Sandlands C & D Llc v. County of Horry

• Court: South Carolina Supreme Court
• Writing for the Court: CERTIFIED QUESTION
• Citation: Sandlands C & D Llc v. County of Horry, 394 S.C. 451, 716 S.E.2d 280 (S.C. 2011)
• Decision Date: 19 September 2011
• Docket Number: No. 27042.,27042.
• Parties: SANDLANDS C & D, LLC, and Express Disposal Service, LLC, Plaintiffs,v.COUNTY OF HORRY, a Political Subdivision of the State of South Carolina, acting by and through its duly elected County Council, and Horry County Solid Waste Authority, Inc., Defendants.

394 S.C. 451

716 S.E.2d 280

SANDLANDS C & D, LLC, and Express Disposal Service, LLC, Plaintiffs,

v.COUNTY OF HORRY, a Political Subdivision of the State of South Carolina, acting by and through its duly elected County Council, and Horry County Solid Waste Authority, Inc., Defendants.

No. 27042.

Supreme Court of South Carolina.

Heard May 24, 2011.Decided Sept. 19, 2011.

Robert Joseph Sheheen, of Savage, Royall & Sheheen, of Camden, William Thomas Lavender Jr., and Joan Wash Hartley, both of Nexsen Pruet, of Columbia, for Plaintiffs.Emma Ruth Brittain, of Thompson & Henry, of Myrtle Beach, Stanley Eugene Barnett, of Smith, Bundy, Bybee & Barnett, of Mt. Pleasant, and Victoria Thomas Vaught, of Battle, Vaught & Howe, of Conway, for Defendants.Robert E. Lyon Jr. and M. Clifton Scott, both of Columbia, for Amicus Curiae South Carolina Association of Counties.Karen Aldridge Crawford, of Nelson Mullins Riley & Scarborough, of Columbia, for Amici Curiae National Solid Wastes Management Association and Homebuilders Association of South Carolina.

CERTIFIED QUESTION

Chief Justice TOAL.

Pursuant to Rule 244(a), SCACR,¹ we accepted the certified question from the Honorable Terry L. Wooten, United States District Court for the District of South Carolina, of whether the South Carolina Solid Waste Policy and Management Act, S.C.Code Ann. § 44–96–10 et seq. (2002) (SWPMA), preempts Horry County Ordinance 02–09 (2009), entitled “An Ordinance Regulating the County–Wide Collection and Disposal of Solid Waste Generated within Horry County and for the Prohibition of the Disposal of Solid Waste Materials in any Manner Except as Set Forth Herein; and Providing Penalties for Violation Thereof.” We answer this question in the negative.

Factual/Procedural Background

In 1976, Congress enacted the Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901 et seq. (1976, as amended) (RCRA), to create a longterm solution for managing the increasing levels of solid waste across the United States and to address contiguous environmental problems created by harmful disposal methods, inadequate landfill capacity, and substandard facilities. Id. § 6901(a), (b). The RCRA also mandated the promulgation of corresponding guidelines by the Environmental Protection Agency. See, e.g., id. § 6907 (authorizing the promulgation of regulations governing solid waste management); id. § 6942(b) (authorizing the promulgation of regulations to oversee the creation of state solid waste management plans); 40 C.F.R. §§ 255.1 et seq. (regulations applicable to solid waste management); id. 256.01 et seq. (regulations applicable to state solid waste management plans).

