MRR Highway 92, LLC was granted a permit to construct a construction and demolition debris (C & D) landfill in Laurens County. We appealed the permit for a citizens group known as EAGLE.
Prior to trial, we narrowed the issue to the question of NEED. The SC Solid Waste Management Act requires a “demonstration of need” for every solid waste management facility. Laurens County generates less than 20,000 tons of C & D waste per year. The county already has a C & D landfill with a capacity of 241,000 tons per year and the permit for this new landfill allows an additional 154,000 tons. DHEC uses a formula to determine need, and under this formula the landfill is allowed a capacity that includes all of the waste generated in Laurens, Greenville and Spartanburg Counties. The applicable regulation allows DHEC to consider “additional factors” to make a determination of need “on a case-by-case basis,” but DHEC only considered the formula in this case. DHEC did not consider the fact that the three counties have landfills with a combined capacity of around 800,000 tons per year.
We had a trial before Administrative Law Judge Ralph King Anderson, III in July, 2009 and were successful. Judge Anderson overturned the permit, agreeing with us that no “need” for the landfill was demonstrated. MRR has appealed, and we have filed a cross-appeal to raise some issues the judge ruled against us on - additional sustaining grounds for his decision. The case has been fully briefed and we are awaiting a date for oral arguments in the Court of Appeals.
In addition to the appeal, the Supreme Court has ruled that the Administrative Law Court lacks authority to declare a regulation invalid, and that the statutory process set forth in the SC Administrative Procedures Act (APA) must be followed to obtain such a ruling.
Following the APA procedure, we filed a Petition for Declaratory Ruling with DHEC, asking the agency to declare its formula invalid because it is inconsistent with the statutory “demonstration of need” requirement. This petition was filed in July, 2009. In August, 2009, DHEC responded that its former regulation complies with the statutory “demonstration of need” requirement.
We filed an action for declaratory judgment in Circuit Court in response to DHEC’s assertion that the regulation complies. The case has been consolidated with several other cases involving a proposed landfill in Marlboro County. It is pending before Judge Nettles in Florence, but was continued after Jimmy’s death.