SC Administrative Law Court Decisions

STATEMENT OF THE CASE

This matter comes before the South Carolina Administrative Law Judge Division pursuant to the Respondent South Carolina Department of Health and Environmental Control's (Department) Notice of Motion and Motion for Summary Judgment filed September 20, 1999. The Respondent Northeast Sanitary Landfill (NESL) filed a Motion to Join and/or Support the Department's Motion on October 20, 1999. The Petitioners filed a Memorandum in Opposition to Motion for Summary Judgment of SCDHEC on November 1, 1999. The Petitioners also filed a Memorandum in Opposition to NESL's Memorandum to Join or Support DHEC's Motion for Summary Judgment on November 5, 1999. A hearing was held at the Administrative Law Judge Division, 1205 Pendleton Street, Columbia, South Carolina on November 10, 1999. NESL's Motion to Join in the Department's Motion for Summary Judgment was granted and argument on the joint Motion for Summary Judgment was heard on that date.

STANDARD OF REVIEW

Summary judgment is proper where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Rule 56(c), SCRCP; Myrtle Beach Hospital, Inc. v. City of Myrtle Beach, 333 S.C. 590, 510 S.E.2d 439 (Ct. App. 1998). In determining whether any triable issues of fact exist, the court must view the evidence and all reasonable inferences in the light most favorable to the party opposing the motion. Rothrock v. Copeland, 305 S.C. 402, 409 S.E.2d 366 (1991).

Under Rule 56(c), SCRCP, the party seeking summary judgment has the initial burden of demonstrating the absence of a genuine issue of material fact. Baughman v. American Tel. & Tel. Co., 306 S.C. 101, 410 S.E.2d 537 (1991). Once the party moving for summary judgment meets the initial burden of showing an absence of evidentiary support for the opponent's case, the opponent cannot simply rest on mere allegations or denials contained in the pleadings. Rule 56(e), SCRCP; SSI Med. Servs., Inc. v. Cox, 301 S.C. 493, 392 S.E.2d 789 (1990). Rather, the non-moving party must come forward with specific facts showing there is a genuine issue for trial. Id.

FACTUAL BACKGROUND

On November 1, 1988, the Department granted permit DWP-134 to NESL to construct and operate a Municipal Solid Waste Landfill (MSWLF) at a site located approximately 1.6 miles off Highway 601 at 1581 Westvaco Road near Eastover, South Carolina. The permit contemplated construction and operation of several waste disposal units, commonly called "phases." The latest permit modification deals with Phase 3A.

Because of changes in Solid Waste Regulations, NESL was required to submit an application for a permit modification in order to utilize remaining waste disposal space that was permitted in 1988. In 1993 the Department promulgated regulations governing the design, permitting, operation, and closure of all MSWLFs in South Carolina.⁽¹⁾ The Department further amended these regulations in 1995,⁽²⁾ requiring all operational MSWLFs to comply with the requirements of 25A S.C. Code Ann. Regs. 61-107-258.40 (Supp. 1998) entitled "Part D Design Criteria" ("Subtitle D"). Subtitle D requires all landfills, regardless of the date of the original permit, to be upgraded to include, inter alia, an impermeable membrane liner and a leachate collection system. Although NESL had unused waste disposal space that the Department had permitted in 1988, R. 61-107.258 nevertheless required NESL to submit an application for a permit modification in order to utilize that space.

On June 25, 1999, the Department issued permit #402434-1101 providing for reconfiguration of and for technical upgrades to an existing landfill cell at the NESL facility. The Petitioners filed their appeal with the Clerk of the Board on July 12, 1999, and this action followed.

ARGUMENT

The Petitioners argue that the Department violated S.C. Code Ann. § 44-96-290(G) (Supp. 1998) by approving NESL's permit modification despite the fact that the applicant had not demonstrated that the modification was consistent with Richland County Ordinances.

A. Violation of S.C. Code Ann. §44-96-290(G) (Supp. 1998)

S.C. Code Ann. § 44-96-290(G) provides: "No 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 local zoning, land use, and other applicable local ordinances if any," (emphasis added). The Department, therefore, violated S.C. Code Ann. §44-96-290(G) (Supp. 1998) only if the permit modification involved construction of a new facility or the expansion of an existing facility.

