ORDERS:
ORDER GRANTING RESPONDENTS’ MOTION FOR SUMMARY JUDGMENT
STATEMENT OF THE CASE
This
matter is before the Court on a request for contested case hearing by
Petitioner County of Lexington (“County”) on December 16, 2005. The County is
contesting the South Carolina Department of Health and Environmental Control’s
(Department) approval of S & T Recycling, LLC’s (S & T Recycling) operation
of a land-clearing debris (LCD) landfill on Highway 378 in Lexington, South Carolina (Proposed LCD Landfill) pursuant to the existing General Permit for
Land-Clearing Debris and Yard Trash Landfills (General Permit). The County appealed
the Department’s approval of the Notice of Intent to operate the Proposed LCD
Landfill “on the grounds that the subject landfill is not consistent with the
Lexington County Solid Waste Plan.”
On
April 27, 2006, the Department and S & T Recycling (hereinafter
collectively referred to as “Respondents”) filed a Joint Motion for Summary
Judgment (Motion) on the grounds that the material facts are not in dispute and
that the Respondents are entitled to judgment as a matter of law. Respondents
contend that the Proposed LCD Landfill is not inconsistent with the Lexington
County Solid Waste Management Plan and the County failed to advance a valid
basis for challenging the Department’s decision to approve S & T
Recycling’s operation of the Proposed LCD Landfill under the General Permit. The
Court heard arguments from counsel on this matter on June 15, 2006, and on June
22, 2006.
Having
heard the arguments of the parties, and considered the Motion and memoranda
filed by the parties, the Court finds that Respondents’ Motion for Summary
Judgment should be granted.
LEGAL STANDARD
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. Wesinghouse 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 Underwritters 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, et al. v.
Kunze, et al., 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
The Department issued a
General Permit for the County of Lexington in 1995 which contains terms and
conditions for routine operation of a LCD landfill under the Permit. On April
27, 2005, S & T Recycling submitted to the Department a Notice of Intent to
operate a LCD Landfill under the General Permit. Afterwards, S & T
Recycling submitted for the Department’s approval an engineering plan, an
engineering report, and storm water calculations for the Proposed LCD Landfill
pursuant to Section II of the General Permit.
Subsequent
to the Notice of Intent submitted by S & T Recycling, the Town of Lexington
(Town) annexed the property on which the Proposed LCD Landfill is to be located
(Property) and notified the Department of this annexation by letter dated
November 8, 2005. On or about November 16, 2005, S & T Recycling submitted
its final revision to the engineering report for the Department’s approval.
Pursuant to S.C. Code Ann. § 44-96-290(F), the Department performed a
consistency determination to assess whether the Proposed LCD Landfill was
consistent with local ordinances and with the local and state solid waste
management plans. The local solid waste management plan applicable to the
Department’s consistency determination for the Proposed LCD Landfill was the
2001 Lexington County Solid Waste Management Plan, as amended in August of
2004. By letter dated December 2, 2005, the Department notified S & T
Recycling of its approval to operate the Proposed LCD Landfill under the
General Permit. The County of Lexington appealed the Department’s approval of
S & T Recycling to operate the Proposed LCD Landfill to the Administrative Law Court requesting a contested case hearing.
DISCUSSION
Pursuant to S.C. Code
Ann. § 44-96-290(F), the Department shall not issue a permit for construction
of a new solid waste management facility unless the proposed facility is
“consistent with local zoning, land use, and other applicable local ordinances,
if any. . . [and] with the local or regional solid waste management plan. . .
.” S.C. Code Ann. § 44-96-290(F) (2005). However, the Department, not the
host county, makes the final determination of whether or not the proposed construction
is consist with the county’s solid waste management plan pursuant to Section
44-96-290(F). Southeast Resource Recovery, Inc. v. South Carolina Dep’t of
Health and Envtl. Control, 358 S.C. 402, 408-09, 595 S.E.2d 468, 471-72
(2004).
The Lexington County Plan addresses LCD landfills in two provisions. Section
IV(H) describes existing LCD landfills operating in the County. (See Lexington County Plan, p. 19). This provision of the Lexington County Plan
does not include a restriction on, or prohibition of, additional LCD landfills
in the County. Id. Similarly, Section V addresses the future solid
waste management needs of the County. (See Lexington County Plan, pp.
27-36). Subsection H states that the County “does not anticipate the
development of any Land-Clearing Debris and Yard Trash Landfills as defined in
the SC DHEC Regulations R. 61-107.11 Part II.” (Lexington County Plan, p. 30).
