Supreme Court Win!

BIG APPEAL WIN!

We are pleased to announce that Gary W. Poliakoff, of Poliakoff & Assoc., PA, of Spartanburg; Amy E. Armstrong, of South Carolina
Environmental Law Project, of Pawleys Island; and Michael G. Corley, of South Carolina Environmental Law Project, of Greenville, were Pickens County v. MRR involving DHEC granting a permit to MRR without public notice despite rules requiring for major modifications.

Pickens County represented by environmental advocate and lawyer Gary Poliakoff sought to challenge an improper landfill permit modification issued to MRR Pickens, LLC (MRR) by the SCDHEC which would allow Class Three toxic coal ash in a Class Two landfill.
The Supreme Court issued an opinion allowing Pickens County to challenge the permit modification. The Court explained the differences between landfills.

DHEC regulations place landfills into one of three classes depending upon the chemical and physical properties of the wastes disposed in the landfill. See S.C. Code Ann. Regs. 61-107.19, pt. I, A.1.

Class One landfills are not pertinent to this case.

Class Two landfills accept the wastes listed in Appendix I of Regulation 61-107.19. These wastes include materials such as brush and limbs, rock, masonry blocks, dry paint cans, glass, pipes, and plaster. Class Two landfills may also accept other wastes approved by DHEC on a case-by case basis. S.C. Code Ann. Regs. 61-107.19, pt. IV, A.1.

Class Three landfills may accept more harmful wastes, such as “municipal solid waste, industrial solid waste, sewage sludge, nonhazardous municipal solid waste incinerator ash and other nonhazardous waste.” S.C. Code Ann. Regs. 61-107.19, pt. V, subpart A, 258.1.a.

PERMIT MODIFICATION

“The 2008 Permit specified the Landfill was a Class Two landfill and authorized MRR to operate the Landfill—which has never been constructed—in a manner consistent with the agreements MRR and the County executed.”

“In 2015, MRR applied to DHEC for a “minor permit modification.” According to the application, MRR [suspiciously?] requested the option to install a liner and associated leachate collection system for a portion of the Landfill. Liners are safety features designed to prevent waste from escaping a landfill. Liners are required in Class Three landfills, but they are not required in Class Two landfills.”

We note the following from the court of appeals’ opinion:

DHEC’s own representative has admitted the Permit Modification meets the regulatory definition of a major modification. Thus, we find DHEC’s labeling of the Permit Modification as minor denied contemporaneous notice and participation opportunities that DHEC’s own regulations required be provided to both the public and the adjacent Neighboring Property Owners. Accordingly, the ALC erred in dismissing the County’s challenge to the DHEC permitting decision as untimely because DHEC failed to comply with the notice procedures applicable to its decision to, in reality, permit a Class III landfill.

NOTICE

“SCDHEC granted the permit as a “minor modification” without notifying the Public or Pickens County. Then the Administrative Law Court refused to allow a hearing on the merits. The court of appeals reversed and remanded, holding the ALC erred in dismissing the County’s challenge without first determining whether DHEC (1) misclassified the Permit Modification and (2) failed to comply with applicable notice
and comment requirements.”

“We agree with the court of appeals on this point and affirm its analysis of our opinion in South Carolina Coastal Conservation League v. South Carolina Department of Health & Environmental Control (SCCCL), 390 S.C. 418, 702 S.E.2d 246 (2010).”

“The court of appeals correctly reversed the ALC on this point when it held the ALC should have determined whether DHEC properly classified the Permit Modification before ruling upon the statutory timeliness of the County’s challenge. See Pickens Cnty., 429 S.C. at 102-03, 837 S.E.2d at 748 (noting “the ALC failed to undertake the prerequisite analysis of whether [the fifteen-day limitations period in subsection 44-1-60(E)(2)] appl[ies]” due to DHEC’s alleged misclassification of the Permit Modification).”

CONCESSIONS

“Finally, though not pertinent to our holding, we note several concessions made by MRR and DHEC during oral argument before this Court.”

Counsel for MRR conceded that the Landfill could not accept coal ash—or any other waste not listed in Appendix I to Regulation 61-107.19—without additional approval from DHEC. Specifically, counsel for MRR and DHEC explained MRR would have to follow DHEC’s “waste characterization” process before accepting any new waste. See S.C. Code Ann. Regs. 61-107.19, pt. I, C.

Regarding notice, counsel for DHEC stated the County has written a letter to DHEC and “specifically asked to know anything that happens with the MRR landfill.” Counsel for MRR stated the County would receive “notice of our request for a characterization of new waste,” and counsel for DHEC stated the County would be notified of any decision authorizing MRR to dispose of coal ash or other wastes not listed in Appendix I in the Landfill.

Counsel for MRR and DHEC both acknowledged that a law passed in 2016 requires coal ash to be placed in a Class Three landfill, subject to a few [inapplicable] exceptions. See S.C. Code Ann. § 58-27-255(A) (Supp. 2020)

Congratulations to everyone involved and good luck in the future.