1. New Solid Waste Management Facility

The first factor that would trigger the requirement of compliance with County ordinances under S.C. Code Ann. §44-96-290(G) (Supp. 1998) would be if the permit modification constituted construction of a new solid waste management facility.

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)(98) (Supp. 1998). The facility at issue in this case is composed of the entire disposal site, as well as the property around the disposal areas, on-site improvements, and structures. Each cell or phase which was included in the original permit is part of the facility. It is uncontroverted that the NESL facility has existed at this site since 1988.⁽³⁾ This permit application, therefore, is not an application for a new facility.

2. Expansion of an Existing Solid Waste Management Facility

The second factor that would trigger the requirement of compliance with County ordinances under S.C. Code Ann. §44-96-290(G) (Supp. 1998) would be if the permit modification concerned the expansion of an existing solid waste management facility.

Under the Solid Waste Policy & Management Act, S.C. Code Ann. § 44-96-10, et seq. (Supp. 1998), an expansion of an existing facility is classified as either lateral or vertical. A "lateral" expansion is defined as a horizontal expansion of the waste boundaries of an existing MSWLF. S.C. Code Ann. Reg. 61-107.258(2)(n). A "vertical" expansion means an expansion of an existing waste management unit above previously permitted elevations for the purposes of gaining additional capacity. S.C. Code Ann. Reg. 61-107.258(2)(gg).

Lateral expansion refers to a facility expansion where the originally permitted horizontal boundaries of an existing waste management unit area are expanded into an area not previously available for waste disposal space. Similarly, a vertical expansion refers to a facility expansion where the originally permitted horizontal boundaries of an existing waste management unit are extended above previously permitted elevations for the purpose of gaining additional waste disposal capacity. Both lateral and vertical expansions have one thing in common: they refer to the enlargement of a facility's permitted waste disposal area beyond the limits that were previously set out in an existing permit for the purpose of gaining additional space in which the permittee may place waste.

Permit #402434-1101 does not expand the permitted yearly rate of disposal at NESL, nor does it expand the total permitted waste capacity; rather, it is a modification that upgrades an existing cell at an existing permitted facility.

B. Compliance with Local Regulations

The Petitioners also claim that the Department should have denied the permit because it did not comply with certain Richland County Ordinances. They challenge the issuance of the permit on two grounds: (1) the Department should not have issued the permit because Richland County denied the permit modification, and (2) the Department should not have issued the permit because it violated its own regulations by failing to ascertain that NESL was in compliance with the Richland County ordinances.

S.C. Code Ann. §44-96-290(G) (Supp. 1998) requires a determination of consistency with local zoning, land use, and other applicable ordinances only in the context of a new facility or the lateral or vertical expansion of an existing facility. The cardinal rule of statutory construction is for the Court to ascertain and effectuate the intent of the legislature. If a statute's language is plain and unambiguous, and conveys a clear and definite meaning, there is no occasion for employing rules of statutory construction and the Court has no right to look for or impose another meaning. Lester v. South Carolina Workers' Compensation Comm'n, 334 S.C. 557, 514 S.E.2d 751 (1999). The determination of legislative intent is a matter of law. State v. Baucom, 334 S.C. 371, 513 S.E.2d 112 (Ct. App. 1999). Because the permit modification in this case does not constitute an application for a new facility or expansion of an existing facility, there is no requirement to demonstrate consistency with local zoning, land use, or other local ordinances.

ORDER

Having determined that there is no genuine issue of material fact in this case, and that the moving parties are entitled to judgment as a matter of law, it is hereby:

ORDERED that the Respondents' Motion for Summary Judgment is granted, and

IT IS FURTHER ORDERED that this action is dismissed with prejudice.

AND IT IS SO ORDERED.

_________________________________

CAROLYN C. MATTHEWS

Administrative Law Judge

November 19, 1999.

Columbia, South Carolina.

1. 25A S.C. Code Ann. Regs. 61-107.258 (Supp. 1998).

2. 25A S.C. Code Ann. Regs. 61-107.258.1.k (Supp. 1998).

3. It is uncontroverted that no appeal was ever taken from the Department's granting of the 1988 permit, so this issue is not properly before this Court.