ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter is before me pursuant to the request for a contested case hearing by the
Petitioners, Involved Citizens of the Helena Community, et al. (Citizens), to challenge the issuance
of Industrial Solid Waste Landfill Permit No. 362624-1601 by the Respondent, South Carolina
Department of Health and Environmental Control (DHEC or Department) to Southeast Resource
Recovery, Inc. (SRRI) on September 5, 1997. SRRI also appeals Special Permit Condition 2 insofar
as that condition was required by the Department to establish a 1,000 foot buffer to a mobile home
on adjoining property. A hearing was held on January 21-23, 1998, at the offices of the
Administrative Law Judge Division (Division). Subsequent to the hearing, the Department filed a
motion which was characterized by this Court as a Motion to Reopen the Record to admit new
evidence. The new evidence consists of a vote of Newberry County Council on February 4, 1998,
which purports to revoke a previously issued letter of consistency with the Newberry County Solid
Waste Management Plan, and a letter to the Commissioner of the Department memorializing the
action of Council, dated February 5, 1998. The Citizens also filed a motion seeking remand to the
Department to consider the permit application in light of the new evidence, or, in the alternative, for
leave to supplement the record. The parties submitted briefs on the motions. For the following
reasons, the motion to reopen the record is granted, the new evidence is admitted, and the permit is
denied.
MOTION TO REOPEN THE RECORD
Both the Department and the Citizens assert that the record in this matter should be reopened
to admit new evidence concerning Newberry County Council's vote to rescind the previously issued
letter stating that SRRI's proposed project was consistent with the Newberry County Solid Waste
Management Plan. SRRI, on the other hand, argues that reopening the record is inappropriate
because DHEC's motion was filed after "inordinate delay," in that it was filed some four and one-half months after the action of Newberry County Council. SRRI further contends that the motion
should be denied because the determination of consistency was already completed and because that
issue had already been addressed at the hearing.
The decision to reopen the evidence in a case is within the sound discretion of the trial court. Lites v. Taylor, 284 S.C. 316, 326 S.E.2d 173 (Ct. App. 1985); Brown v. LaFrance Industries, 286
S.C. 319, 333 S.E.2d 348 (Ct. App. 1985). Under the circumstances of this case, I find that the new
evidence should be admitted. First, contrary to SRRI's protest of unfairness and detrimental reliance
on the consistency determination, the issue of the project's consistency with the Newberry County
Solid Waste Management Plan was not finally determined when the County issued its letter of
consistency, but rather was raised as an issue at the contested case hearing and, in fact, has been in
the forefront throughout DHEC's review of the application. The testimony of Melinda Mathias of
DHEC indicates that, even after the County issued its letter of consistency, DHEC had some
concerns as to whether the project could be approved in light of the provision of the Plan stating that
"industrial solid waste is completely outside the operation, direct knowledge, or control of Newberry
County." Newberry County Solid Waste Management Plan, § 4.1.3. As a result of these concerns,
DHEC corresponded with County officials, stating that it would not issue a permit for the project
until Newberry County amended the plan to allow for the construction and operation of an industrial
solid waste facility. DHEC also sent a letter to SRRI on January 12, 1996, stating that the
application was not yet administratively complete, because, among other things, "inconsistencies
within the SWMP of the county must be corrected." DHEC finally deemed the letter of consistency
to be acceptable only after receipt of correspondence from the County which stated that Section 4.1.3
of the plan, the provision cited above, was an "error" and that Newberry County does maintain
complete control over industrial solid waste disposal. The consistency determination by the county,
therefore, is not a "one-time factual determination" which is automatically accepted at face value by
DHEC, but instead the determination is reviewed and evaluated by DHEC staff in conjunction with
the county's solid waste management plan.
Second, SRRI's argument that it is inappropriate to consider the issue of the project's
consistency with the Plan because the revocation occurred after the permit had been "issued" by
DHEC is without merit. DHEC's staff determination to issue the permit does not become a final
decision if a contested case is requested. As the agency conducting the contested case hearing, the
Division is the fact-finder. S.C. Code Ann. § 1-23-600(B) (Supp. 1997); Lindsey v. S.C. Tax
Comm'n, 320 S.C. 504, 397 S.E.2d 95 (1990). Therefore, all issues bearing on whether the permit
should be issued, including the project's consistency with the Plan, are proper for consideration by
the Administrative Law Judge. When a contested case is requested, the permit is "issued" not when
the DHEC staff makes its determination, but only after the Administrative Law Judge has issued a
final decision and order holding that issuance of the permit is proper, pursuant to S.C. Code Ann.
