Wayne County v. Tennessee Solid Waste Disposal Control Bd.

• Decision Date: 27 May 1988
• Citation: 756 S.W.2d 274
• Parties: WAYNE COUNTY, Tennessee, Respondent-Appellant, v. The TENNESSEE SOLID WASTE DISPOSAL CONTROL BOARD, Respondent-Appellee, v. Margaret GALLAHER, Intervenor-Respondent-Appellant.
• Court: Tennessee Court of Appeals

Page 274

756 S.W.2d 274

WAYNE COUNTY, Tennessee, Respondent-Appellant, v. The TENNESSEE SOLID WASTE DISPOSAL CONTROL BOARD, Respondent-Appellee, v. Margaret GALLAHER, Intervenor-Respondent-Appellant.

Court of Appeals of Tennessee Middle Section, at Nashville.

May 27, 1988.

Published in Accordance with

Tenn.Ct.App.R. 11.

Charles Jeffrey Barnett, Waynesboro, Richard Lodge, Bass, Berry & Sims, Nashville, for respondent-appellant.

W.J. Michael Cody, Atty. Gen. and Reporter, Frank J. Scanlon, Deputy Atty. Gen., Donna J. Smith, Asst. Atty. Gen., for respondent-appellee.

Gary A. Davis, Knoxville, for intervenor-respondent-appellant.

OPINION

KOCH, Judge.

This appeal arises from a dispute concerning whether the Wayne County landfill is contributing to the contamination of two wells belonging to a neighboring landowner. The Tennessee Solid Waste Disposal Control Board, finding that the landfill was a nuisance and that it contributed to the contamination, directed the County to close the landfill properly and to provide the neighboring landowner with a permanent, uncontaminated supply of water. The County filed a petition for review in the Chancery Court for Davidson County. The trial court found that there was substantial and material evidence to support the Board's finding that the landfill caused the contamination of its neighbor's well water. It also held that the Board exceeded its authority by ordering the County to supply the landowner with uncontaminated water. Both the County and the landowner have appealed. We affirm the decision of the trial court.

I.

Margaret Gallaher and her husband, Marion, live on a farm in Hardin Hollow near Waynesboro. Mr. Gallaher was born and raised on the property, and the couple has lived there since 1937 along with two of Mr. Gallaher's brothers. The farm house is located near a stream called Banjo Branch, which is fed by springs located further up in Hardin Hollow.

The Gallahers drilled a well in 1955 to supply their house with fresh water. In 1976, they drilled a second well, for their son's use, approximately one half mile further down Hardin Hollow. This well was operated only briefly and was capped off in 1976.

In August, 1976, Wayne County built a solid waste landfill at the head of Hardin Hollow despite objections by the Gallahers and other landowners in the area. The landfill is located on a ridge almost two miles from the Gallahers' house. The ridge is on a higher elevation, and its steeply sloping sides allow the rapid drainage of surface water into the neighboring valleys including Hardin Hollow.

The County experienced problems operating the landfill during the eight years it was open. A former employee of the Division of Solid Waste Management ("Division") who testified for the Gallahers described the landfill as "not much more than a glorified dump" and stated that the County's operation of the landfill was "very poor".

The landfill caused siltation problems in Banjo Branch as early as 1977. Leachate ¹ began to ooze from the landfill in 1981. In April, 1982, the Division issued a formal order of non-compliance stating that "[a]ll inspections for at least the last five months show three major recurring problems: (1) unsatisfactory cover, (2) leachate, and (3) flies." The County was unable to rectify the leachate problem while the landfill was in operation. It reappeared in 1983 and continued after February, 1984, when the landfill closed because it was full. In November, 1984, the Division approved the final closure of the landfill but warned the County that the potential for erosion and leaching still existed and that additional maintenance would be required to correct these problems.

Mrs. Gallaher stated that her well water and the water in Banjo Branch had been good until the landfill was constructed. After that time, one of the springs feeding the stream became cloudy and algae began to grow on the rocks in the stream near her house. ² In 1980 she began to notice a gradual change in the quality of her water. Her dishwasher and plumbing became corroded and clogged. Her bathroom became "all splotched up," her washing machine "turned red inside," and her dishes "were discolored and smokish." She also noted that the water had a odor like "sulphur or gas or acid or something."

Mrs. Gallaher and those living with her stopped using the water from the well in 1981 after one of her husband's brothers became ill. They started hauling water from a nearby school for all their cooking, drinking and bathing.

Mrs. Gallaher had the water tested in 1983. The Division informed her that her water exceeded the EPA recommended limits for hardness, iron, and sulfates but that these limits related mainly to "acceptable esthetic and taste characteristics." The Division also informed Mrs. Gallaher that it "appeared to be good other than the excess levels of hardness" and that "there does not appear to be any reason to suspect the Wayne County Landfill of contaminating your well."

