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:
Democratic Reform at Big Creek, et al vs. SCDHEC, et al

AGENCY:
South Carolina Department of Health and Environmental Control

PARTIES:
Petitioner:
Democratic Reform at Big Creek, Judy and Larry Jordan, Jerry Page, Lloyd Crowe, Vernon Callaham, Catherine Ware, Dewey Ford, Andy Callaham, and Leon Pack

Respondent:
South Carolina Department of Health and Environmental Control and Anderson Regional Landfill, L.L.C.
 
DOCKET NUMBER:
98-ALJ-07-0556-CC

APPEARANCES:
For the Petitioners: Robert Guild, Esq., James S. Chandler, Jr., Esq.

For the Respondent DHEC: Alex Shissias, Esq.

For the Respondent Anderson Regional Landfill, L.L.C.: Karen A. Crawford, Esq., Bernard F. Hawkins, Esq.

For the Respondent Anderson County: Jack F. McIntosh, Esq.
 

ORDERS:

FINAL ORDER AND DECISION

This contested case arises from the decision of the South Carolina Department of Health and Environmental Control (Department or DHEC) to grant Municipal Solid Waste Permit #042651-1101 to Anderson Regional Landfill, L.L.C. (ARL) for a Subtitle D compliant vertical expansion of an existing Municipal Solid Waste Landfill (MSWLF)(1). This facility is located at the Big Creek site in Anderson County, South Carolina. Petitioners are neighboring property owners who seek denial of the permit. A hearing was held on January 20, 21 and 22, 1999, at the Administrative Law Judge Division.

The Petitioners raised several issues in their petition for administrative review. Those challenges, broadly stated, fell into three categories: (1) technical challenges surrounding the design construction, operation and monitoring of the landfill; (2) allegations of procedural deficiencies associated with issuance of the permit; and (3) complaints of nuisance relating to odor, vectors, noise, truck traffic and dust.



FINDINGS OF FACT

General Findings

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. ARL is a Limited Liability Company which proposes to expand an existing MSWLF located on its property at the Big Creek landfill site in Anderson County, South Carolina. The proposed unit is not a new facility. In addition, there is no lateral expansion of the Anderson County Landfill involved with the permit and no new waste will be placed onto new or previously unused property by this permit.

3. The Petitioners are a neighborhood association and individuals generally residing in the Cheddar community near the Big Creek landfill.

4. The permit approved by the Department involves a lined vertical expansion of an existing unlined solid waste disposal cell. It only allows placement of waste on top of a previously permitted waste disposal cell that is already at the site and does not increase the boundaries within which waste may be placed. S.C. Code Regs. 61-107.2 (gg), 61-107.2 (n)(Supp.1998). The permit requires, among other things, a double synthetic lining, geogrid structural support material, leachate collection, methane monitoring and remediation, groundwater monitoring and operational and management requirements. However, neither the permit application nor the permit itself were offered into evidence.

5. At current waste disposal rates, the vertical expansion permit was estimated by DHEC to provide approximately one year of additional life. After this date, a lateral expansion waste management unit is planned for the facility.

6. Generally, there was no factual evidence presented that operation of any portion of the Anderson County Landfill was causing off-site environmental impact or causing any adverse impact to human health or the environment. More specifically, there was no relevant factual showing that operation of the proposed lined portion of the landfill, Phase III, would cause any off-site environmental impact or cause any adverse impact to human health or the environment.

Involuntary Nonsuit

7. The Petitioners offered the expert testimony of Mr. Patrick O'Malley to support their position that DHEC had inadequately evaluated and/or accounted for the technical design, construction, operation and/or monitoring of the vertical expansion unit, related to propriety of DHEC's issuance of the permit, (i.e., including challenges to the adequacy of the geomembrane lining, the geogrid support structure, groundwater monitoring, and methane monitoring and/or remediation). Mr. O'Malley's deposition was taken on January 14, 1999, six days prior to the hearing in this case, at the request of Respondent ARL. At the time of the deposition, none of the Respondents had been informed that Petitioners intended to use this deposition at trial instead of offering Mr. O'Malley to testify. In fact, it was uncontested that counsel for Petitioners had indicated that they did intend to offer Mr. O'Malley as a witness at trial. Counsel for Respondents did not conduct the deposition of Mr. O'Malley as they would have at trial. Instead, counsel for Respondents'(2) indications were that they were generally seeking information about the basis of the expert's opinion. After Mr. O'Malley's deposition, counsel for Petitioners indicated that they might offer Mr. O'Malley's deposition at trial instead of calling him as a witness. However, notice of Petitioners' intent to offer this deposition was not provided until January 18, 1999, two days prior to trial. Petitioners offered no reason for Mr. O'Malley's absence at the hearing other than a desire to reduce costs.

