Profill Development, Inc. v. Dills

• Decision Date: 25 April 1997
• Citation: 960 S.W.2d 17
• Parties: PROFILL DEVELOPMENT, INC., Plaintiff/Appellant, v. Don DILLS, Commissioner of the Tennessee Department of Environment and, Conservation, et al., Defendants/Appellees.
• Court: Tennessee Court of Appeals

Page 17

960 S.W.2d 17

PROFILL DEVELOPMENT, INC., Plaintiff/Appellant, v. Don DILLS, Commissioner of the Tennessee Department of Environment and, Conservation, et al., Defendants/Appellees.

Court of Appeals of Tennessee Western Section, at Nashville.

April 25, 1997.

Application for Permission to Appeal

Denied by Supreme Court

Nov. 17, 1997.

J. Alan Hanover, James R. Newsom, III, Helen L. Keith, Hanover, Walsh, Jalenak & Blair, P.L.L.C., Memphis, for Plaintiff/Appellant.

Charles W. Burson, Attorney General and Reporter, Elizabeth P. McCarter, Senior Counsel Attorney, for Defendants/Appellees Don Dills and Charles W. Burson.

Gary A. Davis, Knoxville, for Defendant/Appellee West Tennesseans for Clean Water and Environment.

FARMER, Judge.

This appeal from a declaratory judgment lawsuit arose out of Appellant's attempts to construct and to operate a solid waste landfill. In 1992, Profill Development, Inc. (hereinafter, "Profill") applied to the Tennessee Department of Environment and Conservation (hereinafter, "Department") for a solid waste disposal permit to construct and to operate a "Class I disposal facility" in Gallaway, Fayette County, Tennessee. The Tennessee Solid Waste Disposal Act, T.C.A. § 68-211-101 et seq. (1996) authorizes the Tennessee Solid Waste Disposal Control Board (hereinafter, "the Board") to promulgate rules governing solid waste processing and disposal facilities. These rules have been promulgated by the Board as Tenn. Comp. R. & Regs. (hereinafter, "Rule") 1200-1-7, et seq. A Class I disposal facility is:

[A] sanitary landfill which serves a municipal, institutional, and/or rural population and is used or to be used for disposal of domestic wastes, commercial wastes, institutional wastes, municipal wastes, bulky wastes, landscaping and land clearing wastes, industrial wastes, construction/demolition wastes, farming wastes, discarded automotive tires, and dead animals.

Rule 1200-1-7-.01(3)(a).

The 1989 enactment of T.C.A. § 68-211-701 et seq., (hereinafter, "Part Seven") permitted local governments that did not have zoning ordinances to approve or disapprove of landfill proposals submitted to the Department. As originally enacted, Part Seven gave cities and counties the authority to approve or disapprove of proposals for solid waste facilities located within their respective boundaries and also gave cities the same authority over solid waste facilities located within one mile of municipal boundaries. In 1995, Part Seven was amended so as to permit counties to approve or disapprove of solid waste facilities to be located within the municipal boundaries.

As originally enacted in 1989, Part Seven contained the following provision:

This act shall remain effective until the approval and effective implementation of the plan as set forth in Senate Bill 1322/House Bill 1305 of the Ninety-Sixth General Assembly, being the "Tennessee Solid Waste Planning and Recovery Act", if enacted, or June 30, 1991, whichever shall first occur.

1989 Tenn. Pub. Acts, chap. 515, § 9. The Solid Waste Management Act of 1991, T.C.A. § 68-211-801 et seq., (hereinafter, "Part Eight") was enacted in response to the requirements imposed under the Tennessee Solid Waste Planning and Recovery Act, T.C.A. § 68-211-603. (hereinafter, "Part Six"). In 1991, the legislature amended Part Seven to extend the expiration date of Part Seven from June 30, 1991, until June 30, 1994. In 1994, the expiration provision was again amended so as to extend the expiration date to June 30, 1995. On March 15, 1995, the general assembly again amended Part Seven to remove the expiration clause altogether.

Applications to construct and to operate disposal facilities such as the one Profill submitted, consist of two parts known as "Part I" and "Part II." In June 1992, Profill submitted Part I to the Department. The Part I application, in addition to the landfill proposal, referenced a proposed materials recycling facility to be located at the Fayette County site. Profill submitted the first portion of the Part II application in May 1993, and it submitted the second portion of the Part II application in May 1994. The Department regularly conducts "completeness" reviews of applications in order to ensure that the numerous reports and plans submitted by the applicant include all required components and items. Upon the review of the Part II application, the Department determined that Profill's application was incomplete. Therefore, the Department sent a notice of incompleteness letter dated July 1, 1994. Profill submitted a revised application in August 1994.

