Sierra Club v. Miss. Enviro. Quality

• Decision Date: 30 November 2006
• Docket Number: No. 2005-CC-01472-SCT.,2005-CC-01472-SCT.
• Citation: 943 So.2d 673
• Parties: SIERRA CLUB, Everett Kennard and Boswell Kennard v. MISSISSIPPI ENVIRONMENTAL QUALITY PERMIT BOARD and Willie (Bill) Carroll Cook d/b/a Cook Swine Farm.
• Court: Mississippi Supreme Court

943 So.2d 673

SIERRA CLUB, Everett Kennard and Boswell Kennard v. MISSISSIPPI ENVIRONMENTAL QUALITY PERMIT BOARD and Willie (Bill) Carroll Cook d/b/a Cook Swine Farm.

No. 2005-CC-01472-SCT.

Supreme Court of Mississippi.

November 30, 2006.

COPYRIGHT MATERIAL OMITTED

Robert B. Wiygul, Biloxi, attorney for appellants.

Ricky L. Boggan and James T. McCafferty, attorneys for appellees.

Before SMITH, C.J., GRAVES And DICKINSON, JJ.

DICKINSON, Justice, for the Court.

¶ 1. In this administrative dispute, the Mississippi Environmental Quality Permit Board ("Permit Board") issued an air pollution control permit to the owner and operator of a swine concentrated animal feeding operation ("CAFO"). Several neighbors appealed the Permit Board's decision. Finding that the agency's decision to issue the permit was supported by substantial evidence, we must affirm.

BACKGROUND FACTS AND PROCEEDINGS

¶ 2. Bill Cook is the owner and operator of a CAFO in Oktibbeha County, Mississippi. The facility includes eight barns housing up to 7,040 swine as they are being grown from approximately forty to fifty pounds each to approximately 250 pounds each. The barns have slatted floors to allow the manure to drop into a holding area, and a collection system flushes the waste into an anaerobic lake. The liquid is later drawn from the top of the lake and sprayed as fertilizer on fields. There is no dispute that Cook's facility meets the exacting federal and state requirements for CAFOs with respect to the control of water pollution. This case revolves around the sole issue of the facility's satisfaction of state air quality standards.

¶ 3. When Cook's facility began operations in 1996, the Permit Board did not require air pollution permits for swine CAFOs. As such, the Permit Board only issued a National Pollutant Discharge Elimination System ("NPDES") permit to Cook. That decision was appealed to the Chancery Court of Oktibbeha County by Everett Kennard and others, and the chancellor held the CAFO was required to obtain an air permit. The Permit Board and Cook then appealed the decision to this Court.

¶ 4. While the matter was on appeal, the Mississippi Legislature amended Miss. Code Ann. Section 49-17-29 (Rev.2002) to allow the Mississippi Environmental Quality Commission ("Commission") to establish categories of sources not required to obtain an air permit and to allow for the issuance of multimedia permits, that is, permits combining both water pollution and air pollution control standards. Because the resulting regulatory amendment by the Commission did not exempt CAFOs, the parties agreed Cook would submit an application for an air permit.

¶ 5. On December 13, 1999, Cook submitted his application. The Mississippi Department of Environmental Quality ("MDEQ"), acting as technical staff for the Permit Board, created a draft permit and published a public notice on October 18, 2000, inviting public comment on the draft permit. After receiving many comments, MDEQ conducted a public hearing on May 31, 2001. On March 12, 2002, MDEQ recommended to the Permit Board that an air pollution control chapter be added to Cook's existing NPDES permit, thus transforming it into a multimedia permit.¹ These controls included the construction of a windbreak wall behind the exhaust fans of each housing unit based on MDEQ staff determinations that the exhaust fans were the primary source of off-site odor transfer. After further review, the Permit Board accepted MDEQ's recommendation and issued the multimedia permit to Cook.

¶ 6. The objectors to the permit (the Mississippi Chapter of the Sierra Club, Everett Kennard, and Boswell Kennard [hereinafter "Kennard"]), as well as Cook, requested an evidentiary hearing before the Permit Board regarding the multimedia permit. The Permit Board required all parties to file written direct and rebuttal testimony from witnesses prior to the hearing. In general, Kennard argued the permit required too little of Cook and was thus an arbitrary and capricious action, while Cook argued the permit required too much and was thus an action beyond the authority of the Permit Board.

¶ 7. On September 10, 2002, the Permit Board conducted an evidentiary hearing on Cook's multimedia permit. The testimony of multiple lay witnesses and experts was presented by the parties and considered by the Permit Board. At the conclusion of the hearing, the Permit Board deliberated and then voted to affirm its previous issuance of the Cook facility multimedia permit as written.

