SC Administrative Law Court Decisions

I. Introduction

On January 14, 2004, T&T Disposal, LLC (T&T) obtained from the South Carolina Department of Health and Environmental Control (DHEC) a construction, demolition, and land-clearing debris landfill permit. Oakwood Landfill, Inc. (Oakwood) and Hickory Hill Landfill (Hickory Hill) challenged DHEC’s decision and brought the instant contested case. Jurisdiction vests in the ALC under S.C. Code Ann. Sec. 1-23-100, et seq., Sec. 44-96-10, et. seq., and S.C. Code Regs. 61-107.

II. Issues

The issues here stem from S.C. Code Ann. Sec. 44-96-290(F). That section in pertinent part states the following:

No permit to construct a new solid waste management facility . . . within a county . . . may be issued by the department unless the proposed facility . . . is [1] consistent with local zoning, land use, and other applicable ordinances, if any; [and 2] the proposed facility or expansion is consistent with the local or regional solid waste management plan . . .;

Oakwood and Hickory Hill first assert that the permit should be either denied outright or remanded to DHEC for further review since DHEC did not make an independent "consistency" examination as required by S.C. Code Ann. Sec. 44-96-290(F). Instead, Oakwood and Hickory Hill assert DHEC improperly delegated the consistency determination to Jasper County.

Second, Oakwood and Hickory Hill argue that even if no improper delegation occurred, the permit must still be denied since the evidence establishes that the consistency requirements were not met in two respects. A lack of consistency exists with Jasper County's zoning, land use, and other applicable ordinances, and a lack of consistency exists with the regional solid waste management plan.

Finally, Oakwood and Hickory Hill further argue that even if no improper delegation occurred and even if no consistency problems exist, the permit must be "reformed" by deleting a final disposal capacity of approximately 2.2 million cubic yards and inserting a disposal capacity of 2.2 million cubic feet.

III. Analysis

Based on the preponderance of the evidence, the following findings of fact are entered:

A. Findings of Fact

In 2002, T&T submitted to DHEC an application for a construction, demolition, and land-clearing debris landfill permit. In reviewing that application, a major factor for DHEC was determining whether granting the permit would be consistent with the applicable solid waste management plan.

For consistency purposes, DHEC looked to the 1994 Low County Regional Solid Waste Management Plan (LC Plan). That plan had been filed with DHEC by the Lowcountry Council of Governments (LCOG). The plan covered and was "endorsed" by the counties of the region including Beaufort, Colleton, and Jasper with those endorsements memorialized by letters from each of the respective governing bodies. The LC Plan was submitted by the LCOG to DHEC as the regional solid waste plan for the low country counties. As to Jasper County in particular, Jasper County participated on a local and regional level in the development of the plan, voted to approve it at a meeting of County Council, and endorsed it by letter to DHEC in February of 1994.

The 1994 LC Plan has not been amended by LCOG since its adoption. However, at the time of DHEC's review, DHEC had before it a December 2002 draft plan submitted by LCOG which would replace the 1994 LC Plan. But, since the draft plan had not been approved by the regional counties, the draft plan played no role in DHEC's consistency review.

While not part of DHEC's review, LCOG on the other hand had begun giving the draft plan consideration for planning purposes. For example, LCOG notified DHEC by letter dated April 19, 2002, that since a draft plan was in progress it was advisable for DHEC not to issue any permits in Jasper County. However, on May 29, 2002, LCOG clarified that position by explaining to DHEC that Jasper County did not object to DHEC issuing a permit to T&T before the completion of the new plan.

Notwithstanding the fact that Jasper County did not object to the landfill permit, an additional hurdle for consistency purposes was presented by the LC Plan since it states that for the next twenty years there is no apparent need to construct additional landfill facilities in the region covered by the plan. Contrary to the plan, however, Jasper County Council on October 20, 1997, noted the following in the minutes of its County Council meeting:

Our population is expected to boom over the next several years and another landfill will probably be needed. Councilman Sneed motioned to allow Mr. Moss to write a letter stating that the landfill is not inconsistent with the county's solid waste management plan. Councilman McKenzie seconded the motion. The motion was carried by all members voting in favor.