Under procedural rules governing consideration of landfill applications, the Department must conduct its completeness review of the first phase of the Part II application within 30 days after receipt of said application. The completeness review of the second phase must be conducted within 45 days after receipt of that portion of the application. Once the permit application has been certified to be complete, the Department has an additional 270 days to conduct its technical review, issue a tentative permit decision, conduct public hearings, and make a final decision upon the application. On September 2, 1994, the Department notified Profill that its application was complete. That letter commenced the running of the 270 day period for the Department to review the application, make tentative and final decisions thereon and either grant or deny the permit.

In December 1994, the Department sent a notice of deficiency letter to Profill detailing fifteen technical deficiencies in the application. One of the deficiencies cited in the December 1994, letter referenced Profill's failure to submit a separate notification for its materials recycling facility. After a meeting between officials from both the Department and Profill, the Department still concluded that the processing facility notification should be separated from the Class I landfill application. Profill filed with the Department a separate notification for the processing facility on March 2, 1995.

The Class I landfill application was submitted for consideration by the Department's permit review committee which was to consider the application on April 13, 1995. However, the application was never considered because the Department was notified on March 28, 1995, that Fayette County had "opted in" to the amended Part Seven provisions which permitted counties to disapprove of landfill proposals located within municipal boundaries. As amended, T.C.A. § 68-211-105(h) states that the Commissioner:

[S]hall not review or approve any construction for any new landfill for solid waste disposal or for solid waste processing in any county or municipality which has adopted the provisions of §§ 68-211-701--68-211-704 and § 68-211-707 until such construction has been approved in accordance with the provisions of such sections.

Therefore, the Department ceased review of Profill's application upon notification that Fayette County had adopted Part Seven.

On April 18, 1995, Profill filed with the Tennessee Solid Waste Disposal Control Board a petition for declaratory order seeking a determination of the validity and applicability of Part Seven, as amended. Pursuant to T.C.A. § 4-5-223, the board declined to issue a declaratory order in the matter and waived jurisdiction on all issues before it. By consent order entered June 6, 1995, the Board ordered that the petition be submitted to the Davidson County Chancery Court for consideration and determination. Thereafter, on June 6, 1995, Profill filed its Complaint for Declaratory Judgment. The chancellor entered an order granting West Tennesseans for Clean Water and Environment (hereinafter "West Tennesseans") permission to intervene as a party defendant. The defendants filed motions to dismiss and for summary judgment. The trial court granted in part and denied in part the motion to dismiss filed by West Tennesseans. Specifically, the trial court dismissed Profill's claims brought pursuant to the Commerce Clause and Supremacy Clause of the United States Constitution and left the remaining claims for trial.

The trial court granted summary judgment to the state defendants on the following claims: (1) the 1995 amendments to Part Seven did not apply to Profill because the City of Gallaway had not opted to be covered by it; (2) the application of the 1995 amendments violated the Commerce Clause of the United States Constitution; (3) the application of the 1995 amendments impaired the right of Profill to contract under the United States Constitution; (4) Profill's property had been taken without due process of law in violation of the United States Constitution; and (5) the enactment of the 1995 amendments was a suspension of the general law in violation of Art. II, Section 8 of the Tennessee Constitution. The remaining claims against the State proceeded to trial, without intervention of a jury, on January 8 and 9, 1996, and February 5 and 6, 1996.

The trial court filed a memorandum opinion stating its findings of fact and conclusions of law. Judgment was entered denying the relief sought, and Profill appeals.

ISSUES

Profill raises the following issues for review:

1. Whether, due to the "effective implementation" of Part Eight, Part Seven expired prior to the enactment of the 1995 Amendments.

2. Whether due to the provisions of [T.C.A.] § 68-211-707, Part Seven is inapplicable to the Profill application.

3. Whether Part Seven applies to the Solid Waste Processing Facilities proposed by Profill.

4. Whether Part Seven is preempted by the Resource Conservation and Recovery Act of 1976, 42 U.S.C. §§ 6941 et seq., pursuant to the Supremacy Clause of the United States Constitution.

5. Whether Profill's rights to administrative due process have been denied.

6. Whether the "local veto" authority granted by Part Seven is an unconstitutional delegation of legislative power in violation of the Tennessee...