¶ 8. Kennard again appealed the Permit Board's decision to the Chancery Court of Oktibbeha County, and Cook cross-appealed. On August 25, 2003, the chancellor denied both the appeal and cross-appeal, finding that

[t]he Permit Board has determined that the air pollution control conditions of the permit are necessary to operated the CAFO in compliance with the ambient air quality regulation. That decision is supported by substantial evidence, is not arbitrary or capricious, is within the power of the Permit Board to make and does not violate any statutory or constitutional right of Cook. The Permit Board has determined that additional air pollution control conditions are not necessary to operate the CAFO in compliance with the ambient air quality regulation. That decision is also supported by substantial evidence, is not arbitrary or capricious, is within the power of the Permit Board to make and does not violate a statutory or constitutional right of the Objectors.

The chancellor also noted that "[a]n administrative appeal is not a means to have a court re-weigh evidence and reach a different conclusion." The chancellor found the Permit Board's decision was supported by substantial evidence, was not arbitrary or capricious, was within the Permit Board's power, and did not violate any party's rights. Therefore, the chancellor affirmed the Permit Board's decision.

¶ 9. Aggrieved, Kennard filed this appeal, raising three issues for our review: (1) whether the Permit Board's interpretation of Mississippi Air Quality Standard APC-S-4 was unreasonable and contrary to the regulation's plain language; (2) whether the Permit Board provided sufficient findings of fact and conclusions of law with respect to the technical and expert evidence presented to it; and (3) whether the Permit Board's decision not to require a monitoring regime for Cook's facility was arbitrary and capricious. We find no merit in Kennard's assignments of error and affirm the chancellor's judgment.

DISCUSSION

¶ 10. We review this matter under the same standard recognized by the chancellor in his review of the administrative order issued by the Permit Board. Understanding he was not sitting as a fact-finder in a nuisance trial, but rather was acting as an appellate court reviewing a decision of an administrative agency, the learned chancellor articulated the correct standard as follows:

An administrative appeal is not a means to have a court re-weigh evidence and reach a different conclusion. And a permit from an administrative agency is not an authorization to operate a nuisance. A court performs two different functions when determining whether to enjoin a permitted operation as a nuisance and when determining to reverse or affirm an administrative decision. The court must respect that difference. An equity suit is fact driven. An administrative appeal is law driven. Both proceedings are ultimately public policy driven. And public policy is uniquely fitted for the legislature. The legislature has delegated the permitting decision to the Permit Board.

By statutory mandate, "[a]ppeals shall be considered only upon the record as made before the Permit Board." Miss.Code Ann. § 49-17-29(5)(b) (Rev.2002). See also Golden Triangle Reg'l Solid Waste Mgmt. Auth. v. Concerned Citizens Against the Location of the Landfill, 722 So.2d 648, 652 (Miss.1998). This Court has previously held:

Matters of law will be reviewed de novo, with great deference afforded an administrative agency's construction of its own rules and regulations and the statutes under which it operates. Therefore, an agency's decision will not be disturbed on appeal absent a finding that it (1) was not supported by substantial evidence, (2) was arbitrary or capricious, (3) was beyond the power of the administrative agency to make, or (4) violated some statutory or constitutional right of the complaining party.

McDerment v. Miss. Real Estate Comm'n, 748 So.2d 114, 118 (Miss.1999) (internal citations omitted).

¶ 11. Substantial evidence is "something less than a preponderance of the evidence but more than a scintilla or glimmer. The reviewing court is concerned only with the reasonableness of the administrative order, not its correctness." Miss. Dep't of Envtl. Quality v. Weems, 653 So.2d 266, 280-81 (Miss.1995) (internal citations omitted). An action "is arbitrary or capricious if the agency entirely failed to consider an important aspect of the problem, or offered an explanation for its decision that runs counter to the evidence before the agency or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise." Id. at 281 (internal citations omitted). A rebuttable presumption exists in favor of agency decisions, and this Court may not substitute its own judgment for that of the agency. Miss. Comm'n on Envtl. Quality v. Chickasaw County Bd. of Supervisors, 621 So.2d 1211, 1216 (Miss.1993).

¶ 12. Against this background of authority and precedent establishing our standard of review, we now proceed to review the Permit Board's decision.

I. Whether the Permit Board's interpretation of Mississippi Air Quality Standard APC-S-4 was unreasonable and contrary to the regulation's plain language.

¶ 13. Kennard takes issue with the Permit Board's interpretation of Mississippi Air Quality Standard APC-S-4, arguing the Permit Board erroneously focused on a single factor and ignored the factors favorable...