ELR Citation: ELR 21175
No(s). 3-90-2296-17 (D.S.C. Jan 3, 1992)

The court holds that South Carolina regulations and a permit condition prohibiting a landfill from receiving nonhazardous waste generated outside a seven-county region unconstitutionally burden interstate commerce. The regulations required any applicant for a permit to construct a nonhazardous solid waste landfill to show a local need for the facility, considering only waste generated within a regional planning area, not including any out-of-state waste, and prohibited disposal of waste generated outside the region without prior approval of the South Carolina Department of Health and Environmental Control (DHEC). The plaintiff's permit similarly contained a condition prohibiting the disposal of waste generated outside the region, without DHEC's consent. DHEC denied the facility's request to delete this condition. A subsequently enacted state statute also required permit applicants to demonstrate need for the facility considering only the amount of waste generated in-state. The court first holds that the motive behind the regulations was to protect state resources DHEC's application of the regulations and the statute has the practical effect of discriminating against out-of-state waste. The court next holds that the regulation substantially burdens interstate commerce. The cumulative effect of bans on the importation of waste at regional borders can have the same effect as a statewide ban and when a state agency implements the out-of-region bans, the possibility of a severe cumulative effect increases. Therefore, the regulation, Act, and permit condition are unconstitutional. Although the state has a duty to protect human health and the environment, waste generated outside a state is no more harmful than waste generated inside a state. The court enjoins the state from further enforcement of the permit condition.

Counsel for Plaintiffs
William T. Lavender Jr.
Nexsen, Pruet, Jacobs & Pollard
1441 Main St., 15th Fl., Columbia SC 29202
(803) 771-8900

Counsel for Defendants
Samuel L. Finklea III, Walton J. McLeod III, Elizabeth B. Partlow
Office of General Counsel
Department of Health and Environmental Control
1801 Main St., 9th Fl., Columbia SC 29201
(803) 253-4004