Cindy Wheatley v. Robert J. Martineau ( 2014 )

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
December 19, 2013 Session
CINDY WHEATLEY, ET AL. V. ROBERT J. MARTINEAU, ET AL.
Appeal from the Chancery Court for Davidson County
No. 111660II Carol L. McCoy, Chancellor
No. M2013-01704-COA-R3-CV - Filed April 15, 2014
This appeal arises from a certiorari proceeding instituted in December of 2011 in which
owners of property adjoining a landfill sought review of the Commissioner of the Tennessee
Department of Environment and Conservation’s decision in October 2011 to issue a
modification of a permit to operate a Class II disposal facility which was issued in 2008. The
trial court held that the approval of the modification in 2011 was invalid because it was
grounded on the 2008 permit, which the court also held to be invalidly approved; the court
ordered the Commissioner to take action to void the 2008 permit and 2011 modification. The
Commissioner and landfill owner appeal the holding that the 2008 permit and 2011
modification are null and void; adjoining landowners appeal the denial of their request for
injunctive relief and ask this court to decide two issues which the trial court did not address.
We conclude that the trial court lacked subject matter jurisdiction to review the issuance of
the 2008 permit and to declare it void; that the Commissioner’s authority to approve the 2011
modification was not conditioned on the expansion project being approved by the city and
county legislative bodies; that the landfill owner was not required to submit the 2011
modification application to the regional solid waste board prior to securing the
Commissioner’s approval; and that the Commissioner had no duty to require that the material
to be placed in the landfill be determined not hazardous prior to approving the modification.
Accordingly, we reverse the judgment of the trial court and dismiss the petition.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Reversed;
Petition Dismissed
R ICHARD H. D INKINS, J., delivered the opinion of the court, in which P ATRICIA J. C OTTRELL,
M. S., P. J., and A NDY D. B ENNETT, J., joined.
W. Scott Sims, Jason W. Callen, Michael K. Stagg, Lauran M. Sturm, Nashville, Tennessee,
for the appellant, Environmental Waste Solutions, LLC.
Robert E. Cooper, Jr., Attorney General and Reporter; William E. Young, Solicitor General;
Wilson S. Buntin, Assistant Attorney General, Nashville, Tennessee, for the appellant,
Robert J. Martineau, Jr., Commissioner, Tennessee Department of Environment and
Conservation.
W. David Bridgers and J. Isaac Sanders, Nashville, Tennessee, for the appellee, Benton
County, Tennessee.
Geoffrey A. Lindley, Jackson, Tennessee, for the appellee, City of Camden, Tennessee.
Elizabeth L. Murphy, Nashville, Tennessee, for the appellees, Cindy Wheatley, Johnny
Wheatley, Joe Whitworth, Michael Melton, and Mark Totty.
OPINION
I. F ACTS & P ROCEDURAL H ISTORY
This appeal finds its genesis in a series of landfill permits and modifications issued
by the Tennessee Department of Environment and Conservation (“TDEC”) for a landfill
located in the city of Camden in Benton County. On July 11, 2000, TDEC first issued a solid
waste permit to Custom Tire and Recycle (“CTR”) allowing for the disposal of Class IV
automotive tire waste on the property.1 In December of 2008, TDEC issued a Class II permit
to CTR authorizing the disposal of coal ash, construction/demolition waste, landscaping and
land clearing waste, and shredded automotive tires.2
1
“Class IV Disposal Facility refers to a landfill which is used or to be used for the disposal of
demolition/construction wastes, shredded automotive tires, and certain wastes having similar characteristics
and approved in writing by the Department.” Tenn. Comp. R. & Regs. 0400-11-01-.01(3)(d).