Subsection
H
Testimony
from County Officials
The County argues that
the ALC’s analysis of the meaning of the language in Section V(H) of the
Lexington County Plan “should require testimony from the County officials as to
the intent behind that language.” However, in Greenville Baseball v.
Bearden, 200 S.C. 363, 20 S.E.2d 813 (1942) the respondents sought to
support their arguments by affidavits from several State Senators to show the
construction that they placed upon the language of the statute in the course of
its passage. The Court held that:
It is a settled principle in the interpretation of statutes
that even where there is some ambiguity or uncertainty in the language used,
resort cannot be had to the opinions of legislators or of others concerned in
the enactment of the law, for the purpose of ascertaining the intent of the
Legislature.
See also, Bowaters
Carolina Corp. v. Smith, 257 S.C. 563, 186 S.E.2d 761 (1972) (testimony of
the members of the York County Legislative Delegation as authors of the
legislation in question concerning the meaning of the statute in question was
inadmissible). Likewise, though the members of Lexington County Council may
have been the authors of the ordinance or plan at issue here, their testimony
would be inadmissible, and thus not reflective of a genuine issue of fact.
Interpretation
of Subsection H
The issue is whether
the Proposed LCD Landfill is consistent with the language of the local plan as
written and submitted to the Department. Subsection H states that the County
“does not anticipate the development of any Land-Clearing Debris and Yard Trash
Landfills as defined in the SCDHEC Regulations R. 61-107.11 Part II.” (Lexington
County Plan, p. 30). “If a statute's language is plain, unambiguous, and
conveys a clear meaning the rules of statutory interpretation are not needed
and the court has no right to impose another meaning. The words of the statute
must be given their plain and ordinary meaning without resorting to subtle or
forced construction to limit or expand the statute's operation.” Buist v.
Huggins, 367 S.C. 268, 276, 625 S.E.2d 636, 640 (2006) (citations and
quotations omitted).
Here, the County’s statement that it “does not anticipate” additional LCD
landfills is a general expression of foreseeable expectations, but does not
constitute a restriction on or prohibition of additional LCD landfills.
Moreover, if the County had intended that the language in Section V(H) of the
Lexington County Plan effect a restriction or prohibition on the construction
of new LCD landfills, the County could have definitely set forth that
restriction or prohibition. In fact, the County utilized affirmative language
establishing limitations of future construction and expansion of solid waste
management facilities in other provisions of the Lexington County Plan. (See,
e.g., Section V(H), Long-Term C&D Landfills (Part IV), p. 32).
Accordingly, the Plan does not reflect an intent that Land-Clearing Debris and
Yard Trash Landfills will not be permitted in the County.
Ordinance
05-05
The County further
argues that the Court’s review of the Department’s consistency determination
requires testimony regarding “the intent and applicability of the [County]
Solid Waste Ordinance 05-05.” Again, testimony of the members of the Lexington
County Council concerning the meaning of an ordinance is inadmissible and thus
does not reflect evidence of a genuine issue of fact. See Greenville
Baseball, supra.
Furthermore, despite
the County’s inclusion of Ordinance 05-05 in the Lexington County Plan, that
Ordinance does not preclude a determination that the proposed LCD Landfill is
consistent with the Lexington County Plan. Specifically, Ordinance 05-05 was
enacted to amend Article 2 of the Lexington County Solid Waste Ordinance, which
expressly provides that: “[t]he provisions of this article shall apply within
the unincorporated areas of the county and within any municipality which enters
into an agreement with the county, provided this article is made applicable
within the municipality.” (Section 54-34, Lexington County Code of Ordinances). Here, the undisputed evidence reflects that the Proposed LCD Landfill is
located within the incorporated area of the Town of Lexington and the County
has made no claim that the Town of Lexington has entered into an agreement with
the County with regard to the County’s Solid Waste Ordinance. Therefore, Ordinance
05-05 is clearly inapplicable to the Proposed LCD Landfill since the facility
is within the incorporated area of the county. Accordingly, the language of
Ordinance 05-05 has no bearing on the consistency determination with regard to
the Proposed LCD Landfill.
Grassing
The County also argues
that the Proposed LCD Landfill conflicts with a plan for reclamation by
grassing under a permit previously issued to S & T Recycling for mining
activity (Mining Permit) on the property. The Mining Permit requires that the
excavated area be grassed before the closure of the mine. An absurd resolution
of this issue would be to grass the excavated hole, fill it in, and then grass
it again after it is filled via land-clearing debris and yard trash. The
County, however, is not actually propounding a concern that the dugout area
must be grassed. Rather, the County is seeking to preclude the filling of the
hole (i.e. the Proposed LCD Landfill) based upon the reasoning that because the
Mining Permit required the grassing of the excavated area, they justifiably
relied upon the fact that the subsequent condition of the area would be a large
grassed hole.
