Mississippi Air & Water Pollution Control Permit Bd. v. Pets & Such Foods, Inc., 52359

Decision Date04 March 1981
Docket NumberNo. 52359,52359
Citation394 So.2d 1353
PartiesMISSISSIPPI AIR & WATER POLLUTION CONTROL PERMIT BOARD v. PETS & SUCH FOODS, INC.
CourtMississippi Supreme Court

Bill Allain, Atty. Gen. by J. I. Palmer, Jr., Sp. Asst. Atty. Gen., Jackson, for appellant.

Vardaman S. Dunn, Cox & Dunn, Stephen L. Beach, III, Beach, Beach, Luckett & Ross, Jackson, for appellee.

Before PATTERSON, C. J., and SUGG and WALKER, JJ.

PATTERSON, Chief Justice, for the Court:

This is an appeal from the Chancery Court of the First Judicial District of Hinds County wherein Chancellor J. C. Stennett enjoined the Mississippi Air & Water Pollution Control 1 Permit Board from proceeding against Pets & Such Foods, Inc. (hereinafter Pets & Such).

Pets & Such is engaged in the business of purchasing eggs which are rejected as human food and converting them into powdered form for use as pet food. Pets & Such began production in September of 1974 on industrial land in Hinds County and subsequently, the Permit Board and plant personnel received complaints about unpleasant odors emitted from the plant. In an attempt to rectify the problem, Pets & Such purchased equipment at great costs from Hormel, Inc., which guaranteed the odor would be eliminated. However, the equipment, when installed, failed to eliminate the odor and on July 25, 1978, the Permit Board revoked the operating license of Pets & Such. Aggrieved Pets & Such sought redress.

The method of procedure from a permit revocation is set forth in Section 49-17-29 of the Mississippi Code Annotated (Supp.1980) in pertinent part as follows:

Within thirty (30) days after the date the permit board takes action upon permit denial, modification or revocation, as shown on the minutes of the permit board, any permittee aggrieved by such action may file a written request for a formal hearing before the permit board.

Initially, Pets & Such followed this statutory method for a formal hearing. However, this hearing was never concluded because Pets & Such applied for and received a temporary injunction from the chancery court stopping the administrative proceeding. Following a petition by the Permit Board to modify or dissolve the temporary injunction, the chancellor permanently enjoined the Permit Board from proceeding against Pets & Such.

Section 49-17-29 of the Mississippi Code Annotated (Supp.1980) makes provision for the establishment of air quality standards by the commission:

In order to carry out the purposes of sections 49-17-1 to 49-17-43, the commission may set standards of air and water quality for the state or portions thereof. Such standards of quality shall be such as to protect the public health and welfare and the present and prospective future use of such air and of such waters....

As admitted by Dwight K. Wylie, the Chief of Air Quality Control for the Mississippi Air and Water Pollution Control Commission, the only guideline promulgated which relates to the emission of odors is found in Section 5(2) of the Commission's Air Quality Regulations which states:

Miscellaneous Chemical Emissions. No person shall cause, permit, or allow the emission of toxic, noxious, or deleterious substances, in addition to those considered in these regulations, into the ambient air in concentrations, sufficient to affect human health and well-being, or unreasonably interfere with the enjoyment of property or unreasonably and adversely affect plant or animal life beyond the boundaries of the property containing the air pollution source.

As is apparent, this section does not specifically mention the word odor. Also, it sets no objective standard with which to measure concentrations of odors in the ambient air. In delegating powers to the Commission, the legislature prescribed the rule...

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3 cases
  • Ryals v. Pigott
    • United States
    • Mississippi Supreme Court
    • 28 November 1990
    ...Inc. v. Health Group of Jackson, Mississippi, Inc., 528 So.2d 804, 808 (Miss.1988); Mississippi Air & Water Pollution Control Permit Board v. Pets & Such Foods, Inc., 394 So.2d 1353, 1355 (Miss.1981); see also Young v. Community Nutrition Institute, 476 U.S. 974, 980-84, 106 S.Ct. 2360, 236......
  • Mississippi Dept. of Environmental Quality v. Weems
    • United States
    • Mississippi Supreme Court
    • 16 March 1995
    ...not run afoul of case law on the failure to exhaust administrative remedies. The case of Mississippi Air & Water Pollution Control Permit Board v. Pets & Such Foods, Inc., 394 So.2d 1353 (Miss.1981) is directly on point as an exception to the doctrine of failure to exhaust administrative re......
  • Sierra Club v. Miss. Enviro. Quality
    • United States
    • Mississippi Supreme Court
    • 30 November 2006
    ...APC-S-4 ¶ 14. This Court's only precedent addressing state regulation of odor is Mississippi Air & Water Pollution Control Permit Board v. Pets & Such Foods, Inc., 394 So.2d 1353, 1355 (Miss.1981), where this Court reversed the agency's decision because the regulation in effect at that time......

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