8. No evidence was presented to substantiate Petitioners' claims as to the inadequacy of the design, operation, monitoring, geomembrane liner, geogrid support structure, groundwater monitoring, and methane monitoring. Petitioners also offered Exhibit #12 concerning levels of methane at the facility. This exhibit was received subject to the introduction of additional evidence to show its probative value. No further evidence on this subject was introduced and therefore this exhibit was given no further consideration. Furthermore, Petitioners presented no evidence supporting allegations in the Petition that operation of the Anderson County Landfill should not be transferred to Respondent ARL. Although Petitioners did make allegations concerning operational issues at the facility, none of these allegations indicated ARL could not operate the landfill in compliance with its permit and, in fact, several witnesses testified as to improved operations at the landfill.

Therefore, at the close of Petitioners' case, no admissible evidence had been presented to substantiate any challenge regarding the adequacy of technical aspects/design and construction aspects associated with issuance of the permit subject to this appeal. As such, these challenges were dismissed, leaving the following for consideration: (a) The four legal issues regarding the requirement for a Facility Issues Negotiation Process, the adequacy of a consistency demonstration with the County Solid Waste Management Plan, the adequacy of a needs demonstration, and the need for a siting study, including a hydrogeocharacterization evaluation; (b) Nuisance issues, concerning noise, dust, odor, increased truck traffic; and (c) The impact of Consent Order 94-21-SW.

Landfill Siting Study

9. Since Permit #042651-1101 did not involve the construction of a new facility or a lateral expansion, the Department did not perform a landfill siting study. Furthermore, no evidence suggested that the construction of this vertical expansion would cause any hydrogeologic concerns or other siting problems.

Facilities Issue Negotiation (FIN) Process

10. The Department did not require Anderson County to initiate the FIN Process for the permit. Furthermore, any issues negotiated in the FIN Process would not have changed or effected the technical requirements of the permit.



Needs Assessment

11. The Department generally relies on the assessment of the individual counties to evaluate whether there is a need for a given facility, combined with its own evaluation of the State Plan. In this case, the Anderson County Administrator provided a letter dated December 30, 1997, asserting a need for 438,000 tons per year. Though the letter did not specifically set forth the figures supporting the statements of need, County Council approved an amendment to the Anderson County Solid Waste Management Plan in a manner consistent with the solid waste disposal option afforded by the permit. Therefore, the permit was consistent with the needs expressed by Anderson County.

Furthermore, the permit was consistent Anderson County's Solid Waste Management Plan and amendments thereto and also was consistent with the State plan. The expansion of the Anderson County Landfill was designed to handle waste from Anderson County, a proposed regional facility, and to accommodate private haulers not specifically covered by Anderson County's Plans. Under regulation 61-107.258.120, the allowable rate of disposal based on facility design, expected operational life, and the area to be served by the facility are factors which are properly considered. In addition, the permit fulfills the long-term needs within the County. Petitioners presented no evidence that demonstrated there was no need for the landfill unit addressed by the permit, or that indicated that DHEC should not rely upon the information provided by the County in making its determination with regard to need. Therefore, I find that the Petitioners did not prove by a preponderance of the evidence that Anderson County's demonstration of need was inadequate.

Consistency Determination

12. DHEC and three other counties, including Anderson County, entered into Consent Order 94-21-SW in an effort to establish a tri-county landfill disposal facility which could serve as a regional waste disposal facility. Petitioners were not a party to the Consent Order. Afterwards, Anderson County encountered potential legal and cost concerns in entering into a proposed tri-county landfill. Therefore, Anderson County sought to expand the Anderson County Landfill as a regional solid waste disposal facility to resolve its waste disposal needs and hopefully that of the tri-county area. County Council, thereafter, approved the amendment to the Anderson County Solid Waste Management Plan in a manner consistent with the solid waste disposal option afforded by the permit. The County also provided DHEC letters indicating that issuance of the permit was consistent with the County's current and future solid waste management needs despite the above Consent Order. Petitioners presented no evidence contradicting DHEC's testimony or otherwise indicating that the Anderson County Council failed to provide this approval.

13. Petitioners offered Exhibit #3 as evidence that the Anderson County Solid Waste Management Plan was inconsistent with issuance of the permit. However, Exhibit #3 is not inconsistent with the permit. Although the County's plan at that time was to establish a regional waste facility at a site other than the existing Anderson County Landfill, the language of the document clearly indicates that the County's plans included the "extended life of the Big Creek landfill."

Nuisance Issues

14. In the past, the Petitioners have experienced the following problems:

a. Annoying noises from the landfill during hours the landfill operates, including the sounds of heavy equipment, such as backup alarms and booming sounds from devices designed to scare off seagulls and vultures;

b. Undesirable odors from the landfill;

c. Dust blowing from the landfill onto their property;

d. Long operating hours at the landfill, starting as early as 6:30 a.m. and at times continuing well into the night;

e. The presence of vultures and other birds scared from the landfill onto the property owned by the individual Petitioners;

f. Litter blowing from the landfill onto their property; and

g. Surface water runoff from the landfill coming onto Petitioner Jerry Page's property.

