like in Richards, SWA was not provided “a sufficiently
definite standard or yardstick” for making that determination. Thus, the Court
concludes that Horry County’s delegation of power to SWA to determine Horry County’s need for additional transfer stations constituted an unlawful delegation of
legislative powers. Accordingly, the portions of the 2007 plan that set forth Horry County’s need for additional transfer stations are invalid.
2007
Plan – Retroactive Application
A county ordinance is much
like a statute in that, if lawfully enacted, it has the same force as a statute
passed by the legislature. 20 C.J.S. Counties § 93 (1990). Therefore,
in interpreting ordinances, the rules of statutory construction may be
applied. One such rule of statutory construction is the presumption that
statutory enactments are to be considered prospective rather than retroactive
in their operation unless there is a specific provision in the enactment or
clear legislative intent to the contrary. S.C. Dep’t of Revenue v. Rosemary
Coin Machines, Inc., 339 S.C. 25, 28, 528 S.E.2d 416, 418 (2000). A
statute is not to be applied retroactively unless that result is so clearly
compelled as to leave no room for doubt. American Nat’l Fire Ins. Co. v.
Smith Grading and Paving, Inc., 317 S.C. 445, 448, 454 S.E.2d 897, 899 (1995).
The statute must contain express words evincing an intent that it be
retroactive or words necessarily implying such an intent. Id. The only
exception to this rule is a statutory enactment that effects a change in remedy
or procedure. Id.; Smith v. S.C. Retirement Sys., 336 S.C. 505,
515, 520 S.E.2d 339, 344 (Ct. App. 1999). “A statute is remedial and applies
retroactively when it creates new remedies for existing rights or enlarges
rights of persons under disability.” Wiesart v. Stewart, --- S.E.2d
----, 2008 WL 2329895 (Ct. App. 2008).
In
this case, as discussed above, the 2007 plan acted very much like an ordinance
in that it effectively prohibited the construction of new transfer stations in Horry County. Moreover, the 2007 plan was promulgated after Waste Management originally submitted
its permit application, and there is nothing in the 2007 plan that evinces
intent for the plan to be applied to pending transfer station permit
applications. Furthermore, the provisions of the 2007 plan being challenged
here – i.e., those provisions setting forth SWA’s determinations regarding Horry County’s need for additional transfer stations - are not remedial or procedural in
nature. Therefore, even if the challenged provisions of the 2007 plan had been
properly implemented, they would not be applicable to Waste Management’s permit
application. The solid waste plan that is applicable to this case is thus the
1993 plan, which is the plan last approved by the Horry County Council.
ORDER
IT IS THEREFORE
ORDERED that this matter be remanded to DHEC for
the promulgation of regulations as required by S.C. Code Ann. § 44-96-290(E)
(2002); and
IT IS FURTHER
ORDERED that, promptly after promulgating regulations pursuant to Section 44-96-290(E), DHEC shall make a determination
regarding whether or not to grant Waste Management’s application for a transfer
station permit based upon such regulations and all other applicable regulatory
and statutory provisions; and
IT IS FURTHER
ORDERED that, in determining whether or not to grant Waste Management’s
application for a transfer station permit, DHEC may not consider the portions
of Horry County’s 2007 Solid Waste Management Plan that set forth SWA’s conclusions
regarding Horry County’s need for additional transfer stations.
AND IT IS SO ORDERED.
____________________________________
Ralph
King Anderson, III
Administrative
Law Judge
September 24, 2008
Columbia, South Carolina
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