Public Employees for Environmental Responsibility v. Tennessee Water Quality Control Board, No. M2008-01567-COA-R3-CV (Tenn. App. 6/10/2009)

Decision Date10 June 2009
Docket NumberNo. M2008-01567-COA-R3-CV.,M2008-01567-COA-R3-CV.
PartiesPUBLIC EMPLOYEES FOR ENVIRONMENTAL RESPONSIBILITY (PEER) v. TENNESSEE WATER QUALITY CONTROL BOARD, ET AL.
CourtTennessee Court of Appeals

Elizabeth Murphy, Nashville, Tennessee, for the appellant, Public Employees for Environmental Responsibility.

Robert E. Cooper, Jr., Attorney General and Reporter, Michael E. Moore, Solicitor General and Sohnia W. Hong, Senior Counsel, for the appellee, State of Tennessee, Department of Environment and Conservation.

John P. Williams, Nashville, Tennessee for the appellee, Waste Management, Inc. of Tennessee.

David R. Farmer, J., delivered the opinion of the court, in which Alan E. Highers, P.J., W.S., and J. Steven Stafford, J., joined.

OPINION

DAVID R. FARMER, JUDGE.

Upon review under the Uniform Administrative Procedures Act, the trial court affirmed the decision of the Water Quality Control Board upholding the decision of the Tennessee Department of Environment and Conservation to approve Waste Management's application for a permit to expand a landfill into a mitigation wetlands area. Petitioner appeals. We dismiss the appeal for lack of standing and as moot.

This lawsuit concerns the expansion of the Southern Services Landfill ("the landfill"), a construction and demolition waste landfill that was opened in 1974 in northwest Davidson County on the north bank of the Cumberland River. The landfill formerly was owned and operated by Southern Services, L.P. ("Southern Services") and was acquired by Waste Management, Inc. ("Waste Management") in 1998. The current dispute concerns the relocation of a portion of an intermittent, unnamed stream that flows into the Cumberland River, and the filling-in of approximately 1.25 acres of "mitigation wetlands" created in conjunction with an Aquatic Resource Alteration Permit("ARAP") issued in 1994. The expansion area is located within the boundaries of the existing landfill, a portion of which is in an area that formerly included a Tennessee Valley Authority ("TVA") easement that once contained power lines.1 The lawsuit largely revolves around the requirements of rules of the Tennessee Department of Environment and Conservation ("the TDEC"), Water Quality Control Board, Division of Water Pollution Control ("the Board") as promulgated by chapter 1200-4-7 of the Tennessee Administrative Code ("the Rules") pursuant to Tennessee Code Annotated §§ 69-3-105 and 108. The dispute concerns the validity a "§401 Water Quality Certification" ("the certification" or "the permit) issued by the TDEC under 33 U.S.C. § 401.2

In 1994, the TDEC issued Southern Services a permit to fill-in approximately nine acres of wetlands to expand the landfill. The 1994 permit required Southern Services to construct 20.6 acres of mitigation wetlands contiguous to the landfill in an area south of the TVA easement, which bisects the landfill. The permit provided that the State of Tennessee reserved the right to modify or revoke the permit for failure to comply with the permit terms. In July 1994, the TDEC issued a "Notice of Determination." Comment five of the Notice stated that no conservation easement had been proposed. It also stated, however, that Southern Services had "executed a deed restriction on the property on which the mitigation wetland [was] to be developed" which contained "the same restrictive covenants as the conservation easement[.]" Southern Services posted a bond in the amount of approximately $31,000, and the Declaration of Restrictions was recorded with the Register of Deeds. The Declaration provided, in pertinent part, that there would be no disruption or manipulation of the flow of any water body except as provided in the approved mitigation plan. It also provided that the restrictions "may be waived, amended, modified, released or terminated at any time and from time to time by Declarant upon the written consent of the Department." The permit expired on October 1, 1999.

The mitigation construction project was completed in 2000. According to the final monitoring report submitted by Civil & Environmental Consultants, Inc., the mitigation project was successful. The report concluded that the "entire wetland mitigation area has stabilized with native vegetation and waterfowl and wildlife are utilizing the site as intended. . . . All permit conditions have been met[.]"

