Plan Panned

MEMO TO: South Carolina County Officials
FROM: State Supreme Court
RE: Industrial Solid Waste Management Your voice in landfill siting is not the last word — particularly if your waste plan is vague or indifferent.

Southeast Resource Recovery Inc. (SRRI) wants to build an industrial solid waste landfill in Newberry County, S.C. Besides imposing technical standards and conditions, state law requires this type of facility to conform with local land use and other ordinances. Accordingly, SRRI submitted a request to the county council for a determination that the proposed facility was consistent with the county's solid waste management plan. In August 1995, the council issued a letter of consistency (LOC) to SRRI after determining that the proposed landfill was in accord with the plan.

With the LOC in hand, the company began conducting environmental tests and studies at the proposed site. In late 1995, SRRI submitted its permit application to the state Department of Health and Environmental Control (DHEC). Over the next 18 months, the site underwent a wetlands evaluation. Ultimately, the company voluntarily imposed a 200-foot buffer around the wetland areas.

During the 1997 legislative session, the state general assembly passed a bill preventing the construction of a commercial industrial solid waste landfill within 1,000 feet of a residence. Thereafter, owners of property adjacent to the proposed site placed a mobile home on their property. SRRI then redesigned the landfill to establish the required buffer from the mobile home. DHEC completed its evaluation of the application and issued the permit in September 1997.

Local residents requested an administrative hearing to challenge the permit issuance. After the hearing concluded but before a decision was issued, the county revoked its LOC. The citizens and DHEC persuaded the hearing officer to reopen the case for consideration of the county's revocation. In January 1999, the hearing officer issued an order blocking the permit based on the LOC revocation.

A circuit court judge upheld the decision, quoting a goal of the county's solid waste plan to “preserve, protect and enhance the environmental quality of [the County].” SRRI appealed to the state supreme court.

The high court noted that, under the plan, industrial generators are responsible for their own waste collection and disposal. Private haulers operate under contracts with industries, “completely outside the … knowledge or control of the county,” said the court quoting from the plan. This provision, the court concluded, cannot prevent the establishment of an industrial waste landfill. Moreover, the plan's “broad, general statement of goals” cannot be the basis for concluding the proposed facility or, for that matter, any proposed landfill is contrary to the plan.

Citing the DHEC's “thorough analysis of the proposed facility,” the court found no inconsistencies with the county plan or state regulations and ordered the permit to be issued and effective.

[Southeast Resource Recovery Inc. v. South Carolina Dept. of Health and Environmental Control, 2004 WL 834030, Apr. 19, 2004]

The legal editor welcomes comments from readers. Contact Barry Shanoff via e-mail: [email protected].

The columnist is a Rockville, Md., attorney and serves as general counsel of the Solid Waste Association of North America.