SCELP News

South Carolina Environmental Law Project

Lawyers for the Wild Side of South Carolina

Major Win in Pickens County Coal Ash Landfill Court Battle

For immediate release

S.C. Court of Appeals reverses lower court opinion, delivering win for Pickens County and its residents

In a win for Pickens County and the health, safety and self-determination of its citizens, the South Carolina Court of Appeals has reversed a lower court decision dismissing the County's challenge to a landfill proposed by MRR Pickens, LLC.

This legal action centers around a permit modification approved by the state Department of Health and Environmental Control (DHEC) that could allow MRR's proposed landfill near Liberty to accommodate coal ash, a dangerous and environmentally toxic substance.

Initially, MRR proposed a basic “Class 2” landfill that would accept the types of waste associated with landscaping and construction. This landfill design underwent an extensive public notice and publication process, and the Class 2 permit was granted with Pickens County’s cooperation and consent. The controversy here arose when that permit was modified, without any notice to Pickens County or residents neighboring the landfill, to a design suited for disposal of much more noxious waste.

Notice and timeliness were at the center of the appeal, with Pickens County arguing that MRR had met surreptitiously with DHEC in order manipulate the permitting process and hide the controversial disposal of coal ash. According to the Court’s opinion, at the same time MRR was pursuing the permit modification, its spokesperson was actively representing to Pickens County that the landfill design had not changed.

Because Pickens County and the neighboring property owners were not notified of the permit modification, their legal challenge to that modification was not filed within the customary time limitation provided by statute. MRR and DHEC sought dismissal of the case on this basis, and an Administrative Law Court judge ruled in favor of MRR, saying the County failed to meet deadlines to appeal DHEC’s decision and dismissing the case.

But, on Wednesday, the Court of Appeals reversed that decision and sent the case back to the Administrative Law Court. The Court’s reversal rests on its conclusion that DHEC misclassified the permit modification in a manner that denied Pickens County and the neighbors of the notice they were due. In short, the County and the neighbors could not be held to a timeliness standard when they were never properly notified of the permit.

The County is represented the South Carolina Environmental Law Project (SCELP), a nonprofit public-interest law firm.

“This is a critically important win for public participation in environmental permitting,” said SCELP Upstate Coordinator Michael Corley. “Our state agencies should be as transparent and inclusive as possible when granting permits that affect our health, environment, and community. It’s unconscionable that a permit like this could be granted without even basic notification to next door neighbors, and the Court’s opinion recognizes that.”

Gary Poliakoff, attorney representing Pickens County, stated, “This is a great win for Pickens County and for the environmental community at large. The County and its citizens are most appreciative of this decision.”