Big Fork Min. Co. v. Tennessee Water Quality Control Bd., 80-195-II

• Citation: 12 Envtl.L.Rep. 20,620 S.W.2d 515
• Decision Date: 15 May 1981
• Docket Number: No. 80-195-II,80-195-II
• Parties: 12 Envtl. L. Rep. 20,127 BIG FORK MINING COMPANY, Plaintiff-Appellant, v. TENNESSEE WATER QUALITY CONTROL BOARD, Defendant-Appellee.
• Court: Court of Appeals of Tennessee

Page 515

620 S.W.2d 515

12 Envtl. L. Rep. 20,127

BIG FORK MINING COMPANY, Plaintiff-Appellant, v. TENNESSEE WATER QUALITY CONTROL BOARD, Defendant-Appellee.

No. 80-195-II

Court of Appeals of Tennessee, Middle Section.

May 15, 1981.

Permission to Appeal Denied by Supreme Court Aug. 31, 1981.

Michael W. Boehm and James Gentry, Chattanooga, and Thomas M. Donnell, Jr., Nashville, for plaintiff-appellant.

William M. Barrick, Asst. Atty. Gen., Nashville, for defendant-appellee.

OPINION

CONNER, Judge.

(Filed with concurrence of participating judges).

This is an action contesting a decision of the Tennessee Division of Water Quality Control denying the plaintiff-appellant, ¹ Big Fork Mining Company, a water discharge permit.

Big Fork, engaged in the business of strip mining, applied to the Tennessee Division of Water Control (hereafter division) for a National Pollutant Discharge Elimination System (NPDES) permit into the North Chickamauga Creek in conjunction with its plans to mine coal on certain property in Sequatchie County, Tennessee. After a public hearing on the matter, the division denied the permit based upon the Tennessee Anti-Degradation Statement, ² an administrative rule promulgated by the Tennessee Water Quality Control Board pursuant to T.C.A. § 70-328(a). The plaintiff duly sought review of the division's denial of its NPDES permit before the permit hearing panel of the Tennessee Water Quality Control Board (hereafter board). After three days of extensive hearings on July 12 and 13 and August 9, 1979, the board affirmed the division's denial of Big Fork's NPDES permit. In so doing it issued a very detailed four-page "FINAL DECISION AND ORDER," carefully delineating its "Findings of Fact and Conclusions of Law" and the basis therefor.

Plaintiff then sought review of the permit denial in Davidson County Chancery Court pursuant to T.C.A. §§ 4-5-117 ³ and 70-333. ⁴ The chancellor allowed the Guardians of the North Chickamauga Creek and the Sierra Club to file an amicus curiae brief in the matter in opposition to the grant of the permit. Thereafter he affirmed its denial.

The plaintiff then perfected this appeal questioning the constitutionality of the standard upon which the division relied, the procedures followed, and the substantiality of the evidence adduced in sustaining the permit denial.

Plaintiff first attacks the Tennessee Anti-Degradation Statement, supra, alleging that it is "unconstitutionally vague, lacks proper standards to guide its interpretation and application is ambiguous and imprecise when measured by common understanding and practices and is thus invalid as a denial of due process in violation of Article 1, Section 8 of the Constitution of Tennessee and the 14th Amendment of the Constitution of the United States." Specifically, plaintiff asserts that the terms "high quality water" and "waters of exceptional recreational or ecological significance" are unconstitutionally vague.

There is a presumption of the constitutionality of a statute. A non-criminal statute is not unconstitutionally vague where the statute is set out in terms that an ordinary person exercising ordinary common sense can sufficiently understand and comply. United States Civil Service Commission v. National Association of Letter Carriers, 413 U.S. 548, 93 S.Ct. 2880, 37 L.Ed.2d 796 (1973). See also Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973); Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15, reh. denied 417 U.S. 977, 94 S.Ct. 3187, 41 L.Ed.2d 1148 (1974).

The Tennessee Water Quality Control Act, T.C.A. § 70-324 et seq., which provides for the establishment of Tennessee's water quality criteria and stream use classification for all streams, including the Tennessee Anti-Degradation Statement, is to be construed liberally to accomplish its purposes and policies. T.C.A. § 70-342(b). ⁵

All the cases cited by the plaintiffs wherein the constitutionality of statutes have been successfully attacked involved either criminal or penal matters. All either forbade or required the doing of an act accompanied by some sanction for violation. See e. g., Leech v. American Booksellers Assn. Inc., 582 S.W.2d 738 (Tenn.1979). The Anti-Degradation Statement neither requires nor prohibits anything. It simply sets forth a criteria to be applied by the state in the issuance of permits.

A review of the purpose of the Water Quality Control Act (T.C.A. § 70-325 ⁶) reveals that this legislation is remedial. C.J.S. quite properly defines a remedial statute as one "designed to correct an existing law, redress an existing grievance, or introduce regulations conducive to the public good, and generally to be liberally construed." (Emphasis supplied.) 82 C.J.S. Statutes § 388 (1975).

