ORDERS:
FINAL DECISION
STATEMENT OF CASE
This matter comes before me pursuant to the Petitioner's
challenge to Solid Waste Landfill Permit No. 423340-1601, issued
by the Department of Health and Environmental Control (DHEC or
Respondent) on November 21, 1995. A
hearing was held on July 16, 1996, at the offices of the
Administrative Law Judge Division (Division).
FINDINGS OF FACT
Having observed the witnesses and exhibits presented at the
hearing and closely passed upon their credibility,
taking into consideration the burden of persuasion by the
Parties, I make the following Findings of Fact by a
preponderance of evidence:
General Findings
1. Tindall Concrete Products, Inc., an affiliate of Tindall
Haul and Erect Corporation (Tindall or Petitioner), produces
fabricated concrete manholes, catch basins, beams, columns, and
floor and roof decking for concrete buildings. All of
Tindall's products are precast concrete, poured into forms, and
transported to a job site and erected. Tindall seeks a
restricted permit for the disposal of waste products upon its own
property resulting from its concrete fabrication process.
Tindall's waste comes from cleaning its tools and trucks,
hardened concrete left over from filling forms, and items that
are defective or broken. The materials Tindal is seeking to
dispose of are: steel reinforced concrete, sand, stone, hardened
concrete rubble, lumber, polystyrene foam, reinforcing steel,
prestressing steel strand, stumps, brush, and dirt.
2. The concrete fabrication process consists of applying mold
release agents to the inside of molds, pouring in the
concrete, and steam-heating the agents to accelerate the cure.
"Bond breakers" or release agents are sprayed in the
forms to keep the concrete from adhering to the forms. The
specifications for the "bond breakers" were furnished to
DHEC. DHEC declared them non-hazardous and acceptable for land
filling. Two solvents are used as "bond breakers," one
type has some diesel content, and the other contains mineral
spirits. The solvents are sprayed on forms before the
concrete is poured into them. Most of the solvent evaporates
before the concrete is poured. The concrete is then poured
into the forms and steam heated to 140 to 160 degrees. When the
hot product is exposed to air at the conclusion of this
process, any possible residue of solvent evaporates instantly.
3. An interdepartmental report from DHEC's Waste Assessment
Section to its Facility Engineering Section states that
the Waste Assessment Section reviewed the "MSDS and the process
description" for the two "bond breakers" and concluded:
After review of the information presented by the facility,
these wastes are non-hazardous solid waste.
They do not presently fall within our Bureau of Solid and
Hazardous Waste Management Regulations (R.
61-79.261 - 270). Through agreement with Ms. King, the
solid wastes produced from the
abovementioned process may be land filled.
4. Ninety percent of Tindall's waste does not come into contact
with any solvents or "bond breakers." In Tindall's
production process, the forms are not washed down, and none of
the "bond breakers" come in contact with Tindall's other
debris. The "wash down" itself is not taken to the landfill.
5. Contractors who pour concrete in forms on job sites often
spray the same solvents, but do not have the heat
evaporation process that assures the removal of these solvents
from Tindall's concrete. The interpretation that Tindall's
waste concrete is not acceptable in a construction and demolition
landfill, because it has been in contact with petroleum
products, is unreasonable. Such an interpretation would exclude
most formed concrete from construction and demolition
landfills.
6. The use of Tindall's products includes their installation
below ground as part of various construction projects.
This use is accepted by DHEC.
7. No products in Tindall's waste are environmentally unsafe.
Specifically, the hardened concrete when disposed
of does not contain any petroleum products and the petroleum
exposure that occurs during the production process is
not of sufficient significance so as to subject the waste to the
scrutiny required of products exposed to petroleum during
its use.
Landfill Permit
8. DHEC notified Tindall that an "Industrial Waste Landfill"
permit would be required pursuant to a policy adopted
by its Board on March 11, 1993. Tindall submitted the necessary
applications. DHEC subsequently issued "Industrial Solid
Waste Permit" No. 423340-1601, to be effective December 11, 1995.
