Tri-County Solid Waste v. Pollution Control
| Decision Date | 02 March 2006 |
| Docket Number | No. 05-589.,05-589. |
| Parties | TRI-COUNTY SOLID WASTE DISTRICT; George Zeiler, Evelynn Benbry, Carl Totemeier, and Gary Escalanta, Appellants, v. ARKANSAS POLLUTION CONTROL AND ECOLOGY COMMISSION, Appellee, Waste Management Tontitown Landfill, LLC, Intervenor/Appellee. |
| Court | Arkansas Supreme Court |
Yeatman & Associates, P.A., by: Gregory L. Yeatman and Jillian E. Thayer, Little Rock, for intervenor/appellant WM Tontitown Landfill, LLC.
Mike Beebe, Att'y Gen., by: Kendra Akin Jones, Ass't Att'y Gen. and Charles Moulton, Senior Ass't Att'y Gen., for appellee Arkansas Pollution Control and Ecology Commission.
This appeal involves the statutes and regulations that govern appeals of landfill permitting decisions. Appellee Waste Management Tontitown Landfill ("Waste Management") holds a permit for the Class 1 solid waste disposal facility in Washington County. The Tri-County Solid Waste District Board ("the Board"), one of the appellants in this case, is the governing body of the Regional Solid Waste Management District where the landfill is located.1
We briefly set out here the procedural background of Waste Management's CON application; the various decisions by the several reviewing bodies will be discussed in more depth below. Pursuant to Ark. Code Ann. § 8-6-706(b)(1) (Repl.2000) and Arkansas Pollution Control and Ecology Commission Regulation 8, Part 22.205(a), an applicant for a permit to expand the permitted capacity of an existing landfill must obtain a Certificate of Need (CON) from the regional board with jurisdiction over the proposed site. On April 10, 2001, Waste Management filed an application with the Board for a CON, seeking permission to expand the Tontitown Landfill. In May and July of 2001, the Board held public hearings on Waste Management's application. Although the Tri-County Solid Waste District staff recommended approving the CON, and a resolution was introduced at the July 19, 2001, hearing favoring Waste Management's application, the Board failed to pass the resolution.
The Board formally denied Waste Management's application by letter dated July 20, 2001. In that letter, the Board found that the District's regional planning strategy did not include the development of any additional landfill capacity in the District. In addition, the Board stated that the area's geology was unsuitable for an expanded landfill.
On August 17, 2001, Waste Management appealed the Board's decision to the Director of the Arkansas Department of Environmental Quality (ADEQ). Under Ark. Code Ann. § 8-6-706(c) (Repl.2000), the Director "may issue a permit despite the denial of a[CON] if the director finds upon appeal that the decision of the regional board was not supported by substantial evidence." After conducting a hearing on November 14, 2001, ADEQ Interim Director Richard Weiss determined that the Board's decision appeared to have been based on its opinion as to the geology of Northwest Arkansas, and not on the statutory criteria set out in Ark.Code Ann. § 8-6-706(b)(2) (Repl.2000). Because the Board did not follow the statutory criteria, Weiss concluded that the Board did not base its decision to deny the CON on substantial evidence. Accordingly, Weiss reversed the Board's decision to deny Waste Management's application for a CON; the Director's decision permitted Waste Management to proceed with the permit application process.
On June 19, 2002, the Board asked the Pollution Control and Ecology Commission ("the Commission") to review the Director's decision. See Ark.Code Ann. § 8-4-201(b)(8) (Repl.2000). The Commission directed an Administrative Hearing Officer (AHO) to conduct a hearing on the Board's request for review. The AHO took no additional evidence, but based its decision on the administrative record before it. On June 19, 2003, the AHO issued a Recommended Decision to affirm the Director's reversal of the Board's denial of Waste Management's CON application. The full Commission adopted the AHO's Recommended Decision on September 26, 2003.
The Board appealed the Commission's ruling to the Washington County Circuit Court. After a hearing on May 10, 2004, the circuit court entered an order on February 4, 2005, upholding the Commission's decision affirming the Director's decision to reverse the Board's denial of the CON.
We must first decide which decision is on review in this appeal—the Board's ruling or the Commission's. The Board and the Zeiler appellants ask this court to review the initial decision of the Board; Waste Management and the Commission, on the other hand, assert that we can only review the Commission's decision. Once that question is decided, we must then determine the appropriate standard of review. Following that, we may decide whether to affirm the order being reviewed.
