Want to live near a mine? Looser laws in Horry Co. could bring one closer to your home

Erika and Christopher Geist moved from Philadelphia just over a decade ago and bought a large piece of property in Horry County. The couple wanted to get away from the city so they settled in Loris, a rural area in the county where space is plentiful, noise is seldom and neighbors are further away.

Eventually, Jason White wants something similar. Earlier this year, he bought the 30-acre property behind the Geist’s land. White said he wants to dig a lake on the property, build several homes around the lake and live in one as his retirement home. To make that project a reality, White said he needs a mining permit and years to dig the lake.

The Geists weren’t pleased with his plans when they first heard about them, and spoke against a zoning change White requested several months ago during an Horry County Planning Commission meeting last month. Chris Geist said he’s concerned about both the close proximity of White’s mine, as well as the dust that could blow off the site and onto his property or into his home. His wife suffers from asthma, he said, and he’s been diagnosed with COPD.

“I think it’s kind of reckless that they would sit there and do mining in a residential community,” Chris Geist said. “Not to mention the dust they accumulate while they’re mining as well as the constant noise with all the machinery sitting back there.”

Horry County Council is considering legislation that would rewrite its zoning code for mines. Instead of restricting mines to a handful of predetermined zones, the proposed ordinances would allow mines in all zones in the county, requiring only minor setbacks from property lines and wetlands. Large mines, those bigger than five acres, would still need a county certification to operate. Smaller mines would not.

If county council enacts the mining legislation it’s debating, it’s possible the neighborly conflict between the Geists and White has the potential to play out across the county.

Development depends on mining

Mining is essential to Horry County. As the county and its cities have boomed in recent decades, major developments like highways, subdivisions and shopping centers have all needed sand or dirt from local mines to make concrete and to ensure those projects are raised above sea level.

Mining in South Carolina is defined as breaking the earth to extract minerals or other substances to sell or use to make other products. According to state data, Horry County currently leads South Carolina in the number of active mines: 52. Substances like gold, limestone and sand are all mined in the state, though sand and clay are the most common mines.

Miners say the county should make it easier for them to contribute to the local economy by removing the zoning regulations because digging further away from job sites is more costly. Opponents to the ordinances, including environmental advocates, say they aren’t averse to mining but the county should retain control over where mines can be dug.

For White’s part, he views the mine operation he proposed as a way to make a living. He also wants to be a good neighbor, and do what he can to reduce the noise and dust that would bother the Geists. He said he’ll put barriers around the property to prevent dust and use an access road that doesn’t run near the Geist’s home to truck out mine dirt. White’s not crazy about the amount of regulations surrounding mines, but said he’ll follow whatever rules are in place.

“I’m in the construction business and I need to make my living,” he said.“I don’t really care how they set it up. I just need to know the rules so I can follow them.. Just to be a good neighbor, I’m going to go out a different way, just to try not to aggravate them. If I was sitting there, I wouldn’t be crazy about the dump trucks.”

At its monthly meeting Thursday, the county Planning Commission, despite several members’ vocal opposition to the ordinances, voted 7-3 to send the package of legislation to county council with a favorable recommendation. It’s now up to council to hear from the public again and decide the ordinances fate.

“I have investigated this and I have tried to find some good in this. I can’t. I absolutely can’t,” said Planning Commission member Chuck Rhome. “What this amounts to is when a mine goes in your backyard you’ll find out about it when you hear the heavy equipment wake you up in the morning and they’re back there digging.”

From SC lawsuit to legislation

The story of how and why Horry County is currently considering a rewrite of its mining ordinances dates back to 2016. Throughout that year, the mining company Red Bluff Rock LLC, was seeking state and local approval to dig a 50-acre limestone mine near the Red Bluff community. Though DHEC approved a permit for Red Bluff to operate a mine there, residents who lived near the proposed site opposed the project, and county council later denied the company its local permit.

Red Bluff Rock, with the assistance of attorneys Kerry Jardine and Christopher Pearce, from the Pearce Law Group, sued the county, alleging county leadership caused the company to lose out on a $70 million profit.