Relying on this information, Mrs. Gallagher replaced the old plumbing and connected it to the well one half mile away that had not been used since 1976. The water appeared to be good at first. It was clear, but particles appeared when it was allowed to settle. Mr. Gallaher's brother became ill again, and Mrs. Gallaher's skin began to itch and burn when she bathed. After approximately three weeks, the water from the new well was as bad or worse than the water from the old well. The Gallahers stopped using it and went back to hauling water from the school.

The Division tested the water from Mrs. Gallaher's old well in early 1984 and found it to be "very cloudy with rust colored particles." Additional water samples were taken later in 1984 and early 1985 to verify the oil and grease analysis that had already been performed. The chemistry professor who tested these samples stated that an oil film could be seen on the top of the samples and that they smelled "rather like the grease pit at ... a service station."

The Gallahers complained to the Division in June, 1984 about the effect the landfill was having on their water. After the Division ceased its enforcement activities against the County in November, 1984, the Gallahers filed a complaint with the Tennessee Solid Waste Disposal Control Board ("Board"), requesting that the landfill be monitored more closely and that the County be ordered to provide them with uncontaminated water.

The Board conducted a hearing in April and May, 1985 and issued a Final Decision and Order finding that "[b]ased on the weight of the evidence, it is more likely than not that leachate from the Wayne County landfill is contributing to the contamination of the groundwater supplying the two Gallaher wells." The Board determined that the landfill constituted a nuisance and was violating Rule 1200-1-7-.06(3)(a)16 (Revised 1977) ³. It directed the County to close the landfill in a manner satisfactory to the Division and to supply the Gallahers with a safe, uncontaminated drinking water supply.

The County filed a petition to review the Board's decision in the Chancery Court for Davidson County. The trial court found that there was substantial and material evidence to support the Board's findings that the landfill was a nuisance and that it was contributing to the contamination of the Gallahers' water supply. However, while holding that the Board had the authority to direct the County to clean up the contamination caused by the landfill, the trial court determined that the Board did not have the authority to order "the provision of a water supply to a third party whose water is contaminated as a result of violations" of the water quality standards.

II.

The County asserts that the Board's decision was arbitrary and capricious because it "is not supported by any evidence directly demonstrating a causal connection" between the landfill and the contamination in the Gallahers' wells. It's formulation of the issue suggests a broader scope of review of the Board's factual determinations than that required by Tenn.Code Ann. § 4-5-322(h)(5) (Supp.1987). ⁴ Using the Uniform Administrative Procedures Act's standard for reviewing factual determinations, we have determined that there is substantial and material evidence to support the Board's findings of fact.

A.

Courts defer to the decisions of administrative agencies when they are acting within their area of specialized knowledge, experience, and expertise. Southern Ry. v. State Bd. of Equalization, 682 S.W.2d 196, 199 (Tenn.1984); Freels v. Northrup, 678 S.W.2d 55, 57-58 (Tenn.1984); Illinois Cent. Gulf R.R. v. Tennessee Pub. Serv. Comm'n, 736 S.W.2d 112, 117 (Tenn.Ct.App.1987); Griffin v. State, 595 S.W.2d 96, 99 (Tenn.Crim.App.1980). Accordingly, judicial review of an agency's action follows the narrow, statutorily defined standard contained in Tenn.Code Ann. 4-5-322(h) rather than the broad standard of review used in other civil appeals. CF Indus. v. Tennessee Pub. Serv. Comm'n, 599 S.W.2d 536, 540 (Tenn.1980); Metropolitan Gov't of Nashville v. Shacklett, 554 S.W.2d 601, 604 (Tenn.1977); DePriest v. Puett, 669 S.W.2d 669, 673 (Tenn.Ct.App.), cert. denied, 469 U.S. 1034, 105 S.Ct. 505, 83 L.Ed.2d 397 reh. denied, 469 U.S. 1181, 105 S.Ct. 942, 83 L.Ed.2d 954 (1985).

The narrower scope of review used to review an agency's factual determinations suggests that, unlike other civil appeals, the courts should be less confident that their judgment is preferable to that of the agency. See 2 C. Koch, Administrative Law and Practice § 9.4 (1985). Courts do not review the fact issues de novo and, therefore, do not substitute their judgement for that of the agency as to the weight of the evidence, Humana of Tennessee v. Tennessee Health Facilities Comm'n, 551 S.W.2d 664, 667 (Tenn.1977); Grubb v. Tennessee Civil Serv. Comm'n, 731 S.W.2d 919, 922 (Tenn.Ct.App.1987), even when the evidence could support a different result. Hughes v. Board...