2
Class II Disposal Facility refers to a landfill which receives waste which is generated by one
or more industrial or manufacturing plants and is used or to be used for the disposal of solid
waste generated by such plants, which may include industrial wastes, commercial wastes,
institutional wastes, farming wastes, bulky wastes, landscaping and land clearing wastes,
construction/demolition wastes, and shredded automotive tires. Additionally a Class II
2
Environmental Waste Solutions, LLC (“EWS”) acquired ownership of CTR’s landfill
and its Class II permit on October 5, 2009; ten days later, TDEC approved a request from
EWS for a minor modification of the permit which would allow EWS to accept secondary
aluminum smelter waste as a special waste on a portion of the landfill property.3 On March
17, 2011, EWS submitted a permit modification package requesting approval from TDEC
to accept secondary aluminum smelter waste on the remainder of the land. On March 24
EWS received a letter from TDEC’s Division of Solid Waste Management advising that the
March 17 package did not clearly state the reason for the permit modification request, that
the request would be treated as a major modification, and that EWS would need to obtain
local approval before going forward. On May 5 EWS received a letter from the Director of
TDEC’s Division of Solid Waste Management which stated that EWS would not need to
obtain local approval. Providing a basis for this reversal of position, the letter stated:
[TDEC] reviewed the actions the City of Camden and Benton County took
regarding application of [the Jackson Law] for this landfill. The City of
Camden approved the current EWS landfill site (19 acre footprint . . . ) on
September 20, 2004. Benton County approved the current EWS site (19 acre
footprint . . . ) on October 12, 2004. From our review of the two letters and
T.C.A. 68-211-701 et seq., [TDEC] believes that the City and County
approved the landfill as a whole in 2004. The current request from EWS to
[TDEC] to construct the next disposal cell at the landfill does not increase the
landfill footprint (19 acres) or the landfill capacity (6,3000,000 yd [cubed]).
Given this, [TDEC] believes the applicant has received the necessary
approvals required to proceed in the permitting process.[ 4 ]
The letter further provided that the application was considered to be a major permit
modification “subject [to] public notice and public comment.” On July 26 TDEC held public
hearings in Camden, and on October 5, issued a permit which allowed for the
disposal facility may also serve as a monofill for ash disposal from the incineration of
municipal solid waste.
Tenn. Comp. R. & Regs. 0400-11-01-.01(3)(b).
3
“‘Special Wastes’ are solid wastes that are either difficult or dangerous to manage and may include
sludges, bulky wastes, pesticide wastes, medical wastes, industrial wastes, hazardous wastes which are not
subject to regulations under Rules 0400-12-01-.03 through 0400-12-01-.07, liquid wastes, friable asbestos
wastes, and combustion wastes.” Tenn. Comp. R. & Regs. 0400-11-01-.01
4
TDEC’s letter incorrectly identified the acreage of the landfill; the parties do not dispute, however,
that the 2011 modification did not expand the acreage or capacity of the landfill.
3
“[c]onstruction, operation, closure, and post-closure care of a Class II disposal facility . . .
for the disposal of secondary Aluminum smelter wastes, shredded automotive tires,
construction/demolition waste, waste derived from coal combustion, and/or certain special
wastes approved in writing by the Department.”
On December 2, 2011, landowners and residents who lived near the landfill
(“Petitioners”) filed a Petition for Writ of Certiorari and Supersedeas contending that Robert
Martineau, Commissioner of TDEC, failed to comply with Tenn. Code Ann. § 68-211-701
to -707 (the “Jackson Law”) in issuing the 2008 and 2011 permits5 ; Petitioners requested that
a “Writ of Certiorari be heard,” that “the Court order and declare the issuance of the permit
void and or contrary to law,” and that “a Writ of Supersedeas issue suspending the permit,
and or injunctive relief to preclude use of the permit.” The court issued the writ and ordered
that a complete transcript and record regarding the 2011 permit be prepared and forwarded
to the Clerk and Master; the Commissioner filed the record on April 13, 2012. Following the
filing of the record, the parties filed numerous pleadings, which resulted in the dismissal of
some of the claims.6
5
The Jackson Law details the manner in which landfills are to be built and expanded in Tennessee.
Tenn. Waste Movers v. Loudon Cnty., 160 S.W.3d 517 (Tenn. 2005). Our Supreme Court has described the
procedure required under the Jackson Law as follows:
[The Jackson Law] permits counties and cities to opt into its provisions by a two-thirds vote
of the appropriate legislative body. See Tenn. Code Ann. § 68-211-707(a). Once a county
or a city opts to be covered by the Jackson Law, its citizens are entitled to public notice and
a hearing regarding a proposed landfill. See Tenn. Code Ann. § 68-211-703. The Jackson
Law also requires the county or city to “approve or disapprove the proposed new
construction for solid waste disposal by landfilling or solid waste processing by landfilling,”
see Tenn. Code Ann. § 68-211-704(a), based on the eight criteria in Tenn. Code Ann. § 68-
211-704(b).
