GOLDEN TRIANGLE AUTH. v. Citizens, 97-CC-00857-SCT.

• Decision Date: 29 October 1998
• Docket Number: No. 97-CC-00857-SCT.,97-CC-00857-SCT.
• Parties: GOLDEN TRIANGLE REGIONAL SOLID WASTE MANAGEMENT AUTHORITY and Mississippi Environmental Quality Permit Board. v. CONCERNED CITIZENS AGAINST the LOCATION OF the LANDFILL.
• Court: Mississippi Supreme Court

722 So.2d 648

GOLDEN TRIANGLE REGIONAL SOLID WASTE MANAGEMENT AUTHORITY and Mississippi Environmental Quality Permit Board. v. CONCERNED CITIZENS AGAINST the LOCATION OF the LANDFILL.

No. 97-CC-00857-SCT.

Supreme Court of Mississippi.

October 29, 1998.

Tommie S. Cardin, Butler, Snow, O'Mara, Stevens & Cannada, PLLC, Jackson, Chuck D. Barlow, Brandon, Attorneys for Appellants.

Jay T. Keehley, Starkville, Attorney for Appellees.

Before PITTMAN, P.J., and JAMES L. ROBERTS, Jr. and SMITH, JJ.

JAMES L. ROBERTS, Jr., Justice, for the Court:

STATEMENT OF THE CASE

¶ 1. On or about March 31, 1995, the Appellees, the Concerned Citizens Against the Location of the Landfill ("CCALL"), filed a Notice of Appeal challenging the final decision of Co-Appellant, Mississippi Department of Environmental Quality Permit Board ("Permit Board") to allow the placement of a solid waste landfill at a site in Clay and Oktibbeha counties. Also known as the Tibbee site, the location was proposed by Co-Appellant, Golden Triangle Solid Waste Management Authority ("Authority").

¶ 2. Briefs were filed by both parties, and an initial hearing was conducted by Chancellor Woodrow Wilson Brand, Jr., of the Oktibbeha County Chancery Court on September 4, 1996. After the initial hearing, the court requested the filing of additional briefs by both parties to address questions posed by the court at the September 4 hearing. The parties completed the filing of their supplemental briefs in late February, 1997.

¶ 3. On April 10, 1997, the court held that CCALL had been denied due process during the planning process and that CCALL was entitled to a site selection hearing. The court reversed the Permit Board's decision granting the permits, and directed the Authority to hold a due process site hearing. On May 28, 1997, the court entered a judgment encompassing its opinion of April 10, 1997. On June 23, 1997, and June 25, 1997, the Authority and Permit Board filed their notices of appeal from the judgment of the Chancery Court. On appeal, the Appellants raise the following issues:

I. THE CHANCERY COURT ERRED IN REVIEWING THE PLANNING PROCESS, WHICH WAS OUTSIDE OF THE RECORD, IN MAKING ITS DECISION.

II. CCALL HAD NO DUE PROCESS RIGHT TO AN EVIDENTIARY HEARING DURING THE SITE SELECTION PROCESS AT THE AUTHORITY LEVEL.

III. CCALL HAD AN AMPLE OPPORTUNITY FOR INPUT BASED ON THE EXISTING STATUTORY FRAMEWORK.

¶ 4. This Court finds that the chancery court exceeded the applicable scope of appellate review and as such committed reversible error in reversing the Permit Board's decision to grant the Authority's permit to operate the landfill. Also, CCALL had no due process right to an evidentiary hearing in the site selection process of the Authority. Even so, the applicable statutory framework provided CCALL with numerous opportunities for input and to challenge the proposed site.

¶ 5. Accordingly, the decision of the Chancery Court is reversed and the Permit Board's previous issuance of the permits to construct and operate the landfill is affirmed.

STATEMENT OF FACTS

Introduction

¶ 6. In 1988, the Environmental Protection Agency ("EPA") proposed regulatory criteria requiring municipalities to develop regional landfills. These criteria, which eventually went into effect in 1993, necessitated the closure of over one hundred (100) landfills in Mississippi.

The Authority

¶ 7. In 1990, the Boards of Supervisors and city officials from the Golden Triangle area began to assess the impact of this federal mandate on the area and determine the steps to be taken to fulfill its requirements. The Golden Triangle area officials agreed that a regional landfill would best suit the waste disposal needs of its citizens while meeting the new requirements.

¶ 8. The Golden Triangle officials drafted the Mississippi Regional Solid Waste Management Authority Act, Miss.Code Ann. § 17-17-301 et seq., and the Nonhazardous Solid Waste Planning Act, Miss.Code Ann. § 17-17-201 et seq., which were subsequently enacted by the Legislature.

