Wood v. Metro. Nashville & Davidson County

• Decision Date: 22 December 2005
• Citation: 196 S.W.3d 152
• Parties: Bruce WOOD v. METROPOLITAN NASHVILLE & DAVIDSON COUNTY GOVERNMENT et al.
• Court: Tennessee Court of Appeals

196 S.W.3d 152

Bruce WOOD v. METROPOLITAN NASHVILLE & DAVIDSON COUNTY GOVERNMENT et al.

Court of Appeals of Tennessee, at Nashville.

November 5, 2004 Session.

December 22, 2005.

Permission to Appeal Denied by Supreme Court June 26, 2006.

COPYRIGHT MATERIAL OMITTED

Bruce Wood, Nashville, Tennessee, Pro Se.

Karl F. Dean, Margaret Holleman, and John L. Kennedy, Nashville, Tennessee, for the appellees, Metropolitan Government of Nashville and Davidson County, Metropolitan Board of Health, and Metropolitan Public Health Department.

Sharon O. Jacobs, Nashville, Tennessee, for the appellee, Nashville Thermal Transplant Corporation.

WILLIAM C. KOCH, JR., P.J., M.S., delivered the opinion of the court, in which HERSCHEL P. FRANKS, P.J., and FRANK G. CLEMENT, JR., J., joined.

OPINION

This appeal involves a dispute between a citizen and the Metropolitan Government of Nashville and Davidson County regarding the regulatory oversight of the now defunct Nashville Thermal Transfer plant. The Metropolitan Department of Health decided to reopen the plant's operating permit and to assess monetary penalties for the plant's violations of air quality regulations. The plant appealed these decisions to the Metropolitan Board of Health. While the administrative appeal was pending, the plant and the Department of Health settled their dispute. The Board of Health approved the settlement and even reduced the monetary penalties assessed against the plant over the objections of a private citizen who had unsuccessfully sought to intervene in the proceeding. The citizen then filed a petition for a common-law writ of certiorari in the Chancery Court seeking judicial review of the Board of Health's decision. After the plant was totally destroyed by fire, the trial court dismissed the citizen's petition on the ground that it was moot. We affirm the dismissal because the citizen lacked standing to file the petition for a common-law writ of certiorari.

I.

During the 1970s, the Metropolitan Government of Nashville and Davidson County decided to construct a power plant that used solid waste as fuel to provide heating and cooling to the buildings in the downtown district. The Nashville Thermal Transfer Corporation (NTTC) was formed for that purpose. In the late 1990s, NTTC was operating three waste-to-energy boilers and other equipment¹ under a Part 70 operating permit² issued in 1998 by the Metropolitan Department of Health (Department). On March 9, 2000, the Department issued NTTC a revised operating permit; however, a short time later, the Director of Health (Director) announced that she was considering whether she should reopen the permit application for cause³ based on evidence that NTTC was not operating in compliance with applicable air quality standards.

The Metropolitan Board of Health (Board) conducted a hearing on January 23, 2002 to receive public comment regarding the reopening of NTTC's permit. Bruce Wood, a resident of Nashville, was present at this hearing and advocated a "safe closedown of NTTC."

Following the hearing, the Director informed NTTC that she had determined that several sections of its permit should be revised or revoked to assure the plant's compliance with applicable air quality standards. However, she also invited NTTC to present a comprehensive plan for eliminating excess emissions and otherwise complying with air quality regulations within fifteen days. Sixteen days later, having received nothing from NTTC, the Director issued an "Official Notice of Violation" to NTTC alleging seventy-five violations of its operating permit from October 1, 2001 through December 31, 2001. Apparently, this order also assessed substantial penalties against NTTC.⁴

NTTC appealed the Department's decision to reopen its permit, as well as the Department's notice of violation to the Board. At a public meeting on February 12, 2002, the Board decided to refer NTTC's consolidated appeals to an administrative law judge in accordance with Metropolitan Gov't of Nashville and Davidson County, Tennessee Code § 10.56.090(C)(4) (1997) (Metro Code) and Tenn.Code Ann. §§ 4-5-301 to -325 (2005). Thereafter, the Director and NTTC agreed upon a plan of compliance that addressed all the issues raised in the notice of violation. They informed the administrative law judge in a letter transmitting their proposed final order that portions of the plan required EPA approval that had not yet been obtained. On May 1, 2002, the administrative law judge filed an initial order reciting the parties' settlement and directing them to submit a proposed final order as soon as the EPA had approved the plan.

