March 7, 2013
The South Carolina legislature for the second year in a row is looking to outlaw flow control, to the delight of the National Solid Wastes Management Association (NSWMA) and to the alarm of one of the state’s counties.
The Freedom to Choose Act currently is before the state Senate Medical Affairs Committee after being approved by its subcommittee in a 5-2 vote, says Phillip McAbee, a partner with waste management firm VLS Recovery Services LLC in Mauldin, S.C., in an interview. The company also is a member of the Carolinas Chapter of the NSWMA.
Senate Bill 203 is similar to House Bill 3290 that passed that chamber. The act states that county ordinances that restrict or prohibit solid waste disposal at a permitted facility or impede the development or implementation of a recycling plan are inconsistent with state law and therefore void.
The act is identical to the anti-flow control bill that died in the state legislature last year, McAbee says.
In January the U.S. District Court for the District of South Carolina upheld the waste flow control law in Horry County, dismissing claims by Sandlands C&D LLC, Gresham, S.C., and its sister company, Express Disposal Service LLC, to overturn the ordinance, which directs all waste collected inside the county to the county landfill in Conway, S.C.
In dismissing the claims, Judge Terry Wooten said, “the court concludes that the flow control ordinance regulates even-handedly in that the defendants do not discriminate with respect to which private entities can process waste generated in Horry County, provided the waste is processed inside the county and the residual waste goes to the SWA (solid waste authority) landfill,” according to court records.
Sandlands and Express Disposal plan to appeal the decision.
The courts have indicated that new state legislation is the way to overturn local flow control laws, McAbee says. The proposed legislation “makes it clear that flow control is inconsistent with state law and with our (state) solid waste management plan.”
Flow control ordinances are bad policy, McAbee says, allowing a local government to be both a regulator and a competitor at the same time.
Testifying before the Senate subcommittee he said that without passage of the act counties could force business and industries to used county-owned waste facilities, “even when there is a more competitive and preferred option available in the private sector.”
Horry County is the only county in South Carolina to implement flow control, he says. The county did so in 2009, to capture all the waste in the county and not allow it to move over state lines. Horry County also doesn’t take in any out-of-county waste.
“People should be able to choose where they take their waste,” McAbee says. In Horry County, “you’re told where to put your waste and what the rate will be. You cannot shop those services. That’s very unfair to the businesses and industry in Horry County.”
Mike Bessant, government affairs director with the Horry County Solid Waste Authority, says in an interview that several other counties in the state apply user fees or franchising, and those counties would be affected by an anti-flow control law as well. Aiken County has nine counties contracted to bring them waste, and that also could be restricted.
Bessant hopes that the federal court decision will help the legislature accept that “the Horry County ordinance fulfills a legitimate public purpose and is the best interest of the citizens.”
McAbee says Sandlands Disposal looms as a huge victim in this battle. The company operates a construction and demolition (C&D) landfill in Marion, three miles outside the county. When owner William Clyburn was granted his operating permit, he expected 80 percent of his waste volume was going to come from Horry County.
The company had 27 employees before flow control was implemented there. Clyburn’s company has seven now. “It’s devastated him,” McAbee says. “It’s a true tragedy for his company. It’s cost him millions of dollars.
“It’s sad that someone develops a good business plan, go through financing, they’re successful, and the county comes in and just basically shuts you down.”
McAbee is optimistic the bill will pass the legislature this year. The House bill got more than 80 percent support from the legislators, including Nelson Hardwick, a Republican who represents Horry County. The act has the support of the South Carolina Manufacturers Association, the state Chamber of Commerce and the Home Builders Association of South Carolina.
“It’s a good bill, a fair bill,” McAbee says.