The process by which this case has reached this court is somewhat convoluted. As mentioned above, Waste Management applied for a CON pursuant to § 8-6-706(b)(1). Following the Board's decision to deny the application for a CON, Waste Management then appealed to the Director of ADEQ under § 8-6-706(c), which permits the Director to reverse the Board's decision if the Director finds that the Board's decision was not supported by substantial evidence.
Next, the Board petitioned the Commission for review of the Director's decision pursuant to Ark.Code Ann. § 8-4-201(b)(8) (Repl.2000), which charges the Commission with the "power[] and dut[y] [to] . . . [,] [u]pon a majority vote, initiate review of any director's decision." The review of the Director's decision was also undertaken pursuant to Commission Regulation 22,2 which sets out the process for appeals. In addition to the statutory processes described above, the Commission's Regulation 22.206(e) provides as follows:
(1) After considering all relevant evidence presented in the appeal, the Director shall determine whether the decision of the board is supported by substantial evidence. His decision shall be based upon the factors set out in [Ark.Code Ann.] § 8-6-806 and upon any other relevant factors.
(2) The Director shall issue his decision in writing and shall serve a copy of the decision upon the party filing the appeal and upon the board. The parties involved in the appeal of the district board decision may request Commission review of the Director's decision. . . . [T]he appeal to the Commission shall be conducted in the form and manner in accordance with the requirements of Regulation 8, Part 2.5 Practice and Procedure, for adjudicatory hearings before the Commission.
In turn, Regulation 8, Part 2.5 sets out the procedure by which appeals to the Commission are taken. Of particular interest for the present case are Part 2.5.8, which provides that the "Administrative Hearing Officer appointed by the Commission shall preside over all adjudicatory hearings," and Part 2.5.16, which governs the conduct of adjudicatory hearings and specifically provides that "[t]he standard of review in an adjudicatory hearing is a preponderance of the evidence." Once the AHO has heard the evidence, Part 2.5.17 provides that the AHO "shall issue a written Recommended Decision to the Commission for action at a regularly scheduled meeting."
Commission review of the AHO's Recommended Decision is governed by Part 2.5.18, which provides in relevant part as follows:
(a) Commission review of any appealed or contested matter shall be a de novo review of the record compiled by the Administrative Hearing Officer.
* * * *
(d) The Commission's vote to affirm or reverse the Recommended Decision shall constitute final Commission action for purposes of appeal.
The appellate process from this point is controlled by Ark.Code Ann. §§ 8-4-223 to -229 (Repl.2000), which generally provide that appeals from a Commission decision shall be taken to the "circuit court of the county in which the business, industry, municipality, or thing involved is situated." Ark.Code Ann. § 8-4-223(a)(1) (Repl. 2000). Ark.Code Ann. § 8-4-227 (Repl. 2000) sets out the following process for review by the circuit court:
(d) The court may affirm the decision of the commission or vacate or suspend the decision, in whole or part, and remand the case to the commission for further action in conformity with the decision of the court if the action of the commission is:
(1) In violation of constitutional or statutory provisions;
(2) In excess of the commission's statutory authority;
(3) Made upon unlawful procedure;
(4) Affected by other error of law;
(5) Not supported by substantial evidence of record; or
(6) Arbitrary, capricious, or characterized by abuse of discretion.
(Emphasis added.)
It is plain from this examination of the statutory and regulatory procedures that the decision before this court is the decision of the Commission, and not the initial decision of the Board. Under the plain language of the above-cited statutes, the only decision that is ever subjected to judicial review is the decision of the Commission. Case law supports this conclusion, as well. For example, in Arkansas State Racing Commission v. Wayne Ward, Inc., 346 Ark. 371, 57 S.W.3d 198 (2001), the original order appealed from was a decision by the Southland Greyhound Park Board of Judges, which redistributed the winning dog's purse because of a violation of the rules prohibiting drug use. The dog's owner appealed the Board's decision to the Arkansas State Racing Commission, which affirmed the Board's decision. The owner then appealed the Commission's decision to the circuit court, which reversed the Commission, finding that the Commission's decision was not supported by substantial...
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