Mississippi Com'n on Environmental Quality v. Chickasaw County Bd. of Sup'rs, 91-CA-711
| Decision Date | 15 July 1993 |
| Docket Number | No. 91-CA-711,91-CA-711 |
| Citation | 621 So.2d 1211 |
| Parties | MISSISSIPPI COMMISSION ON ENVIRONMENTAL QUALITY v. CHICKASAW COUNTY BOARD OF SUPERVISORS. |
| Court | Mississippi Supreme Court |
Jayne L. Buttross, Jackson, for appellant.
John P. Fox, Houston, for appellee.
Before PRATHER, P.J., and SULLIVAN and ROBERTS, JJ.
In June 1989, the Mississippi Commission on Environmental Quality (Commission) issued an Order requiring the Chickasaw County Board of Supervisors (Board) to bring its sanitary landfill into compliance with the closure requirements of the Mississippi Nonhazardous Waste Regulations. The Order included a penalty of four thousand dollars ($4,000.00). The Board appealed to the Chancery Court of the First Judicial District of Chickasaw County. The chancellor affirmed the Order, but modified it in one respect: he ordered that the penalty be deposited into a separate fund by the Board, to be spent on complying with the Commission's Order, rather than paid into the Pollution Emergency Fund created by Miss.Code Ann. Sec. 49-17-68 (1972 & Supp.1992). The chancellor further ordered that any funds remaining after closure be returned to the general fund of Chickasaw County. Finding that the chancellor exceeded the limited scope of review for agency decisions, we reverse, reinstate the Commission's Order, and remand the matter to the Commission for enforcement.
On September 1, 1981, the Mississippi Natural Resources Permit Board (now the Mississippi Environmental Quality Permit Board) 1 issued permit number SW00901A0098 to the Chickasaw County Board of Supervisors, allowing the Board to operate a landfill for the disposal of household garbage and other solid waste. The landfill was located in Section 2, Township 13 South, Range 3 East, Chickasaw County, inside a United States National Forest.
On November 2, 1987, the Board informed the Office of Pollution Control that "the county has gotten out of the landfill business and is presently attempting to close the landfill ... pursuant to the closure procedure of the regulations."
A landfill no longer in use must be sealed or closed in accordance with Mississippi Nonhazardous Waste Management Regulation No. PC/S-1, Section D, "Solid Waste Landfill." 2 Section D-19 of the regulations reads in part:
A final cover of at least two feet of earthen material, compacted in layers of no more than 12 inches, shall be placed over the entire surface of each completed portion of the fill within 30 days after completion unless inclement weather prevents the application of dry cover material. The top six inches of final cover shall consist of a suitable topsoil which will sustain the growth of vegetation except where otherwise authorized by the Bureau.
The final cover gradient on top of the fill shall not normally exceed four percent ... to prevent the ponding of water on Erosion on intermediate or final cover shall be repaired by restoring the cover material and grading and compacting it as necessary to prevent ponding of water.
the landfill surface and minimize infiltration of water into the landfill.
Section D-20 provides that prior to completion of disposal operations or abandonment of a site, the site operator must notify the Bureau and provide a closure and post-closure plan and schedule. The purpose of the regulations is "to minimize the infiltration of rainwater precipitation into garbage which would create contaminated leachate and contaminated runoff that might leach laterally or horizontally down into groundwater aquifers or ... laterally into surrounding woodlands or creeks in the area."
The Board intended to contract with the Knox Landfill, a privately operated facility in Chickasaw County, for the disposal of solid waste. However, Knox lacked equipment and its site was unprepared, so it was not able to accept waste at that time. Garbage was accepted at the county landfill until late January or February of 1988.
The Office of Pollution Control inspected the county landfill on June 8, 1988, and found that the Board had failed to comply with the closure requirements of the Mississippi Nonhazardous Waste Regulations. In particular, the inspection revealed inadequate cover, erosion, and "promiscuous dumping and burning." The Office informed the Board by letter of its findings of noncompliance and requested that the conditions be corrected.
Another inspection on July 26, 1988, found "very little improvement over the last inspection" and "burning with a great deal of smoke being spread over the area to the east of the landfill." On August 8, 1988, the Office informed the Board by letter that it intended to initiate enforcement action. On September 13, 1988, the Mississippi Department of Natural Resources issued Administrative Order No. 1458-88, finding that the Board had failed to comply with Sections D-19 and D-20 of the Mississippi Nonhazardous Waste Regulations and ordering the Board to comply with cover and closure requirements by November 15, 1988.