Brundage v. Cumberland Cnty., 357 S.W.3d 361 (Tenn. 2011) (footnotes omitted).
6
On May 29, 2012, the Petitioners amended their petition, in part, to add EWS as an interested party
and to seek declaratory judgment that the permit and modification were void. In due course, the
Commissioner moved to dismiss the claim for declaratory judgment, and EWS separately moved to dismiss
all claims. On July 12, Petitioners filed a petition seeking a temporary injunction against “the use of the
permit and any further disposal of aluminum smelter waste . . . pending the disposition of this case on the
merits.” The Commissioner and EWS filed responses opposing the issuance of the injunction. Pursuant to
an agreed order, Petitioners filed the Second Amended Petition For Writ of Certiorari and Supersedeas and
Writ of Mandamus and Declaratory Judgment on August 22, in which they requested the following relief:
1. That Writ of Certiorari be heard pursuant to Tenn. Code Ann. § 28-101,
Declaratory Judgment as alleged and a Writ of Mandamus;
***
4
The court heard argument on the certiorari review on January 24, 2013 at which
Petitioners raised three issues: (1) whether the Commissioner had the authority to issue the
permit under Tenn. Code Ann. § 68-211-105(h); (2) whether TDEC’s failure to characterize
aluminum smelter waste as hazardous waste was arbitrary; and (3) whether the
Commissioner had the authority to issue the permit without the approval of the Benton
County Regional Solid Waste Board. On April 22 the court issued a Memorandum and
Order holding that the record lacked substantial or material evidence to support the 2011 and
2008 approvals of the permit modifications for the landfill making the decision to grant the
modification arbitrary. The court also held that the Commissioner exceeded his authority in
approving the permit modifications and declared null and void the decision of the
Commissioner to approve the 2008 permit and 2011 modification. The court directed the
Commissioner to “take appropriate action to void the permit modifications.” The court did
not rule on Petitioners’ second and third issues.
On May 15, 2013, the Commissioner and EWS each filed a motion to alter or amend.7
On June 10, the court entered an order which granted the Commissioner’s motion in part,
denied it in part, and reserved ruling on the issue of subject matter jurisdiction to review the
2008 permit pending additional briefing regarding the issue. On July 11, the court declined
to further alter or amend its April 22 order; that order has been stayed pending appeal.
II. I SSUES ON A PPEAL
The Commissioner appeals, articulating the following issues:
4. That the Court order and declare the issuance of the permit void and or contrary
to law;
5. That a Writ of Supersedeas issue suspending the permit, and or injunctive relief
to preclude use of the permit;
6. The Court craft extraordinary and appropriate relief to address the existing fill,
but terminate the permit expansion to preclude ongoing unlawful activities unless or until
the mandatory requirements of applicable statutes have been met as pled;
On September 24, the court granted the Commissioner’s partial motion to dismiss, dismissing all claims made
by Petitioners against the Commissioner except those challenging the 2011 modification pursuant to the
common law writ of certiorari. On October 23, the court granted EWS’s motion to dismiss; in a separate
order, the court granted EWS’s motion to participate as amicus curiae in the proceedings. On November 13
the court denied the petition for temporary injunction and writ of supersedeas. Benton County and the City
of Camden moved to intervene in the proceedings, and an agreed order was entered granting the motion.
7
EWS filed a motion to intervene on May 15. Although the court initially denied EWS’s motion
to intervene on June 12, it later granted EWS’s motion to allow EWS to appeal the court’s final ruling.
5
1. Did the chancery court err in invalidating a 2011 modification to an
existing solid-waste permit when such modification did not need
“Jackson Law” approval because such modification did not result in an
expansion of the footprint of the landfill?
2. Did the chancery court lack subject matter jurisdiction to review and
invalidate a 2008 solid-waste permit in the context of a challenge to the
2011 modification to such permit when no petition for a common-law
writ of certiorari was filed within 60 days of the issuance of the 2008
permit, as is required in certiorari actions by Tenn. Code Ann. § 27-9-
102?
3. Even if the chancery court did have jurisdiction to review the 2008
permit, did the chancery court err by finding that a 2004 letter from the
City of Camden was not sufficient evidence of the city’s approval of
the landfill pursuant to the “Jackson Law,” Tenn. Code Ann. §§ 68-
211-701 to -707, where the Commissioner of the Tennessee
Department of Environment and Conservation could have reasonably
relied upon the letter in issuing the 2008 permit?
