Chief Justice TOAL:
Pursuant to Rule 244(a), SCACR,
In 1976, Congress enacted the Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901 et seq. (1976, as amended) (RCRA), to create a long-term solution for managing the increasing levels of solid waste across the United States and to address contiguous environmental problems created by harmful disposal methods, inadequate landfill capacity, and substandard facilities. Id. § 6901(a), (b). The RCRA also mandated
In 1991, as a corollary to the federal guidelines, the General Assembly enacted the SWPMA after determining a "coordinated statewide management program [was] needed to protect public health and safety, protect and preserve the quality of the environment, and conserve and recycle natural resources." S.C.Code Ann. § 44-96-20(A)(13) (2002). Not only did the General Assembly seek to ensure the environmentally sound disposal of certain types of nonhazardous waste in South Carolina, but through the SWPMA, the General Assembly also sought to handle the practical problems associated with solid waste management by ensuring adequate landfill capacity to meet the state's future disposal needs and provide for the efficient and economical disposal of waste in the state. See generally S.C.Code Ann. § 44-96-20(A)(1)-(14) (listing the General Assembly's policy findings necessitating the passage of the SWPMA) and (B)(1)-(14) (listing the objectives of the SWPMA from a policy standpoint); 44-96-240(A)(1)-(6) (listing the General Assembly's findings necessitating the statewide management of solid waste) and (B)(1)-(2) (listing the objectives of the statewide management system). The SWPMA mandates the formation of a state solid waste management plan by DHEC and requires counties to prepare individual solid waste management plans or participate in regional solid waste management plans.
Plaintiffs Sandlands C & D, LLC (Sandlands) and Express Disposal Service, LLC (EDS) are related, privately-owned South Carolina companies. Sandlands owns and operates a landfill in Marion County, approximately two miles across the Horry County border, and EDS hauls waste originating in South Carolina and North Carolina to Sandlands' landfill.
Horry County Council created Defendant Horry County Solid Waste Authority, Inc. (HCSWA) in 1990 to manage Horry County's solid waste needs. Horry County Code 60-90 (1990). The HCSWA, a non-profit corporation, owns and operates a municipal solid waste landfill
On April 7, 2009,
Horry County Code 02-09, Art. I, § 1.1. To this end, the Ordinance requires all acceptable solid waste
An ordinance "is a legislative enactment and is presumed to be constitutional." Aakjer v. City of Myrtle Beach, 388 S.C. 129, 133, 694 S.E.2d 213, 215 (2010) (citing Southern Bell Tel. & Tel. Co. v. City of Spartanburg, 285 S.C. 495, 497, 331 S.E.2d 333, 334 (1985)). The party challenging a local ordinance bears the burden of proving its invalidity. Id. It is mandated in "[t]his State's constitution ... that the powers of local governments should be liberally construed." Id. (citing S.C. Const. art. VIII § 17).
We have employed a two-step analysis to determine the validity of a local ordinance. S.C. State Ports Auth. v. Jasper County, 368 S.C. 388, 394-95, 629 S.E.2d 624, 627 (2006) (citing Bugsy's, Inc. v. City of Myrtle Beach, 340 S.C. 87, 93, 530 S.E.2d 890, 893 (2000)). First, a court must determine "whether the county had the power to enact the ordinance." Id. at 395, 629 S.E.2d at 627. "If the state has preempted a particular area of legislation, then the ordinance is invalid," and "[i]f no such power existed, the ordinance is invalid and the inquiry ends." Id. Where a court finds the county did "ha[ve] the power to enact the ordinance," then it must "ascertain[] whether the ordinance is inconsistent with the Constitution or general law of this state." Id. (citations omitted).
Despite Plaintiffs' extensive arguments concerning the question of whether Horry County had the authority to enact the Ordinance, the issue is not squarely before us, as the single question certified to this Court concerns preemption. However, for the sake of providing context to the preemption discussion, and because the two questions are inextricably linked in this case, we conclude Horry County validly enacted the Ordinance in furtherance of its police powers.
Recognizing that "[t]he management of solid waste is the inherent responsibility of local government, whose authority in this area is derived from its police powers," the Ordinance purports "to protect the health, safety, and general well-being of the citizens of Horry County, enhance and maintain the quality of the environment, conserve natural
We now turn to the thrust of the certified question— whether the SWPMA preempts the Ordinance. As stated previously, an ordinance is invalid if we find that state law preempts the area of legislation. Ports Auth., 368 S.C. at 395, 629 S.E.2d at 627. "To preempt an entire field, an act must make manifest a legislative intent that no other enactment may touch upon the subject in any way." Id. (citing Town of Hilton Head Island v. Fine Liquors, Ltd., 302 S.C. 550, 552, 397 S.E.2d 662, 663 (1990)). In South Carolina Ports Authority v. Jasper County, we discussed federal preemption concepts and premised our finding of no preemption on the basis that the petitioner failed to establish express preemption, implied field preemption, and implied conflict preemption. 368 S.C. at 395-96, 629 S.E.2d at 627-28 (explaining that in federal court, preemption may be had on grounds of express preemption, implied field preemption, and implied conflict preemption). Likewise, we discuss these federal preemption categories here because Plaintiffs contend these same categories are substantiated in the present case.