¶ 9. On June 11, 1991, the Golden Triangle Solid Waste Management Authority came into existence, pursuant to Section 17-17-301 et seq. The Authority was organized as a "public body corporate and politic constituting a political subdivision of the state." Miss.Code Ann. § 17-17-307 (1995). The Authority consists of Choctaw, Clay, Lowndes, Oktibbeha, Noxubee, and Webster counties, and the cities of Ackerman, Columbus, Eupora, Macon, Starkville, and West Point. The Authority is responsible for the nonhazardous solid waste of approximately 175,000 people.

State Agencies

¶ 10. The Mississippi Department of Environmental Quality ("MDEQ") serves as the staff for both the Commission on Environmental Quality ("Commission") and the Permit Board, providing technical, legal and administrative support.

¶ 11. The Commission is a seven-member body appointed by the Governor to develop, implement and enforce environmental policy in Mississippi. The Commission promulgates environmental regulations that set the requirements to be met by applicants in order to obtain a permit from the Permit Board.

¶ 12. The Permit Board has more limited and specific authority than the Commission. The Permit Board is the exclusive administrative body which issues or denies permits affecting air pollution and water pollution control under the State's solid waste disposal laws. Generally, the Permit Board cannot institute permit conditions apart from those based on a regulation adopted by the Commission.

The Landfill Creation Process

¶ 13. The process of developing, constructing, and operating a regional solid waste landfill begins on the local level. Plan approval requires the adoption of the plan by resolution of the Board of Supervisors of each county comprising the regional authority. The Board's action on the plan must be conducted in an open meeting, but does not require public notice or either an informal or formal hearing. Each county's adoption of the plan is appealable to its respective chancery court on a bill of exceptions.

¶ 14. After the plan is approved by the individual counties, the Regional Authority adopts the plan. An informal hearing is required along with notice by publication. There is no right to appeal the Authority's adoption of the plan until it is approved by the Commission.

¶ 15. Next, the plan must be approved by the Commission. An interested party may request a formal evidentiary hearing before the Commission concerning the local plan where that party may offer testimony, present witnesses and submit evidence. If the plan is not approved, the Authority must submit a revised plan that remedies any deficiencies within 120 days. The final decision of the Commission is appealable to chancery court.

¶ 16. Once the local plan is approved by the Commission, the landfill permit applicant files an application for processing with the MDEQ. The processing stage includes a public comment period and a mandatory public hearing. At the conclusion of the processing stage, the Permit Board may either accept or deny the application for a permit to operate the landfill.

Present Case

¶ 17. In the present case, after the Authority submitted the Plan to the Commission, the Commission directed the Authority to revise its Plan to include a specific proposed site for its landfill. Although the Authority had originally planned to consider several alternative sites for this landfill, at the direction of the Commission, the Authority began to focus on a single site. The Authority created a site selection committee to review the potential sites in order to make a recommendation to the Authority. Upon the recommendation of the siting committee, the Authority chose a site situated in Clay and Oktibbeha counties, the Tibbee site, as the preferred site. The Authority thereafter included the proposed site in the Revised Plan, as requested by the Commission.

¶ 18. On December 9, 1993, the Commission approved the Authority's revised plan by a unanimous decision. Neither CCALL nor any other party appealed the Commission's decision. The next step was the permitting process.

The Permitting Process

¶ 19. Following the planning process, the Authority prepared and submitted its permit application, to construct and operate the landfill, to the Permit Board for approval. The Permit Board's staff reviewed the applications and prepared three draft permits for the landfill. The Permit Board issued a public notice of the Authority's applications and requested that the public submit written comments concerning the issuance of the permits. Subsequently, the Permit Board issued a second public notice inviting the public to attend a public hearing concerning the Authority's permits.

¶ 20. On October 27, 1994, the Permit Board conducted the public hearing at the Golden Triangle Vo-Tech School in Mayhew, Mississippi. The Permit Board gave every person at the hearing the opportunity to comment on the landfill. Comments were made by area residents, businesses, public officials and many others including those from CCALL objecting to the landfill.

¶ 21. After the close of the comment period, the Permit Board staff prepared the official record. The Permit Board reviewed the record and on November 22, 1994, approved the Authority's permit applications. Shortly thereafter, on December 19, 1994, CCALL requested a full formal administrative hearing before the Permit Board.

¶ 22. On March 14, 1995, the Permit Board conducted the formal hearing. During the formal hearing, MDEQ and the Authority offered site data, exhibits and expert testimony in support of the Authority's request for the permits. At the conclusion of the hearing, the Permit Board voted unanimously to affirm its previous decision issuing the three permits to the Authority.

¶ 23. CCALL appealed the Permit Board's final decision affirming the issuance of the permits, to the Chancery Court of Oktibbeha County. By a judgment dated ...