Oakwood Landfill v. Dept. of Health

• Decision Date: 12 January 2009
• Docket Number: No. 4485.,4485.
• Citation: 671 S.E.2d 646,381 S.C. 120
• Court: South Carolina Court of Appeals
• Parties: OAKWOOD LANDFILL, INC. and Hickory Hill Landfill, Inc., Appellants, v. SOUTH CAROLINA DEPARTMENT OF HEALTH AND ENVIRONMENTAL CONTROL and T & T Disposal, LLC, Respondents.

671 S.E.2d 646

381 S.C. 120

OAKWOOD LANDFILL, INC. and Hickory Hill Landfill, Inc., Appellants, v. SOUTH CAROLINA DEPARTMENT OF HEALTH AND ENVIRONMENTAL CONTROL and T & T Disposal, LLC, Respondents.

No. 4485.

Court of Appeals of South Carolina.

Heard October 9, 2008.

Decided January 12, 2009.

James W. Potter, Leon C. Harmon and Joan W. Hartley, all of Columbia, for Appellants.

Alex G. Shissias, John A. Hodge and Etta R. Williams, all of Columbia, for Respondents.

SHORT, J.

Oakwood Landfill, Inc. (Oakwood) and Hickory Hill Landfill (Hickory Hill) appeal two orders of the South Carolina Board of Health and Environmental Control (the Board) affirming a landfill permit issued to T & T Disposal, LLC (T & T) by the South Carolina Department of Health and Environmental Control (DHEC). We affirm.

FACTS

Sections 44-96-10 to 44-96-470 of the South Carolina Code are known as the South Carolina Solid Waste Policy and Management Act (SWPMA). S.C.Code Ann. §§ 44-96-10 to-470 (2002). Section 44-96-80(A) of the South Carolina Code requires each county in the State to prepare a single county solid waste management plan or participate in a regional solid waste management plan. S.C.Code Ann. § 44-96-80(A) (2002). Jasper County, South Carolina, elected to participate in a regional plan through the Low Country Council of Governments (LCCG), which drafted the Low Country Regional Solid Waste Management Plan (Low Country Plan) in 1994. The Low Country Plan was endorsed by Beaufort, Colleton, Hampton, and Jasper Counties. The Plan states that "[b]ased on the amount of disposal capacity available in and around the Lowcountry there is no apparent need to construct new domestic or inert landfill facilities in the next 20 years." The Plan also provides the "required annual reports due September 1 of each year will represent the extent of progress over a given year and set forth any necessary revisions or amendments."

The SWPMA also provides "[n]o person shall operate a solid waste management facility without a permit from [DHEC]." S.C.Code Ann. § 44-96-290(A) (2002). Pursuant to SWPMA, on June 30, 2003, T & T filed a permit application with DHEC requesting a Construction and Demolition, and Land-Clearing Debris Landfill Permit (landfill permit) to construct a landfill in Jasper County. DHEC conducted a public hearing for the project on October 27, 2003, and staff notified the public the proposed facility would have an estimated disposal capacity of 1,819,000 cubic yards.

DHEC was required to review the application to determine, among other things, if the proposed facility was consistent with the Low Country Plan.¹ The SWPMA does not specify procedures for DHEC to follow in making need and consistency determinations. Jasper County Council notified DHEC it found the proposed T & T landfill to be consistent with the county's solid waste management plan in letters dated October 29, 1997; May 7, 2000; September 27, 2000; and December 16, 2003.² DHEC considered the letters to be amendments to Jasper County's portion of the plan and "penciled in" the changes.³ DHEC also had minutes from the Jasper County Council meeting at which the county council voted favorably on the matter. After examining the applicable county requirements, in addition to the above-mentioned documents, DHEC determined T & T would be able to meet the land use requirements after receiving the requested landfill permit. Thus, on January 14, 2004, DHEC issued the landfill permit to T & T and stated in the permit the facility would have a final disposal capacity of approximately 1,819,000 cubic yards.

On January 30, 2004, Oakwood and Hickory Hill requested a contested case hearing, challenging DHEC's decision to issue the T & T permit. Oakwood and Hickory Hill alleged DHEC's consistency determination failed to meet the requirements of Section 44-96-290(F) of the South Carolina Solid Waste Policy and Management Act. S.C.Code Ann. § 44-96-290(F) (2002). In the alternative, Oakwood and Hickory Hill argued the permit should be revised to limit the final disposal capacity to 2.2 million cubic feet rather than the 1,819,000 cubic yards approved by DHEC because Jasper County's Letter of Consistency called for a final disposal capacity of only 2.2 million cubic feet.

On March 15, 2005, the Administrative Law Court (ALC) reversed DHEC's decision, finding the landfill was inconsistent with the Low Country Plan because the Plan had not been amended to allow for the T & T landfill. Specifically, the ALC determined section 44-96-80(O) of the South Carolina Code required any amendments to the Low Country Plan to be adopted by a multi-party endorsement.⁴ The ALC did not make any findings on the capacity issue because its ruling on the consistency determination was dispositive.

