Mississippi Dept. of Environmental Quality v. Weems

Citation653 So.2d 266
Decision Date16 March 1995
Docket NumberNo. 93-CA-00680-SCT,93-CA-00680-SCT
PartiesMISSISSIPPI DEPARTMENT OF ENVIRONMENTAL QUALITY, Mississippi Environmental Quality Permit Board, Mississippi Commission on Environmental Quality, Chambers of Mississippi, Inc., Chambers Clearview Environmental Landfill, Inc., and Betco, Inc. v. William S. WEEMS, Robert A. Weems, W. Lamar Weems, Betty Weems Clarkson, Tommy L. Weems, and Esther L. Weems.
CourtUnited States State Supreme Court of Mississippi

Jayne L. Buttross, Jackson, Tommie S. Cardin, Bill Cole, Crosthwait Terney, Jackson, George S. Monroe, II, Newton, for appellant.

Jerome L. Lohrmann, Lohrmann & Associates, Jackson, William S. Weems, Jackson, for appellee.

Michael C. Moore, Atty. Gen., Jackson, James M. Hood, III, Sp. Asst. Atty. Gen., Jackson, for amicus curiae.

Before HAWKINS, C.J., and SULLIVAN and SMITH, JJ.

SMITH, Justice.

This case comes on appeal from the Scott County Chancery Court. The plaintiffs, Weems' et al, (Weems), filed suit to prevent the transfer of a solid waste landfill permit from Betco, Inc. to Chambers, MS. The permit was issued to Betco on November 28, 1989. Betco then negotiated to sell the landfill to Chambers, MS. During this period Chambers requested, and was granted, a full evidentiary hearing on the issue. On May 14, 1991, the Permit Board voted to grant the exception to the moratorium and allowed the procession of the transfer application. On October 4, 1991, Weems, et. al. filed a complaint in the Chancery Court of Scott County alleging the facility was being operated illegally because Chambers did not have a valid permit. On November 3, 1991, the chancery court held that the Commission had subject matter jurisdiction of the suit and the plaintiffs had not exhausted their administrative remedies. The chancery court lacked subject matter jurisdiction at that point.

Chambers contracted with Betco to operate the landfill. It submitted a request to the Department of Environmental Quality to have Betco's permit transferred to Chambers. The request was denied on January 8, 1991, largely because the Mississippi legislature enacted a one year moratorium on the issuance of new permits and transfer of existing permits for solid waste landfill facilities.

On January 16, 1992, William S. and W. Lamar Weems filed a complaint with the Commission alleging that Chambers was operating the facility without a valid permit. A non-evidentiary hearing was held on February 27, 1992 to determine whether the Commission had cause to further investigate the allegations. It found that it lacked jurisdiction of Weems' allegation of the issuance, modification, revocation or transfer of the Betco permit, but it had jurisdiction to the rules and regulations requiring a contract operator of a solid waste facility to hold a permit. It dismissed Weems' allegations.

On March 27, 1992, Weems, et al filed a complaint with the Chancery Court. The Commission filed a summary judgment motion, and Weems responded to the motion by asking summary judgment be awarded in Weems' favor. The chancellor determined that summary judgment should be awarded to Weems on the issue of whether a permit may be transferred from one entity to another in violation of the moratorium statute.

The chancellor noted the authority of the Commission, Permit Board, and Department of Environmental Quality to issue rules and regulations concerning those agencies. Believing the transfer was not clearly interpreted or determined, he remanded the action to those agencies for their own determination not inconsistent with his opinion. Feeling aggrieved, the Commission filed this appeal on the following issues:

I. WHETHER THE CHANCELLOR HAD JURISDICTION TO AWARD RELIEF TO THE PLAINTIFFS WHEN THE RELIEF WAS NEITHER PRAYED FOR, GENERALLY OR SPECIFICALLY, NOR WAS IT OTHERWISE AVAILABLE TO THE PLAINTIFFS IN THIS PROCEEDING OR FORUM.

II. WHETHER THE ACTION WAS RENDERED MOOT WHEN THE MORATORIUM IMPOSED ON NEW OR EXPANDED NONHAZARDOUS SOLID WASTE FACILITIES, (MISS CODE ANN. SECTION 17-17-229 (1972, AS AMENDED)) WAS SUBSEQUENTLY LIFTED BY OPERATION OF LAW.

III. WHETHER THE CHANCELLOR HAD JURISDICTION OF THE PLAINTIFF'S ACTION WHEN THE PLAINTIFFS FAILED TO EXHAUST AND UTILIZE THE AVAILABLE ADMINISTRATIVE REMEDIES, INCLUDING APPEAL.

IV. WHETHER THE PLAINTIFFS HAVE STANDING TO BRING THIS SUIT.

V. WHETHER THE CHANCELLOR ERRED BY SUBSTITUTING HIS JUDGMENT FOR THAT OF THE COMMISSION'S.

On cross-appeal, Weems argues the following issues:

I. THE CHANCELLOR ERRED IN REMANDING THE CAUSE TO THE AGENCY DEFENDANTS. THIS COURT SHOULD REVERSE THE CHANCELLOR AS TO THE REMAND, RENDER A DECISION, AND ENJOIN THE COMMISSION TO FINE BETCO AND CHAMBERS A SPECIFIC DOLLAR AMOUNT IN

ACCORDANCE WITH SECTION 17-17-29, MCA OR APPLY OTHER SPECIFIC SANCTIONS AS PROVIDED BY LAW.