The "landfill" referred to in the minutes is the T&T landfill which is at issue in this case.

Consistent with the minutes of October 20, 1997, the requested letter from Jasper County was subsequently written to DHEC on October 29, 1997. Further, similar letters confirming Jasper County's favorable position on consistency with the landfill were written to DHEC on September 27, 2000, May 7, 2002, and December 16, 2003.

DHEC considered the letters to be amendments to Jasper County's portion of the LC Plan and “penciled in” the changes. See Exhibit 5, p. 46. In fact, DHEC had previously considered the LC Plan as having been amended April 2, 2001 when it allowed an expansion of the Oakwood facility. Ib. Such letters to DHEC from other entities throughout the State have not been an uncommon occurrence. When received, DHEC's practice has been to handwrite the change into the applicable plan at a spot in the plan most reasonable from DHEC’s viewpoint. See Exhibit 5, p. 46. The practice has been to treat the letters as amendments to the various solid waste plans whether the letters were submitted by counties operating under regional plans or submitted by counties operating under separate plans.

In addition to the consistency letters, DHEC had before it minutes from the Jasper County Council meetings in which Council voted favorably on the matter. The minutes of those meetings demonstrate that public notice of the meeting was given within Jasper County and that pubic participation was invited.

In making the consistency determination, DHEC recognized that zoning considerations were relevant. DHEC asked T&T to supply a letter of compliance with Jasper County's zoning requirements and did not declare the application administratively complete until T&T complied. In addition, DHEC had before it a July 24, 2002 letter from the Director of Planning and Building Services for Jasper County addressing the zoning in Jasper County. Further, DHEC had before it the applicable ordinance from which DHEC concluded that the "RD" status imposed by the ordinance allowed a landfill activity like that sought by T&T.

DHEC also came to recognize that T&T had not obtained final permission from Jasper County as to all land use requirements. Rather, T&T had received only "conceptual approval." However, Jasper County ordinances prohibited the granting of final approval until DHEC issued a landfill permit. Given such a condition, DHEC examined the applicable county requirements and determined that T&T would be able to meet the land use requirements after receiving the requested landfill permit.

By August 15, 2002, DHEC had determined the application was administratively complete. Then, after final review, DHEC issued the requested permit on January 14, 2004.

B. Conclusions of Law

Based on the foregoing Findings of Fact, the following Conclusions of Law are entered:

Under the South Carolina Solid Waste Policy and Management Act (SWPMA) "[n]o person shall operate a solid waste management facility without a permit from the department [DHEC]." S.C. Code of Laws Ann. Sec. 44-96-290(A) (1976 Code). To comply with the permitting requirement, T&T filed with and obtained from DHEC a permit to operate a solid waste management facility in the form of a construction and demolition/land clearing debris landfill in Jasper County. Oakwood and Hickory Hill believe the permit should not have been granted.

1. Delegation of Consistency Requirements

Oakwood and Hickory Hill argue that the permit should be either denied or the matter remanded to DHEC for further review since DHEC failed to make an independent "consistency" examination as required by S.C. Code Ann. Sec. 44-96-290(F). More specifically, Oakwood and Hickory Hill argue that DHEC delegated to Jasper County the authority to determine consistency and that such an act is an error of law.

It is first important to note what this case is not. This case is not one in which the agency asserts a statutory right to delegate its authority. See e.g. Edisto Aquaculture Corp. v. South Carolina Wildlife and Marine Resources Dept., 311 S.C. 37, 426 S.E.2d 753 (1993) (agency had the right to delegate since the General Assembly expressed its intent that the two "agencies shall coordinate their respective efforts."). While coordination is indeed involved in this case, DHEC correctly chooses not to assert a right to delegate consistency determinations to Jasper County since our Supreme Court has found that such delegation is improper. Southeast Resource Recovery, Inc. v. South Carolina Dept. of Health and Environmental Control, 358 S.C. 402, 595 S.E.2d 468 (2004) ("DHEC, not the county, is charged with ensuring such facilities meet the [consistency] requirements for permitting [construction of a new solid waste management facility]." Rather, the issue here, simply put, is one of asking what did DHEC do B delegate or investigate. Oakwood and Hickory Hill claim the former; DHEC and T&T claim the latter.