Plaintiffs argue that the SWPMA expressly subordinates county regulation of solid waste management to DHEC, creates a coordinated statewide solid waste management system, and mandates regional planning. Therefore, the SWPMA and accompanying regulations expressly preempt a county from regulating the flow of solid waste within the counties, as required by the Ordinance.
"Express preemption occurs when the General Assembly declares in express terms its intention to preclude local action in a given area." Ports Auth., 368 S.C. at 397, 629 S.E.2d at 628 (citations omitted).
At the outset, we recognize that the SWPMA imposes a coordinated, statewide regulatory scheme overseen at the state level by DHEC. See, e.g., S.C.Code Ann. § 44-96-20(A)(13) ("A coordinated statewide solid waste management
The SWPMA does not prohibit county regulation of solid waste management. Plaintiffs urge this Court to adopt a rule whereby DHEC has the exclusive authority to regulate the entire field of solid waste management, arguing this case is analogous to Southeast Resource Recovery, Inc. v. South Carolina Department of Health and Environmental Control, 358 S.C. 402, 595 S.E.2d 468 (2004). In that case, this Court held that DHEC possessed the exclusive authority under the SWPMA to make consistency determinations as part of the permitting process, and consequently, DHEC could not relinquish this decision to the counties. Id. at 408, 595 S.E.2d at 471. Although there is no doubt the express language of the SWPMA provides for DHEC's exclusive authority in the area of permitting, see S.C.Code Ann. § 44-96-290(E) ("No permit to construct a new solid waste management facility or to expand an existing solid waste management facility may be issued until a demonstration of need is approved by the department."); id. § 44-96-260(2) (DHEC may "issue, deny, revoke, or modify permits, registrations, or orders under such conditions as the department may prescribe. . . ."), we glean no similar express language in the statute concerning the flow of solid waste within the counties. Therefore, Southeastern Resource Recovery is inapposite.
Furthermore, Plaintiffs have not identified any specific provisions of the SWPMA that prohibit Horry County's passage of the Ordinance. To the contrary, the SWPMA is laden with references to the counties' involvement in the management and regulation of solid waste. See, e.g., 44-96-80(A), (J), (K). Likewise, the DON Regulation itself contains no express language prohibiting county regulation of the flow of waste.
Next, Plaintiffs cite a multitude of provisions to support their contention that the Ordinance conflicts with the SWPMA's requirement that counties adopt a regional approach to solid waste management.
Plaintiffs advance a similar argument with respect to implied field preemption. Plaintiffs contend that the SWPMA establishes a comprehensive statutory scheme for the permitting and siting of landfills that grants DHEC exclusive regulatory authority and responsibility for overseeing the field of solid waste management, and therefore, the SWPMA impliedly preempts the Ordinance. We disagree.
Implied field preemption occurs "when the state statutory scheme so thoroughly and pervasively covers the subject so as to occupy the field or when the subject mandates statewide uniformity." Ports Auth., 368 S.C. at 397, 629 S.E.2d at 628 (citations omitted).
S.C.Code Ann. § 44-96-290(E) (2002).
While this section requires counties to comply with state law, DHEC regulations, and the state solid waste management plan when submitting their own county plans, we do not agree that this section demonstrates the General Assembly's intent to grant DHEC exclusive regulatory authority over the entire field of solid waste management. Where the General Assembly specifically recognizes a local government's authority to enact local laws in the same field, the statutory scheme does not evidence legislative intent to occupy the entire field of regulation. See Denene, Inc. v. City of Charleston, 352 S.C. 208, 213, 574 S.E.2d 196, 199 (2002) (stating "[i]t would have been unnecessary for the legislature to refer to municipalities' authority to regulate the hours of operation of retail sales of beer and wine if the General Assembly intended to occupy the entire field."); AmVets Post 100 v. Richland County Council, 280 S.C. 317, 313 S.E.2d 293 (1984) (where the language of the statute contemplated additional regulation of the game of bingo at the local level, there was not preemption). The SWPMA is silent with respect to control over the flow of local waste generated in the counties and, instead, expressly invites county regulation, planning, authority, and responsibility in the field of solid waste management. See, e.g., S.C.Code Ann. § 44-96-80(A), (J), (K). Therefore, we find the legislature did not intend for DHEC to occupy the entire field of solid waste management.
Accordingly, we find Plaintiffs have not satisfied their burden with respect to implied field preemption.
Plaintiffs contend that the Ordinance clearly hinders the purpose of the SWPMA because it obstructs the SWPMA's policy of mandating a regional approach to solid waste management and interferes with the DON Regulation's planning formula for adequate landfill capacity in the state. We disagree.