On February 9, 1989, pursuant to Miss.Code Ann. Sec. 49-17-31 (1972), the Mississippi Commission on Natural Resources served a written complaint on the Board, charging a failure to comply with the Administrative Order, and scheduling a hearing before the Commission concerning the complaint.
An inspection held one week before the hearing found numerous continuing violations, including erosion, piles of garbage, lack of ground cover or topsoil, leachate, ponding, refuse in a drainage ditch, and the lack of a gate to keep the public out. 3
At the hearing held April 26, 1989, the Commission heard testimony of Mark Williams, an environmental engineer with the Nonhazardous Waste department of the Bureau of Pollution Control. He described the final cover and closure requirements for landfills set out in Sections D-19 and D-20 of the Nonhazardous Waste Regulations, the ongoing violations of these rules at the Chickasaw landfill, and the correspondence between the Board and the Office of Pollution Control concerning the Office's investigations. Nancy Moore, an environmental technician with the Bureau who had made two inspections of the Chickasaw landfill also testified. A number of photos of the landfill taken in October 1987 were introduced. The Board sought to show that there had been considerable rain during the period of January through the spring, and that this had prevented the necessary work at the landfill. The Board also stated its intention to comply with the Order, through the testimony of John Moore, the president of the Board, and Edward Springer, county engineer.
On June 15, 1989, the Commission issued Administrative Order No. 1578-89, finding a violation of Order No. 1453-88, requiring compliance with the law within sixty days and assessing a four thousand dollar ($4,000) penalty against the Board. 4 Two thousand dollars ($2,000) were to be paid within 30 days, the balance to be held in abeyance pending compliance with the order.
The Board appealed on June 21, 1989, to the Chancery Court of the First Judicial District of Chickasaw County under Miss.Code Ann. Sec. 49-17-41 (1972). The appeal was heard by Hon. W.W. Brand on March 6, 1991. The chancellor, finding that "during the period of attempting closure ... this area experienced unusual rainfall," issued a bench opinion which reads in part:
Ordinarily, trial courts sitting as appellate courts have limited review, and the standards of review are substantial evidence, arbitrary or capricious, beyond the power of the agency to make, or a violation of appellant's due process rights. The leniency of the Agency and the recognition of the difficulty encountered by the Board, in this Court's opinion, removes this review from the four established standards as was contemplated by the Legislature in that Section 17-17-45 makes reference to Section 49-17-41, and quoting in part, "The Chancery Court shall review all questions of law and of fact," which, in this Court's opinion, enlarges the Court's scope of review. The threshold purpose of all statutes and regulations pertaining to solid waste disposal and pollutions of water and other conservation and ecological statutes is to protect the environment ... (t)here is no proof nor argument that the ... Board ... refused to comply with the Agency requirement. The Agency recognized the difficulties and exhibited leniency in extending deadlines. Whether or not subject landfill is now in compliance is not an issue before this Court. To exact a monetary penalty would only penalize the citizens of this County and increase their cost of complying with the Agency requirement ... there is sufficient fault to be shared by all concerned....
In a judgment dated June 24, 1991, the chancellor affirmed the Commission's Order No. 1578-89, but modified it in one respect: he ordered that the $4,000 penalty, instead of being paid to the Pollution Emergency Fund under Miss.Code Ann. Sec. 49-17-68 (Supp.1992), be paid by the Board into a separate fund to be held by the Board for the express and immediate purpose of complying with Section D of the Nonhazardous Waste Management Regulations. He further ordered that any funds remaining after compliance would be returned to the general fund of Chickasaw County.
The Commission filed its appeal of this judgment on July 16, 1991.
Miss.Code Ann. Sec. 17-17-45 (Supp.1992), of the Solid Wastes Disposal Law of 1974 provides for appellate review of the Commission on Environmental Quality's decisions:
In addition to any other remedies that might now be available, any person or interested party aggrieved by an order of the commission or of the permit board of the bureau of pollution control shall have the right to perfect an appeal to the appropriate chancery court in the manner set forth in sections 49-17-41 and 49-17-29.
Miss.Code Ann. Sec. 49-17-41 (1972), concerning appeals to the chancery court of decisions by the Commission,...
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