15. Noise, dust and odors were associated with the Anderson County Landfill in the past. Though the evidence indicated that those problems have been allayed since ARL took over operations at the landfill, odors are occasionally noticeable, especially in the morning hours. Furthermore, the evidence did not establish that odors and/or dust from the landfill operations of the vertical expansion of the facility would cause any specific instances of adverse impact to human health or the environment. In addition, concerns posed by dust and odor can be addressed in part by the operation and maintenance requirements for the landfill, which are included and/or incorporated into the permit for this facility. However, I find that the evidence in this regard, supports the additional requirement that ARL use all available "best management practices," including reducing the size of the dump face and using "masking" agents to reduce the odor experiences by adjacent property owners. If those practices are not successful, ARL should then begin covering the face twice daily, during its operation Monday though Friday and once on Saturday as provided in S.C. Code Ann. Regs. § 61-107.258.21 (a) (Supp. 1998).



16. The hours of operation for the landfill are:

a. 7:30 a.m. to 3:30 p.m., Monday through Friday; and

b. 7:00 a.m. to 12:00 p.m., Saturday.

17. Although the presence of birds has been associated with the landfill in the past, the current landfill operators took steps to minimize the number of birds surrounding the landfill and offered bird control measures to adjacent property owners. There was no showing that the presence of any birds posed threats to human health or the environment, or why the presence of birds could not be sufficiently addressed through operation and maintenance requirements.

18. The permit adequately addresses the issue of blowing litter, to the extent allowed by the regulations, by operational requirements written into the permit. In addition, concerns posed by blowing litter can be addressed in part by the operation and maintenance requirements for the landfill, which are included and/or incorporated into the permit for this facility.

19. There have been problems in the past with surface water runoff from the landfill coming onto Petitioner Jerry Page's property. However, ARL intends to solve that problem by constructing a drainage ditch.

20. Although substances have leaked from the back of trucks leaving the landfill and have come off of truck's tires, there was no showing that the substances complained of were contaminated or resulted in any threat to human health or the environment. Furthermore, there was no showing that DHEC had failed to adequately assess any such off-site impact or that DHEC could not address any such impact if it was found to exist. To the contrary, the truck and tire wash proposed by ARL would greatly reduce the potential for materials coming off of tires and substances leaking out of the trucks onto the road. Therefore, based upon the above evidence, I find that the truck and tire wash facility is necessary to insure that no threat to human health or the environment is posed as a result of this landfill's operation.

21. The Department responded to the previous complaints of the Petitioners in a timely fashion in accordance with the regulations.

22. The existing operating and/or maintenance requirements or practices are currently adequate, and if an inadequacy arises in the future, DHEC can adjust these requirements to sufficiently protect human health and/or the environment.





DISCUSSION AND CONCLUSIONS OF LAW

General Findings

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. 1998).

2. S.C. Code Ann. §44-96-300(E) and (F) (Supp. 1998) provide for contested case hearings, conducted pursuant to the APA, to be held if an aggrieved party challenges the granting, denial, or conditions imposed upon a solid waste permit issued by the Department.

3. 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. S.C. Code Ann. §1-23-610 (Supp. 1998).

4. The South Carolina Solid Waste Policy and Management Act, S.C. Code Ann. §44-96- 10, et seq.(Supp 1998), S.C. Code Ann. §§44-96-290, 44-96-20, and §48-1-100 (1976 and 1998) of the Pollution Control Act authorize DHEC to promulgate regulations governing the issuance of solid waste landfills.

Involuntary Nonsuit

5. Petitioners challenged the design, operation, and monitoring of the vertical expansion and questioned the propriety of allowing the permittee to use the selected geomembrane lining, an underlying geogrid support structure, a groundwater monitoring system currently in place, and methane monitoring and venting systems. At the close of Petitioner's case in chief, counsel for the Department made a motion for involuntary nonsuit regarding those grounds. Respondents argued that these technical issues involved specific scientific knowledge, and were not questions which could be addressed by the testimony of lay witnesses or mere allegations by counsel.

DHEC is vested with the authority to provide scientific expertise and skill to interpret technical and scientific matters relating to the permitting of solid waste facilities within the State. S.C. Code Ann. §44-1-140(11)(1976). Each of the Petitioners' claims related to the adequacy of DHEC's technical review and evaluation, which is specifically related to areas of special training and expertise of the Department. DHEC determined that the vertical expansion unit for which the permit was issued meets the requirements of Subtitle D of the Federal Resource Conservation and Recovery Act, 42 U.S.C. §6901 to 6975(I), as implemented by the South Carolina Solid Waste Policy and Management Act, and applicable regulations. The only expert testimony offered by Petitioners to support their challenge of the technical issues referenced above was the deposition testimony of Mr. Patrick O'Malley, who Petitioners asserted was an expert on these issues.

Rule 52 of the Administrative Law Judge Division specifies that Rule 32 of the South Carolina Rules of Civil Procedure is to be looked to as guidance rather than as a binding rule in proceedings before the Administrative Law Judge Division. Rule 32 allows for the use of deposition testimony at trial, but limits the use to those situations in which the absence of the deponent is not "procured." "Procurement" in this sense does not mean that the witness has to be absent for some illicit reason, but rather simply means the witness was otherwise available but was not offered to testify at trial. Since there was no showing that Mr. O'Malley could not attend the hearing and there was no indication until two days prior to the date the hearing began that Mr. O'Malley's deposition would be used instead of his testimony, his deposition was not admissible.

