South Carolina Environmental Law Project

Lawyers for the Wild Side of South Carolina

Horry County looks to shed mining regulations, making them a state government affair
November 24th, 2020

By Tyler Fleming, The Post & Courier Myrtle Beach

HORRY COUNTY — Horry County is one vote away from handing off most local control of mining to state officials, sparking concerns about the long-term impacts of the industry on the local environment and quality of life.

Last week, Horry County Council voted to approve a second reading of three ordinances that essentially end a vast majority of local regulations over mining. The vote was the latest development from the fallout of a mining lawsuit against the county settled earlier this year that struck down a key part of the local mining regulations.

In 2017, the Red Bluff Trade Center, LLC, attempted to open a sandstone mine in Horry County. Despite having the appropriate zoning for a mine and a state permit, the LLC was denied an Horry County mining permit which sparked the lawsuit.

In 2020, a federal judge ruled against Horry County, saying it did not have the authority under state law to regulate mining through a local permit.

Currently, and regardless of the lawsuit, properties still need localized zoning approval from county council to operate a mine. While it’s clear the local permit won’t stand up in court again, county council is now a step away from removing mining from local regulatory ordinances altogether deferring all regulations to the S.C. Department of Health and Environmental Control.

The changes are a result of the ruling, coming after months of re-evaluating Horry County’s mining ordinances in numerous planning commission, committee and county council meetings.

The third reading, set for Dec. 8, of three ordinances would remove mining from the zoning ordinance, stormwater ordinance and the Imagine 2040 Comprehensive plans to effectively get out of the mine-regulation business.

This proposed action would make South Carolina’s statewide mining codes the base regulations for those looking to dig up Horry County sands and limestone.

Such a move would be unprecedented in South Carolina for a county the size of Horry. Such action has left many in the community with a central question as the final vote looms: Without local regulations, does the state of South Carolina have the resources to effectively control mining in Horry County?

Zoning regulations

First, removing mining as possible land uses from the zoning ordinance would be a fairly novel approach for a county government to take in this state. These codes guide what type of development is appropriate for a tract of land.

In addition, the Horry County Imagine 2040 Comprehensive Plan will have a sentence removed to reflect zoning ordinance changes in the land use map. The word mining is removed from the plan several times. This plan guides the future growth the entire county, as well as the rezoning process when a property owner seeks to change what they are allowed to do on their land.

The comprehensive plan and zoning ordinance gauge appropriate use of lands and not necessarily the finer details of if a company is able to uphold mining regulations.

Not having mining in the zoning code would make mining available as an option for any tract of land that meets statewide mining requirements. This is why understanding the state’s role in mining is key.

“By removing your own power, you are leaving certain parts of mining unregulated,” said Lauren Milton, a lawyer with the South Carolina Environmental Law Project. “People come to Horry County to recreate and enjoy beautiful landscapes. There is no such thing as mining tourists.”

The state government, through DHEC, regulates mines across the state, issuing a permit before digging can begin. DHEC also inspects the mines, requiring permits to be re-approved yearly. This happens with or without local ordinances.

“We believe it’s in the best interest of the county to step away from regulating mines through zoning because the federal court ruled that this is a DHEC issue,” said Christopher Pierce, a lawyer representing the mining industry. “It’s not a loss of control, it’s just a realignment of control to who it actually belongs: DHEC.”

A DHEC spokesperson said the department cannot recommend that a county have its own zoning regulations one way or another. The department can only uphold the regulations set by state lawmakers. The DHEC website states that the South Carolina mining act, that sets up the basics for mining regulations, does not supersede local zoning laws.

Those mining regulations are set up by state law with two types of permits offered, depending on the size and type of mines. A permit is required to mine anywhere in South Carolina. A key part of permitting is showing the need for the mine, what will be mined, environmental concerns and a clear plan for what will become of the pit once digging ceases.

A $600 application fee and $10,000 reclamation bond are levied before a general mining permit can be issued.

State regulations also allow a mining permit to be denied if there are clear harms to the environment, overall water quality concerns or nearby property like homes or public parks. The miners must also provide a clear plan for returning the mine to nature once the operation is over.

These mining regulations can fill up binders because they involve both state and federal laws, making it difficult to publicly explain all the nuances.

According to state law, DHEC doesn’t have to issue a permit if the mine’s location is inconsistent with the law. In addition, the public must be notified when the state agency receives a mining permit request. When DHEC reviews a mine permit, typically within a 60-day approval period, the public is invited to give input.