Tindall then requested either variances to the permit
or the issuance of a special permit. Tindall's requests were
denied. Bill Culler, DHEC's Director of the Division of Solid
Waste, testified that pursuant to a March 11, 1993, policy, DHEC
does not issue special permits as allowed by S.C. Code
Regs. 61-70 III.C. However, the last paragraph of Section III.4
of the "Policy" provides that:
The Department may approve alternatives upon demonstration
of circumstances warranting an
exemption, or when such alternatives provide equal or
superior environmental protection to the above
requirements, considering landfill location, and the types
and quantities of waste being land filled.
I find that the issuance of variances to the Petitioner's permit
is proper in this case.
9. At the time of the hearing, DHEC was continuing to "work on"
what it called "Industrial Landfill Regulations."
As of this date, no such regulations have been adopted.
10. Tindall seeks to dispose of the materials on its own
property. The property was formerly owned by James H.
Walden and his family. Walden received approval from
Environmental Quality Control (EQC) Appalachia District III in
1990
and 1993 for disposal of debris in a century old erosion ravine
on the site as an "inert landfill."
11. In 1990 DHEC met with Tindall at the Walden's site and
thereafter issued approval for disposal of Tindall's waste
at the "inert landfill." Tindall thereafter began filling the
ravine. In September 1992 and April 1993, DHEC again inspected
the site, found all conditions "in compliance," and granted
"extended approval" to continue the fill. DHEC has allowed
Tindall to continue to dispose of its waste in the site until
February 15, 1995, or until a permit is issued.
12. Until 1993, "inert landfills" were permitted by the DHEC
district office staff. What constituted "inert" waste,
however, was undefined. Since 1993, permits for what were
formerly permitted as "inert landfills" have been permitted
by DHEC as either industrial landfills, issued by the Bureau of
Solid and Hazardous Waste pursuant to requirements
imposed by the Solid Waste Management Act, or as construction and
demolition landfills, permitted to receive waste, other
than waste from industrial processes, which has little or no
potential for release of pollutants into the environment.
13. Tindall's proposed activity is consistent with the
Spartanburg County solid waste plan, required by the Solid Waste
Management Act at S.C. Code Ann. 44-96-80 (Supp. 1995).
14. Respondent issued Solid Waste Landfill Permit No.
423340-1601 pursuant to the Board's March 11, 1993 policy,
requiring testing of the waste materials to be disposed of,
installation of a French drain in the lowest part of the ravine,
installation of a layer of clean soil in the low areas to keep
waste deposited in the landfill above the groundwater, and
monitoring of the water discharged from the French drain, among
other conditions.
Variances
15. Tindall duly requested a variance from the conditions of the
permit or the issuance of a special permit.
Specifically, Tindall requested variances as to Permit Conditions
A.1. and 3; and to all of Permit Condition C. At the
hearing, Tindall also requested a variance from all conditions
except erosion control and closure. A Tindall witness testified
that since Tindall's waste was non-polluting there was no need
for groundwater separation and no need for expensive
monitoring.
16. The Department's hydrologist testified that a separation
between the groundwater table and the bottom of the
landfill, by placing material in the bottom of the landfill, was
necessary for this site to be permitted. However, the
hydrologist never visited the Tindall plant, was not familiar
with Tindall's production process, and yet found that
monitoring should be required because "...it seems possible that
under procedures such as washing, that the molds would
create hydro-carbon laden sludges that may be disposed of in the
landfill. . . ." The hydrologist assumed that pollutants
were present "because [the Department had] not been provided
information otherwise." The hydrologist neither asked for
further information regarding the wash down nor advised anyone at
Tindall of her concerns. In listing the substances
required to be monitored, the hydrologist did not base the list
on any information she had from the Tindall plant or the
landfill.
