Engaging & Guarding Laurens County's Environment v. South Carolina Department of Health & Environmental ControlEngaging & Guarding Laurens County's Environment v. South Carolina Department of Health & Environmental Control
This case is an appeal from the court of appeals’ decision reversing the administrative law court’s (ALC) final order, which reversed and denied the South Carolina Department of Health and Environmental Control’s (DHEC) issuance of a permit (the Landfill Permit) to MRR Highway, 92, LLC (Respondent) for a commercial construction, demolition waste and land-clearing debris (C & D) landfill (the Landfill). We reverse and reinstate the ALC’s final order.
Factual/Procedural Background
In February 2006, Respondent submitted a request to DHEC for a demonstration of need (DON) to obtain a solid waste management permit to construct and operate the Landfill in Laurens County, South Carolina.
According to Kent Coleman, DHEC’s Director of the Division of Mining and Solid Waste Management, DHEC reviewed Petitioner’s concerns about the Landfill, but determined that none warranted its reconsideration of the DON approval. Therefore, on July 18, 2008, DHEC issued the requested Landfill Permit. DHEC informed Respondent of the permit approval via a letter, which stated that DHEC issued the Landfill Permit pursuant to Regulation 61-107.19,
Petitioner requested a final review conference by the DHEC Board, but the Board declined to hold a review confer
The ALC heard the cross motions for summary judgment and denied both motions, ruling that “a genuine issue of material fact exists as to whether any ‘additional factors’ beyond those specifically set forth in [the DON Regulation] required denial of the DON request.”
Coleman testified that, pursuant to the DON Regulation, DHEC plotted the location of the Landfill on a map, counted the number of landfills within a 10-mile radius, and totaled the waste generated by all three counties within the 10-mile radius before approving Respondent’s DON request in 2006. Coleman also testified that the planning area surrounding a proposed landfill — established by the DON Regulation — is a “regional concept” because many of the C & D landfills accept waste from other counties, but that there is no actual “regional plan” for dealing with C & D waste in Laurens, Greenville, and Spartanburg counties. Under the DON Regulation, DHEC only considers waste generated within the 10-mile radius in making DON determinations, whereas DHEC looks beyond the 10-mile radius to determine a new landfill’s allowable permitted capacity. Further, Coleman testified that in
The ALC issued a Final Order and Decision, reversing DHEC’s decision to issue the Landfill Permit to Respondent. The ALC made substantial findings of fact. In particular, the ALC stated that “[a]n important consideration in addressing the need for a landfill is that the planning area established in the DON Regulation is a regional concept.” Because many of the C & D landfills in the Landfill planning area accept waste from other counties, the ALC found that factor “must also be considered in conjunction with the utilization of those landfills.” Therefore, the ALC set forth the waste generation and landfill capacity figures for Laurens, Greenville, and Spartan-burg Counties for fiscal years 2005-2007. Based upon the findings of fact, the ALC considered the excess regional landfill capacity as an “additional factor” in determining need under the DON Regulation. The ALC found that the region already had more landfill capacity than the county or region needed, and thus, there was no need for the Landfill. Specifically, the ALC looked to the existing landfills “in proximity to the site of the [Landfill],” and found that the “32.9% utilization of existing capacity simply does not reflect a need for another landfill in the area.” The ALC also noted that even after the closing of a particular landfill in Spartanburg County, and factoring in the annual tonnage of the Landfill into the existing C & D landfill capacity, “the use of existing capacity would only be 27.38%.”
Respondent appealed the ALC’s decision to the court of appeals. In an unpublished opinion, the court of appeals reversed the ALC’s order and reinstated DHEC’s decision “because [DHEC] acted within its discretion by declining to consider additional factors in issuing a[DON] to [Respondent].” Engaging & Guarding Laurens Cnty.'s Env't v. S.C. Dep't of Health & Envtl. Control, Op. No. 2011-UP-380 (S.C.Ct.App. filed August 4, 2011).
Issue Presented
I. Whether the court of appeals erred in deferring to DHEC’s decision to decline to consider “additional factors” under the DON Regulation?
Standard of Review
A party who has exhausted all administrative remedies available within an agency and who is aggrieved by an ALC’s final decision in a contested case is entitled to judicial review.
(a) in violation of constitutional or statutory provisions;
(b) in excess of the statutory authority of the agency;
(c) made upon unlawful procedure;
(d) affected by other error of law;
(e) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or
(f) arbitrary or capricious or characterized by an abuse of discretion or clearly unwarranted exercise of discretion.