Furthermore, the use of deposition testimony under Rule 32 of South Carolina Rules of Civil Procedure is not unlimited. The trial court has broad discretion to limit the use of such testimony under the South Carolina Rules of Evidence. Polozie v. United States, 853 F. Supp. 68, 71-72 (D. Conn. 1993). Rule 804 of the South Carolina Rules of Evidence, provides that former testimony, such as a deposition, may only be used at trial if it was taken under circumstances where the party taking the deposition had the same motive as he would at trial. The facts above indicate that counsel for Respondents were not on notice that the witness would not be presented at trial and were informed that the Petitioners intended to present the witness. Respondents' counsel would have approached the deposition differently had they been notified that Mr. O'Malley would not be testifying at trial. Under these circumstances, I therefore excluded the deposition because Mr. O'Malley was unavailable for cross-examination and the Respondents, as well as the Court, would have been prejudiced by Mr. O'Malley's absence. See S.C.R. Evid. 403. Thereafter, Petitioners offered no other expert testimony on these technical issues.

At the close of Petitioners' case, the Respondents moved for nonsuit on all issues presented. To prove their technical challenges, Petitioners had the burden of proving the insufficiency of DHEC's technical review and determination with regard to the permit by a preponderance of the evidence. National Health Corp. v. South Carolina Dept. of Health and Envtl. Ctrl., 298 S.C. 373, 380 S.E.2d 841 (Ct. App. 1989). Based on the lack of any sustaining evidence on the technical/design and construction challenges discussed above, including the lack of any expert testimony contradicting the adequacy of DHEC's evaluation and/or treatment of these issues, Petitioners failed to sustain their burden of proof as a matter of law and these challenges were dismissed from further consideration.

Therefore, I find that Petitioners failed to carry their burden of offering competent evidence showing facts upon which a right to relief on those issues could be based. As a result, I granted Respondent's motion for involuntary nonsuit on all issues except for those dealing with noise, dust, odor, and increased truck traffic, and those concerning alleged procedural deficiencies in the Department's issuance of the permit. Included in the dismissed claims was the argument that the Solid Waste Policy and Management Act precluded all vertical expansions. The remaining issues regard the following: (a.) Alleged procedural deficiencies in DHEC's issuance of the permit; and (b.) Nuisance- related complaints of alleged odor, vectors, noise, truck traffic and dust that Petitioners charged would be caused by operation of the facility under the challenged permit.

Facility Issues Negotiation Process

6. Petitioners challenge the issuance of the permit on the grounds that DHEC failed to initiate the "Facility Issues Negotiation Process" ("FIN Process") as provided in S.C. Code Ann. § 44-96-470 (Supp. 1998). The FIN Process is an opportunity for members of the public to negotiate with DHEC on specified issues arising from the permitting of a municipal solid waste facility. Section 44-96-470 provides that the FIN Process is triggered "[u]pon the submission of any permit application to the department for any municipal solid waste disposal facility." S.C. Code Ann. § 44-96-470(A) (Supp. 1998) (emphasis added).

The term "facility" is defined by statute as "all contiguous land, structures, other appurtenances and improvements on the land used for treating, storing, or disposing of solid waste. A facility may consist of several treatment, storage, or disposal operational units, including but not limited to, one or more landfills, surface impoundments, or combination thereof." S.C. Code Ann. § 44-96-40(13) (Supp. 1998) (emphasis added). See S.C. Code Ann. Regs. 61-107.258.2(l) (Supp. 1998).

The term "facility" is thus distinguished from a "unit," (referred to in the regulations as a Municipal Solid Waste Landfill Unit, or "MSWLF Unit"). A facility is the entire disposal site as well as the contiguous property, improvements, and structures, and may be made up of one or more MSWLF units. A MSWLF unit is defined as "a discrete area of land or an excavation that receives household waste. . . ." S.C. Code Ann. Regs. 61-107.258.2(p) (Supp. 1998). The submission of an application to establish a municipal solid waste disposal facility will always involve a new land use. Once a facility is established, it may be expanded or modified by adding units. I conclude that this application is not an application to construct a disposal facility, but is instead an application to construct a disposal unit.

In addition, a distinction is drawn in the regulations between a "lateral expansion" and a "vertical expansion." A "lateral expansion" is "a horizontal expansion of the waste boundaries of an existing MSWLF unit." S.C. Code Ann. Regs. 61-107.258.2(n) (Supp. 1998). A lateral expansion constitutes a new land use since waste is placed on new ground. On the other hand, a "vertical expansion" may occur by placing waste on top of an existing facility unit. A "vertical expansion," such as the one at issue in this case, is defined as "an expansion of an existing waste management unit above previously permitted elevations for the purposes of gaining additional capacity." S.C. Code Ann. Regs. 61-107.2(gg) (Supp. 1988) (emphasis added). It is undisputed that this application involves a vertical expansion rather than a lateral expansion.

