South Carolina              
Administrative Law Court
Edgar A. Brown building 1205 Pendleton St., Suite 224 Columbia, SC 29201 Voice: (803) 734-0550

SC Administrative Law Court Decisions

CAPTION:
Waste Management of Carolinas, Inc. vs. SCDHEC, et al

AGENCY:
South Carolina Department of Health and Environmental Control

PARTIES:
Petitioners:
Waste Management of Carolinas, Inc.

Respondents:
South Carolina Department of Health and Environmental Control, Horry County Solid Waste Authority
 
DOCKET NUMBER:
07-ALJ-07-0429-CC

APPEARANCES:
For the Petitioner:
Leon C. Harmon, Esquire and Joan W. Hartley, Esquire

For the Respondent SWA:
Stan Barnett, Esquire

For the Respondent SC DHEC:
Etta R. Williams, Esquire
 

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.[1] 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.[3]

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.[4] 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”[5] 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.[6] 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).[7] 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.[8] 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.”[9]

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.[11] 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.[12] 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,[13] 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.[14]

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



[1] Transfer stations provide a place to transfer solid waste from collection vehicles to larger transfer vehicles that then transport it to a landfill. More specifically, transfer stations provide a place “where solid waste is taken from collection vehicles and placed in other transportation units, with or without reduction of volume, for movement to another solid waste management facility.” S.C. Code Ann. § 44-96-250 (B)(23) (2002).

[2] Section 44-96-290 (E), 25A S.C. Code Ann. Regs. 61-107.7 (A)(2) and (3) (Supp. 2007), and 25A S.C. Code Ann. Regs. 61-107.17 (A)(2) and (3) (Supp. 2007) provide several exceptions to that requirement. All of the parties were asked if any of the exclusions listed in those statutes and regulations applied to this case. Petitioner responded that none of the exclusions applied to this case. Waste Management responded that it would abide by DHEC’s response. DHEC was granted a specific time frame in which to respond to whether any of those exclusions applied. However, DHEC never made any response. I therefore conclude that none of the exclusions enumerated in the statutes or regulations apply to this case.

[3] Waste Management argued 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. Furthermore, 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, as set forth below, Waste Management argues that the Department’s regulation of transfer stations is not invalid. The Respondents argue that the holdings of Captain’s Quarters and Coastal Conservation are distinguishable from this case.

[4] It is this argument by Waste Management that has the most appeal. That appeal however lies in the presumed justifiable result. Unfortunately for Waste Management, simply seeking a result that appears to be justifiable under the circumstances is not, or it shouldn’t be, the narrow approach courts should follow in resolving conflict. Rather, the court’s result must be supported by logical and legal reasoning. Of course, that statement presumes that mine is the logical and sound reasoning – a position that is not nearly as secure at the trial court level.

[5] Alternative because it renders the requirement that DHEC promulgate regulations setting forth the criteria for determining the need of transfer stations unnecessary.

[6] Respondent Horry County also argued that this court’s consideration of the general facts surrounding a need determination for the issuance of a permit in Democratic Reform at Big Creek v. S.C. Department of Health and Environmental Control, 1999 WL 186846, 98-ALJ-07-0556-CC, (March 8, 1999) even though at the time DHEC processed the application, there were no need regulations should be followed in this case. However, in Democratic Reform no issue was raised concerning whether DHEC failed to promulgate regulations regarding need determinations or whether the holding in Captain’s Quarters applied to the issues in the case. Accordingly, the holding in Democratic Reform offers no guidance. See Hutto v. Southern Farm Bureau Life Ins. Co., 259 S.C. 170, 191 S.E.2d 7 (1972) (It is settled law that a case cannot be considered binding precedent on a legal point that was not argued in the case and not mentioned in the opinion.). Moreover, at the time Democratic Reform was decided the holding in Coastal Conservation had not been issued.

[7] Similarly, Horry County also argues that a finding that DHEC properly determined a lack of need for the facility pursuant to Section 290(E) of the Act would render the issues related to a determination of consistency with the county plan superfluous. Indeed, when one ignores a requirement that distinct provisions be considered separately by simply merging the consideration under one of the distinct provisions, it does have the tendency to render the other determination meaningless. It also makes the decision easier. However, neither result is legally proper in this case.

[8] In its submittals to the Court, DHEC asserted that, as there were no regulatory criteria applicable to transfer stations, it “merged” its determination of need pursuant to Section 290(E) with its determination of consistency pursuant to Section 290(F).

[9] In South Carolina “[w]here a word is not defined in a statute, our appellate courts have looked to the usual dictionary meaning to supply its meaning.” Lee v. Thermal Engineering Corp., 352 S.C. 81, 91-92, 572 S.E.2d 298,303 (Ct. App. 2002). “Internal” is defined in part as “of, relating to, or occurring on the inside of an organized structure.” American Merriam-Webster's Online Dictionary, http://www.merriam-webster.com/dictionary.

[10] See Randy R. Lowell and Stephen P. Bates, South Carolina Administrative Practice and Procedure 15-18 (2004).

[11] “Statutes and municipal ordinances calculated to better the health, safety and welfare of the people have long and universally been recognized to be within the police power.” Richards v. City of Columbia, 227 S.C. 538, 88 S.E.2d 683, 687 (1955). Moreover, the U.S. Supreme Court has specifically noted that county ordinances aimed at addressing waste disposal are “exercises of the police power.” See United Haulers Ass’n, Inc. v. Oneida-Herkimer Solid Waste Mgmt. Auth., 127 S.Ct. 1786, 1798 (2007).

[12] Under the terms of the 1993 plan, prior to amending the plan, SWA was required to hold public hearings and to include “all valid comments and suggestions” in the revision of the plan. While it appears that SWA held two public hearings in February of 2007 prior to revising the 2001 plan, it is unclear whether SWA was required to, or in fact did, incorporate any of the public comments that it received into the revision of the plan.

[13] It is unclear whether SWA constituted an agency, department, board or commission of Horry County. Although Horry County’s Administrator, Danny Knight, claimed in an affidavit that SWA is subject to provisions of the Horry County Code of Ordinances that relate to the “governance of agencies, boards, and commissions of Horry County,” he provided no support for that claim. Moreover, while S.C. Code Ann. § 44-96-80(N) (2002) contemplates the creation of local county advisory councils, it certainly does not grant counties the authority to delegate their powers under Section 44-96-80(A) to such councils. Rather, Section 44-96-80(N) merely provides:

Not later than one year after this chapter is effective, there shall be established a local Solid Waste Advisory Council for each county or region intending to submit a solid waste management plan. The local council shall advise the county or region on the preparation of the solid waste management plan and on methods of implementing the plan. The local council shall be provided with all drafts of the plan and shall be given sufficient opportunity to comment on the drafts.

S.C. Code Ann. § 44-96-80(N) (2002) (emphasis added). Thus, while the General Assembly clearly envisioned the creation of local councils to assist counties in the development of their solid waste management plans, it does not appear that the General Assembly intended for such councils to play anything more than an advisory role. Here, SWA has been granted much more than an advisory role with respect to Horry County’s solid waste management plan; it is has been granted the sole power to amend Horry County’s plan. Clearly, Section 44-96-80(N) did not authorize such a broad delegation of power.

[14] Of course, any facts in the 2007 plan that might be useful to determining need, such as population figures, average solid waste disposal rates, and the locations of existing transfer stations, may be considered by DHEC in making its need determination.


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