Some of the rulings by Judge Kimberly W. Schroer were favorable for Brantley County during a hearing in the controversial landfill lawsuit.
Judge Schroer, a member of the Office of State Administrative Hearings Georgia’s Administrative Court, responded to the hearing between the Brantley County Commissioners and Satilla Riverwatch Alliance, Inc., D/B/A Satilla Riverkeeper vs. Richard E. Dunn, Director, Enviromental Protection Division, Georgia Department of Natural Resources and Brantley County Development Partners, LLC.
She granted in part and denied in part to the seven-count Petition for Hearing filed by Dunn and issued a summary determination on others that would be “better resolved by an evidentiary hearing and is inappropriate for summary determination” in her 25-page summary.
“I think the judge saw some discrepencies on how permits were awarded,” said Commissioner Randy Davison. “We’re (commissioners) going to continue this fight because they (BCDP owners) were deceptive to us. They lied to us.
“Right is right and wrong is wrong. Right will win in the end. We’re with the citizens 100 percent in this fight.”
Davison could only offer a few comments and not go into detail. Attorney’s Dana Maine and Kimberly Hale have advised board members not to talk about the case.
Davison did say there is a mediation hearing Thursday, November 17 in Brunswick with Judge Benjamin W. Cheesbro. There is also a hearing scheduled for the first week in January 2023 which Davison said may be held in Nahunta.
The Court dismissed Counts VI and VII. Count VI describes the Board’s position that BCDP’s permit application was “fatally flawed” and the applicant mus reapply “from scratch.”
Count VII reserved the Board’s right to amend the Petition it filed. According to Judge Schroer, they will not be considered independent grounds for relief.
Judge Schroer gave a little background with her summary into the adoption of the Georgia Comprehensive Solid Waste Management Act adopted by the Georgia General Assembly in 1990.
It requires the State of Georgia to “institute and maintain a comprehensive state-wide program for solid waste management to assure that solid waste does not adversely affect the health, safety and well-being of the public and that solid waste facilities, whether publicly or privately owned, do no degrade the quality of the environment by reason of their location, design, method of operation or other means.”
Among other powers and duties in the Act, EPD is responsible for issuing solid waste permits. It also requires counties to develop or be included in a comprehensive solid wast management plan which provides, at a minimum, “for the assurance of adequate solid waste handling capability and capacity with the planning area.”
Applicants for solid waste permits are required to provide proof (written verification) from local governments their proposed facility complies with the local solid waste management plan (SWMP), as well as any local zoning and land use ordinances and verification the facility meets the 10-year capacity needs identified in the local SWMP.
The Act also provides for public participation when local governments take action regarding the location of a municipal solid waste disposal facility and publish in a newspaper advance notice of the meeting once a week for two weeks with time, place and purpose and the meeting must be conducted by the governing authority taking the action.
Count I
The Board claims the letters were untimely from then County Manager Carl Rowland issued in November 2014 stating “the Solid Waste Handling Facility complies with Brantley County’s local land use plan” and submitted by BCDP to EPD December 29, 2016.
Letters signed by then Chairman Charlie Summerlin February 2015 stated “the proposed facility is consistent with SWMP” were not sent.
An EPD request in January 2017 to BCDP to finish the application needed current documentation for the proposed facility complying with local zoning and land use ordinances, current documentation the proposed facility is consistent with the local SWMP, and documentation the siting decision meeting was advertised and conducted in compliance with the Act went unanswered.
A second letter in May 2017 stated “EPD will not accept approval granted two years prior to the submission of the permit application.”
It wasn’t until October 2018 when BCDP lawyer L. Robert Lovett submitted the letters signed by Summerlin who noted the letters “should have been included with the application.” EPD accepted the letters and judged the application complete.
EPD tried to explain to Judge Schroer applicable statutes and rules did not contain a time restriction.
The Board disputed the explanation and the 22-month gap between the compliance and consistency letters and the filing of the solid waste permit.
The Court ruled an evidentiary hearing is appropriate on EPD’s decision to accept the 2015 letters as timely when filed in 2018.
Count II
The Board claims the 2014 and 2015 letters failed to sufficiently describe the type of solid waste facility and proposed location.
The Court ruled the 2015 letters sufficiently described the facility stating the Board specifically authorized Summerlin to execute the letters verifying the “solid waste handling facilities” proposed were consistent with the SWMP and local land use plan.
A motion was granted for EPD.
The Board sought an evidentiary hearing to prove “Magnolia Holdings Business Park” was intended to be built on a 89.65-acre parcel on the northside of Hwy. 82 and the verifications in the 2015 letters are reasonably limited to that location.
The Court concluded an evidentiary hearing is appropriate denying EPD’s motion the description of the location was in the 2015 letters.
Count III
Count III claims the 2014 and 2015 consistency letters were unlawful because the Board did not comply with the procedures relating to issuing such letters established in its SWMP.
The Court concluded EPD was not required to conduct an independent investigation into the Board’s compliance with its own SWMP.
In 2011, the General Assembly eliminated the requirement local governments submit SWMPs to the state for review. Also eliminated was the requirement local governments file annual reports on the status of solid waste management in their jurisdictions.
The Court granted EPD’s motion
Count IV
Count IV repeated many of the same claims and identifies other deficiencies, both procedural and substantive, and claims EPD ignored the Board’s multiple attempts to notify EPD of those deficiencies over the years.
The Court granted EPD’s motion to Count IV.
Count V
Count V alleges the permit is unlawful because the Board did not provide adequate notice to the public before it took actions that led to the selection of the site for BCPD’s proposed landfill in violation of the Act.
The Board asserts BCDP began discussing its plans for some sort of solid waste facility with Rowland prior to his issuance of the 2014 letters and before the February 5, 2015 board meeting, BCDP representatives met weekly with Rowland and Commissioner Mike Edgy about developing the property and with other commissioners to discuss plans, including the need to permit a small landfill.
The Court concluded the facts to this issue are in dispute and summary determination is not appropriate denying the motion.
EPD argued BCDP met the requirements for a siting decision because a public notice was published in a local newspaper eight days before and one day before a December 22, 2016 “public hearing.”
EPD said the Board placed the public notices while the Board contends it was done by BCDP. The meeting was run by the County Attorney (Deen Strickland) and only two commissioners in attendance with no action taken by the Board.
Under Georgia law, a “meeting” of an agency is defined as “the gathering of a quorum at which any official business, policy, or public matter of the agency is formulated, presented, discussed, or voted upon.”
Accordingly, EPD is not entitled to summary determination and the Motion was denied.
