Federal appeals court upholds Horry County’s trash ordinance

dwren@thesunnews.comDecember 4, 2013 

Construction and demolition waste is crushed as it is dropped off in this file photo at the Horry County Solid Waste Authority landfill outside of Conway.

FILE PHOTO — The Sun News Buy Photo

— A federal appeals court on Tuesday upheld Horry County’s flow control ordinance – which mandates where the county’s trash must be disposed – in a unanimous decision that was closely watched by private landfill operators and trash haulers across the country.

The Fourth Circuit Court of Appeals rejected claims by Sandlands C&D LLC, a private landfill operator in Marion County, and trash hauler Express Disposal Service LLC that the county’s flow control ordinance violates the equal protection and commerce clauses of the U.S. Constitution.

Mike Bessant, assistant executive director of the Solid Waste Authority, said the authority is pleased with the decision.

“We’ve been through the state Supreme Court, the federal District Court and now the federal Court of Appeals and we’ve been able to succeed in all of those court cases,” Bessant said. “One thing that stood out in all of those cases is that local government has the distinctive right to manage their waste within their borders and do what’s best for their citizens, and have the right to control their waste stream and use it to fund other programs . . . which is the reason we did the flow control ordinance in the beginning.”

In its ruling, the appeals court cited a 2007 decision by the U.S. Supreme Court that says government-run trash services can prohibit private disposal facilities as long as the government treats every private business equally.

“Disposing of trash has been a traditional government activity for years, and laws that favor the government in such areas – but treat every private business, whether in-state or out-of-state, exactly the same – do not discriminate against interstate commerce,” Supreme Court Justice John Roberts wrote in the 2007 decision.

In this case, Sandlands was prohibited from accepting county-generated trash and EDS was prohibited from transporting such trash to private facilities just like every other private business, the appeals court ruled.

The Horry County case has been watched by private trash businesses because it is the first time the Supreme Court’s precedent has been tested, according to a report by the federal Environmental Protection Agency. A ruling favorable to private businesses could have opened the door to more challenges against the growing number of flow control ordinances passed throughout the country.

However, appeals court Judge Allyson Duncan wrote in this week’s decision that the court saw no evidence to oppose the higher court’s precedent, adding that court officials “are loath to overturn [local ordinances] by substituting their judgment for that of local officials.”

The appeals court decision upholds a previous ruling by federal district court Judge Terry Wooten.

The county’s flow control ordinance, adopted in 2009, states that all waste generated here must be taken to landfills operated by the Horry County Solid Waste Authority, which the court states is a public entity. The county adopted the flow control ordinance to create a steady revenue stream for the authority, which charges a fee to those who use its landfills.

Although the authority is a separate nonprofit corporation, it was created by the Horry County Council to manage solid waste and the council maintains considerable power over the authority by approving its budget and expenditures, appointing its board members and approving its by-laws.

Sandlands, which operates a construction and demolition landfill located two miles from the Horry County line, claimed in court filings that it had a significant decrease in business after the ordinance was approved. EDS – which transports trash in the eastern Carolinas – said it also experienced a decrease in business. EDS has been cited at least 17 times for violating the flow control ordinance, according to court documents.

Vincent Sheheen, a lawyer representing Sandlands and EDS, told the appeals court during an Oct. 31 hearing that the ordinance is overly broad and makes it illegal to take any refuse – even a McDonald’s lunch bag tossed onto the back seat of someone’s car – across the county line.

The three-judge appeals panel told Sheheen it was wary of bucking the Supreme Court’s precedent and questioned Sheheen over whether his argument, while theoretically possible, was realistic.

“I don’t think they are out there catching people with McDonald’s bags, no,” Sheheen said.

The panel’s discussion during the Oct. 31 hearing was overwhelmingly in favor of Horry County’s position, leading county lawyer Mike Battle to tell the judges, “You’ve already made my argument for me and done an excellent job,” when it came time for Battle to argue the county’s case.

The county’s ordinance has been largely successful in ensuring that trash here is disposed of in an approved landfill, according to court documents. Between 2009 and 2011, the authority processed more than 99 percent – 689,708 tons – of trash generated in the county. The remaining 1,844 tons were taken to public landfills in four other counties. Most of that waste included materials that cannot be processed at the authority’s sites, such as hazardous material asbestos, while the rest was taken out of the county without the authority’s knowledge.

Jason M. Rodriguez contributed to this report.

Contact DAVID WREN at 626-0281.

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