EWS also appeals, and articulates the following additional issues:
1. Whether the trial court erred in invalidating the 2008 permit despite
appellant’s substantial good faith reliance upon it and the substantial
hardship that invalidating the permit would impose upon appellant.
2. Whether the trial court erred in reviewing the validity of the 2008
permit given that petitioners asserted no writ of certiorari claim
regarding the issuance of that permit.
Petitioners also appeal, raising the following issues:
1. Whether the trial court erred in denying Petitioners’ injunction request
by concluding that a writ of certiorari is not an “appropriate’ case for
injunction, and there was nothing for the court to enjoin;
2. Whether the court erred by failing to address the second grounds for
review, specifically that TDEC violated T.C.A. § 68-211-102(b) by
allowing hazardous waste in a solid waste site after admitting the waste
exhibited several hazardous characteristics;
3. Whether the court erred by failing to address Petitioners’ third grounds
for review, specifically that TDEC exceeded its jurisdiction by failing
to adhere to T.C.A. § 68-211-814(b)(2)(A) which required the Regional
6
Solid Waste Board’s approval of construction for the additional 35
acres before submittal to the Commissioner.
III. S TANDARD OF R EVIEW
Common law writ of certiorari is the appropriate way to obtain review of the issuance
of a solid waste permit. Town of Dandridge v. Tenn. Dep’t of Env’t & Conservation, No. 01-
A-019110CV00391, 1992 WL 12189, at *2 (Tenn. Ct. App. Jan. 29, 1992). Under the
limited standard of review in common law writ of certiorari proceedings, courts review a
lower tribunal’s decision only to determine whether that decision maker exceeded its
jurisdiction, followed an unlawful procedure, acted illegally, arbitrarily, or fraudulently, or
acted without material evidence to support its decision. Petition of Gant, 937 S.W.2d 842,
844–45 (Tenn. 1996) (quoting McCallen v. City of Memphis, 786 S.W.2d 633, 638 (Tenn.
1990)).
Our review of the evidence on appeal can be no broader or more comprehensive than
the trial court’s review. Watts v. Civil Serv. Bd. for Columbia, 606 S.W.2d 274, 277 (Tenn.
1980); Jacks v. City of Millington Bd. of Zoning Appeals, 298 S.W.3d 163, 167 (Tenn. Ct.
App. 2009). Application of a statute or ordinance to the facts is a question of law that is
properly addressed to the courts. Sanifill of Tenn., Inc. v. Tenn. Solid Waste Disposal
Control Bd., 907 S.W.2d 807, 810 (Tenn. 1995). As to issues of law, our review is de novo,
with no presumption of correctness. Tenn. R. App. P. 13(d); Whaley v. Perkins, 197 S.W.3d
665, 670 (Tenn. 2006); Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn.
1993).
IV. I SSUES R AISED BY EWS & THE C OMMISSIONER
A. Subject Matter Jurisdiction 8
The petition seeking review of the 2011 modification was filed on December 2, 2011.
EWS and the Commissioner contend that the trial court did not have subject matter
jurisdiction to determine whether the 2008 permit was issued in compliance with the Jackson
8
The petition alleged that the Commissioner exceeded the limits placed on his authority by Tenn.
Code Ann. § 68-211-105(h) and the Jackson Law; although this case involves a tangential question of
whether there was compliance with the Jackson Law, this is not an appeal of a legislative body’s
determination under the Jackson Law. Thus, Tenn. Code Ann. § 68-211-704(c), which provides for “de novo
review before the chancery court for the county in which the landfill is proposed to be located,” is
inapplicable to the present case.
7
Law, and instead, the court could only review the decision approving the 2011 modification
to the 2008 permit. We agree.
Common law certiorari is provided for in Tenn. Code Ann. § 27-8-101:
The writ of certiorari may be granted whenever authorized by law, and also in
all cases where an inferior tribunal, board, or officer exercising judicial
functions has exceeded the jurisdiction conferred, or is acting illegally, when,
in the judgment of the court, there is no other plain, speedy, or adequate remedy.
Tenn. Code Ann. § 27-9-102 requires petitions for writs of certiorari to be filed “within sixty
(60) days from the entry of the order or judgment.” Failure to comply with this requirement
results in the order or judgment becoming final and deprives the courts of jurisdiction.
