Supreme Court Affirms Need for Public Notice in Pickens County Landfill Dispute
The South Carolina Supreme Court issued its opinion on Wednesday on a case surrounding a Pickens County landfill permit that was modified and approved by the state Department of Health and Environmental Control (DHEC) without any public notice to a design suited for disposal of much more noxious waste, including coal ash.
In a win for Pickens County, the Supreme Court affirmed the Court of Appeals’ January 2020 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.
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 Pickens, LLC and which would lay the ground work for accepting coal ash, require a major modification.
“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 of the South Carolina Environmental Law Project, which represented Pickens County.