Northeast Sanitary Landfill v. SC DEPT. OF HEALTH

• Decision Date: 17 February 1994
• Docket Number: Civ. A. No. 3-90-2296-17.
• Citation: 843 F. Supp. 100
• Parties: NORTHEAST SANITARY LANDFILL, INC., and Container Corp. of Columbia v. SOUTH CAROLINA DEPARTMENT OF HEALTH AND ENVIRONMENTAL CONTROL and Michael D. Jarrett in his Official Capacity as Commissioner.
• Court: U.S. District Court — District of South Carolina

843 F. Supp. 100

NORTHEAST SANITARY LANDFILL, INC., and Container Corp. of Columbia v. SOUTH CAROLINA DEPARTMENT OF HEALTH AND ENVIRONMENTAL CONTROL and Michael D. Jarrett in his Official Capacity as Commissioner.

Civ. A. No. 3-90-2296-17.

United States District Court, D. South Carolina, Columbia Division.

January 3, 1992.

Nunc Pro Tunc February 17, 1994.

William Thomas Lavender, Jr., Davis & Lavender, Columbia, SC, for plaintiffs.

Samuel Leon Finklea III, Walton J. McLeod III, Elizabeth Bartlett Partlow, S.C. Department of Health & Environmental Control, Office of Gen. Counsel, Columbia, SC, for defendants.

ORDER

JOSEPH F. ANDERSON, Jr., District Judge.

The plaintiffs, Northeast Sanitary Landfill, Inc. ("NSL") and Container Corporation of Carolina ("CCC") brought this action seeking declaratory and injunctive relief against the defendants, the South Carolina Department of Health and Environmental Control ("DHEC") and Michael D. Jarrett ("Jarrett") in his official capacity as Commissioner. This matter is before the court pursuant to defendants' motion for dismissal and plaintiffs' motion for summary judgment.

Plaintiffs originally sought summary judgment on two separate grounds. First, plaintiffs asserted that DHEC lacked the statutory authority to promulgate certain regulations at issue in this litigation, and, therefore, DHEC could not enforce restrictions placed upon NSL's permits pursuant to these void regulations. Second, plaintiffs asserted that DHEC's application of the Nonhazardous Solid Waste Management Planning Regulations, 25A S.C.Code Regs. 61-100 (1990 Supp.) ("Regulation 61-100") and the South Carolina Solid Waste Policy and Management Act of 1991, 1991 S.C.Acts No. 63 (amending S.C.Code Ann. §§ 44-96-10 to - 460) ("Act"), imposed a substantial burden on interstate commerce and thus violated the Commerce Clause of the United States Constitution, U.S. Const. art. I, § 8, cl. 3.

DHEC originally sought a dismissal of the case on five separate grounds. First, DHEC asserted that plaintiffs' lack of statutory authority claim was moot. Second, DHEC asserted that the federal court should abstain from deciding the Commerce Clause issue because there existed an unsettled area of state law that should be first decided by the state courts. Third, DHEC asserted that a complex state administrative process should be complied with prior to suit in federal court. Fourth, DHEC asserted that plaintiffs' failure to exhaust its administrative remedies barred this action. Finally, DHEC asserted that the action against the state was barred by the Eleventh Amendment.

STATEMENTS OF FACTS

The following facts are not in dispute:

NSL desired to construct and operate a sanitary landfill in Richland County, South Carolina, to receive nonhazardous solid waste from locations within and without South Carolina, and had knowledge, information, and belief that there were numerous individuals, corporations or other business entities that generated waste from areas outside Richland County and outside the state of South Carolina that were willing to enter into agreements to use the facility. CCC is, and has been, in the business of solid waste collection and seeks to enter into agreements with sanitary landfills located in North and South Carolina, including that of NSL, for the disposal of nonhazardous solid waste.

On April 6, 1988, NSL submitted an application to DHEC, pursuant to 25 S.C.Code Regs. 61-70 (1988), to construct and operate a nonhazardous waste landfill facility in Richland County, South Carolina. In connection with its application, NSL submitted all information requested by DHEC, made all revisions in its application as requested by DHEC, and had complied with all of the requirements of the regulations existing on August 1, 1988.

On August 22, 1988, DHEC advised NSL that the application was complete, but that DHEC would take no further action because the South Carolina Board of Health and Environmental Control, the policy-making body of DHEC, had, on August 13, 1988, adopted a resolution that contained a "Statement of Policy" ("Resolution") requiring that applications for waste treatment facilities and solid and hazardous waste disposal facilities be evaluated on the basis of a "need" for the facility within the State of South Carolina. The Resolution was not published or promulgated as a regulation in compliance with S.C.Code Ann. § 1-23-110 (Law.Co-op.1976).