On May 3, 2002, Mr. Wood filed a pro se motion pursuant to Tenn. R. Civ. P. 24.01 seeking to intervene in the administrative proceedings before the administrative law judge. He stated that he was a long-time environmentalist with special interest in solid waste, air pollution, and water quality and that he was president of an environmental group called "BURNT" (Bring Urban Recycling to Nashville Today). Mr. Wood insisted that NTTC had polluted Nashville's air and had operated over the years with "human eror [sic], poor training, and bad management." Accordingly, he objected to the proposed settlement, demanded an "open hearing . . . by the Health Board or a designated Hearing Officer," and insisted that the administrative law judge should make findings of fact regarding the seventy-five violations cited in the Director's notice of violation.

On May 13, 2002, the administrative law judge denied Mr. Wood's motion to intervene. He pointed out that applications to intervene were governed by Tenn.Code Ann. § 4-5-310 (2005) and Tenn. Comp. R. & Regs. 1360-4-1-.12 (2004), not by Tenn R. Civ. P. 24. The administrative law judge also determined that Mr. Wood did not have standing to intervene because he failed to demonstrate a recognizable legal interest in the proceedings that "would be adversely affected by the resolution of the administrative matter without his intervention." The judge further concluded that Mr. Wood's motion was untimely because the parties had already filed an agreed initial order and thus the case had already been concluded. Finally, the judge concluded that the interests of justice and the prompt conduct of the proceedings would be impaired by Mr. Wood's intervention due to the fact that the parties had already resolved their dispute.

The EPA approved NTTC's compliance plan after the entry of the administrative law judge's order. Thereafter, the administrative law judge filed an agreed final order on May 23, 2002. This order provided that the Department would consider the expenses incurred by NTTC in converting to cleaner gas burning boilers to offset the penalties assessed in its notice of violation. Ironically, the NTTC plant was destroyed by fire later that same day.

On May 28, 2002, Mr. Wood filed a motion to reconsider the denial of his request to intervene in the enforcement proceedings. The administrative law judge denied the motion on June 5, 2002, noting that in addition to Mr. Wood's lack of standing, the enforcement proceeding was now moot because of the entry of the agreed final order on May 23, 2002. The Board unanimously accepted the administrative law judge's orders on July 9, 2002.

Mr. Wood remained dissatisfied. During the Board's November 12, 2002 meeting, he insisted that the Board should review and vacate the order denying his petition to intervene and that the Board should reopen the enforcement proceedings. After listening to Mr. Wood, the Board declined to permit him to intervene in the enforcement proceeding, pointing out that there was nothing left to consider because the entry of the agreed final order on May 23, 2002 effectively ended the proceeding.

Still dissatisfied, Mr. Wood filed a pro se petition for common-law writ of certiorari in the Chancery Court for Davidson County immediately after the Board denied his request to intervene. He took issue with the Board's refusal to permit him to intervene in the enforcement proceeding as well as with the agreed final order. He maintained that he had standing to file the petition because he lived less than one mile away from the NTTC plant and because he had attended the Board's meetings and had spent lengthy amounts of time at the Department researching air quality violations by the NTTC.

On October 15, 2002, the Director issued a revised assessment of penalties against NTTC for the violations noted in the notice of violation. After taking into account the facts that the plant had been destroyed by fire and that NTTC had incurred significant expenses installing temporary gas boilers after the plant was destroyed, the Director recommended that the monetary assessment should be reduced to $100,000. The Board considered the revised assessment at a public meeting on December 10, 2002. Mr. Wood and several other members of BURNT were present at the meeting to express concerns regarding NTTC's violations and to protest the revised penalties. After listening to the arguments of Mr. Wood and his colleagues, the Board unanimously voted to approve the Director's revised penalty assessment.

On February 4, 2003, the Metropolitan Government and NTTC filed motions for a more definite statement and to dismiss Mr. Wood's petition. Mr. Wood's lack of standing was one of the grounds asserted in the motion to dismiss. Mr. Wood filed an amended petition on February 14, 2003, in which he claimed (1) that he had been denied an opportunity to appeal the administrative law judge's May 23, 2002 agreed order to the Board; (2) that the administrative law judge failed to make the required findings of fact and conclusions of law; (3) that the Board prevented him from exercising his rights to speak, to associate, and to appeal a decision of the Director; (4) that the Clean Air Act prohibited the Metropolitan Government from regulating and permitting the NTTC plant because the City was...