In the end analysis, for Oakwood and Hickory Hill to establish that DHEC delegated away its consistency power, proof must exist that DHEC yielded its final decision-making authority to another. See Riverbend Farms v. Madigan, 958 F.2d 1479, 1488 (9th Cir.), cert. denied, 506 U.S. 999, 113 S.Ct. 598, 121 L.Ed.2d 535 (1992) (the ultimate test of the validity of an agency's delegation of responsibility is whether the delegating agency retains final decision-making authority). Proof that DHEC utilized others (be they the applicant or Jasper county) as aids or sources of information does not establish that DHEC delegated away its final decision-making authority over consistency. 2 Am.Jur.2d Administrative Law Sec. 224 at 54-55 (1962) ("[T]he law does not preclude practicable administrative procedure in obtaining the aid of assistants in the department, apparently to any extent so long as the agency does not abdicate its power and responsibility and preserves for itself the right to make the final decision."). Indeed, obtaining information and assistance from county officials is not persuasive evidence of improper delegation since seeking such is entirely consistent with the cooperation and coordination goals and findings identified by the General Assembly in SWPMA. See S.C. Code Ann. Sec. 44-96-20(A)(13) and (14) (where the General Assembly finds that "(13) [a] coordinated statewide solid waste management program is needed . . . [and] (14) [t]he statewide solid waste management program should be implemented through the preparation of a state solid waste management plan and through the preparation by local governments of solid waste management plans consistent with the state plan and with this chapter."); S.C. Code Ann. Sec. 44-96-20(B)(2) (there the General Assembly explains that one of the purposes of SWPMA is to "(2) establish and maintain a cooperative state program for providing planning assistance, technical assistance, and financial assistance to local governments for solid waste management.").

Here, the evidence establishes that DHEC did not delegate away its final decision-making authority over the consistency determinations for zoning and land use requirements or over the consistency determination with the local or regional solid waste management plan.

a. Zoning and Land Use Requirements

DHEC made its own determination on local zoning and land use requirements. For example, instead of yielding that authority to Jasper County for a zoning determination, DHEC looked to T&T. A checklist used by DHEC asked if T&T had supplied a letter of compliance with Jasper County's zoning requirements. When such evidence was not included in the initial filing in 2002, DHEC did not declare the application administratively complete until T&T complied.

Certainly, the predominant support for T&T's effort to establish compliance with zoning and land use requirements came from T&T's supplying of a July 24, 2002 letter from Harold Jones, the Director of Planning and Building Services for Jasper County. However, that letter was not all that DHEC considered. DHEC's decision also relied upon its own reading of the zoning ordinance involved. In fact, DHEC had before it the applicable ordinance and concluded that the "RD" status imposed by the ordinance allowed a landfill activity like that sought by T&T.

As to building development requirements in Jasper County, again, DHEC did not delegate its decision making authority to the county. On the contrary, the testimony establishes that DHEC was not initially on notice from T&T's application that any requirement beyond zoning was a factor in Jasper County. Thus, the argument is not persuasive which asserts that DHEC transferred final decision making authority over factors that DHEC did not know existed. Being uninformed is not the same as affirmatively delegating authority to a third party.

Moreover, the testimony establishes that DHEC often receives applications for which not all applicable permits have been received from the local authorities. In those instances, the practice of DHEC is to independently determine if the applicant will be able to meet the county requirements.