On October 20, 1988, DHEC promulgated as an emergency regulation ("Emergency Regulation") a provision which: (1) required applicants for permits for nonhazardous solid waste facilities to demonstrate that there was a need for the facility within the county or regional planning area;¹ (2) precluded consideration of the waste generated outside of the county or regional planning area in determining whether there was a need for the facility; and (3) precluded waste generated outside the county or regional planning area from being deposited in any facility permitted by DHEC without the prior approval of DHEC.

On November 1, 1988, DHEC issued to NSL a permit for the construction and operation of a solid waste disposal facility for nonhazardous solid waste, which included the following restrictions:

No solid waste generated outside the State shall be received without written approval from the Department. The generator of such waste shall provide information satisfactory to the Department that such waste can be managed in a manner protective of public health and the environment. Such information shall include but not be limited to: (a) Analyses sufficient to fully characterize the waste and demonstrate that the waste is nonhazardous; and (b) Demonstration of financial capability.

November 1988 Permit, condition 5 and

This site is limited to waste generated in the following counties: Calhoun, Kershaw and Sumter, in addition to the Central Midlands Regional Planning Area (Fairfield, Lexington, Newberry and Richland).

November 1988 Permit, condition 13.

The permit, as amended on March 8, 1990, no longer includes the restriction set forth in permit condition 5, above, however, permit condition 14 of the March 1990 Amended Permit does include the restriction set forth in Permit condition 13 of the November 1988 permit.²

The Emergency Regulation expired on January 20, 1989. NSL requested that the condition restricting the source of the waste disposed of in the facility be deleted, but DHEC refused to process the request.³

CCC maintains a solid waste transfer station in Fort Mill, South Carolina, which receives nonhazardous solid waste, in part, from out-of-state generators. On November 7, 1989, DHEC authorized CCC to dispose of nonhazardous solid waste from its Fort Mill transfer station, including that generated outside of South Carolina, at the Chester County, South Carolina sanitary landfill.

DHEC promulgated Regulation 61-100, which became effective on January 26, 1990, and which was substantially the same as the Emergency Regulation previously promulgated. Regulation 61-100 provides:

No permit to construct a new solid waste management facility or to expand an existing solid waste management facility may be issued until the demonstration of need is approved by the Department.... 61-100 I.(C)

For purposes of demonstrating need, waste generated outside the county or regional planning area shall not be included unless the Department approves an alternate planning area for purposes of this regulation.... 61-100 III.(C)

Facilities for which a permit is issued pursuant to this regulation shall not receive waste from outside the county or regional planning area, whichever, the applicant elected to serve, without the prior approval by the Department. 61-100 IV.

S.C.Code Regs. § 61-100 (Supp.1990).

On June 21, 1990, in response to a request from NSL to delete from its permit any restrictions based upon the origin of the waste, DHEC denied its request based upon Regulation 61-100, even though by its terms it only applies to those who seek to "establish or expand" a nonhazardous solid waste facility.

On July 31, 1990, and August 1, 1990, CCC and NSL requested DHEC's approval for NSL to accept, at NSL's Richland County sanitary landfill, nonhazardous solid waste from CCC's Fort Mill transfer station. These requests were denied on August 17, 1990, although identical waste streams had previously been approved by DHEC for disposal at the Chester County, South Carolina, sanitary landfill. Plaintiffs alleged that DHEC denied the request of CCC to dispose of nonhazardous waste generated outside of South Carolina without substantial justification and that such denial has the effect of preventing nonhazardous solid waste generated in other states and transported in interstate commerce from being deposited in the NSL facility. At oral argument, counsel for DHEC stated that the requests were denied because NSL's permit was restricted to waste generated within its seven-county region.

On May 27, 1991, the Act became effective. The Act prohibits the construction of a new, or the expansion of an existing, solid waste management facility, absent the demonstration of a need for such construction or expansion. 1991 S.C.Acts No. 63, § 1 (adding S.C.Code Ann. § 44-96-290(E)). The Act further provides that in considering a demonstration of need to construct a new facility or expand an existing facility, DHEC may only consider the amount of waste generated in South Carolina. 1991 S.C.Acts No. 63, § 1 (adding S.C.Code Ann. § 44-96-290(F)).⁴ Finally, the Act provides that:

All rules, regulations, standards, orders, or other actions of the department in effect on the date of the enactment of this act, not inconsistent with this act, shall remain in effect unless specifically changed or voided by the Board of Health and Environmental Control or changed by statute.

1991 S.C.Acts No. 63, § 3.

PROCEDURAL HISTORY

DHEC originally filed its motion for dismissal on November 1,...