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Sierra Club v. Miss. Envtl. Quality Permit Bd., 943 So.2d 673 (Miss. Nov. 30, 2006)
Rick Silver, 3L, University of Mississippi School of Law
On November 30, 2006, the Mississippi Supreme Court affirmed an administrative decision by the Mississippi Environmental Quality Permit Board (Permit Board) to issue a pollution control permit to a swine feeding operation.
Background
This dispute involves a swine concentrated animal feeding operation (CAFO) located in Oktibbeha County, Mississippi. The facility is owned and operated by Bill Cook and houses up to 7,040 swine. When Cook began operation of the CAFO in 1996, the Permit Board did not require air pollution permits for swine CAFOs. The Permit Board only required Cook’s facility to comply with state and federal requirements with respect to the control of water pollution. Cook’s facility met such requirements and as a result, the Permit Board issued him a National Pollutant Discharge Elimination System (NPDES) permit.1
The decision by the Permit Board not to require Cook to obtain an air pollution permit was appealed to the Chancery Court of Oktibbeha County by Everett Kennard and other neighbors of the CAFO. The chancellor sided with the neighbors and held that Cook should be required to obtain an air pollution permit. Both the Permit Board and Cook appealed this decision. However, while the matter was on appeal, the Mississippi Legislature passed an amendment which allowed the Mississippi Environmental Quality Commission (Commission) to establish a list of sources that are exempted from having to obtain air pollution permits.2 Unfortunately for Cook, CAFOs were not one of the listed categories. As a result, Cook agreed to apply for an air pollution permit.
In determining whether an air pollution permit should be issued, the Permit Board relied on recommendations by the Mississippi Department of Environmental Quality (MDEQ) which included, among other things, the construction of a windbreak wall behind the exhaust fans of each housing unit in order to reduce off-site odor transfer. The Permit Board followed MDEQ’s recommendations and issued a multimedia permit to Cook.3
Both Cook and the objectors (Kennard and the Mississippi Chapter of the Sierra Club) were unhappy with the recommendations so they petitioned the Permit Board for an evidentiary hearing on the multimedia permit. The Permit Board conducted the hearing and at its conclusion, voted to affirm the permit as written.
Both parties appealed to the Chancery Court of Oktibbeha County. The chancellor denied both appeals and Kennard appealed to the Mississippi Supreme Court.
Mississippi Supreme Court Decision
The court was quick to point out that this was an administrative appeal and not a nuisance action. Therefore, the court was “only concerned with the reasonableness of the administrative order, not its correctness.”4 Thus, the Permit Board’s decision would not be disturbed on appeal “absent a finding that it (1) was not supported by substantial evidence, (2) was arbitrary and capricious, (3) was beyond the power of the agency to make, or (4) violated some statutory or constitutional right of the complaining party.”5
On appeal, Kennard raised a number of issues. First, Kennard took issue with the Permit Board’s interpretation of Mississippi Air Quality Standard APC-S-4, which lists factors to be considered by the Commission when determining ambient air quality standards. The factors listed include the number of complaints about the odorous substance, the frequency of such odors in the ambient air as confirmed by the MDEQ staff, and the land use of the affected area. Kennard argued that the Permit Board relied too heavily on the fact that the MDEQ staff could not confirm the existence of the offsite odor and ignored the complaints made by neighbors of the CAFO. The court, however, found that there was sufficient evidence in the record to indicate that the Permit Board considered the complaints of the neighbors and that its interpretation and application of APC-S-4 was not contrary to the plain language of the statute.
Kennard also argued that the Permit Board’s decision to issue the permit was arbitrary and capricious because it ignored technical evidence and expert testimony that was submitted to it regarding the odor and human health effects of hog farms. The court, however, rejected this argument, stating that the Permit Board provided ample discussion of its findings, including a discussion of why further measures were refused. Accordingly, the court found that the Permit Board’s decision was supported by substantial evidence, and not arbitrary and capricious as argued by Kennard.
Finally, Kennard asserted that the Permit Board’s failure to require a program to monitor odor as a term in Cook’s permit was arbitrary and capricious. This argument was also rejected by the court. The court noted that the Permit Board directed the MDEQ staff to study the odor situation further and allowed for the permit to be revised based on the results of their study. The court felt that this issue was adequately considered by the Permit Board and was therefore not arbitrary and capricious.
Conclusion
The Mississippi Supreme Court held that the decision by the Permit Board to issue a multimedia permit to Cook’s CAFO was supported by substantial evidence and, therefore, should be affirmed.
.Endnotes
1. The facility’s water pollution standards were not in dispute here.
2. Miss. Code Ann. Section 49-17-29 (Rev. 2002)
3. A multimedia permit combines control standards for water pollution and air pollution.
4. Sierra Club v. Miss. Envtl. Quality Permit Bd., 943 So.2d 673, 678 (Miss. Nov. 30, 2006).
5. Id. (citing McDerment v. Miss. Real Estate Commn., 748 So.2d 114, 118 (Miss. 1999)). |