ORDERS:
ORDER
This matter comes before the Administrative Law Division for
review of a decision by the staff of the Department of Health and
Environmental Control (DHEC) to issue a solid waste landfill
permit to Greenville County. The permit was issued on February
3, 1994. Petitioners Citizens' Facility Negation Committee filed
a letter stating its opposition on February 15, 1994, and Area
Concerned Citizens (ACC) filed a letter stating its opposition on
February 18, 1994. DHEC filed a motion to dismiss or, in the
alternative, answer, on March 16, 1994; Greenville County did
likewise on March 18, 1994. At the hearing on April 29, 1994,
DHEC and Greenville County appeared represented by counsel. Area
Concerned Citizens appeared pro se and elected to be represented
by Ms. Nina C. Godfrey. Citizens' Facility Negation Committee
did not appear, and upon motion by Greenville County, was dis-
missed for failure to prosecute its appeal.
As a preliminary matter, Greenville County moved to dismiss
the appeal of ACC on the grounds that the letter of February 18,
1994, did not comply with the requirements of DHEC Regulation
61-72, Section 201(c). The motion was denied.
The permit at issue authorizes construction and operation of
a municipal solid waste landfill denominated "Enoree Landfill,
Phase II," adjacent to Enoree Landfill, Phase I, which is pre-
sently in operation.
Issues
ACC raises five issues in its letter: whether Greenville
County's compliance record of operation of Phase I was properly
considered in issuing the permit for Phase II; whether ground-
water contamination has occurred and will occur so that drinking
water wells in the vicinity of the landfill will be affected;
whether there are adequate controls to prevent the disposal of
hazardous chemicals; whether the location is appropriate for a
municipal solid waste landfill; and whether property values of
neighboring residences will be protected.
Testimony
ACC's first witness, James Lee Chocklit, was not a signatory
of ACC's February 18 letter, and was offered as an expert witness
on the second, third and fourth issues raised by ACC. After voir
dire, he was admitted for the purpose of testifying on the second
and third issues.
In his statement, Mr. Chocklit relied on groundwater moni-
toring results submitted by Greenville County's consultants (Tr.
33 - 35; Pet. Exh. 1, 2). Mr. Chocklit testified that the
contamination in question resulted from operation of the Phase I
landfill. (Tr. 37).
Mr. Chocklit further testified (Tr. 51) that he had observed
receipt and disposal of waste at other landfills operated by
Greenville County, and opined that the practices he observed were
insufficient to prevent receipt and disposal of hazardous sub-
stances. On cross-examination, he admitted that he had reviewed
conditions of the site permit (Tr. 54) which require the site
operator to inspect waste and to reject unauthorized materials.
ACC next called Ms. Nina Godfrey. Ms. Godfrey lives within
one-half mile of the landfill site; her home is supplied with
drinking water from a private well. She testified that her
objection to the Phase II permit was predicated in part on the
documented impacts of operation of the Phase I landfill. (Tr.
58.) She testified that she was concerned about contamination in
wells near the site, but further testified (Tr. 67; Pet. Exh. 2)
that analysis of her well found no contaminants in excess of ap-
plicable limits.
Ms. Godfrey testified further that she was concerned about
the visual impacts of the proposed landfill operation and the
impact which proximity to the landfill would have on property
values in her subdivision. (Tr. 68 - 70).
Mr. Marvin Clay Bradburn testified regarding trash from
Phase I which he had observed along the Enoree River. (Tr. 77).
He echoed Ms. Godfrey's concern regarding groundwater contamina-
tion and impacts on property values.
Mr. William W. Culler, Director, Division of Solid Waste
Management, testified for DHEC regarding the requirements of the
Solid Waste Management Act and the Pollution Control Act and the
conditions placed in the permit to address potential
contamination from landfill operation. (Tr. 85 - 86). He
further testified regarding permit conditions added in response
to the Facility Issues Negotiation process required by SC Code
Ann. 44-96-470 (Tr. 87; DHEC Exh. 7).
Ms. Veronica Gorman testified regarding the various condi-
tions placed in the permit. Mr. James Bowman, of the DHEC
Division of Hydrogeology, testified regarding the site suitabili-
ty determination process. He explained that the conditions
recommended by his division were incorporated into the Phase II
permit (Tr. 122).
Ms. Robin C. Webb, manager of the Solid Waste Department at
Tribble and Richardson, the engineering consulting firm that
designed the site, testified regarding features of the leachate
pond designed to reduce odors (Tr. 132), and differences in the
liner designs for Phases I and II (Tr. 137). Mr. David D.
Wilson, project manager for the design team, testified regarding
methods used to monitor groundwater. Finally, Joel Sprague,
acting county engineer for Greenville County, testified regarding
implementation of the groundwater monitoring plan.
Findings of Fact and Conclusions of Law
1. ACC's letter dated February 14, 1994, commenced a
contested case. I conclude that although it did not comply in
all respects with the requirements of Regulation 61-72, Section
201, it was sufficient to put DHEC and Greenville County on
notice of the issues to be adjudicated.
2. Citizens' Facility Negation Committee submitted a letter
dated February 15, 1994, which challenged the permit. However,
no representative of the petitioner appeared at the hearing; I
conclude, therefore, that Citizens' Facility Negation Committee
should be dismissed as a party.
3. Greenville County, as the holder of the challenged
permit, is properly admitted as a party.
4. I find as a fact that the permit properly imposes
conditions (DHEC Exh. 1, pp. 15 - 16b) on Greenville County which
address hours of operation, control of litter and odor, inspec-
tion of incoming waste, cover of waste, operation and maintenance
of monitoring wells, and other conditions necessary to prevent
environmental impacts from the operation of Phase II of the
landfill.
5. I find as a fact that Phase II has been designed with a
liner, leachate collection system, and groundwater monitoring
system to prevent discharge of contaminants from the landfill
(Tr. 96 - 97, 117).
6. I conclude as a matter of law that evidence of con-
tamination due to Phase I is not relevant to a determination
whether a permit should be issued for Phase II, where there is
testimony that the criteria and the design for the two phases are
different.
7. I find as a fact that Greenville County has adequately
characterized the site, and that DHEC has imposed adequate design
criteria, to ensure that off-site impacts will be controlled.
8. I conclude as a matter of law that the use of the
proposed site as a landfill is consistent with county zoning and
land use plans.
9. I conclude as a matter of law that allegations of
possible impacts on property values due to the location and
operation of the landfill constitute claims for which DHEC has no
statutory authority to grant relief.
10. I conclude as a matter of law that the Facility Issues
Negotiation Process was properly carried out. I conclude further
that DHEC properly incorporated recommendations pertaining to
environmental impacts and properly excluded recommendations
pertaining to matters outside its statutory authority.
Conclusion
For the foregoing reasons I conclude that Permit No. 23210-
01-1101 issued to Greenville County for the Enoree Landfill,
Phase II, should be affirmed and it is so ordered. Any party may
seek review of this order by the Board of Health and Environmen-
tal Control pursuant to SC Code 1-23-610(a).
AND IT IS SO ORDERED.
June ___, 1994
Columbia, SC
_______________________
Marvin F. Kittrell
Chief Administrative Law Judge
(023\swma\enoree\order) |