Residents Against Indust. Landfill Expansion, Inc. v. Tenn. Dep’t of Env’t & Conservation,
No. 01A01-9507-CH-00311, 1998 WL 68929 (Tenn. Ct. App. Feb. 20, 1998). Thus,
complying with Tenn. Code Ann. § 27-9-102 is mandatory and jurisdictional. Id. (citing
Thandiwe v. Traughber, 909 S.W.2d 802, 804 (Tenn. Ct. App. 1994)).9
Inasmuch as the petition was filed within 60 days of the issuance of the 2011
modification, the court had subject matter jurisdiction to review that action; that review,
however, does not extend to allow the court to examine TDEC’s authority to issue the 2008
permit. The issuance of the 2008 permit was complete at that time and no review of that
decision was sought; once the 60 day time to seek such review expired, the decision to issue
the permit became final. Thus, the trial court was without subject matter jurisdiction to
review the decision of the Commissioner to issue the 2008 permit.
B. 2011 Modification and the Jackson Law
Pursuant to Tenn. Code Ann. § 68-211-101 et seq. (“Tennessee Solid Waste Disposal
Act”), TDEC is charged with the “general supervision over the construction of solid waste
9
“Subject matter jurisdiction concerns the authority of a particular court to hear a particular
controversy.” Meighan v. U .S. Sprint Commc’ns Co., 924 S.W.2d 632, 639 (Tenn. 1996). Subject matter
jurisdiction pertains “to the right of the court to adjudicate, or to make an award through the remedies
provided by law upon facts proved or admitted in favor of, or against, persons who are brought before the
court under sanction of law.” Richmond v. Tenn. Dep’t Of Corr., M2009-01276-COA-R3-CV, 2010 WL
1730144 (Tenn. Ct. App. Apr. 29, 2010) (quoting Brandy Hills Estates, LLC v. Reeves, 237 S.W.3d 307,
314–15 (Tenn. Ct. App. 2006)).
8
processing facilities and disposal facilities or sites throughout the state.” 10 Tenn. Code Ann.
§ 68-211-105. The Commissioner and TDEC’s authority is limited, however, where the city
or county has opted into the Jackson Law. See Profill Dev., Inc. v. Dills, 960 S.W.2d 17, 32
(Tenn. Ct. App. 1997). The question remains as to what limit, if any, Tenn. Code Ann. § 68-
211-105(h)11 placed on the Commissioner’s authority to issue the 2011 modification, and
whether the Commissioner had a duty to ensure that the 2000 and 2008 permits were issued
in compliance with the Jackson Law.
Tenn. Code Ann. § 68-211-105(h) prohibits the Commissioner from approving “any
construction for any new landfill for solid waste disposal” where the project has not been
approved locally in accordance with the Jackson Law. The term “new landfill”—as it is used
in Tenn. Code Ann. § 68-211-105(h)—is defined in Tenn. Comp. R. & Regs. 0400-11-01-.02
to include a new landfill, a lateral expansion of an existing landfill, and a change in
classification of an existing landfill.12 The 2011 modification did not fall under this
definition because the modification did not constitute a new landfill, did not expand the
existing footprint, and did not change the existing Class II classification.13 Thus, Tenn. Code
10
The procedures and requirements that must be met in order to be granted a permit to operate a
solid waste storage, processing, or disposal facility are set forth at Tenn. Comp. R. & Regs. 0400-11-01-.02.
11
Tenn. Code Ann. § 68-211-105(h) provides:
The commissioner shall not review or approve any construction for any new landfill for
solid waste disposal or for solid waste processing in any county or municipality which has
adopted §§ 68-211-701--68-211-704 and § 68-211-707 [the Jackson Law] until such
construction has been approved in accordance with such sections.
12
Tenn. Comp. R. & Regs. 0400-11-01-.02(c)2 provides:
For purposes of T.C.A. §68-211-105(h), a “new landfill for solid waste disposal” or a “new
solid waste landfill” means any of the following:
(I) A solid waste landfill that received a tentative decision from the department to issue a
permit after June 2, 1989 (the date the Jackson Law went into effect);
(II) A lateral expansion (a modification that expands the previously permitted footprint) of
a solid waste landfill described in item (I) of this part; and
(III) A solid waste landfill described in item (I) of this part whose owner or operator
proposes to accept waste that would require a change of the landfill's classification under
this chapter to a classification with higher standards (i.e., from a Class III/IV landfill to a
Class I or II landfill, or from a Class II to a Class I).