17. The water table underlying at least a portion of the
landfill site rises to the surface inasmuch as springs have
been observed in the gully. Therefore, I find that a simplified
French drain constructed with six inch P.V.C. perforated
pipe with a two foot gravel pack around it would assure the
environmental suitably of the landfill and should be
constructed in that part of the ravine not already covered by
Tindall's four years of disposal.
18. Petitioner has shown by a preponderance of the evidence that
"Industrial Solid Waste Permit" No. 423340-1601,
as proposed, should be amended to delete Special Condition 2,
General Conditions 2 and 5, and the Environmental
Monitoring Conditions. Furthermore, a preponderance of the
evidence establishes that the permit should be amended as
reflected in Order below.
CONCLUSIONS OF LAW
Based on the above findings of fact, I conclude as a matter
of law the following:
1. The Administrative Law Judge Division has subject matter
jurisdiction in this action pursuant to S.C. Code 1-23-600(B)
and S.C. Code Ann. 48-1-50 (Rev. 1987 and Supp. 1995).
2. S.C. Code Ann. 44-96-300(E) and (F) (Supp. 1995) provide
for contested case hearings, conducted pursuant to
the Administrative Procedures Act, to be held if an aggrieved
party with standing appeals the granting, denial, or granting
with conditions of a solid waste permit by DHEC.
3. S.C. Code Regs. 61-66 (1989), entitled Industrial Waste
Disposal Sites and Facilities, provides for permits for the
disposal of industrial solid waste.
4. S.C. Code Regs. 61-70 (1989), entitled Sanitary Landfill
Design, Construction and Operation, provides for permits
for solid waste landfills.
5. In 1991, the General Assembly enacted the Solid Waste Policy
and Management Act (Act). See S.C. Code Ann. 44-96-10 et seq.
(Supp. 1995). At 44-96-320(A) of the Act, the General Assembly
expressly mandated that DHEC promulgate
regulations governing "...the siting, design, construction,
operation, closure, and postclosure activities of all landfills
that
dispose of solid waste" (emphasis added). These regulations were
to be promulgated not later than eighteen months after
the effective date of the article containing 44-96-320. The
article was effective on May 27, 1991.
6. In 1995, DHEC promulgated S.C. Code Regs. 61-107.11 (Supp.
1995) which provides the permit process and
parameters for construction and demolition landfills. By
definition, construction and demolition debris excludes waste
which has been in contact with petroleum products. See Regs.
61-107.11(A)(5) (Supp. 1995). Additionally, landfills used
solely for the disposal of industrial solid waste generated on
property under the same ownership or control as the landfill
are exempt from the regulation. See Regs. 61-107.11(A)(3) (Supp.
1995).
7. At the time of the hearing, DHEC was continuing to "work on"
what it called "Industrial Landfill Regulations."
As of this date, no such regulations have been adopted.
8. The Act defines "construction and demolition waste" as
"discarded solid wastes resulting from construction,
remodeling, repair and demolition of structures, road building,
and land clearing. The wastes include, but are not limited
to, bricks, concrete, and other masonry materials, soil, rock,
lumber, road spoils, paving material, and tree and brush
stumps, but does not include solid waste from agricultural or
silvicultural operations." S.C. Code Ann. 44-96-40(6) (Supp.
1995) (emphasis added). The Act further defines "industrial
waste" as "solid waste that results from industrial processes
including, but not limited to, factories and treatment plants."
S.C. Code Ann. 44-96-40(19) (Supp. 1995). Whether the
Petitioner's waste is construction or industrial waste is
unclear. The waste is made for use in construction projects but
in an industrial setting.
9. Tindall seeks to dispose of the materials on its own
property. Therefore, by virtue of Regs. 61-107.11(A)(3) the
Petitioner is exempt from the requirements of Regulation
61-107.11, and cannot be constrained by its more stringent
requirements.