§§ 1-23-600(B) (Supp. 1997). For the foregoing reasons, therefore, DHEC's Motion to Reopen the
Record is granted, and the letter to DHEC from Edward Lominick, Newberry County Administrator,
dated February 5, 1998, memorializing the vote of Newberry County Council to rescind its prior
consistency determination is admitted into evidence in this case.
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 the evidence:
1. Notice of the date, time, place, and nature of the hearing was timely given to all
parties.
2. SRRI is a South Carolina corporation which proposes to engage in the operation of
an industrial waste landfill to be located on its property adjoining Drayton and Giff Streets in the
Helena Community of Newberry County, South Carolina.
3. The Petitioner Citizens is made up of persons generally residing in the Helena
Community. The Helena Community is a long-established community comprised primarily of
single-family residences with some commercial and light industrial establishments intermingled.
Many, though not all, of the residents on Drayton and Giff Streets are African-American.
4. The facility as originally proposed by SRRI to Newberry County Council was to be
primarily a recycling site for construction and demolition debris. As originally envisioned,
approximately 80% of the materials brought onto the site were to be recycled, while only 20% of the
materials were to be landfilled. Asbestos landfilling was not prominently mentioned in the facility
description. Moreover, representatives of SRRI stated that the site would ultimately be suitable for
use as a golf course once the site was closed.
5. Based in part upon this early description of the project, the Newberry County Council
issued a "letter of consistency" dated August 17, 1995, stating that the project was consistent with
the Newberry County Solid Waste Management Plan ("SWMP"). DHEC requires such a letter in
order for a project application to be deemed administratively complete.
6. In December of 1995, SRRI submitted a permit application and the original plans for
the landfill to DHEC's Bureau of Solid and Hazardous Waste, Solid Waste Permitting Section.
After several revisions, the application was replaced in its entirety with the documents admitted into
evidence as DHEC Exhibits 140 and 140A.
7. The facility as currently proposed differs significantly from the original proposal
presented to county officials. The current proposal consists entirely of a landfill which will contain
one disposal cell. SRRI proposes to grade the site and excavate the disposal cell, reserving the
removed material for top cover. At least five feet of vertical separation between the bottom of the
disposal cell and the water table will be maintained. The cell will be filled in such a manner that
asbestos and construction and demolition debris will be segregated. The asbestos waste will be
placed into the landfill in plastic bags and other containers. Solid waste will be placed in the cells
and covered periodically in accordance with the operational plans submitted to DHEC by SRRI.
When the available space at the landfill is exhausted, its final elevation will be approximately sixty
(60) feet above previously existing surface grade, which is approximately the same height as an
electricity transmission line which bisects the SRRI property. No recycling activity is presently
contemplated for the site.
8. The approved waste stream for the landfill consists of structural steel, hardened/cured
asphalt, bricks and blocks, plaster and plasterboard, shingles and roofing material, pipes, floor
coverings, poly fiberglass, glass, non-friable and friable asbestos containing materials, plastics, non-recyclable cardboard and paper, hardened concrete, yard debris, lumber, insulation material, floor,
wall and ceiling tile, hardened cement, glass wire, wall coverings, mirrors, gypsum and wall board,
porcelain, and items physically attached to a demolished structure, such as signs, mailboxes, and
awnings. All waste disposed in the construction and demolition waste area of the landfill must be
generated from a construction, demolition and land-clearing debris source. Any waste other than that
listed in the approved waste stream may not be disposed of without obtaining prior written approval
from DHEC. The allowable rate of disposal for the landfill is 208,000 tons per fiscal year.
9. After Newberry County issued its letter of consistency and during the pendency of
the permit application, DHEC staff members questioned whether the project was consistent with the
applicable portions of the SWMP. Section 4.1.3 of the Plan provides that "[i]n Newberry County
industries are responsible for their own solid waste collection and disposal. There are several private
haulers operating in the County under separate contracts with different industries. This stream of
solid waste is completely outside the operation, direct knowledge or control of Newberry County."
