MRR Highway 92, LLC applied for and received a DHEC permit to construct a construction and demolition debris landfill in Laurens County. We have appealed the permit for a citizens group known as EAGLE. Pretrial discovery included about 5 depositions. Cross motions for summary judgment were filed, argued and denied.
Prior to trial, we narrowed the issue to the question of NEED. Section 44-96- 290(E) of the SC Solid Waste Management Act requires a “demonstration of need” for every solid waste management facility. Laurens County generates less than 20,000 tons of C & D waste per year. The county already has a C & D landfill with a capacity of 241,000 tons per year. The DHEC permit for this new landfill allows 154,000 tons per year. DHEC uses a formula to determine need, and under this formula the landfill is allowed a capacity that includes all of the waste generated in Laurens, Greenville and Spartanburg Counties. The applicable regulation allows DHEC to consider “additional factors” to make a determination of need “on a case-by-case basis,” but DHEC only considered the formula in this case. DHEC did not consider the fact that the three counties have landfills with a combined capacity of around 800,000 tons per year. We had a trial before Administrative Law Judge Ralph King Anderson, III on July 22, 2009. We submitted proposed orders to the Judge on September 14, and he conducted a conference call on September 22. The Judge indicated that he is analyzing the “additional factors” requirement and asked us to provide additional information related to that issue by September 28, 2009. The Supreme Court has ruled that the Administrative Law Court lacks authority to declare a regulation invalid, and that the statutory process set forth in Section 1-23-150 of the SC Administrative Procedures Act must be followed to obtain such a ruling. Following the APA procedure, we filed a Petition for Declaratory Ruling with DHEC, asking the agency to declare its formula invalid because it is inconsistent with the statutory “demonstration of need” requirement. This petition was filed July 7, 2009. On August 3, 2009, DHEC responded that its former regulation complies with the statutory “demonstration of need” requirement. We are preparing to file an action for declaratory judgment in Circuit Court.
Client: Engaging and Guarding Laurens County’s Environment (“EAGLE”) Other parties: DHEC and MRR Highway 92, LLC Attorneys: Etta Williams and Stephen Hightower for DHEC Tommy Lavender, Joan Hartley and Leon Harmon of Nexsen Pruet for MRR Highway 92, LLC