In the Matter of Solid Waste Disposal Permit Application

No. 12991 (295 N.W.2d 328, 14 ERC 1954) (S.D. July 23, 1980)

ELR Digest

The court affirms the decision of the trial court and the South Dakota Board of Environmental Protection to grant a city and county a permit to operate a solid waste disposal site. After adoption of a solid waste management plan by the county, the city applied to the Board for a solid waste disposal permit for both the city and the county. The Board granted the permit based on a finding that the site met all departmental regulations. Neighboring landowners sued to enjoin the issuance of the permit and for review of the Board's decision, claiming that the dumping would pollute the environment and that there were alternative sites and disposal methods available. The trial court affirmed the Board based on a review of the administrative record. On appeal, the court first rules that the Board has authority to issue a permit to the city individually or in conjunction with the county. The court also holds that the Board properly restricted its permit review, as required by state law, S.D. COMP. LAWS ANN. § 34A-6-8, to matters such as suitability of the site and disposal method, and disregarded such factors as zoning, aesthetics, or the effect on property values. However, the court finds that the scope of the Board's review was expanded when it was presented with a claim that the permit would result in air and water pollution, S.D. COMP. LAWS ANN. § 34A-10-2. Nonetheless, the court rules that there was substantial evidence to support the Board's finding that no pollution would result from the project. Thus, the Board is not required to consider alternative sites. The court also finds that the trial court correctly applied the "substantial evidence" test for review of the administrative record and need not conduct a de novo hearing. Finally, the court rules that the trial court was well within its discretion in refusing to consolidate the injunction action with a proceeding to review the Board's decision.

The full text of this opinion is available from ELR (5 pp. $1.25, ELR Order No. C-1226).

Counsel for Appellants
Martin Weeks Jr.
Bogue, Weeks & Rusch
P.O. Box 435, Vermillion SD 57069
(605) 624-2619

Counsel for Appellees
Curtis G. Wilson, Ass't Attorney General; Mark V.
Meierhenry, Attorney General
State Capitol, Pierre SD 57501
(605) 773-3215

Jeffrey P. Masten
Sam W. Masten, P.C.
110 S. Broadway, Canton SD 57013
(605) 987-2821

Runn, J.

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]