10. On March 11, 1993, the DHEC Board approved a policy
providing guidance to the agency staff for issuing permits
pursuant to Regs.61-70 for industrial waste landfills, until such
time as further regulations pursuant to the Act could be
promulgated. DHEC's policy document designates no requirements
for industrial landfills. The policy states that it was
adopted because the Court of Common Pleas ordered DHEC to
eliminate conditions it put in a permit "not explicitly
supported by regulation." In Section III.4. the policy gives
favorable treatment to landfills not commercially operated, and
which receive wastes generated on property under the same
ownership. Such landfills are not limited by a rate of
disposal. Thus, the DHEC Board approved a more lenient view of
non-commercial landfills which only receive the waste
of the property owner on which the landfill is located.
11. Because Petitioner's landfill cannot be permitted pursuant
to Regs. 61-107.11, and no specific regulations have
been promulgated, since the passage of the Solid Waste Management
Act, to permit industrial waste landfills, no specific
regulations exist which govern the boundaries and requirements of
a permit that is applicable in this particular situation.
12. A regulation is an "agency statement of general public
applicability that implements or prescribes law or policy
or practice requirements of an agency." S.C. Code Ann.
1-23-10(4) (Rev. 1986). A substantive rule is one which has a
significant impact upon the existing rights and obligations of
regulated parties, and has the force and effect of law such
that the agency is no longer free to exercise its discretion in
the application of the rule. American Bus Ass'n v. United
States, 627 F.2d 525 (D.C. Cir. 1980). It is well settled law in
South Carolina that regulations must be promulgated
pursuant to the mandates of the APA.
13. As 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. City of Rock Hill v. South Carolina Department of
Health and Environmental Control, 302 S.C. 161, 394 S.E.2d 327
(1990). However, powers may not be implied which enlarge
statutory authority, or which liberalize the policy underlying
the statute on which they are based. Beard-Laney, Inc. v.
Darby, 213 S.C. 380, 49 S.E.2d 56s4 (1948).
14. In determining whether a rule should be promulgated as a
regulation, courts look to the actions of the agency,
not the label the agency gives. Columbia Broadcast System, Inc.
v. United States, 316 U.S. 407 (1942); see also Owen
Industrial Products, Inc. v. South Carolina Department of Health
and Environmental Control, C.A. # 91-CP-40-1444 (1992).
Whether a particular agency proceeding announces a rule or a
general policy statement depends upon whether the agency
action establishes a "binding norm." Home Health Service, Inc.
v. South Carolina Tax Com'n, 312 S.C. 324, 440 S.E.2d 375
(1994). If the rule acts as a "binding norm" and give the agency
no discretion in its application, the rule is invalidly
enacted regulation. American Bus, 627 F.2d at 529.
15. DHEC has improperly applied Regs. 61-70 and its March 11,
1993 policy document to industrial solid waste landfill
permit applicants. First, DHEC has improperly applied Regs.
61-70 to this situation instead of promulgating a specific
regulation as was directed by the General Assembly in 1991. In
addition, the "policy document" imposes new, substantive
requirements beyond those embodied in Regs. 61-70. For
instance, the policy document requires a hydro geologic
investigation of the site that must include the depth to bedrock,
flow directions and rates, and local groundwater use.
Regs. 61-70 does not require a report of this type, nor does it
mention any need to provide information on the depth
to bedrock or use of groundwater by the local community. In
addition, the policy document imposes other new
requirements, such as a groundwater monitoring plan, the
establishment of buffer zones between the water table, bedrock,
and the base grade of the landfill, and plans for run-on and
run-off controls. The language of Regs. 61-70 does not
encompass any of these specific requirements.
16. The policy document, on its face, is binding on all similar
applicants.
17. DHEC's formulation and application of the policy document,
without its promulgation as a regulation, is without
substantial justification, and is in direct conflict with express
legislative mandate to promulgate regulations pursuant
to 44-96-320(A) of the Act.