Nothing in either Section 44-96-470 or the regulations requires the FIN Process for the permitting of a vertical expansion at an existing facility. Pursuant to Section 44-96-470, the FIN Process is triggered by applying to permit a new municipal solid waste management facility. The regulations governing the FIN Process apply the process to "applications for a permit to construct and operate a new MSWLF (Municipal Solid Waste Landfill), or a lateral expansion at an existing MSWLF. . . ." S.C. Code Ann. Regs. 61-107.258.80(b)(1) (Supp. 1998) (emphasis added). The establishment of a new landfill or a lateral expansion of a landfill both involve placing waste on or in previously unimpacted land. The plain language of the statute and the regulation indicate that the FIN Process applies only to permit applications for new municipal solid waste landfills and to lateral expansions at existing landfills. By definition, a vertical expansion does not constitute either a "municipal solid waste management facility" or a "new MSWLF," because it involves an "expansion of an existing waste management unit . . . ." S.C. Code Ann. Regs. 61-107.258.2(gg) (Supp. 1998). Likewise, a vertical expansion cannot constitute a "lateral expansion of an existing MSWLF," since it involves an expansion of a unit above previously permitted elevations rather than a horizontal extension of the boundaries of a unit. Id.; S.C. Code Ann. Regs. 61-1-7.258.2(n) (Supp. 1998). Since it is undisputed that the permit in this appeal involves a vertical expansion of an existing municipal solid waste landfill unit, I conclude that the FIN Process is not applicable to the permit application in this case.

Even if the FIN Process were applicable to this permit, Petitioners have failed to show that the deficiencies of which they complain result in prejudice to them. See Ballenger v. South Carolina Dept. of Health & Envtl. Control, 331 S.C. 247, 500 S.E.2d 183 (Ct. App. 1998) (no basis for challenging permit under circumstances that could not prejudice Petitioners). The FIN Process is an opportunity for non-binding negotiation between local residents and the permittee on non-technical issues. It creates no obligation on the part of the permittee to accept limitations that local residents may press. Indeed, the permittee has no obligation to do anything initially other than give notice of the submission of the permit application. It need not begin negotiations unless within thirty days of the public hearing arranged by the County "a written petition by at least twenty-five affected persons, at least twenty of whom shall be registered voters of or landowners in the host jurisdiction," is submitted to the host local government--in this case, Anderson County. S.C. Code Ann. § 44-96-470(F) (Supp. 1998).

In essence, the FIN Process gives local residents an opportunity to attempt to negotiate with the permittee, and the County in which a facility will be constructed, non-technical facility operations issues such as hours of operation, recycling efforts, protection of property values, traffic routing and road maintenance, and establishment of local advisory committees. See S.C. Code Ann. § 44-96-470(M) (Supp. 1998). However, "[t]he department shall not be a party to the [FIN] negotiation process … nor shall technical environmental issues which are required by law and by regulation to be addressed in the permitting process be considered in the negotiable items by the parties in the [FIN] negotiation process." Id.; S.C. Code Ann. § 44-96-470(E) (Supp. 1998) (emphasis added). Therefore, the FIN Process cannot change any of the technical requirements of the permit. To the extent the Petitioners' complaints concern technical permit requirements, the omission of the FIN Process would not prejudice them.

Furthermore, even if the FIN Process applied to this permit, Petitioners are not prejudiced because it is undisputed that negotiations under the FIN Process can be invoked for the Anderson County Landfill if the petition requirements of Section 44-96-470(F) are met in connection with the pending application for the lateral expansion permit for this site. See S.C. Code Ann. § 44-96-470(F) (Supp. 1998). Testimony indicated that the waste disposal space provided by this permit will only last, at current waste disposal rates, for approximately one year, during which time the County will be required to seek a permit for a lateral expansion. Notification of the initiation of the FIN Process will be required in conjunction with that permit application, and the County and interested parties must conduct the negotiation process before the lateral expansion permit may be granted. This process will occur in any case within the next twelve months.

Absent a showing of prejudice to the Petitioners, which, for the reasons stated, was not shown, failure to follow the FIN Process, if it had applied, would not require denial of the permit. Ballenger, supra.

Site Selection Study

7. Petitioners further contend that the permit should be denied because DHEC did not require that a site selection study, including a hydrogeologic assessment, be performed. S.C. Code Ann. § 44-96-320(A)(Supp. 1998) requires DHEC to "promulgate, in addition to regulations generally applicable to all solid waste management facilities, regulations governing the siting … of all landfills that dispose of solid waste." The regulations governing landfill siting studies, including preliminary hydrogeologic characterization reports, are found at S.C. Code Ann. Regs. 61-107.258.81(a)(Supp. 1998). The regulation requires a siting study for "[a]ll new MSWLF's [Municipal Solid Waste Landfills] and lateral expansions of existing MSWLF's." At the hearing, the Petitioners argued that this regulation required a siting study for the permit in this case. DHEC, on the other hand, believes that no siting study is required for a vertical expansion of an existing landfill.