In April, U.S. District Judge Sherri Lydon — nominated by President Donald Trump in 2019 — ruled against the county.

“DHEC possesses exclusive authority over mine permitting,” Lydon wrote in her ruling. “The purpose and effect of the Horry County Mine Permit Ordinance is an impermissible veto power over DHEC decisions wielded by Horry County Council.”

As Pearce and Jardine moved to settle the case with the county in May, the two said they heard that county officials were considering a rewrite of the mining ordinance Lydon just ruled against. So, they offered their assistance.

“Some of the stuff that we saw, initially, we felt like didn’t make a whole lot of sense, or didn’t really put forth the industry stakeholders view on what needed to be done moving forward,” Pearce said. “And we were asked, by a number of those people within the industry, to go back and look to talk with the county about revising that language and possibly looking at the language of it to include really direct input from the stakeholders.”

Working with county attorneys Arrigo Carotti and David Jordan, as well as Planning Director David Schwerd, Pearce and Jardine helped craft the legislation that’s now before council. In council meetings, some members have referred to the legislation as “the Pearce ordinance,” a reference to how heavily involved the two outside attorneys have been. Pearce said the moniker makes him uncomfortable, because other attorneys and others in the mining industry have been involved, too.

One of the Red Bluff community members active in opposing the mine was Chuck Dozier. On Thursday, Dozier said he wants county officials to ensure that residents like himself “are not going to get run over.”

“Yeah, you may need to get dirt in this area, or rock or whatever it is you’re going to get out of there, you may need to get it,” he said. “But you’re concerned about the money. We’re concerned about our health and our welfare and the welfare of our kids and our neighbors.

In South Carolina, the state Department of Health and Environmental Control (DHEC) is tasked with enforcing the bulk of mine regulations, including those dealing with air quality, water contamination and use of explosives in a mine. But local jurisdictions, like Horry County, are allowed to control the zoning of mines, essentially deciding where operators are allowed to dig a mine and where they’re not.

However, the proposed ordinance exempts mines that have already received permits from DHEC and public projects from any zoning or stormwater review by Horry County, said Planning Director David Schwerd.

Every mine needs a DHEC permit to operate legally in South Carolina. The legislation before council breaks down like so:

• Mines that are five acres or smaller do not need county certification to operate, and can be dug anywhere. Those mines must be at least 25 feet from any water, and at least 25 feet from a property line. Five acres is slightly less than four football fields.

• Mines that are bigger than five acres do need county certification to operate, but can also be dug anywhere. Those mines must be 25 feet from any water and property lines, the operators must maintain the roads going in and out of the mine, and must construct a barrier around the mine.

The legislation also says that for any mine, regardless of size, where the material dug will be kept on the property, no county certification is needed. For example, if a developer were building a subdivision with several ponds, but intended to use the dirt from those digs in the construction, they wouldn’t need any county mining approvals. If that same developer wanted to haul some of the dirt from the ponds off site, they would need construction and stormwater approvals from the county, but no mining certification. Related legislation would remove lingering mining regulations from other county laws, including its stormwater ordinance.

“The intent behind this ordinance is to draft something that is beneficial to the mining industry, the construction industry, the real estate industry, the county itself, the taxpayers because mining is essential to this area.t provides jobs,” said Jardine. “We’re trying and we want to make sure that those groups are protected.”

Stan Barnett, an attorney that’s worked with Horry, Williamsburg and other counties on issues related to mining, said that despite Lydon’s ruling against Horry County, the county isn’t forced to give up all of its control over mines. In his experience, Barnett said, DHEC allows local municipalities to regulate the time of operation of major projects and enforce noise ordinances and traffic regulations, all of which can apply to mines.

As long as a local ordinance isn’t aimed directly at mining, Barnett said, it doesn’t preempt state law, which is how Horry County got in trouble.

“The state statute says specifically that local zoning can include mines,” he said.

Horry County SC officials, public split on mining

A six-inch thick binder.