On January 10, 1996, DHEC staff member Melinda Mathias wrote the County Administrator, stating
that "[a]fter review of the Newberry County Solid Waste Management Plan [in particular, Section
4.1.3,] it has been determined that the construction of an industrial waste landfill is not consistent
with the plan." She advised the County Administrator that, in order for the facility to be permitted,
the County would have to revise this section of the SWMP. On January 12, 1996, DHEC also wrote
a letter to Mr. James Cooper of SRRI which stated that the application could not be deemed
administratively complete because, among other things, "inconsistencies within the SWMP of the
county must be corrected."
10. In response to Ms. Mathias' letter, County Administrator Edward P. Lominack wrote
DHEC on January 22, 1996, stating that he believed the last paragraph of Section 4.1.3 to be "in
error," and that he would "recommend the last paragraph be deleted." Although the last paragraph
was never in fact deleted from the Plan, DHEC accepted Mr. Lominack's handwritten notation on
a copy of the Plan as a modification, allowing the letter of consistency to stand.
11. In the Spring of 1996, the Newberry County Council began expressing opposition to
the location of the facility. On May 1, 1996, Council voted unanimously to oppose the location of
the proposed landfill. This vote was communicated to DHEC in a letter from Mr. Lominack on May
2, 1996. However, the letter of consistency was not revoked at that time.
12. On October 23, 1996, Ms. Mathias wrote the County Council requesting clarification
of the County's position on whether the letter of consistency remained valid in view of Council's
vote to oppose the location of the facility. The Chairman of County Council responded in a letter
dated November 7, 1996, that the letter of consistency was not revoked, but that Council continued
to oppose the landfill's location. In a letter dated December 13, 1996, DHEC's Director of the
Division of Solid Waste Planning and Recycling, William W. Culler, advised the Chairman that "it
is the Department's position that Newberry County can not issue a Letter of Consistency to a
proposed facility and oppose the facility's location." He further stated that until the County
concurred that the proposed facility was consistent with the Plan, which included approval of the
facility's location, DHEC would not proceed with review of the application. In response to DHEC's
letter, the Chairman stated that the County did not intend to revise the existing plan to exclude the
facility "after the fact," and observed that no existing zoning ordinances or land use policies
prohibited the property from being used as a landfill.
13. On September 5, 1997, DHEC issued Industrial Solid Waste Landfill Permit No.
362624-1601 to SRRI to construct and operate an industrial solid waste landfill in the Helena
Community of Newberry County, South Carolina, under the authority of S.C. Code Ann. Regs. 61-66
and 61-107.11.
14. In October of 1997, the individual members of the Newberry County Council wrote
letters to DHEC stating the position that the landfill as permitted was inconsistent with the County's
SWMP.
15. On February 4, 1998, Newberry County Council voted to rescind the letter of
consistency for the proposed landfill.
CONCLUSIONS OF LAW
Based upon 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 Ann. § 1-23-600(B) and S.C. Code Ann. § 48-1-50 (1987 and Supp. 1997).
2. S.C. Code Ann. §§ 44-96-300(E) and (F) (Supp. 1997) 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 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.
4. 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. 1997).
5. S.C. Code Ann. §§ 44-96-290, 44-96-320, and 48-1-100 authorize DHEC to
promulgate regulations governing the issuance of permits for solid waste landfills.
6. S.C. Code Ann. Regs. 61-66 (1989), entitled "Industrial Waste Disposal Sites and
Facilities," provides for permits for the disposal of industrial solid waste.
7. S.C. Code Ann. Regs. 61-107.11 (Supp. 1997), entitled "Construction and Demolition
Debris Landfills," provides the permit process and parameters for construction and demolition debris
landfills. This regulation applies to the construction and demolition portion of the proposed landfill.
8. S.C. Code Ann. Regs. 61-70 (1989), entitled "Sanitary Landfill Design, Construction
and Operation," provides for permits for solid waste landfills.
9. The South Carolina Solid Waste Management and Policy Act, at S.C. Code Ann. §
44-96-290(G) (Supp. 1997), provides: "No permit to construct a new solid waste management
facility . . . may be issued by the department unless. . . the proposed facility or expansion is
consistent with the local or regional solid waste management plan. . . ." Pursuant to S.C. Code Ann.
