Pickens County had worked closely with a landfill company over a period of years to develop and approve a plan for construction of a “class 2” landfill, so that local citizens and businesses would have a place to dispose of materials from land clearing, yard work, and construction, such as: brush and limbs, logs, rock, masonry, glass, and pipes.
Disposal of these relatively innocuous materials is consistent with the plan Pickens County has developed for solid waste disposal. However, unbeknownst to the County or anyone residing therein, the landfill company and DHEC began meeting surreptitiously to modify the landfill plan to allow coal ash disposal. DHEC eventually approved significant modifications to the landfill design and operation, clearing the way for the landfill to accept much more hazardous wastes. Most startlingly, DHEC agreed with the landfill company’s proposal to categorize these landfill modifications as “minor,” meaning that no public notice or opportunity for participation was provided.
In short, this former “class 2” landfill was modified to accept coal ash without any notice being provided to Pickens County, neighboring property owners, or other concerned citizens. The original landfill design underwent an extensive public notice and publication process, but the controversial and dangerous change was hidden.
Coal Ash is controversial and dangerous due to its propensity to create dust, its propensity to contain toxic substances, and its propensity to contaminate groundwater and surface water.
Why Is This Important?
Coal ash contains toxic chemicals, such as mercury, lead, and arsenic. It is a known carcinogen and is highly soluable in water, which causes leaching and water contamination issues. In addition to water contamination, disposal of coal ash can also lead to tiny coal ash particles blowing up into the atmosphere and then being inhaled by nearby populations. Obviously no one in proximity of this proposed landfill thinks there is anything “minor” about the addition of coal ash disposal.
When Pickens County found out about the permit modification, months after it had been mailed to just the landfill company, the County filed suit along with adjacent property owners. However, their case was dismissed by the Administrative Law Court (ALC) on the basis that it was not filed within the short window for challenging permit decisions after they are issued. In other words, under the ALC’s decision, the landfill modifications are shielded from challenge because DHEC and the landfill company kept the public from knowing about them.
SCELP has taken over the appeal of this timeliness decision and is asking the S.C. Court of Appeals not to reward this deceptive course of action.
After filing a notice of appeal and our initial brief, we filed our reply brief on November 16, 2017. The main issue in this case is that by classifying the permit modification as “minor” and ignoring some other laws, DHEC and MRR excluded the public, the County and other interested parties from the modification process completely. Thus, our claim is that the modification is illegal and void pursuant to law, and that the case cannot be dismissed as untimely.
On January 8, 2020, the S.C. Court of Appeals reversed the lower court's decision and sent the case back to the Administrative Law Court. The Court of Appeals' reversal rests on its conclusion that DHEC misclassified the permit modification in a manner that denied Pickens County and the neighbors of the notice they were due. In short, the County and the neighbors could not be held to a timeliness standard when they were never properly notified of the permit.
This was a major win for Pickens County and the health, safety and self-determination of its citizens!
The South Carolina Supreme Court issued a writ of certiorari to review the Court of Appeals' decision and oral arguments were held on May 25, 2021.
On December 8, 2021, in a win for Pickens County, the Supreme Court affirmed the Court of Appeals' decision that a party cannot be held to “actual notice” of a permit decision, if that decision was made so as to preclude the normal public notice and comment process, and that the ALC must determine whether the permit modification was “major” or “minor” before deciding whether the challenge was timely.
“We are pleased with the Supreme Court’s ruling, which affirms the County’s right to challenge this permitting decision, as well as the legal requirement for a transparent public process when it comes to disposing toxic waste in our state. The ruling is also important in holding DHEC accountable when it attempts to evade that public process,” said Amy Armstrong , who argued on behalf of the County.
The Supreme Court also reversed the Court of Appeals’ factual finding that the modification was “major,” remanding the case back to the Administrative Law Court to determine whether the modification qualified as “major” or “minor.”
Landfill modifications classified as “major” require an extensive public notification and comment process to allow participation in the decision-making process, while “minor” modifications do not. Minor modifications generally include routine or administrative changes, but not changes to the types of waste accepted at a facility. Changes to the design, such as the liner sought by MMR and which would lay the ground work for accepting coal ash, require a major modification.