South Carolina Environmental Law Project

Lawyers for the Wild Side of South Carolina

Court says Pickens County coal ash landfill issue was mishandled, a win for opposition
January 10th, 2020

By Mike Ellis, The Greenville News

A state appeals court ruling Wednesday gave a victory to Pickens County, environmentalists and neighbors who have spent years challenging a landfill that would have been able to accept coal ash.

Adjoining neighbors of the unused site, more than 400 acres along State 93 and Cartee Road near Liberty, will get a long-delayed notification from state regulators telling them the landfill application has changed to a type that could allow more types of waste, including coal ash. The decision also means an administrative court will need to redo the process of considering the landfill changes, giving the public and local governments a chance to raise oppositions again.

The appeals court decision says the public should have been able to voice concerns years ago about the changes at public forums, but state regulators and an administrative judge incorrectly decided to not require the notifications or the chances for the community to raise concerns.

The ruling revolves around changes made to the landfill permit several years after it received the permit in 2008.

The landfill operators, MMR Pickens LLC, based in Raleigh, North Carolina, held meetings in 2014 and 2015 about changes to the landfill but misrepresented the nature of the changes, including a company official who said there would be "no changes" from the 2008 plans, according to the court decision.

The company had previously said, in a legal filing, that it expected get a profit of around $25 million over the life of the landfill.

Landfill operators had also told a state lawmaker several years ago they would be open to selling the property. Attorneys for the landfill company, MRR Pickens, did not respond to phone messages left Thursday morning.

Ken Roper, the acting Pickens County administrator and former county attorney, said the decision vindicates the county after a long legal process.

"MRR's modification of the landfill permit, done in secrecy and with no notice to Pickens County or the adjacent landowners, was inappropriate and in violation of the law," he said.

The landfill operators in 2015 told state regulators they were making minor changes and requested alterations to their permit, which would allow for the installation of a liner that could handle additional types of material including coal ash.

Coal ash, typically generated by coal power plants, can contain toxic heavy metals such as mercury, lead and arsenic which can contaminate ground and surface water.

It is classified as "special waste" in South Carolina, and according to the court decision is generally unsuitable for most landfills.

The Pickens County landfill may have been intended for a less toxic type of coal ash but there were questions raised about how to determine which type would be located in Pickens County, according to previous reporting by The Greenville News.

When the landfill plans were altered to allow more types of refuse, county officials and neighbors objected but state regulators determined that the changes were not significant enough to have required new chances for the public to voice concerns.

The court ruling released Wednesday found that the changes were significant and should have triggered notifications to the county and to neighbors as well as additional chances for the public to learn more and raise any objections.

State regulators said at the time that they considered the alterations to be minor.

Changes considered to be major require additional public comment, minor changes do not.

That distinction, minor rather than major, was signed off on by a DHEC regulator who was deposed as part of the lawsuit.

The appeals court noted that the regulator said in the deposition that he knew at the time that the landfill operators were considering putting coal ash into the landfill and the landfill operators had taken several steps that should have made it a major change.

He said he knew the changes were major and that major changes would typically require additional public comment.

In a statement, DHEC officials said they will review criteria for landfill modification process based on the court's decision and there are no plans to appeal the decision.

A 2016 administrative law court decision found that the county had waited too long to object to the changes but the appeals court determined the clock for objecting to changes should not have started until state regulators fixed their mistake and followed their own regulations.

"Thus, we find DHEC's labeling of the permit modification as minor denied contemporaneous notice and participation opportunities that DHEC's own regulations required be provided to both the public and the adjacent neighboring property owners," says the court decision.

The appeals court also chided the lower administrative court decision to allow landfill proponents to bring affidavits and other evidence while not telling the county it could do the same.

The ruling reverses the administrative law decision and allows for the county to gather facts from the landfill operators in a legal process called discovery, a step that had been halted by the administrative court.

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