13
The Petitioners do not contest that the 2011 modification does not fall into these three categories.
In their brief, the Petitioners state:
No party contended, and the trial court did not find, that the 2011modification required
9
Ann. § 68-211-105(h) did not apply to the 2011 modification, and the trial court erred in
invalidating the modification.14
V. I SSUES R AISED BY THE P ETITIONERS
The Petitioners contend that the trial court erred in failing to address the additional
issues with respect to the 2011 modification. While the trial court did not specifically state
the reasons it did not rule on those issues, it is apparent that it considered them pretermitted
by the ruling on the Petitioner’s first issue or did not find them to be persuasive. Because the
issues relate to the Commissioner’s responsibilities with respect to the modification, we will
address them.
A. Tenn. Code Ann. § 68-211-814(b)(2)
The Petitioners first assert that Tenn. Code Ann. § 68-211-814(b)(2)(A) requires that
a permit for construction be submitted to the regional solid waste board before the
Commissioner may approve it; they contend that the 2011 modification included construction
another Jackson Law, or ‘Local Approval Law’ process. The 2008 permit triggered the
Jackson Law; the 2011 modification itself did not. The 2008 permit contemplated a 35-acre
expansion whereas the 2011 modification approved a new construction design for the 35
acres.
(Footnote omitted.)
14
The trial court erred also in holding that the Commissioner, in granting a modification, had a duty
to “verify in some fashion” that previously issued permits received the necessary approval under the Jackson
Law; the statute places no such duty on the Commissioner. Moreover, in Siler v. Siler our Supreme Court
applied the following rule from 22 Corpus Juris 130, which the court stated was “supported by decisions
from the Supreme Court of the United States, and from practically all of the state courts”:
There is always a presumption that official acts or duties have been properly performed, and
in general it is to be presumed that everything done by an officer in connection with the
performance of an official act in the line of his duty was legally done, whether prior to the
act, such as giving notice, or determining the existence of conditions prescribed as a
prerequisite to legal action, or subsequent to such act.
Siler v. Siler, 152 Tenn. 379, 277 S.W. 886 (1925). As noted by the trial court, the Commissioner argued
that he “justifiably relied upon the original permit when he approved the major permit modification requested
by EWS in 2011, and cites the two 2004 letters from the City of Camden and Benton County indicating their
approval of a new or expanded landfill within their respective jurisdictions.” Given the presumption set forth
in Siler, the Commissioner’s reliance on the existing permit was justified and he had no further duty relative
thereto.
10
for a new design of the landfill15 and, because it was not submitted to the regional solid waste
board, the Commissioner exceeded his authority by approving the modification. Essentially,
they argue that Tenn. Code Ann. § 68-211-814(b)(2)(A) applies in this case because the term
“construction,” as used therein, encompasses any construction that occurs on the property of
a solid waste disposal facility.16
Tenn. Code Ann. § 68-211-814(b)(2)(A)–(C) provides:
(2)(A) An applicant for a permit for construction or expansion of a solid waste
disposal facility or incinerator shall submit a copy of the application to the
region at or before the time the application is submitted to the commissioner.
. . . The region shall immediately notify the commissioner of its acceptance
or rejection of an application.
(B) The region may reject an application for a new solid waste disposal facility
or incinerator or expansion of an existing solid waste disposal facility or
incinerator within the region only upon determining that the application is
inconsistent with the solid waste management plan adopted by the county or
region and approved by the department, and the region shall document in
writing the specific grounds on which the application is inconsistent with such
plan.
(C) Where a region rejects an application, the commissioner shall not issue the
permit unless the commissioner finds that the decision of the region is arbitrary
and capricious and unsupported in the record developed before the region.
(Emphasis added.)
15
The 2011 modification application contains the following narrative summary of the modification
to EWS’s landfill:
This modification did not increase the landfill volumetric capacity or the final contour
elevations of the landfill waste mass. It also did not change the direction of the site
drainage. The modifications to the Class II landfill were primarily focused on the
modification/enhancement of the landfill liner/leachate collection system and landfill gas
collection system. The initial cell of the EWS Class II Landfill had been constructed with
a liner/leachate collection system design which was equivalent to a Subtitle D landfill
liner/leachate collection system. However, the modified liner/leachate collection system
was not depicted on the permit drawings for the entire landfill footprint. Therefore, it was
necessary to modify the drawings to illustrate the modification of the liner/leachate
collection system along with a proposed design for an active landfill gas collection system.