The printed copy of the state mining regulations currently enforced by DHEC has made an appearance at least twice during county council discussions over mining regulations. The binder has become a symbol that attorneys, engineers and mine operators have pointed to suggesting that there are too many regulations for mines and that Horry County should relax mining regulations

“There’s a huge risk that if the county continues to dive deeply into the regulation of mining, they’re going to find themselves in court again,” said Pearce, who hauled the thick binder Thursday night, including to the podium when he spoke.“(Mining) may be handled in other ways in other counties. I would tell you they just haven’t been sued yet. And it’s coming. And I might be the one who brings it to them, if so I’ll do it.”

A number of county council members, like Gary Loftus, worry loosening regulations could lead to mines near their homes. Councilman Dennis DiSabato, who represents part of Myrtle Beach, thinks the county should stay out of mining and that enough controls exist at the state level for residents to voice their concerns.

As county officials have debated the mining issue, county planners have prepared maps of each council district, highlighting which areas would now be open to mines if the proposed ordinances pass. Like the binder, those maps have become a symbol for those opposed to the legislation, a means to say: Look at how much mining there will be if this passes.

Council member Danny Hardee, who represents the area where the Red Bluff mine now operates, said he and community members weren’t opposed to that mine in principle, just the location. Now, he favors the council largely staying out of the matter, but having some say.

“I’m not against mining…but we have to have controls in place where a mine does not disrupt people’s lives,” Hardee said. “I think it might be good if (DHEC notifies) the councilman if they’re going to put a mine in someones district.”

But, mining operators say the county’s regulations make their jobs harder and more expensive.

“Every project on this beach needs this material,” said Benjy Hardee, CEO of A.O. Hardee & Son, Inc. on Thursday. “This never should have been a political issue to start with.”

Environmental concerns

On a warm October day at Steritt Swamp, Cara Schildtknecht peers down into the brown water. It looks pretty good. The water is dark, but not cloudy. It’s a good sign that there haven’t been recent disturbances, she said.

In the past, Schildtknecht said, stormwater runoff from nearby mines have caused harmful disturbances in the swamp, disrupting the plants, fish and other living things.

Schildtknecht, who is the Waccamaw riverkeeper with the Winyah Rivers Alliance, said she isn’t against mining and isn’t against development. But she does worry that the broad language in the mining ordinances before county council could cause future harm.

“We don’t think there shouldn’t be any mining, just like we don’t think that there shouldn’t be any development,” she told the planning commission Thursday. “But we think it should be done sustainably and smartly and in a way that protects these natural resources that we have in Horry County.”

Riley Egger, a project manager with the Coastal Conservation League who studies mining, said sand and dirt mines that are dug near wetlands can drain the water from those ecosystems, harming the plants and organisms that live there. Reclaimed mines can be turned into ponds or lakes, a common and attractive feature in some subdivisions in the county.

But another problem arises when inactive mines fill to the top with water, particularly during the intense rainstorms that are common in Horry County. While mines that have been reclaimed as ponds and lakes have some flood controls, those left empty often don’t, leaving water that reaches the edge to spill over and flow elsewhere.

When stormwater from mines runs off into surrounding areas, it can cloud swamps, streams and rivers, harming the fish and bacteria that live there and allowing bad bacteria to flourish.

By maintaining zoning control over mines, Schildtknecht said the county can help prevent any runoff from mines from affecting sensitive ecosystems, by not allowing mines to be dug near those places.

The more mines that are dug for major development projects, the higher risk of flooding, Schildtknecht said. Not only can runoff from empty mines contribute to flooding, but the dirt and sand from those mines is being transformed from a pervious material to an impervious one.

The possibility of more flooding from the looser mine regulations also concerns April O’Leary, the head of Horry County Rising, an advocacy group focused on reducing flooding in the county. More than that, she said, they can harm people directly.

“Mining operations can ruin someone’s well,” she said, “It can cause it to go dry.”

This story was originally published November 11, 2020 at 5:00 AM.