As a threshold matter, any
component of the County’s challenge which questions the reclamation plan under
the Mining Permit is simply not before this Court in this matter. Moreover, I
do not find that the County’s reliance upon grassing of an excavated hole is a
legitimate reason, without other evidence, for precluding the approval of the Proposed
LCD Landfill. As such, the County’s argument with respect to the grassing of
the Property does not create a genuine issue of material fact in this matter. Moreover,
even if this matter were relevant to the approval of the Proposed LCD Landfill,
the General Permit requires grassing of the site upon the closure of the proposed
landfill. There is no dispute as to the requirements or efficaciousness of
that condition.
Representations
to Lexington County Council
The County further
argues that S & T Recycling’s representations to the Lexington County
Council preclude the Department’s approval to operate the Proposed LCD
Landfill. The facts show that prior to the Department’s approval of S & T
Recycling to operate the Proposed LCD Landfill, the Department issued a permit
to S & T Recycling for mining activity on the property on which the
Proposed LCD Landfill was to be located. During a meeting with Lexington
County Council in executive session prior to the issuance of the Mining Permit,
S & T Recycling agreed, as a condition for receiving a zoning permit for
mining activities on the Property, that the reclamation for the mining would be
grassing and that no landfill would be placed on the Property “as long as the
site was under the County’s control.” Shortly thereafter, the Town of Lexington (“Town”) annexed the Property and notified the Department of this annexation by
letter dated November 8, 2005.
The issue therefore is
not just whether representations related to a request for a zoning permit for
the mining activities are a consideration in a LCD landfill matter. The
determination here relates to whether those representations involving another
legal issue (zoning) concerning another permit (mining permit) create a genuine
issue of fact about this permit when the promise made is no longer binding (the
Property is no longer under the County’s control). Whether representations
between the operator of a proposed landfill and the host county are a
consideration in permitting a LCD landfill under S.C. Code Ann. Regs. §
61-107.11 (2005) is questionable. Specifically, in conducting the consistency
determination under S.C. Code Ann. § 44-96-290(F), the Department considers
only whether the proposed LCD landfill is “consistent with local zoning, land
use, and other applicable local ordinances, if any. . . [and] with the local or
regional solid waste management plan. . . .” S.C. Code Ann. § 44-96-290(F)
(2002). Nevertheless, S & T Recycling’s representations were no longer
applicable once the Town annexed the Property. Accordingly, the County’s
argument regarding S & T Recycling’s representations to the Lexington
County Council are not sufficient to create a genuine issue of material fact in
this matter.
Public
Notice
Finally, the County
argues that public notice of the Proposed LCD Landfill was not proper because
the notice was published in the name of a related entity, 378 Recycling, LLC.
However, the purpose of the public notice is to inform the public of the
activity that will occur at a particular site and to give the public the
opportunity to object to such activity. In this case, the only change with
regard to the proposed activity on the Property was the name of the company
proposing the activity. Accordingly, the notice published by the Department
with respect to this Proposed LCD Landfill was effective to meet the purpose of
such notice. Moreover, to prove the denial of due process, a party must show
that it has been substantially prejudiced by the administrative process. Palmetto
Alliance, Inc. v. S. C. Public Service Comm’n., 282 S.C. 430, 319 S.E.2d
695 (1984). Here, the County does not argue that it failed to receive actual
notice of the intended use of the Property or that it was prejudiced by the
Department’s determination that re-publication of the notice was not necessary
in this case. Additionally, neither the statute nor the regulations governing
permitting for LCD landfills requires public notice of a proposed authorization
to operate an LCD landfill under the Department’s General Permit. As such, the
County’s argument regarding the publication of notice in the name of 378
Recycling, LLC fails to create a genuine issue of material fact in this matter.
Based
on the foregoing, I conclude that there is no genuine issue of material fact
with respect to S & T Recycling’s operation of the Proposed LCD Landfill
and the Respondents are entitled to judgment as a matter of law.
ORDER
IT IS THEREFORE
ORDERED that Respondents’ Motion for Summary Judgment is GRANTED.
AND IT IS SO
ORDERED.
_______________________________
Ralph
King Anderson, III
Administrative
Law Judge
August 2, 2006
Columbia, South Carolina
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