16
The Petitioners do not argue that Tenn. Code Ann. § 68-211-814(b)(2)(A) applies because the
2011 modification sought to expand the landfill as contemplated by that statute.
11
Reading Tenn. Code Ann. § 68-211-814(b)(2)(A) and (B) together,17 it is clear that
the term “construction” in subsection (A) specifically pertains to a permit for the construction
of a “new solid waste disposal facility”—as used in subsection (B); thus, the Petitioner’s
argument is not well taken. As discussed above, the 2011 modification did not provide for
construction of a new solid waste facility, a fact not contested by Petitioners.18 Accordingly,
Tenn. Code Ann. § 68-211-814(b)(2) did not apply to the 2011 modification, and the
Commissioner did not exceed his authority in this respect.19
B. Hazardous Waste
The Petitioners also contend that “TDEC’s statutory duty to public health in dealing
with solid waste requires them, under these extraordinary circumstances, to find evidence that
the waste was not hazardous.” The Petitioners argue that aluminum smelter waste is
“hazardous waste” by definition because it “reacts violently with water,” “forms potentially
explosive mixtures with water,” or “produces toxic gases, vapors of fumes in a quantity
sufficient to present a danger to human health or the environment” when mixed with water.
Accordingly, the Petitioners contend that “[w]ithout any evidence or a determination to rely
upon, TDEC’s decision to allow another 35 acres of [secondary aluminum smelter waste]
was arbitrary and contrary to law.”
The Petitioners have cited no statute or other authority which establishes such a duty
with respect to hazardous waste. The courts may not legislate such a requirement in the
absence of a statutory basis. See Louisville & N. R. Co. v. Nichols, 80 S.W.2d 656, 658
(Tenn. 1935).20
17
When interpreting a statute, the court is to ascertain the intent of the legislature from the natural
and ordinary meaning of the language used and in the context of the entire statute. Cohen v. Cohen, 937
S.W.2d 823, 827 (Tenn. 1996). We are to give effect to every word and assume that the legislature
deliberately chose to use these words. Id. at 827–28; Tenn. Manufactured Hous. Ass’n v. Metro. Gov’t of
Nashville & Davidson Cnty., 798 S.W.2d 254, 257 (Tenn. Ct. App. 1990); see also Tidwell v. Collins, 522
S.W.2d 674, 676–77 (Tenn. 1975).
18
See footnote 10.
19
Having determined that Tenn. Code Ann. § 68-211-814(b)(2) does not apply in this case, we need
not address the Commissioner’s contention that the Regional Board’s plan delegated the authority to approve
the siting of landfills, including the expansion of landfills, to the Benton County Commissioners.
20
The record does show that the toxicity of secondary aluminum smelter waste was included as part
of the modification approval process. The record contains a document prepared by TDEC’s Division of Solid
Waste Management, a portion of which contains responses to public comments regarding whether secondary
aluminum smelter waste is a hazardous waste:
12
Comment #5: [Aluminum smelter waste] is flammable when wet.
Response #5: The waste is not flammable, but may heat other flammable materials to
ignition point. The waste disposed of at this facility will be kept separate from other wastes.
Permit Condition number 6 has been added requiring that aluminum smelter wastes will be
monofilled.
***
Comment #14: Do you (TDEC) believe aluminum dross (aluminum smelter waste) is toxic?
Response #14: Secondary aluminum smelter waste is not listed as a hazardous waste. At
the present time, there are no known secondary smelters who generate a characteristic
hazardous bag house or salt cake waste. All wastes approved for disposal at this facility
are required to evaluate and determine the wastes do not meet the definition of Hazardous
Wastes as determined by Rule 1200.1-11-(.1)-(.12).
Comment # 16: There were numerous questions/comments . . . expressing concerns about
health effects associated with exposures to the ammonia vapors (as well as methane,
hydrogen, acetylene, etc) emitted from the landfill . . . .