A. THE FACTS SUPPORT THE CHANCELLOR'S FINDINGS OF FAULT IN THE CONDUCT OF THE AGENCY DEFENDANTS AND THEIR EXECUTIVE DIRECTOR. THE DECISION TO REMAND WAS INCONSISTENT WITH THE FACTS IN THE CASE.

B. THE LAWS THAT REQUIRE PERMIT BOARD APPROVAL WERE APPLICABLE WHEN THE LANDFILL PERMIT WAS EFFECTIVELY TRANSFERRED TO CHAMBERS FROM BETCO WITH THE SIGNING OF THE LANDFILL SERVICES AGREEMENT. THE AGENCY DEFENDANTS EXERCISED DISCRETION TO NOT ENFORCE THE LAW.

C. THE FACTS DEMONSTRATE THAT DEFENDANTS BETCO AND CHAMBERS WERE NOT INNOCENT VICTIMS OF THE CONDUCT OF THE AGENCY DEFENDANTS.

D. THIS COURT SHOULD ENJOIN THE COMMISSION TO FIND THE DEFENDANTS, BETCO AND CHAMBERS, A SPECIFIC DOLLAR AMOUNT IN ACCORDANCE WITH SECTIONS 17-17-29, MCA, DUE TO THEIR BLATANT VIOLATIONS OF THE PERMIT LAWS FOR OVER THREE YEARS. REVOKING THE PERMIT WILL NOT BE EFFECTIVE SINCE THE PERMIT WILL EXPIRE ON NOVEMBER 28, 1994.

The Commission acted arbitrarily and capriciously in that the statutes clearly delegated authority to the Commission to enact sufficient rules and regulations to both define "transfer" and sufficiently carry out the process as a matter of important public policy. The Commission decided it had no such jurisdiction pertaining to the issuance, modification, revocation, or transfer of the Betco permit. However, the Commission also held that it did have jurisdiction over the parties and subject matter.

The direct action of Weems in filing this case with the Chancery Court of Scott County does 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 remedies. The Commission admitted there were no rules and regulations available to adjudicate the issue regarding the emission of odors. The Court held that the Commission "failed to set definable, objective standards with respect to the emission of odors" and affirmed the chancellor's ruling where Pets & Such elected to proceed on direct action in chancery rather than exhaust their administrative remedy.

The Commission presented five issues on appeal only one of which, Issue III, warrants discussion. After thorough consideration of all issues we find the Commission's issues to be without merit. Likewise, Weems' issues on cross-appeal do not warrant discussion and are without merit. We must affirm the chancellor.

FACTS

On November 28, 1989, Betco, Inc., (Betco), was issued a Non-hazardous Solid Waste Disposal permit, # SW 06201A0417, by the Mississippi Department of Environmental Quality, (DEQ) and the Mississippi Environmental Quality Permit Board, (Permit Board). Pursuant to Sec. 49-17-28, Mississippi Code 1972, as amended, Betco, Inc. was the operator of the Clearview Environmental Landfill Control Facility (Facility), which is located on 18.5 acres of land in Scott County, Mississippi. The Facility is a non-hazardous solid waste landfill. The permit expires on November 28, 1994.

Betco negotiated to sell the property the Facility was located on to Chambers of Mississippi (Chambers), a Pennsylvania corporation with headquarters in Mississippi. The "Agreement of Sale" was dated March 7, 1991. During these negotiations, the Mississippi On August 3, 1990, Betco agreed to sell Chambers the entire landfill facility comprising 87.4 acres. This was contingent upon Betco transferring its permit to Chambers. On August 10, 1990, Chambers submitted a request to the DEQ to have the permit transferred. Chambers had to apply to the DEQ because the moratorium was in effect. By memorandum, the Department outlined the requirements needed to obtain an exception to the moratorium. The Permit Board met January 8, 1991, and voted to deny the exception to the moratorium.

legislature enacted a one-year moratorium on the issuance of new permits and transfer of existing permits for solid waste landfill facilities. Miss.Code Ann. Sec. 17-17-59

Following the guidelines of Secs. 17-17-43, 49-17-31 and 49-17-41, Miss.Code Ann., Chambers requested a full evidentiary hearing on the exception to the moratorium. In the meantime, the Mississippi Legislature extended the moratorium past April 1, 1991, to July 1, 1992. Miss.Code Ann. Sec. 17-17-59 (Supp.1992) Betco's President, Bobby J. Thomas, wrote the Department requesting legal guidance.

Assuming BETCO executed such a contract (operating agreement), is it correct to conclude that notwithstanding the contract with the company, the Department of Environmental Quality would, for regulatory purposes, consider the permit holder as the operator of this facility and the contractor while providing certain daily solid waste management services at the facility under this contract with BETCO would not be required under the statutes and regulations of the Department of Environmental Quality to obtain a separate or additional permit?

The Executive Director of the Department, J.I. Palmer, Jr., responded on February 23, 1991:

For regulatory purposes, the holder of a permit is deemed to be the operator of the facility for...

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