Consistent with the instant case, the testimony establishes that T&T had not yet obtained all of the final permission from Jasper County officials since the county established that T&T had not moved from "conceptual approval" to "preliminary approval" in the land use criteria. However, the evidence establishes that such movement could not take place until DHEC issued a landfill permit. Thus, virtually by default, DHEC was required to independently decide if T&T could meet the local requirements for consistency purposes. DHEC made such a determination and issued the permit. Accordingly, considering the factors here, DHEC did not delegate away its final decision-making authority over the consistency determinations for zoning and land use requirements.

b. Regional Solid Waste Management Plan

The lack of delegation of final decision making authority as to the regional solid waste management plan is plain in this record. Here, DHEC examined a number of factors and exercised discretionary judgment on the consistency issue. For example, DHEC reviewed no less than four letters of consistency from and to various individuals related to the T&T landfill project, examined at least one set of Jasper County Council minutes that stated that the Council voted to approve the landfill, considered at least one set of minutes that stated that the Council voted to allow the county administrator to write a letter stating that the proposed landfill was not inconsistent with the LC Plan, and reviewed at least one letter from Jasper County's Council to DHEC stating that a majority voted to approve the landfill. These actions all involve investigation and discretion. None were taken at face value but instead were factors for consideration. Such actions by DHEC are not indicative of a delegation of final decision making authority to Jasper County. Accordingly, no improper delegation occurred here.

2. Meeting Consistency Requirements

Oakwood and Hickory Hill argue that even if no improper delegation occurred, the permit must still be denied since the evidence establishes that the consistency requirements have not been met. The argument is that the landfill is not consistent with Jasper County's zoning and local land use ordinances. Second, the landfill is not consistent with the regional solid waste management plan.

a. Zoning and Local Land Use Ordinances

Here, the evidence establishes that both at the time of T&T's filing of its application and at the date of the issuance of the permit by DHEC, T&T had not yet obtained all of the final permission from Jasper County in reference to local ordinances. For example, T&T's plans had not moved from the Planning Commission's "conceptual approval" (which had been granted) to the next stage of "preliminary approval" (which had yet been achieved).

However, the lack of such permission is not a basis for finding a lack of consistency. On the contrary, final approval of T&T's plans could not be secured from Jasper County since final approval was simply not available. Jasper County's ordinances prohibit final approval until DHEC has issued the landfill permit. Thus, without a DHEC landfill permit, no requirement existed for final approval from Jasper County. Therefore, the controlling issue for consistency with local ordinances becomes deciding whether any plain impediments existed at the time of the permit application that suggested T&T would be unable to obtain the needed approval from Jasper County.

No such impediments have been established here. Rather, the testimony shows that Jasper County officials had no reason then and have no reason now to believe that T&T will not meet the county ordinances for land use and building development purposes. For example, in a letter of July 24, 2002, Harold Jones, the Director of Planning and Building Services for Jasper County, stated he saw no problem with the zoning for the proposed facility. In addition, the testimony at trial from Mr. Jones confirmed that after receiving a DHEC landfill permit, Jasper County believed that "[n]othing other than an application" from T&T was needed to meet all applicable Jasper County ordinances. Accordingly, no lack of consistency exists with Jasper County's zoning and local land use ordinances.

b. Regional Solid Waste Management Plan

Consistency with the local waste management plan begins with the LC Plan prepared by LCOG in 1994. That plan resulted from the requirements of SWPMA directing that "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." S.C. Code Ann. Sec. 44-96-80(A). Thereafter, the "region shall submit its solid waste management plan to the department [DHEC] for review [which] . . . shall have one hundred eighty days from the date on which a plan is submitted to review the plan and provide comments to the submitting entity [and a]t the end of the one hundred eighty-day review period, the county or region shall begin implementation of its solid waste management plan." S.C. Code Ann. Sec. 44-96-80(B). Here, the LCOG submitted the LC Plan to DHEC. The LC Plan was accepted by DHEC, and implementation in the region began.