"[Implied] [c]onflict preemption occurs when the ordinance hinders the accomplishment of the statute's purpose or when the ordinance conflicts with the statute such that compliance with both is impossible." Ports Auth., 368 S.C. at 400, 629 S.E.2d at 630 (citations omitted). Generally, additional regulation that merely supplements state law does not result in a conflict. Denene, 352 S.C. at 214, 574 S.E.2d at 199 (citations omitted).
Id. (quoting Town of Hilton Head, 302 S.C. at 553, 397 S.E.2d at 664).
The General Assembly enacted the SWPMA, in relevant part, to:
S.C.Code Ann. § 44-96-20(B)(1)-(5), (7), (13), (14), and to:
id. § 44-96-240(B)(1)-(2). The Ordinance does not conflict with any of these enumerated purposes, either directly or impliedly.
Plaintiffs primarily argue that the Ordinance conflicts with statewide planning by inhibiting the implementation of the DON Regulation, which Plaintiffs argue mandates a regional approach to solid waste management in the State. As evidence of the conflict between the Ordinance and the General Assembly's intent to advance a regional approach to solid waste management, Plaintiffs point to the 75-mile wide planning radius for Class Three Landfills (which includes municipal solid waste facilities), and the increase in the planning area for Class Two Landfills (which includes C & D landfills) from the previously authorized 10-mile radius to a 20-mile planning radius.
We reiterate that the SWPMA merely encourages a regional approach to solid waste management while at the same time explicitly allowing single-county planning. See S.C.Code Ann. § 44-96-80(G). Therefore, we disagree with Plaintiffs to the extent they argue that the requirements of the DON Regulation mandate regionalism and foreclose county regulation of the flow of solid waste. There is no correlation between demonstration of need decisions and the ultimate destination of collected waste within a planning area. The planning radius merely serves to pinpoint the permissible location of a new facility. S.C.Code Ann. Regs. § 61-107.17.D.2.a (requiring that no more than two landfills overlap in their respective planning areas). On the other hand, the rate of waste generated within a particular planning area is used to calculate the maximum allowable waste that may be disposed of at a particular facility per year, subject to increases as allowed under the DON Regulation. Id. § 61-107.17.D.3.a-b (calculating facilities' maximum capacity); id. 61-107.17.D.3.c-d (outlining how to obtain increases). This number is based in part on the overall disposal rates within a particular county or region, as compiled in the various county or regional solid waste management plans. However, there is no nexus between the location where collected waste is deposited and these calculations. We note further that the SWPMA allows (and encourages) counties not able to host a certain type of landfill to join with other counties to form regional solid waste plans. Moreover, solid waste facilities do not receive waste exclusively from their own planning areas, so even when facilities cannot host a certain type of landfill, that waste may still be transported to landfills across the state.
While the SWPMA provides for a statewide management system, it also places the onus on the counties to plan and provide for solid waste collection and disposal at the local level. Horry County's passage of an ordinance regulating the flow of waste neither frustrates the purpose of the SWPMA, nor interferes with need determination for landfill permitting pursuant to the DON Regulation. Compliance with both the Ordinance and the SWPMA is undoubtedly possible. Therefore, we find that the Ordinance is not preempted under the implied conflict analysis.
Finally, we turn to whether the Ordinance is "inconsistent with the Constitution or general law of this state." Ports Auth., 368 S.C. at 394-95, 629 S.E.2d at 627 (citing Hospitality Ass'n, 320 S.C. at 224, 464 S.E.2d at 117). Plaintiffs contend that the Ordinance directly conflicts with section 44-55-1020 of the South Carolina Code because that section allows individual generators of waste and municipalities to dispose of waste in any manner allowed by the county health departments, and the Ordinance requires disposal of solid waste at a facility designated by Horry County Council.
Plaintiffs' reliance on this section is specious. The Ordinance was not enacted with section 44-55-1020 in mind,
Having determined that the Ordinance does not conflict with the SWPMA or DHEC regulations, which allow for county regulation of solid waste, we find the Ordinance is not inconsistent with section 44-55-1020. Plaintiffs have not directed us to any other inconsistent statutory or constitutional provisions. Therefore, the Ordinance is a valid exercise of Horry County's authority.
Based on the foregoing, we find that the Solid Waste Policy and Management Act does not preempt Horry County Ordinance 02-09.
PLEICONES, BEATTY, KITTREDGE and HEARN, JJ., concur.
With the advent of "home rule" legislation in this state, the General Assembly in 1989 enacted section 4-9-25 of the South Carolina Code, which states:
S.C.Code Ann. § 4-9-25 (Supp.2010). The broad delegation of power under this section "is limited only by the requirement that the regulation, resolution, or ordinance be consistent with the Constitution and general law of this State." Hospitality Ass'n of S.C., Inc. v. County of Charleston, 320 S.C. 219, 226, 464 S.E.2d 113, 118 (1995).
S.C.Code Ann. § 44-96-80(K) (2002).
S.C.Code Ann. § 44-55-1210 (Supp.2010). The Ordinance is obviously not prohibited by the plain language of this section.