18. The DHEC policy document issued to provide guidance for the
issuance of industrial waste permits pursuant to
Regs. 61-70 is not a promulgated regulation, and therefore, does
not have the force and effect of law. See Captain's
Quarters Motor Inn, Inc. v. South Carolina Coastal Council, 306
S.C. 488, 413 S.E.2d 13 (1991).
19. Because no specific regulation governs the boundaries and
requirements of a permit applicable to this particular
situation, and because the DHEC policy document does not have the
force and effect of law, this tribunal must consider
all relevant materials, promulgated or otherwise, that deal with
the issuance of solid waste landfill permits. Regs. 61-66
shall be considered because it deals with industrial waste
disposal sites and facilities. Regs. 61-70 shall be considered
because it deals with the design, construction and operation of
solid waste landfills, and because it is the regulation DHEC
applied to the present situation in lieu of the fact that no
regulation has been promulgated to address industrial waste
landfills pursuant to the Act. As a relevant expression of
agency policy, promulgated pursuant to the Act, Regs. 61-107.11
shall be considered as a framework for how to permit solid waste
facilities that dispose of the types of waste produced
by the Petitioner. DHEC's March 11, 1993 policy document is
relevant, though not binding, authority on the design,
construction, and operation of non-hazardous solid waste
landfills. Finally, the mandates of the Act shall be considered
as they establish the basic requirements that the yet to be
promulgated regulation will expand upon.
20. Regs. 61-70 VI. requires DHEC to consider requests for
variances "on an individual basis." The Department's
"Policy" echoes the regulation and also provides for variances.
Section III.4. of the "Policy" provides that:
The Department may approve alternatives upon demonstration
of circumstances warranting an
exemption, or when such alternatives provide equal or
superior environmental protection to the above
requirements, considering landfill location, and the types
and quantities of waste being land filled.
21. Regs. 61-66 IV., dealing with non burnable industrial waste,
provides as follows:
Selected materials including cinders and fly ash, plaster,
bricks, tile, crockery, native inorganic material
and concrete may be used as fill to reclaim marginal land
provided:
A. a permit is obtained in accordance with Section II of
this regulation;
B. precautions are taken to prevent harborage and/or
breeding of vectors and rodents;
C. the area being filled does not detract from the
surrounding environment.
22. S.C. Code Ann. 44-96-320(B) provides that the regulations
governing solid waste landfills shall, at a minimum,
contain the following requirements:
(1) the submission by the permit applicant of the following
documents:
(a) a comprehensive engineering report that describes,
at a minimum, existing site conditions and construction plans;
(b) a quality assurance and quality control report;
(c) a hydro geologic report and water quality and air
quality monitoring plans;
(d) a contingency plan describing the action to be
taken in response to contingencies which may occur during construction and operation of the landfill;
(e) an operational plan describing how the facility
will meet all applicable regulatory requirements;
(f) the maximum volume of solid waste the facility is
capable of receiving over the operational life of
the facility and the maximum rate at which the facility
will receive that waste; and
(g) a landscape plan;
(2) locational criteria. However, the department shall
grant exemptions from such criteria upon a demonstration
by the permit applicant of circumstances which warrant an
exemption;
(3) landfill construction requirements;
(4) facility design and operational requirements including,
but not limited to, access controls, cover requirements,
gas control, leachate control, exclusion of hazardous
wastes, liner
requirements, litter control, groundwater and surface water
monitoring, and air quality monitoring;
(5) closure and postclosure requirements;
(6) financial responsibility requirements; and
(7) corrective action requirements.
23. S.C. Code Ann. 1-23-350 (1986) requires that a final
decision in a contested case shall be in writing and shall
include findings of fact and conclusions of law.
24. The decision of an Administrative Law Judge who conducts and
hears a contested case is a "final decision" as
defined in the Administrative Procedures Act. See S.C. Code
Ann. 1-23-610 (Supp. 1995).