In May 2003, Waste Management presented a proposal to expand the landfill within the landfill boundaries to the Metro Solid Waste Board, which approved it unanimously. In June 2003, Waste Management submitted applications to the TDEC and the Army Corps of Engineers for a permit to expand the landfill. In its application, Waste Management proposed to relocate approximately 2,242 linear feet of the unnamed stream and to fill-in approximately 1.25 acres at the edge of the mitigation wetlands area created under the 1994 permit. The proposed plan also created approximately 6.25 acres of new wetlands adjacent to the 1994 mitigation area. Under the plan, the wetlands increased from 18.30 acres to 23.3 acres. The plan as modified in January 2004 ultimately provided for 20.6 acres of wetland. In order to compensate for the relocation of the unnamed stream, Waste Management proposed rerouting the stream into a new channel of comparable size and gradient and approximately 2,283 feet in length. In the support documentation submitted with its permit application, Waste Management referenced the 1994 Declaration of Restrictions and the provision that the Declaration could be modified with the written consent of the TDEC.

The Army Corps of Engineers and the State of Tennessee jointly issued a public notice of Waste Management's permit application in November 2003.3 In January 2004, the TDEC issued a "Section 401Certification" allowing Waste Management's proposed expansion. A corresponding "Section 404 Certification" was issued by the Army Corps of Engineers in June 2004.4 In September 2005, the TDEC, Division of Water Pollution Control, issued a public notice describing the permit and stating that, although Waste Management had referenced the 1994 Declaration of Restrictions in its application, the TDEC inadvertently had failed to consider the Declaration in its review process. The declared purpose of the notice was "to advise all concerned that the division intends to issue its written consent allowing the proposed modification" to the Declaration as proposed by Waste Management and to solicit comments and information. The notice advised that the comment period would expire on October 15, 2005, and that a hearing would be held if warranted by sufficient public interest in accordance with Rule 1200-4-7-.04(4)(f).

On October 11, 2005, Petitioners Bordeaux Beautiful, Inc. ("Bordeaux Beautiful) and Public Employees for Environmental Responsibility ("PEER") filed a Petition for Hearing and/or Declaratory Order with the Water Quality Control Board of the TDEC ("the Board"). The petition was submitted by Barry Sulkin (Mr. Sulkin), Director, Tennessee PEER, and Chris Utley, President Bordeaux Beautiful, Inc. ("Bordeaux Beautiful"), and 11 individuals, including Mr. Sulkin.5 The petition was amended in September 2006. The amended petition named Bordeaux Beautiful and PEER as petitioners (collectively, "Petitioners"). In their petition, Petitioners challenged the certifications granted by both the Army Corps of Engineers and the TDEC. They alleged the TDEC certification violated the 1994 TDEC permit and certification; state rules and regulations regarding public notice; the Tennessee Water Control Quality Act; state rules and regulations for wetland and stream mitigation, and federal law. Petitioners asserted that they were affected, aggrieved, and adversely impacted by the direct, secondary and cumulative impacts of the activities authorized by the 2004 permit because they live in the area of the proposed wetland fill and stream relocation and use and enjoy the local environment and water resources. Petitioners prayed for the permit to be stayed pending a final decision and "request[ed] injunctive relief so as to prevent further activity pending resolution of this matter." At its meeting on October 25, 2005, the Board agreed to convene a contested case proceeding.

Waste Management's petition to intervene was granted in January 2006. In April 2006, Petitioners filed a "Notice of Clarification of Parties" in which they stated that all individual citizens had withdrawn from the litigation after determining that their interests were adequately represented by Bordeaux Beautiful and PEER, and that Bordeaux Beautiful and PEER were the only remaining Petitioners. In June 2006, the TDEC and Waste Management filed motions to compel responses to their discovery requests. In its motion, the TDEC asserted that Petitioners had failed to provide evidence that they had responded to the public notices regarding the proposed permits. Waste Management asserted that PEER had failed to comply with its requests for membership information. In its accompanying memorandum of law, Waste Management asserted that PEER had supplied the names of only two members who lived at the same address near the landfill, and that neither was a public employee. It further asserted that PEER was a non-profit organization incorporated in the District of Columbia, that it registered to do business in Tennessee in 1999, and that its agent in Tennessee, Mr. Sulkin, was not a public employee. The Board granted the TDEC's motion to compel on June 26. Waste Management withdrew its motion to compel discovery of PEER's membership list in August 2006. On August 23, the Board entered an order vacating its order to compel of June 26 upon agreement of the parties. In its August order, the Board stated that the TDEC "reserve[d] the...

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