In construing statutory or regulatory language, the statute or regulation should be read as a whole and sections which are part of the same general law must be construed together and each one given effect, if it can be done by any reasonable construction. Higgins v. State, 307 S.C. 446, 415 S.E.2d 799 (1992); Seckinger v. Vessel Excalibur, 326 S.C. 382, 483 S.E.2d 775 (Ct. App. 1997). Therefore, in determining whether a vertical expansion constitutes a "new MSWLF" or a "lateral expansion" of an existing MSWLF, it is appropriate to examine Regulation 61-107.258 as a whole. S.C. Code Ann. Regs. 61-107.258.1(b) states that the regulations apply "to owners and operators of new MSWLF units, existing MSWLF units, and lateral expansions, except as otherwise specifically provided in this regulation."

A reading of the entire regulation indicates that its drafters have created several specific categories of applicability which are exceptions to the general rule stated in Regs. 61-107.258.1(b). First, certain provisions, most notably the operating criteria and closure criteria, apply to "all MSWLF units," including Regs. 61-107.258.20 (procedures for excluding the receipt of hazardous waste and special waste); Regs. 61-107.258.21 (cover material requirements); Regs. 61-107.258.22 (disease vector control); Regs. 61-107.258.23 (explosive gases control); Regs. 61-107.258.25 (access requirements); Regs. 61-107.258.26 (run-on/run-off control systems); Regs. 61-107.258.50 (groundwater monitoring and corrective action); and Regs. 61-170.258.60 (closure criteria). Since these requirements apply to "all MSWLF units," they would undoubtedly apply to the permit at issue in this case.

There is another category of regulations within the section entitled "Location Restrictions" which applies to "new MSWLF units, existing MSWLF units, and lateral expansions." See, e.g., Regs. 61-107.258.10(a) (airport safety); Regs. 61-107.258.11 (floodplains); and Regs. 61-107.258.15 (unstable areas). Regardless of whether this vertical expansion is considered a "new MSWLF unit" or an "existing MSWLF unit," these regulations would apply.(3)

Other location restrictions apply to "new MSWLF units and lateral expansions," including Regs. 61-107.258.12 (wetlands); Regs. 61-107.258.13 (fault areas); and Regs. 61-107.258.14 (seismic impact zones). The design criteria contained within Part D of the regulations also apply to "new MSWLF units and lateral expansions." See Regs. 61-107.258.40(a). DHEC considers vertical expansions subject to these design criteria, and applied the criteria in this case.

In contrast to the term "MSWLF units" used in the foregoing regulations, the "Landfill Siting Study" regulations, S.C. Code Ann. Regs. 61-107.258.81 (Supp. 1998), apply to "[a]ll new MSWLF's and lateral expansions of existing MSWLF's." Regs. 61-107.258.81(a) (emphasis added). Therefore, in order for the siting study requirements to apply in this case, the permit application must either be for a "new MSWLF" or a "lateral expansion" of an existing MSWLF. As previously discussed, this permit does not involve a lateral expansion. The question remains whether this project can be considered a "new MSWLF."

A "MSWLF unit" is a "discrete area of land or an excavation that receives household waste. . . ." Regs. 61-107.258.2(p). A "MSWLF unit," which is equivalent to an individual disposal cell, is distinguished from a "MSWLF" (Municipal Solid Waste Landfill), or a "facility," which constitutes the entire landfill site, including all MSWLF units, all contiguous land, structures and improvements. See S.C. Code Ann. Regs. 61-107.258.2(I) (Supp. 1998). In this case, the entire Big Creek landfill, which has been located on this site for a number of years, constitutes a "MSWLF" or a "facility." This permit application seeks to construct a new lined cell with a leachate collection system on top of an existing MSWLF unit within an existing facility. I conclude, therefore, that the permit application in this case is for the construction of a "MSWLF unit" and not for a "MSWLF." Accordingly, the siting study requirements of Regs. 61-107.258.81(a), including the performance of a hydrogeologic characterization report, do not apply in this case. Had the drafters of the regulation intended for the siting study requirements to apply to "all MSWLF units" or to "new MSWLF units," they certainly would have used that language, as demonstrated in other parts of Regs. 61-107.258. Given the inapplicability of the siting study requirements, DHEC's failure to require a siting study does not constitute grounds for denial of the permit.

Needs Assessment Determination

8. Petitioners contend that an adequate needs assessment did not occur prior to issuance of the permit. Section 44-96-290(E) provides that "no permit to construct a new solid waste management facility or to expand an existing solid waste management facility may be issued until a demonstration of need is approved by the department." S.C. Code Ann. § 44-96-290(E) (Supp. 1998). Additionally, the County Solid Waste Management Plan must estimate the long-term needs within the County for a 20 year period. S.C. Code Ann. §44-96-80 (a)(1) and (3) (Supp. 1998). There are no existing regulations regarding the requirements for a needs assessment. Previous regulations regarding requirements for a needs assessment were struck down as unconstitutional. In the absence of any specific regulations, this Court must consider all relevant evidence and materials in determining what demonstrates sufficient need for a unit or facility.