We do not believe the Anti-Degradation Statement to be unconstitutional. As was well stated by the trial court in its memorandum opinion:

The questioned regulation is a standard or criteria used in determining the issuance of a permit. Plaintiff complains about the words "high quality water" and "waters of acceptional recreational or ecological significance." These words are commonly understood when taken in connection with the context. The Court concludes the regulation is not unconstitutionally vague.

Plaintiff also challenges the permit denial saying that the decision was made upon unlawful procedure. First, the plaintiff says that the required statutory procedure was not followed when its hearing was not completed within 60 days. Plaintiff relies on T.C.A. § 70-332(a). ⁷ That statute says that the hearing shall be held not later than 60 days from the receipt of the written petition. The hearing began on June 12, 1979, some 58 days after receipt of the petition, and continued on June 13 and August 9. There is no requirement in the statute that such hearing be completed within 60 days. Commencement is sufficient absent some showing of prejudice not apparent in this record.

In addition, it is the general rule in Tennessee that "those statutory provisions which relate to the mode, or time of doing the act to which the statute applies, are not held to be mandatory, but directory only." Trapp v. McCormick, 175 Tenn. 1, 130 S.W.2d 122 (1939); Lansing v. Lansing, 53 Tenn.App. 72, 78, 378 S.W.2d 786, 789 (1963). Again this is especially true absent some showing of prejudice.

Also, as mandated by T.C.A. § 70-342(b), T.C.A. §§ 70-324 342 are to be construed liberally to accomplish the purposes of the act. Accordingly, this assignment of error is overruled.

Next, the plaintiff asserts that the burden of proof in this action was wrongfully placed upon Big Fork. In administrative proceedings, the burden of proof ordinarily rests on the one seeking relief, benefits, or privilege. 73 C.J.S. Public Administrative Bodies and Procedure, § 124 (1975).

Further, it is well established in Tennessee case law that the burden of proof is on the party having the affirmative of an issue, and that burden does not shift. Pack v. Royal-Globe Insurance Co., 224 Tenn. 452, 457 S.W.2d 19 (1970); Whipple v. McKew, 166 Tenn. 31, 60 S.W.2d 1006 (1933); Freeman v. Felts, 208 Tenn. 201, 344 S.W.2d 550 (1961).

In Pack v. Royal-Globe Insurance Co., supra, the insurance company was seeking a rate increase. Thus, the court concluded that it was the party seeking affirmative relief. As such the burden was placed upon the insurance company. Here Big Fork is the party seeking relief (the discharge permit). Therefore, the burden of proof was properly placed on the plaintiff. This assignment is likewise overruled.

Finally, the plaintiffs assert that the permit denial by the board is not supported by substantial and material evidence.

In the first instance we note that the findings of the board have been held to be sufficient by the lower court. At a very minimum, this concurrent finding of fact must be given great weight by this court. See Blue Ridge Transportation Co. v. Hammer 203 Tenn. 398, 313 S.W.2d 433 (1958); C. F. Industries v. Tennessee Public Service Commission, 599 S.W.2d 536 (Tenn.1980).

The factual issues in this case are indeed to be reviewed upon a standard of substantial and material evidence based on a consideration of the entire record, including any portion of the findings which detract from the evidence supporting the findings of the administrative body. T.C.A. § 4-5-117(h), supra. See also Humana of Tennessee v. Tennessee Health Facilities Commission, 551 S.W.2d 664 (Tenn.1977); Pace v. Garbage Disposal District of Washington County, 54 Tenn.App. 263, 390 S.W.2d 461 (1965).

The Tennessee courts have defined "substantial and material" in the context of T.C.A. § 4-5-117 as "such relevant evidence as a reasonable mind might accept to support a rational conclusion and such as to furnish a reasonably sound basis for the action under consideration." Pace v. Garbage Disposal District of Washington County, 390 S.W.2d at 463. In addition, the quantum of evidence must be greater than a "mere scintilla or glimmer." Ibid.

First, the plaintiff contends that the panel improperly considered results of a survey of North Chickamauga Creek waters made after the division had already denied Big Fork's discharge permit. We disagree.

The type of hearing provided by this appeal is set out in T.C.A. § 70-328(b). The statute provides:

The panel shall hold hearings where requested by the permittee or applicant for the purpose of reviewing the denial of or imposition of terms or conditions in permits by the commissioner. The commissioner's previous determination shall have no presumption of correctness before the panel.... (Emphasis supplied.)

In effect, this is a de novo hearing. In a de novo hearing, the board to which the appeal is addressed does not review the action of the lower tribunal and is not concerned with what took place below. Further, no presumption of correctness attaches to the correctness of the action of the previous body....