As an accepted plan by DHEC, the regional plan properly complies with the statutory mandate that the plan contain a projection of the need for new solid waste facilities for the region for the next twenty years. See S.C. Code Ann. Sec. 44-96-80(A)(3). Addressing that mandate, the LC Plan states the following:

Based on the amount of disposal capacity available in and around the Lowcountry there is no apparent need to construct new domestic or inert landfill facilities in the next 20 years.

LC Plan p. 48.

Accordingly, given the plan's clear statement of no apparent need for a new landfill for the next 20 years, the evidence must establish how adding a new landfill in Jasper County is consistent with the LC Plan. Here, the evidence of consistency is simply not persuasive.

For example, DHEC seeks to find the T&T landfill meets the consistency requirement since DHEC received information from Jasper County asserting that growth was expected to a degree warranting another landfill. However, such information does not establish consistency. On the contrary, the information is entitled to little weigh since the assertion is not supported by underlying data. Jasper County does not adequately identify the specific projected growth area, does not establish when the growth will occur, does not state how long it will continue, and does not establish at what rate the growth will progress. In short, the county's conclusory position is an insufficient basis for establishing consistency with the existing regional plan.

But, more fundamentally, in light of the plan's position that no apparent need exists for any landfills for the next 20 years, DHEC and T&T recognize the apparent inconsistency between the LC Plan and the desire to add a landfill. Thus, they argue that the inconsistency disappears if the LC Plan has been amended to approve adding a landfill in Jasper County. I find no such amendment exists.

Here, the lack of any amendment to the LC Plan is supported by the testimony of the executive director of LCOG. His testimony establishes that the LCOG made no amendments to the plan. Further, he testified that a new regional plan is in the draft stage but has not been adopted by the regional counties. Thus, the evidence establishes that the 1994 plan has not been amended from its 1994 adoption.

The testimony of the executive director of LCOG is supported by the amendment process established by SWPMA. SWPMA provides that after the regional plan is filed, the region must submit an annual progress report which "must contain, at a minimum, . . . : (1) any revisions to the solid waste management plan previously submitted . . ." S.C. Code Ann Sec. 44-96-80(F)(1). In this case, no revisions of the 1994 LC Plan have been made. On the contrary, only two letters from LCOG (the entity submitting the LC Plan) have been submitted to DHEC and neither amends the LC Plan.

The first letter of April 19, 2002 explains that since the LCOG will be completing a new plan in the near future "it would be advisable at this time to issue no new certificates of need or other permits in Jasper County." Obviously, such a statement does not amend the plan to add the T&T landfill.

Similarly, a second letter dated May 29, 2002 does not amend the LC Plan. The second letter from LCOG changes the initial April 19, 2002 position by stating "that Jasper County doesn't object to SCDHEC making a permitting decision for a C and D Landfill for T&T Disposal, LLC of Hardeeville prior to completion of the new plan." Again, as with the April 19, 2002, letter, such a statement in not an amendment to the LC Plan. Rather, at best, the letter is notice to DHEC that Jasper County does not object to DHEC granting the T&T permit. A letter from a single county which expresses no objection to a permit cannot morph into an amendment to a regional plan.

In an attempt to avoid the conclusion that the LC Plan has not been amended to include the T&T landfill, DHEC and T&T argue that Jasper County has its own plan with that plan simply incorporated within the LC Plan. From that position, DHEC and T&T argue that Jasper County has amended its plan to allow the landfill. I cannot agree.

Beyond all doubt, the LC Plan is a regional solid waste management plan. See S.C. Code Ann. Sec. 44-96-40(39) (a regional plan "means a solid waste management plan prepared, approved, and submitted by a group of counties in South Carolina pursuant to Section 44-96-80."). In particular, it is the regional plan which includes Jasper County since it was "endorsed" by the counties of Beaufort, Colleton, and Jasper. Those endorsements are memorialized by letters from each of the respective governing bodies including Jasper County.