In 1991, as a corollary to the federal guidelines, the General Assembly enacted the SWPMA after determining a “coordinated statewide management program [was] needed to protect public health and safety, protect and preserve the quality of the environment, and conserve and recycle natural resources.” S.C.Code Ann. § 44–96–20(A)(13) (2002). Not only did the General Assembly seek to ensure the environmentally sound disposal of certain types of nonhazardous waste in South Carolina, but through the SWPMA, the General Assembly also sought to handle the practical problems associated with solid waste management by ensuring adequate landfill capacity to meet the state's future disposal needs and provide for the efficient and economical disposal of waste in the state. See generally S.C.Code Ann. § 44–96–20(A)(1)–(14) (listing the General Assembly's policy findings necessitating the passage of the SWPMA) and (B)(1)–(14) (listing the objectives of the SWPMA from a policy standpoint); 44–96–240(A)(1)–(6) (listing the General Assembly's findings necessitating the statewide management of solid waste) and (B)(1)–(2) (listing the objectives of the statewide management system). The SWPMA mandates the formation of a state solid waste management plan by DHEC and requires counties to prepare individual solid waste management plans or participate in regional solid waste management plans.²Id. §§ 44–96–20(A)(14) (stating that a purpose of the SWPMA is to require the creation of solid waste management plans), –60 (requiring creation of a state solid waste management plan), –80(A) (requiring counties to participate in single county or regional solid waste management plans). The SWPMA charged DHEC with the task of promulgating regulations, which would create new standards governing non-hazardous waste disposal practices in the state. Id. § 44–96–260 (authorizing DHEC to enact regulations); S.C.Code Ann. Regs. § 61–107 et seq. (solid waste regulations). DHEC has since promulgated regulations which govern, inter alia, the “minimum standards for the site selection, design, operation, and closure of all solid waste landfills and structural fill areas.” S.C.Code Ann. Regs. § 61–107.19.I.A.1. Furthermore, the SWPMA authorized DHEC to establish a statewide permitting scheme. S.C.Code Ann. § 44–96–260(2) (authorizing DHEC to permit solid waste facilities); id. § 44–96–290 (outlining permitting parameters). As part of the permitting process, the SWPMA provides that “[n]o permit to construct a new solid waste management facility or to expand an existing solid waste facility may be issued until a demonstration of need is approved by [DHEC],” S.C.Code Ann. § 44–96–290(E), and authorizes DHEC to promulgate regulations governing permitting and demonstration of need decisions. Id. § 44–96–290(D), (E); see also S.C.Code Ann. Regs. § 61–107.17 (Supp.2010) (DON Regulation). The DON Regulation creates geographic planning areas that DHEC must contemplate when deciding whether the projection of solid waste in the area warrants the construction of a new landfill at a proposed landfill site or the proposed expansion of an existing landfill. S.C.Code Ann. Regs. § 61–107.17.B.10 (defining “planning area”); id. § 61–107.17.D.2 (criteria for determining need). However, planning areas also affect the determination of yearly allowable disposal rates at permitted solid waste facilities. S.C.Code Ann. Regs. §§ 61–107.17.D.3.a–b. This calculation is partially based on the estimates contained in the county or regional solid waste management plans. The SWPMA also requires DHEC to render a consistency determination, of whether or not the proposed solid waste facility is consistent with state and county or regional solid waste management plans, local zoning and land-use ordinances and regulations, any other applicable local ordinances, and the buffer requirements contained in other DHEC regulations. S.C.Code Ann. § 44–96–290(F); S.C.Code Ann. Regs. § 61–107.17.B.5 (defining “consistency determination”); id. 61–107.17.C.1 (providing that a permit will not be granted until the consistency determination is approved).

Plaintiffs Sandlands C & D, LLC (Sandlands) and Express Disposal Service, LLC (EDS) are related, privately-owned South Carolina companies. Sandlands owns and operates a landfill in Marion County, approximately two miles across the Horry County border, and EDS hauls waste originating in South Carolina and North Carolina to Sandlands' landfill.³ DHEC granted Sandlands a permit to accept construction and demolition (C & D) waste ⁴ at the Marion County site. Prior to the passage of Horry County Ordinance 02–09 (the Ordinance), Sandlands received C & D waste originating in Horry County and hauled by EDS, accounting for a large portion of the waste processed at its landfill.

Horry County Council created Defendant Horry County Solid Waste Authority, Inc. (HCSWA) in 1990 to manage Horry County's solid waste needs. Horry County Code 60–90 (1990). The HCSWA, a non-profit corporation, owns and operates a municipal solid waste landfill ⁵ and a C & D landfill, permitted by DHEC, at the same site on Highway 90 in Horry County.

On April 7, 2009,⁶ Horry County Council enacted the first ordinance in South Carolina regulating the flow ⁷ of solid waste

to protect the health, safety and general well-being of the citizens of Horry County, enhance and maintain the quality of the environment, conserve natural resources and to prevent water and air pollution by providing for a comprehensive, rational and effective means of regulating the collection and disposal of solid waste generated in Horry County and for the prohibition of the disposal of any waste materials in any manner except as set forth in this Ordinance.Horry County Code 02–09, Art. I, § 1.1. To this end, the Ordinance requires all acceptable solid waste ⁸ generated within Horry County to be deposited at the HCSWA's landfill or a “designated facility.” Id. Art. II, § 2.1.1 (designation); id. Art. VIII, § 8.1.1 (restricting disposal to designated facilities). A “designated facility” is defined as “any solid waste facility(ies) owned and/or operated by the [HC]SWA and/or public owned facilities designated by the [HC]SWA for the acceptance or disposal of solid waste and [C & D] debris, including but not limited to, landfills and transfer stations.” Id. Art. I, § 1.2.9. Any person or hauler violating the Ordinance by depositing waste at a non-designated facility is subject to penalties. Id. Art. VIII, § 8.1.4 (persons); id. Art. IX, § 9.1.2 (haulers); id. Art. XI, §§ 11.1–11.3 (penalties).

Question Presented

Does the SWPMA preempt the Horry County Ordinance?

Analysis

An ordinance “is a legislative enactment and is presumed to be constitutional.” Aakjer v. City of Myrtle Beach, 388 S.C. 129, 133, 694 S.E.2d 213, 215 (2010) ( citing Southern Bell Tel. & Tel. Co. v. City of Spartanburg, 285 S.C. 495, 497, 331 S.E.2d 333, 334 (1985)). The party challenging a local ordinance bears the burden of proving its invalidity. Id. It is mandated in “[t]his State's constitution ... that the powers of local governments should be liberally construed.” Id. ( citing S.C. Const. art. VIII § 17).

We have employed a two-step analysis to determine the validity of a local ordinance. S.C. State Ports Auth. v. Jasper...