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:
County of Lexington vs. SCDHEC, et al

AGENCY:
S.C. Department of Health and Environmental Control

PARTIES:
Petitioners:
County of Lexington

Respondents:
S.C. Department of Health and Environmental Control, and S & T Recycling, LLC
 
DOCKET NUMBER:
05-ALJ-07-0509-CC

APPEARANCES:
For the Petitioner: Jeff Anderson, Esquire

For the Respondent S & T Recycling: Leon Harmon, Esquire

For the Respondent SC DHEC: Etta Williams, Esquire
 

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).[1] 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).[2] 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



[1] The Respondents note that in Southeast Resource Recovery the Court analysis questioned whether “the facility is not inconsistent” with the county solid waste management plan. Southeast Resource Recovery, 358 S.C. at 409, 595 S.E.2d at 472. Accordingly, Respondents argue that the appropriate inquiry in this case is not whether the Proposed LCD Landfill was expressly provided for in the Lexington County Plan, but whether the Proposed LCD Landfill is inconsistent with any particular provision of the Lexington County Plan. I do not agree entirely with their evaluation of the holding in Southeast Resource Recovery.

Clearly, neither Section 44-96-290(F) nor the holding in Southeast Resource Recovery require that a proposed landfill must be expressly provided for in a County Plan. On the other hand, in Southeast Resource Recovery the Court was reviewing a determination that the proposed permit was “consistent” with the county solid waste management plan. Therefore, in seeking on appeal to decide whether that determination was incorrect, the Court reviewed the case to determine if the evidence reflected any inconsistency with the county plan. The Court’s language, however, did not establish a standard of review for cases before the ALC but rather simply recognized the perspective of its review of the case on appeal. Thus, I find that the analysis before the ALC, in keeping with the statute is simply whether or not the permit is “consistent” with the county plan. Nevertheless, in this case the Petitioner bears the burden of proof. Interestingly, the nature of the evidence that would establish error in granting the permit, is evidence that the local ordinances or plan are inconsistent with granting the permit. Apparently, there is some logic in a dog chasing it tail.

[2] These same principles of determining legislative intent apply in interpreting ordinances. See City of Myrtle Beach v. Juel P. Corp., 344 S.C. 43, 543 S.E.2d 538 (2001).


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