§ 44-96-80(O) (Supp. 1997), any amendments to a county or regional solid waste management plan
must be adopted and implemented in the same manner as provided for in the initial plan. DHEC will
not deem an application to be administratively complete unless and until the county issues a letter
of consistency stating that the project is consistent with the local plan. The letter of consistency is
a prerequisite to the issuance of a permit, because the project is not deemed consistent with the local
plan unless a letter is issued.
10. The applicable provision of the Newberry County Solid Waste Management Plan,
Section 4.1.3, states: "In Newberry County industries are responsible for their own solid waste
collection and disposal. There are several private haulers operating in the County under separate
contracts with different industries. This stream of solid waste is completely outside the operation,
direct knowledge or control of Newberry County." Since the original Plan was adopted through a
resolution of County Council, and since there has been no resolution of County Council which
deleted or modified Section 4.1.3 in any manner, I conclude that Section 4.1.3 has never been
modified.
11. The issue of the project's consistency with the Newberry County Solid Waste
Management Plan was not finally determined when the County issued its letter of consistency, but
instead was subject to review and evaluation by DHEC, as indicated by the correspondence between
DHEC staff and County officials. The consistency determination by the county, therefore, is not a
"one-time factual determination" which is automatically accepted at face value by DHEC, but instead
the determination is reviewed and evaluated by DHEC staff in conjunction with the county's solid
waste management plan.
12. DHEC's staff determination to issue a permit does not become a final decision if a
contested case is requested. As the agency conducting the contested case hearing, the Division is the
fact-finder. S.C. Code Ann. § 1-23-600(B) (Supp. 1997); Lindsey v. S.C. Tax Comm'n, 320 S.C.
504, 397 S.E.2d 95 (1990). Therefore, all issues bearing on whether the permit should be issued,
including the project's consistency with the Plan, are proper for consideration by the Administrative
Law Judge. When a contested case is requested, the permit is "issued" not when the DHEC staff
makes its determination, but only after the Administrative Law Judge has issued a final decision and
order holding that issuance of the permit is proper, pursuant to S.C. Code Ann. § 1-23-600(B) (Supp.
1997).
13. Had the Newberry County Council voted to rescind the letter of consistency prior to
DHEC's staff determination to issue the permit, the permit would have been denied. In addition, had
the vote occurred after the permit decision was final, either by expiration of the fifteen day period
in which a contested case hearing must be requested or upon completion of the fact-finding process
by the Administrative Law Judge, Council's action would have had no effect on the validity of the
permit. See Triska v. S.C. Dep't of Health and Envtl. Control, 292 S.C. 190, 355 S.E.2d 531 (1987).
However, because the rescission occurred prior to the conclusion of the fact-finding process (the
issuance of the Administrative Law Judge's final order and decision), it is a factor which should be
considered in this case in determining whether the permit should be issued. Since, as discussed
above, a letter of consistency is the mechanism by which a project is deemed consistent with the
local SWMP, as required by S.C. Code Ann. § 44-96-290(G), I conclude that this permit cannot be
issued in the absence of a valid letter of consistency.
14. Even if the letter of consistency had not been rescinded, however, I must nonetheless
conclude that the project is inconsistent with the Newberry County Solid Waste Management Plan.
A clear reading of Section 4.1.3 of the Plan indicates that the County intended for industries to be
responsible for their own solid waste collection and disposal, and to contract with private haulers to
dispose of the waste rather than to place it in landfills within the County. The Plan clearly does not
contemplate the siting of an industrial waste landfill within the County. The statement that the
"stream of solid waste is completely outside the operation, direct knowledge or control of Newberry
County" does not grant entities such as SRRI carte blanche to construct industrial waste landfills
within the County, but instead refers to the fact that the County does not have knowledge or control
over the private haulers who presently contract with industries in the County. DHEC staff
recognized this inconsistency, as discussed above, and attempted to resolve it by requesting a letter
from the County Administrator. However, such a letter does not comply with the requirement of
S.C. Code Ann. §44-96-80(O) that any modifications to the plan must be adopted in the same
manner as the original plan--in this case, by resolution of County Council. Therefore, the
inconsistency of this project with the Plan has not been resolved and the permit must be denied.
ORDER
Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby:
ORDERED that Industrial Solid Waste Landfill Permit No. 362624-1601 is hereby denied.
AND IT IS SO ORDERED.
________________________________
Ralph King Anderson, III
Administrative Law Judge
Columbia, South Carolina
January 4, 1999 |