Within the context of SWPMA, there is no separate solid waste management plan for Jasper County since such a plan can exist only if submitted by a single county. See S.C. Code Ann. Sec. 44-96-40(7) (a county plan "means a solid waste management plan prepared, approved, and submitted by a single county pursuant to Section 44- 96-80."). In this case, even a cursory review of the LC Plan shows the plan is regional in scope and is not a single county plan. Unquestionably, the document reveals the intent of the regional endorsing governments to join the LC Plan to coordinate their activities as opposed to operating separate plans. Such intent aligns the LC Plan with the stated purposes of SWPMA which "encourages local governments to pursue a regional approach to solid waste management." S.C. Code Ann. Sec. 44-96-20(B)(14). Moreover, the LC Plan furthers the policy of this state which is to encourage a regional approach to solid waste management. S.C. Code Ann. Sec. 44-96-50(C).

Accordingly, against this backdrop of intent for regional cooperation, of compliance with the regional goals of SWPMA, and of the specific endorsement by Jasper County of a regional plan, the evidence of the existence of a single county solid waste disposal plan for Jasper County is simply unpersuasive. There being no single county plan for Jasper County, the T&T landfill is inconsistent with the LC Plan, and the permit must be denied.

In reaching such a conclusion, I recognize that Jasper County's actions beginning as early as October 1997 have been based on the premise that Jasper County believed it was amending some plan that would allow the T&T landfill. However, the only plan on file with DHEC relevant to the T&T landfill is the LC Plan, and that plan has not been amended by LCOG.

Further, the LC Plan has not been amended by Jasper County. Again, I recognize that DHEC has “penciled in” what it believed were amendments to the plan and that DHEC did so since it believed SWPMA allowed such. While DHEC’s interpretations are entitled to “the most respectful consideration and should not be overruled without cogent reasons” (Faile v. S.C. Employment Security Comm’n., 267 S.C. 536, 230 S.E.2d 219 (S.C. 1976)), such positions must not be applied when cogent reasons require a different position. See Stone Mfg. Co. v. South Carolina Employment Sec. Comm'n, 219 S.C. 239, 64 S.E.2d 644 (1951) citing F. W. Woolworth Co. v. United States, 91 F.2d 973, 976 (2d. Cir. 1937) ("At most, administrative practice is a weight in the scale, to be considered, but not to be inevitably followed. * * * While we are of course bound to weigh seriously such rulings, they are never conclusive."). Here, cogent reasons exist to deviate from DHEC’s practice.

First, DHEC’s view of how a regional plan is to be amended is inconsistent with the intent of S.C. Code Ann. Sec. 44-96-80(O). That statute explains that "[a]ny amendments to a . . . regional solid waste management plan must be adopted . . . in the same manner as provided for in the initial plan." While the initial plan does not specifically state how the plan is to be amended, nonetheless, the plain intent of Sec. 44-96-80(O) is that amendments are to be adopted in the same manner that was used to adopt the initial plan. Here, that means that since the regional plan was adopted by a multi-party endorsement, any amendments must be adopted in the same manner.

Second, deviation from DHEC’s view is proper since its position provides an anomalous result. DHEC’s position, carried out with no authorization from the initial agreement, allows the unilateral actions of a single party to become the means for amending an agreement that required a multi-party endorsement to becoming effective. Such a position is inconsistent with the regional goals of the plan and of SWPMA. Thus, there being no amendment to the LC Plan to allow the T&T landfill, the issuance of a permit for the T&T landfill is inconsistent with the 1994 LC Plan.

3. Reforming The Permit

The conclusion reached here is that the T&T landfill is inconsistent with the applicable solid waste management plan. Therefore, the permit must be denied. There being no permit, the issue of whether to "reform" the permit by deleting a final disposal capacity of approximately 2.2 million cubic yards and inserting a disposal capacity of 2.2 million cubic feet is not reached.

IV. Order

The permit sought by T&T for a construction, demolition, and land-clearing debris landfill permit for the Snake Road area in Jasper County, South Carolina is denied.

AND IT IS SO ORDERED

______________________

RAY N. STEVENS

Administrative Law Judge

Dated: March 15, 2005

Columbia, South Carolina