Consistency Determination

9. S.C. Code § 44-96-290(G) provides that: "[n]o permit to construct a new solid waste management facility or to expand an existing solid waste management facility within a county or municipality may be issued by the department unless… the proposed facility or expansion is consistent with the local or regional solid waste management plan and the state solid waste management plan." County Council must approve revisions of a County Solid Waste Management Plan and must determine whether proposed facilities or units are consistent with the plan. No evidence was introduced contradicting DHEC's testimony that Anderson County Council approved the revisions to the County Consistency Plan to account for the subject permit, consistency demonstration requirements were satisfied for issuance of the permit.

Petitioners also argued that, pursuant to Section 44-96-80(O), "amendments to the county or regional solid waste management plans must be adopted and implemented in the same manner as provided for in the initial plan," and that this was not done in this case because the Anderson County Solid Waste Advisory Council was not involved in the process of reviewing the consistency of the waste disposal option afforded by the permit. S.C. Code Ann. § 44-96-80(O) (Supp. 1998). The Solid Waste Policy and Management Act requires the County Council to vote on and approve amendments to the county plan. No evidence was presented disputing that this was appropriately done for a determination of the consistency for the disposal option afforded by the permit. The Solid Waste Policy and Management Act also calls for the existence of a Solid Waste Advisory Council to make recommendations to County Councils in formulation of the initial County Solid Waste Plans. However, these advisory councils merely provided guidance to the County Councils who were required to originally determine and vote on consistency. There is no requirement in the Act that these advisory councils continue to exist after initial formulation of the county solid waste plans. The subsequent consistency issues may be dealt with directly by the County Councils.

Thus, the only requirement for a consistency determination is that it be approved by County Council as consistent with the County Solid Waste Management Plan. No evidence was presented contradicting DHEC's testimony that a consistency determination was properly made for the permit.

Consistency with Consent Order 94-21-SW

10. Petitioners further argued that DHEC could not issue the permit because it allowed the continued operation of the Anderson County Landfill in violation of Consent Order 94-21-SW. There is no basis to sustain this challenge. The Petitioners were not a party to the Consent Order in question, and they were not third party beneficiaries to that Order. They have no other legal basis to enforce the Consent Order.(4)

Consent Order 94-21-SW is not one of the items DHEC is instructed to consider in evaluating whether or not to issue the permit. In addition, DHEC has the discretion to alter or amend existing Consent Orders and has accomplished this to the extent necessary to issue the permit. There was no showing that this was an abuse of DHEC's discretion.

Additionally, Consent Order 94-21-SW does not preclude upgrading the Anderson County Landfill to the requirements of Subtitle D of Resource Conservation and Recovery Act (RCRA) to allow operation beyond the dates set forth in the Consent Order. The Consent Order addresses the establishment of the tri-county facility and reflects a location in Clemson, South Carolina, as the location proposed at the time the Order was executed. As this location does not presently exist, there is nothing in the Order indicating that the affected counties cannot continue using existing permitting options or seek to establish the tri-county facility at an alternative location including the Anderson County Landfill site. The Department is not bound to require the location of the landfill in a specific place. Establishment of a regional Subtitle D compliant landfill at the Anderson Regional Landfill could satisfy the requirements of Consent Order 94-21-SW for a tri-county facility. Furthermore, Anderson County Council approved the amendment to the Anderson County Solid Waste Management Plan in a manner consistent with the solid waste disposal option afforded by the permit. Therefore, Permit #042651-1101 is consistent with the amended County Solid Waste Management Plan.

Nuisance Factors

11. At the hearing, the Petitioners voiced concerns about the proposed vertical expansion of the Big Creek facility. They claim that the proposed operation will produce excessive odor, noise, blowing litter, vectors, increased truck traffic, and potentially hazardous materials coming from trucks traveling to and from the facility. They also presented evidence that some of these problems had existed under the previous management of the facility. The Respondents contend that issues relating to "nuisance factors" are not properly addressed within the scope of a permit appeal, but rather are more appropriately addressed by local governments in land use planning.

This Court's consideration of Petitioners' opposition to the issuance of the permit is limited to issues of environmental and health protection and pollution control. However, under certain conditions, "nuisance factors" such as odors, dust and litter may, in and of themselves, constitute a threat to the health and welfare of the public and, in particular, neighboring residents. Moreover, the Department is no less responsible under the Pollution Control Act for regulating and controlling the operation of the Anderson County Facility and the resulting discharges of waste into the environment, including odors, dust, and litter, than for regulating any other pollutants which are injurious to human health, welfare and the environment. The Department acknowledges its responsibility by addressing these impacts in its permitting regulations as well as in the conditions it included and incorporated into this permit. In fact, the Department has broad powers relating to the protection of the environment and the health and welfare of the citizens of South Carolina, and, in accordance with those powers, may "take action to abate, control and prevent pollution of the air and water resources of this State consistent with the public health, safety and welfare of its citizens." S.C. Dep't of Health and Envtl. Control v. Armstrong, 293 S.C. 209, 359 S.E.2d 302, 305 (Ct. App. 1987). Such action may include the issuance, denial, revocation, suspension, or modification of permits under such conditions as the Department may prescribe for the discharge of waste into the environment or for the installation or operation of disposal systems. See S.C. Code Ann. § 48-1-50(5) (1987). Therefore, the Department has the duty to consider nuisance impacts resulting from the operation of the facility being permitted, and to impose sufficient conditions in the permit to prevent harm to the environment or to the health and welfare of nearby residents. In addition, should threats to the environment, public health or welfare arise from the operation of the facility, DHEC has the duty and authority to inspect the facility and to require immediate abatement of nuisances. See S.C. Code Ann. § 44-1-140 (1976).