Id. Thus, this Court’s review is limited to determining whether the ALC’s findings were supported by substantial evidence or were controlled by an error of law. Hill v. S.C. Dep't of Health & Envtl. Control,
Law/Analysis
I. Regional Excess Landfill Capacity
Petitioner asserts that the court of appeals erred in reversing the ALC’s decision concluding that there is no need for the Landfill and in reinstating DHEC’s decision to issue the permit. We agree.
Section 44-96-290(E) of the South Carolina Code provides, in part:
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.... The department shall promulgate regulations to implement this section....
As directed by
a. Where there are at least two (2) commercial disposal facilities under separate ownership within the planning area that meet the disposal needs for the area, e.g., that accept special waste and, if applicable, are capable of handling additional tonnage, no new disposal facility will be allowed. Disposal facilities that accept only waste generated in the county or region in which the disposal facility is located will not be considered in determining need.
b. Each disposal facility in the planning area will be allowed up to a maximum yearly disposal rate equal to the total amount of solid waste destined for disposal that is generated in the county or counties that fall, either all inclusive or a portion thereof, -within the planning area. Disposal rates for existing facilities shall not be reduced pursuant to this provision.
c. In determining the amount of solid waste destined for disposal, [DHEC] will use figures in the current Solid Waste Annual Report for the proposed waste streams, e.g., the generation rate for a [C & D landfill] will be determined by adding the amounts of construction and debris [] destined for disposal in permitted [C & D landfills] in the counties that fall within the planning area.
d. [DHEC] reserves the right to review additional factors in determining need on a case-by-case basis.
Id. (emphasis added).
It is undisputed that the Landfill satisfied the requirements of subsections (a), (b), and (c) of the DON Regulation. However, Petitioner asserts that DHEC should have also utilized subsection (d) in analyzing the need for the Landfill and considered additional factors. Petitioner contends that DHEC should have considered the existing permitted disposal capacity in the counties that were a part of the Landfill’s planning area as an additional factor, and thus, the ALC was correct in applying an “additional factor” under subsection (d).
Because an ALC is not bound to an agency’s factual findings or permitting decision, the ALC in this case was not bound to DHEC’s decision issuing the Landfill Permit, in which DHEC declined to consider the excess regional capacity as an “additional factor” in determining need. See Hill, 389 S.C. at 9,
Respondent argues that regional excess landfill capacity is not an appropriate “additional factor” for consideration under the DON Regulation. We disagree, and find that the ALC was permitted to consider regional excess landfill capacity as an additional factor because it was a matter at issue that had been litigated from the time the Landfill Permit was first contested. We emphasize that in this case, the ALC did not conceive a new factor, nor did it consider evidence outside of the existing record. Instead, in determining the Landfill was not needed, the ALC considered and utilized in its decision a factor that was discussed during the public comment period and tried at the ALC hearing. We conclude that the ALC’s application of regional excess landfill capacity as an “additional factor” under the DON Regulation was supported by substantial evidence. See Hill,
Conclusion
For the foregoing reasons, we reverse the court of appeals and reinstate the ALC’s order denying the Landfill Permit.
REVERSED.
Notes
. This request was made pursuant to
. Regulation 61-107.19 sets forth the permit application process.
. The Staff Decision Summary Report states: "In reaching its decision on the [Landfill Permit] application, the Solid Waste Permitting Section reviewed all information submitted in the application, supplemental information submitted, and public comments.”
. In addition to setting forth specific criteria in subsections (D)(3)(a)(c), the DON Regulation states that DHEC "reserves the right to review additional factors in determining need on a case-by-case basis” in subsection (D)(3)(d).
. In the alternative, Petitioner argues that DHEC’s decision to approve the DON request was arbitrary and capricious or characterized by an abuse of discretion because DHEC did not, and has not ever, utilized subsection (D)(3)(d) of the DON Regulation in order to consider "additional factors.” Based on our conclusion that the ALC properly reversed DHEC’s issuance of the Landfill Permit, we need not address this argument. See Futch v. McAllister Towing of Georgetown, Inc.,
. The DON Regulation was implemented in 2000 and was amended effective June 26, 2009. Both DHEC and the ALC utilized the 2000 version in reviewing the application for the Landfill. As such, we will consider the original version of the DON Regulation in our analysis.
. The amended version of the regulation requires a 20-mile “planning area” radius. S.C.Code Ann. Regs. 61 — 107.17(C)(3) (Supp.2012). Coleman testified that if the amended version’s 20-mile radius had applied to determine the need for the Landfill, DHEC would have denied the Landfill Permit.
. We note that, likewise, in its opinion, the court of appeals pointed to no error of law on the part of the ALC, as required by section 1-23-610(B) to reverse an ALC's decision.