“DHEC works to inform the public multiple ways. The agency has a notification process for mine applications through which all landowners contiguous to the proposed permit area are notified by mail,” a DHEC spokesperson said in an email. “In addition, the county and the municipality (if applicable) are notified by email, as are state and federal natural resource and regulatory agencies. An ‘intent to mine’ is also publicly advertised in a newspaper of general circulation in the area of the proposed mine for two consecutive weeks. All comments and concerns are considered in making permit decisions.”

Currently, there are more than 50 mines permitted to operate in Horry County — mostly in the eastern areas of the county — but that doesn’t mean all of them are actively digging. A majority of them are sand mines, with a few sandstone mines.

Other state and federal agencies could get involved before a permit is issued depending on the location, size and impacts of the mine. Hypothetically, for example, trying to mine on wetlands would necessitate the Army Corps of Engineers getting involved and driving up costs.

But changing the zoning requirements isn’t necessarily required by the past court ruling and isn’t the same thing as having a permit. Horry County could still pass a floating zoning code or an alternative that would allow some control over where mines can operate.

An ordinance to create a floating mining zoning code could be passed with one additional ordinance reading. While the county council initially pursued this floating option to allow some local control over where a mine could operate, it has since changed strategies after more input from the mining industry.

Councilmember Danny Hardee, who opposes the changes, said he isn’t against mining, but doesn’t believe the council should give up all control of mining. Councilmember Gary Loftus agreed, adding that these ordinances give the mining industry everything it wants.

“I am opposed to giving up any and all control that we have over mining,” Loftus said. “We are not just showing the fox where the hen house is, but we are giving them the lock.”

Several members of the mining industry reminded the county council that mines can’t be placed just anywhere. First, the land must have the necessary materials and be relatively close to where construction begins.

Second, it must make economic sense to mine in a location. Environmental sensitivities, valuable land near existing cities and the quality of the soil determine if a mine is worth it or not. Many in the mining industry argue that the state regulations and economic challenges of mining will keep mines to just a decimal of open land in the county.

“We have to mine where God put the materials,” engineer Marguerite McClam said, estimating that less than 10 percent of the county is feasible for mining useful materials under statewide regulations and economic conditions.

Environmental concerns

Cara Schildknecht, the Waccamaw Riverkeeper, said water quality is important for keeping the Waccamaw River a drinkable, swimmable and fishable waterway. She said her organization, the Winyah Bay Alliance, does scientific monitoring of the river conditions, and she is worried about land usages like mining — even with DHEC regulations — will harm the river.

Schildknecht added that keeping the local zoning regulations helps ensure that essential mines can operate but in areas that pose less of a threat to important waterways. Local zoning requirements mean more voices are heard in determining if a mine is appropriate and won’t have unintended consequences on the water supply.

“What happens on land will eventually impact the water,” said Schildknecht, citing that mining can lead to increases of soil in the water that can increase bacteria.

Horry County Council’s actions, if ultimately approved, would also remove mining from the stormwater ordinance. This has caused notable concerns due to mines posing environmental threats to both the land being mined, but also the waterways nearby.

Several other members of the community joined the riverkeeper in expressing concerns over the drastic steps being proposed. The Grand Strand’s drinking water comes from the Waccamaw River, so protecting its water quality is a primary public health concern.

As aforementioned, DHEC can consider environmental hazards when issuing a permit, but the process doesn’t stop there. The agency is charged with monitoring if regulations are being upheld.

With or without local stormwater requirements, DHEC requires mines to report water quality samples taken from the site during the duration of mining. These check-ins can happen every month or quarterly depending on the type of mining. Depending on the mine, state regulators want to know the acidity and flow of the water, as well as the presence of potential harmful pollutants like oil or gas.

McClam reminded the council that as a professional engineer, her career rides on mines she is associated with meeting all standards and regulations set forth by the state and federal government.

Over the last year, DHEC recorded four mines in Horry County as exceeding the allowed amount of water being discharged from the mining operation. The problems were not repeated in subsequent inspection and not deemed significant enough for further investigation.

Five recent DHEC inspection reports show that two mines didn’t complete quarterly visual assessments of water quality ahead of the deadline. One mine didn’t conduct a stormwater pollution prevention plan detailing what efforts are underway to stop harmful pollutants from reaching waterways. The problems were addressed without needing to send the mines to enforcement.

Currently, DHEC is inspecting five additional mines in Horry County and reports should be available soon.

“If the department determines a mine has deficiencies/violations during an inspection, the department establishes a compliance schedule for the mine to implement corrective action and demonstrate the deficiencies have been corrected,” the department said in a statement.

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