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

Several South Carolina Supreme Court justices on Tuesday questioned whether a landfill operator in Pickens County sought to install a liner on a new landfill to ultimately accept coal ash.

The long-lasting legal battle over the unused site of more than 400 acres along State 93 and Cartee Road near Liberty 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 five justices heard from lawyers for about an hour Tuesday and did not announce any decisions during the hearing.

Justices George James, John Few and John Kittredge each questioned why the landfill would add a liner, a costly step for that type of landfill, unless the landfill operators intended to take additional types of waste, such as coal ash, which require a liner.

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 change and about whether Pickens County and nearby landowners were required to be formally notified of the potential changes.

But, as several justices said repeatedly, 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.

Landfill couldn't accept coal ash without public input 

Coal ash is typically generated by coal power plants and 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 a previous court decision, coal ash is generally unsuitable for most landfills.

The proposed landfill in Pickens County cannot accept coal ash now and would need to go through significant public hearings or notifications in order to accept it, said Etta Linen, assistant general consul for the South Carolina Department of Health and Environmental Control. The state agency granted the changes several years ago and is mostly in line with the company's position that the changes were minor and did not require significant public input.

Answering the justice's questions, Linen said that the landfill operators couldn't install the liner and then "pull a fast one" on DHEC and get coal ash permitted through a quick backdoor process without significant public input.

Chad Johnston, an attorney for MMR, said it is not possible for the landfill to accept coal ash without the public being informed in the future. He said the changes, including the DHEC approval of the liner, didn't affect the type of waste, the volume of waste or the classification of the landfill.

What's the difference between class 2 and class 3 landfills?

At some point between 2014 and 2016, the landfill operators sought to modify a 2008 design to add the liner and change some language in their permits.

The landfill would be a class 2 landfill, often referred to as a construction and demolition landfill. A class 2 landfill can accept a wide variety of construction-type materials including brush, bricks, concrete with rebar, dried paint cans and with some stipulations, materials like asbestos.

A class 3 landfill can accept household waste and a variety of other materials, those landfills require a liner, which is a layer underneath the landfill to prevent household cleaners and other toxins from entering the groundwater.

Class 3 landfills are more expensive to operate.

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The proposed landfill would be the only class 2 landfill in South Carolina with a liner, said Amy Armstrong, an attorney for the South Carolina Environmental Law Project, who appeared in court on behalf of Pickens County.

She said the changes by MMR were "a deliberate and intentional effort to classify the modification as minor in a way that avoids public notice and comment and notice requirements."

Does landfill have plans to accept coal ash?

The justices repeatedly asked why the company was seeking a liner unless there were plans to accept additional types of waste, specifically coal ash.

"The gist of the questions you’re being asked is: Is MMR going to try to put coal ash in the landfill without going through the full hearing process," Justice George James said.

Johnston said some form of public processes would be required before any coal ash could be accepted.

Johnston said he does not know why a liner was sought except that it was a business decision by MMR to allow them flexibility and the state does not require a reasoning to be shared with regulators.

The justices will be considering whether to send the case back to an appeals court, which ruled in the county's favor in 2020.

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