Response #16: The following response was provided by the Tennessee Department of
Health’s Environmental Epidemiology Program (EEP). Their program receives funding
from the federal Agency for Toxic Substances and Disease Registry (ATSDR) to assist local,
state, and federal environmental regulatory programs with understanding the potential
health effects of environmental pollution. The [EEP] has assisted TDEC with the issues at
the EWS Landfill. EEP’s investigation is continuing.
***
Aluminum Dross reacts with water. When this happens, some chemical vapors are released.
A test of gases inside the landfill showed that ammonia is the most common gas followed by
methane and hydrogen. There were some flammable gases such as propane, propylene,
ethane, acetonitrile, and acetylene were found in the landfill gas. Other chemical gases
were found in much smaller quantities. EEP is considering all of these chemicals in our on-
going investigation.
***
TDEC’s Divisions of Air Pollution Control and Solid Waste Management will be conducting
a study within the Lockhart Hill subdivision. This study will involve placement of a
continuous air monitoring station within the neighborhood for a 90 day period. The station
will be maintained and operated solely by TDEC. All data will be gathered and analyzed
by TDEC staff, with the raw and processed data to be routed to staff members in the
Tennessee Department of Health for review and interpretation.
Comment # 17: Neighbors have been forced to alter lifestyles due to presence of ammonia
odor associated with the disposal facility.
Response #17: Facility-Specific Permit conditions number 1 and 2 have been added to
address this issue. Condition 1 requires a landfill gas emission detection and repair
program for locating and repairing any sources of gas emissions, and condition 2 requires
an approved air monitoring plan to be in place to verify that emissions are being controlled.
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C. Injunction
Inasmuch as we have concluded that the trial court erred in voiding the 2008 permit
and the 2011 modification and found the remaining issues of the Petitioners to be without
merit, the issue raised by Petitioners relative to the denial of injunctive relief is moot.
VI. R EVIEW OF THE 2011 M ODIFICATION
Although the Petitioners do not specifically challenge whether there is material
evidence to support the Commissioner’s grant of the 2011 modification, we have reviewed
the record and conclude that there is such evidence.
Under the certiorari standard, a court may not (1) inquire into the intrinsic correctness
of the lower tribunal’s decision, Arnold v. Tenn. Bd. of Paroles, 956 S.W.2d 478, 480 (Tenn.
1997); Powell v. Parole Eligibility Rev. Bd., 879 S.W.2d 871, 873 (Tenn. Ct. App. 1994); (2)
reweigh the evidence, Watts v. Civil Serv. Bd. for Columbia, 606 S.W.2d 274, 277 (Tenn.
1980); Hoover, Inc. v. Metro. Bd. of Zoning App., 924 S.W.2d 900, 904 (Tenn. Ct. App.
1996); or (3) substitute its judgment for that of the lower tribunal. 421 Corp. v. Metro. Gov’t
of Nashville, 36 S.W.3d 469, 474 (Tenn. Ct. App. 2000). “[T]he court’s primary resolve is
to refrain from substituting its judgment for that of the local governmental body.” McCallen,
786 S.W.2d at 641; See Capps v. Metro. Gov’t of Nashville and Davidson Cnty., 2008 WL
5427972, at *5 (Tenn. Ct. App. Dec. 31, 2008).
The modification requested by EWS was to allow secondary aluminum smelter waste,
which had been allowed on a portion of the landfill in 2008, onto the remaining landfill
footprint. In support of its modification application, EWS submitted: an operations manual
which included figures and maps, air/gas plans, rare species review, and a leak detection
program; a closure plan which included maps and closure/post-closure worksheets and
procedures; and hydrogeological reports which included figures and maps, soil tests and logs,
and water wells information. TDEC provided public notice of its intent to issue the permit
modification, held a public hearing, and issued a report which included responses to public
comments received; all of which are contained in the record. The record also contains
information regarding violations at the EWS landfill, the response of TDEC to those
violations, and the measures EWS was required to take to remediate those violations. Thus,
the record contains evidence in support of the Commissioner’s decision. Applying the
appropriate standard of review, we may not inquire into the intrinsic correctness of the
Commissioner’s decision or substitute our judgment for that of the Commissioner.
Accordingly, we affirm the grant of the 2011 modification.
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Va. C ONCLUSION
For the foregoing reasons, we reverse the judgment of the Chancery Court and dismiss
the petition.
________________________________
RICHARD H. DINKINS, JUDGE
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