On April 14, 2005, DHEC and T & T appealed the ALC's final order to the Board. The Board upheld DHEC's issuance of the permit on March 30, 2006. The Board determined neither section 44-96-80(O) of the South Carolina Code nor the Low Country Plan placed any limitations on a county's ability to amend the plan as it applied to that particular county. The Board also remanded the matter to the ALC to determine the allowable maximum capacity for the landfill because the ALC had not made any findings on the capacity issue.

On August 28, 2006, the ALC held DHEC had properly set the permit disposal capacity at 1,819,000 cubic yards.⁵ Oakwood and Hickory Hill appealed and on July 9, 2007, the Board affirmed the ALC's August 28, 2006 Order and affirmed DHEC's decision to set the final disposal capacity at 1,819,000 cubic yards. This appeal follows.

STANDARD OF REVIEW

The ALC presides over all hearings of contested DHEC permitting cases and, in such cases, serves as the fact-finder and is not restricted by the findings of the administrative agency. Dorman v. S.C. Dep't of Health & Envtl. Control, 350 S.C. 159, 164-65, 565 S.E.2d 119, 122 (Ct.App.2002); S.C.Code Ann. § 1-23-600(A)-(B) (Supp. 2007). "An aggrieved party may appeal the ALC's decision to the agency's Appellate Panel [(the Board)]; however, the Panel's review is confined to the record and is governed by South Carolina Code section 1-23-610(C)." Terry v. S.C. Dep't of Health & Envtl. Control, 377 S.C. 569, 573, 660 S.E.2d 291, 293 (Ct.App.2008). "Accordingly, the [Board] can reverse the ALC's decision if it determines the ALC's findings are not supported by substantial evidence contained in the record or are affected by an error of law." Id. at 573-74, 660 S.E.2d at 293-94; see also Grant v. S.C. Coastal Council, 319 S.C. 348, 353, 461 S.E.2d 388, 391 (1995) (stating the ALC's findings are supported by substantial evidence if, looking at the record as a whole, there is evidence from which reasonable minds could reach the same conclusion as the ALC).

After an aggrieved party has exhausted all administrative remedies, the party is entitled to judicial review by the South Carolina Court of Appeals. See S.C.Code Ann. § 1-23-380(A) (Supp.2007). Judicial review is confined to the record and is governed by South Carolina Code section 1-23-380(A)(5), which provides:

The court may not substitute its judgment for the judgment of the agency as to the weight of the evidence on questions of fact. The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: (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 abuse of discretion or clearly unwarranted exercise of discretion.

S.C.Code Ann. § 1-23-380(A)(5) (Supp.2007). "Under our standard of review, we may not substitute our judgment for that of the [ALC] as to the weight of the evidence on questions of fact unless the [ALC's] findings are clearly erroneous in view of the reliable, probative and substantial evidence in the whole record." Comm'rs of Pub. Works v. S.C. Dep't of Health & Envtl. Control, 372 S.C. 351, 358, 641 S.E.2d 763, 766-67 (Ct. App.2007). Substantial evidence is not a mere scintilla of evidence, but evidence which, considering the record as a whole, would allow reasonable minds to reach the conclusion the agency reached. Leventis v. S.C. Dep't of Health & Envtl. Control, 340 S.C. 118, 130, 530 S.E.2d 643, 650 (Ct.App. 2000). "This Court, although not bound by the decision, will ordinarily defer to the opinion of a state agency as to the interpretation of a statute it is charged with the duty of enforcing " S.C. Coastal Conservation League v. S.C. Dep't of Health & Envtl. Control, 380 S.C. 349, 363, 669 S.E.2d 899, 906 (2008). "The construction of a statute by the agency charged with its administration will be accorded the most respectful consideration and will not be overruled absent compelling reasons." Brown v. S.C. Dep't of Health & Envtl. Control, 348 S.C. 507, 515, 560 S.E.2d 410, 414 (2002) (quoting Dunton v. S.C. Bd. of Examiners in Optometry, 291 S.C. 221, 223, 353 S.E.2d 132, 133 (1987)).

LAW/ANALYSIS

I. Timeliness of Appeal

Respondents argue Appellants failed to timely appeal from the March 30, 2006 Order; therefore, the issues in that order are not preserved for our review. We disagree.

"An appeal to [this] court will not lie from an interlocutory order of the [Board] unless such order affects the merits or deprives the appellant of a substantial right." Green v. City of Columbia, 311 S.C. 78, 79-80, 427 S.E.2d 685, 687 (Ct.App.1993). "An order involves the merits if it finally determines some substantial matter forming the whole or part of some cause of action or defense in the case."...