While the Petitioners did not present sufficient reliable and probative evidence of nuisance impacts resulting from the operation of the Big Creek facility to warrant denial of the permit, they produced sufficient evidence to support the imposition of additional conditions upon the permit. The conditions contained in the proposed permit, with additional restrictions as set forth below, adequately address the applicable health and environmental concerns arising from the construction of the vertical expansion to the facility.

However, while the Department's authority is broad, in the absence of a duty related to the health and welfare of the public, neither the Department nor the Administrative Law Judge Division is charged with the responsibility of establishing the land use mix within an area. Land use decisions are primarily the responsibility of the local zoning authorities, who exercise wide discretion in decision making. See Bear Enterprises v. County of Greenville, 319 S.C. 137, 459 S.E.2d 883 (Ct. App. 1995); Rushing v. City of Greenville, 265 S.C. 285, 217 S.E.2d 797 (1975). It is beyond the jurisdictional scope of the Administrative Law Judge Division to intervene in local zoning matters or to enjoin a potential future civil nuisance. Id. Therefore, to the extent that the Petitioners' contentions center around the potential interference with the use and enjoyment of their property likely to result from the landfill's operation, rather than the imposition of a threat to their health and welfare, a court of equity is the proper forum to adjudicate such a cause of action. See O'Cain v. O'Cain, 322 S.C. 551, 473 S.E.2d 460 (1996).



ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby:

ORDERED that DHEC shall grant Municipal Solid Waste Landfill Permit #042651-1101 to Anderson Regional Landfill, L.L.C., with the additional conditions as set forth below:

1. ARL shall use all available "best management practices," including reducing the size of the dump face and using "masking" agents to diminish the odor experienced by adjacent property owners. If DHEC determines that odors are significantly detectible upon adjacent landowners' properties on more than two occasions, ARL shall then begin covering the face twice daily, during its operation Monday through Friday and once on Saturday as provided in S.C. Code Ann. Regs. § 61-107.258.21 (a) (Supp. 1998).

2. The hours of operation for the landfill will be limited by the permit to:

a. 7:30 a.m. to 3:30 p.m., Monday through Friday; and

b. 7:00 a.m. to 12:00 p.m., Saturday.

3. The truck and tire wash shall be completed within two months from the date of this Order.

4. ARL shall implement the necessary safeguards to ensure that running water from the landfill onto Jerry Page's property is eliminated within two months from the date of this Order.

5. ARL shall pave the entrance road to the landfill within two months from the date of this Order.

AND IT IS SO ORDERED.





__________________________________

Ralph King Anderson, III

Administrative Law Judge





Columbia, South Carolina

March 8, 1999

1. Subtitle D is found at S.C. Code Regs. 61-107.258.40, Design Criteria. (Supp. 1998)

3. Because a vertical expansion is defined as "an expansion of an existing waste management unit above previously permitted elevations for the purposes of gaining additional capacity," S.C. Code Ann. Regs. 61-170.258.2(gg) (Supp. 1998)(emphasis added), an argument can be made that the proposed vertical expansion in this case is not a "new MSWLF unit." On the other hand, since a "new MSWLF unit" is defined as "any municipal solid waste landfill unit that has not received waste prior to the effective date of this part (October 9, 1993), S.C. Code Ann. Regs. 61-170.258.2(q) (Supp. 1998), this vertical expansion, which will be constructed atop an existing unit but which will be separated from that unit by a liner, is arguably a "new MSWLF unit." However, as discussed below, even if this vertical expansion is considered to be a "new MSWLF unit," the outcome of the case is not affected.

4. 4 While there are no South Carolina cases on point, federal courts have held that there is no right for one not a party to a Consent Order or Consent Agreement to challenge the validity of the Order or Agreement. United States Oil Company, Inc. v. Dept. of Energy, 510 F. Supp. 910 (E.D. Wis. 1981); Payne 22, Inc. v. United States, 762 F.2d 91 (1985), United States. v. Missouri Self Serv. Gas Co., 671 F. Supp. 1232 (W.D. Mo. 1987); Midwest Petroleum Co. v. Self Service Gas Co., 760 F.2d 297 (1985); A.B. Littlefield, et al. v. United States. Dept. of Energy, 1984 WL 791 (D.D.C). Where such a right exists, it apparently is limited to situations in which it is created by statute. See N.C. Gen. Stat. § 143-215.2(a)(1)(1994). South Carolina has no such statute.


Brown Bldg.

 

 

 

 

 

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