SC Supreme Court issues ruling on Pickens County landfill that could accept coal ash

An administrative court will decide whether state regulators mishandled a Pickens County landfill process after the South Carolina Supreme Court kicked the decision back to administrative court this week.

The decision extends a long legal struggle for the landfill operators, who want to be able to go forward after six years of limbo, and county officials, who want protections to keep the the landfill from taking coal ash.

As part of the Supreme Court ruling, the landfill operators said they will likely not be able to accept coal ash at the landfill without separate approvals, which was one of the county's primary goals in contesting the landfill.

The lawsuit is about a still-unused site of more than 400 acres along State 93 and Cartee Road near Liberty. The next step could determine the fate of the would-be landfill, which Raleigh, N.C.-based MMR Pickens LLC has previously said could generate $25 million over its lifetime.

The legal case is on technical grounds, largely about whether adding a liner to the landfill design was most properly classified as a major or minor design change and because of that distinction, it's also about whether Pickens County and nearby landowners were required to be formally notified of the potential changes.

But, as several justices said during oral arguments in May, the case is really about whether the site will take coal ash and whether county staff and residents are able to be heard if the landfill operators seek to take coal ash in the future.

Previous reporting:SC Supreme Court justices question whether landfill operator near Liberty aims to take coal ash

More:Court says Pickens County coal ash landfill issue was mishandled, a win for opposition

The justices ruled that the administrative court will make a decision: If the design change was minor, that means notifications were done correctly and the process can continue for the landfill. If the change was major, the window of time for county officials and residents to object has not yet started and they can object.

The case will likely wait several months until it can be heard, said Amy Armstrong, with the South Carolina Environmental Law Project, which helped to represent Pickens County in the case.

The administrative court will appear like a trial, Armstrong said, with an administrative judge instead of a jury and with the ability to get discovery, which could allow for emails and other documents from the landfill operators to be shared with the county officials.

She said the Supreme Court decision was a win for the county because the county had not been able to make its arguments — that the landfill design change was substantial enough to require public input - due to the procedural ruling.

The initial decision on the landfill was made by the administrative law court, which didn't determine whether state regulators were correct in calling the change minor. The administrative court rejected the county's efforts to halt the process because the county had missed a window of time to lodge complaints.

An appeals court decision later largely sided with the county, finding the landfill operator had made "misrepresentations" and a state regulator had admitted errors.

The Supreme Court ruling does two things: It requires the administrative court to decide on the minor/major distinction and because the administrative court didn't examine the facts of the case, the justices also tossed parts of the appeals court opinion as having been made without the full facts.

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Mike Ellis lives in Powdersville and tells South Carolina stories with a focus on Anderson County and Pickens County along with faith and investigations. He's always looking for the next story that people need to read, please send any tips or feedback to mellis@gannett.com.