ORDER
Based on the foregoing Findings of Fact and Conclusions of
Law, it is hereby:
ORDERED AND ADJUDGED that Permit No. 423340-1601, issued to
Tindall Haul and Erect Company, be granted
with the following special conditions:
1. Tindall may dispose of the following materials as a
result of its concrete fabrication process in the
ravine upon the tract described in the application: steel
reinforced concrete, sand, stone, hardened concrete rubble,
lumber, polystyrene foam, reinforcing steel, prestressing strand,
stumps, brush, and dirt. The landfill shall be limited to
the disposal of the foregoing materials.
2. No party or person other than Tindall shall be
permitted to dispose of any type of waste in the landfill.
3. Tindall shall construct in that part of the ravine not
already containing solid waste disposed of by
Tindall in the past the simplified French drain with six inch
P.V.C. perforated pipe and two foot gravel pack around it
which should assure the environmental suitability of the
landfill. Tindall shall not dispose of solid waste in that
portion
of the ravine until its engineers have certified to DHEC the
completion of said construction and that the same is
operational.
4. Tindall must comply with the Post-Closure requirements
stated in the permit of November 21, 1995.
5. No other approvals or permits are required to be
obtained from DHEC prior to Tindall's disposal of its
aforesaid wastes.
6. No further inspections shall be required to be made by
DHEC prior to Tindall's commencement of
disposal of its waste.
7. It is Tindall's responsibility to insure that no other
waste is disposed of at the landfill. If Tindall
determines the need to dispose of any waste other than that
listed herein, prior written approval must be obtained from
DHEC. Request for such other disposal shall be made in writing
to the address shown as General Condition 3 of the permit
of November 21, 1995.
8. Upon obtaining data that the landfill poses a threat to
human health or the environment, the
Department, upon notification to Tindall, may require Tindall to
implement a corrective action program approved by the
Department.
9. Tindall shall submit an annual report to DHEC as to
whether its disposal in the landfill meet
requirements of this Order.
10. Within 90 days of the date that this Order becomes
final, Tindall shall submit a Closure Plan to DHEC
that describes the final cover and provides a schedule for
completing closure activity, post-closure care and maintenance.
Post-closure care shall be conducted for a period of 30 years
unless a variance is applied for and obtained from DHEC.
11. The permit may not be transferred to a new owner except
upon request and approval by the Bureau
of Solid and Hazardous Waste Management.
12. Construction requirements not included in the permit,
and not dealt with in this Order, shall not be
required of Tindall for its operation of the landfill, except
those which may be necessitated for the alleviation of
environmentally dangerous contaminant conditions occurring
hereafter.
13. All steps in Tindall's production process from which
the specified materials to be disposed of result,
and procedures at the landfill, shall be subject to inspection by
DHEC's Facility Engineering Section as necessary for
determining that the waste stream hereafter remains
environmentally safe for disposal at the landfill. If the
Respondent
begin using a new solvent or "bond breaker" not addressed in this
Order the Respondent shall obtain approval from the
Department that the solvent or "bond breaker" dissipates when
the hot concrete product is exposed to air at the
conclusion of the fabrication process.
14. Tindall shall proceed with implementation of its
erosion control plan as it deems to be in the best
interest of its property, as shall be necessary to prevent damage
to adjoining property; and as inspections by DHEC shall
show further reasonable steps necessary for the alleviation of
existent environmentally dangerous conditions.
15. The site shall be maintained and operated in a manner
which will protect the established water quality
standards of the surface waters and ground waters.
16. Dust, odors, fire hazards, litter and vectors shall be
effectively controlled so they do not constitute
nuisances or hazards.
AND IT IS SO ORDERED.
_________________________________
Ralph King Anderson, III
Administrative Law Judge
November 8, 1996
Columbia, South Carolina |
