# FILED

February 20, 1998 Cecil W. Crowson Appellate Cou rt Clerk 

## IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

RESIDENTS AGAINST INDUSTRIAL ) LANDFILL EXPANSION, INC., ) ) Plaintiff/Appell

ant, )

) Davidson Chancery VS. ) No. 94-352-II ) TENNESSEE DEPARTMENT OF ) Appeal No. ENVIRONMENT AND CONSERVATION ) 01A01-9507-CH-00311 and DIVERSIFIED SYSTEMS, INC., ) ) Defendants/Appel

lees. )

APPEAL FROM THE CHANCERY COURT FOR DAVIDSON COUNTY

AT NASHVILLE, TENNESSEE THE HONORABLE C. ALLEN HIGH, CHANCELLOR

For Residents Against Industrial For the Dept. of E nvironment Landfill Expansion, Inc. : and Conservation : Gary A. Davis John Knox Walkup Knoxville, Tennessee Attorney General and Reporter Barry Turner Deputy Attorney General For Diversified Systems, Inc. : R. Louis Crossley, Jr. Knoxville, Tennessee



## WRIT DISMISSED and REMANDED

WILLIAM C. KOCH, JR., JUDGE-2- 

## O P I N I O N

This appeal involves a dispu te over a decision by t

he Tenn es see Department of Environment and

Conservation to grant

a solid waste disposa

l permit to expand

an existing industrial waste landfill in McMi nn County. A nonprofit corporati on whose members reside near the

landfill filed a pet

ition for common-la

w writ of certiorari in the Chancery Court for

Davidson County chall

eng ing th e permitting decisio n, and the Department

moved to dismiss the petition on t he ground that it was n

ot timely. The trial court declined to dism is s the petition but also de clined to set aside th

e Department’s decision to grant the p ermit. On this app

eal, the opponents of

the landfill expansion take issue w

ith the permitting proce

dures and with the

evidentiary foundation

of the Departmen

t’s decision, and

the Department

asserts that the pet

ition should ha ve been dismissed because it was not timely filed. Since we hav e determined that the landfill’s o pponents did

not timelyfile their petition, we reverse the order deny in g the motion to dismiss w ithout addressing the op ponents’ substantive challenges to the Department ’s permitting decisi on.

I.

In 1981, Seaton Iron and Metal began operating the Mine Road Landfill near A the ns on property that was originally a barite mine. Diversified Systems, Inc. (“DSI”) acquired the landfi ll in 1983 and continued to receive and process industrial waste at the site. In Januar y 1990, DSI applied

to the Tennessee D

epartment o f Environment

and Conservation for

a permit to expand the

landfill and to

receive any type of non-hazardous

solid waste. Te

n months later the

Department concluded that DSI’s application was com plete, and on Marc

h 14, 1991, the De partment publicly

ann ounced its tentative decision to grant DSI’s per

mit application. T

hereafter, the Departmen tissued a notice of a p ublic hearing as we

ll as a notice of the commencement of a

written comment pe

riod.
In April 1991, a num

ber of persons resid

ing in thevicinity of the Mine Road Landfill org a nized a nonprofit me mbership corporatio

n called Residents A

gainst Industrial Landfill Expansion, Inc. (“R.A.I.L.E.”) to oppose SDI’s application for an1 R.A.I.L.E.’s opposition to DSI’s a pplication for a p

ermit eventually prompt

ed DSI to file suit against R.A.I.L.E. for conspiring to injure and destro

y its business. The tr

ial court dismisse

d DSI’s complaint; however, this court reversed the trial court because it

had also denied DSI’s motion to amend its complaint beforegranting R.A.I.L.E.’s motion to dismiss. See Diversified Sys., Inc. v. Residents Against Indu strial Landfill Expansion , App. No. 03 A01-9310-CV-00348, 1994 WL 66651 (Tenn. Ct. App. Mar. 7, 1994) (No Tenn. R. App. P. 11 application filed).

2 See Act of May 2 0, 1991, ch. 451, § 20, 1991 Tenn. Pub. Acts 731, 743, now codified as amended at Tenn. Code Ann. § 68-211-106(h) (1996). This provision became effective on July 1, 1991. -3- expansion

pe r mit. 1 On May 1, 1991, Katherine Warner, acting on R.A.I.L.E .’s behal f, notified the Department that the group had retained a lawyer and requested that the public comment pe riod be extended sixty d

ays beyond the public hear ing in order to enable their lawyer to “pre pare his case.” Three weeks later, the Com missione r

of Environment and C

onservation informe

d Ms. Warner that

the Department would

accept public comm

ent for seven days af

ter the public hear

ing.

The Department held a

public hearing on DS I’s application on May 28, 1991 atthe McMinn County Cour thouse in Athens. T

he staff of

the Department’s Sol

id WasteManagement

Division presented i

ts assessment of

DSI’s proposed expansion and permitted the pers ons attending the meet in g to inspect the plans for the expansion. The personsattending the meeting also we re provided an opportu

nity to present both written and oral comments. Members of R.A.I.L.E. and R .A .I.L.E .’s lawyer su b mitted comments at t he public hearing, an d June 29, 1991, R.A.I.L.E. submitted supplemental writt en comments critical of th e proposed la ndfill expansion.

On September 2 0, 1991, R.A.I.L .E.’s lawyer formally requeste

d the Department

to deny DSI’s expansion permit in acc ordance with a recently enacted amendment

to the Ten nessee Solid Waste Disposal Act empow ering the Commissioner to refuse to issue permits to per

sons whose “past per

formance in

this

or related w aste management fields . . . indicates a pattern of performance incompatible

with assuring protec

tion of the public health,

safety, and

environment of the region” (referred to by the p arties and the trial court as the “bad actor” provision). 2 The Department developed disclosure

statements to imple

men t this amendment, and DSI and its principals submitted their disclosure statements to the Department in Apr

il 1993. In the meantime, the

Department contin

ued its te chnical review of DSI ’s permit application

in light of its own findings and

the comments rece

ived during the public hearing and the public commen tperiod. In November 1991, the Department directed-4-

DSI to redesign the expansion area because it contained four sinkholes, and in Augu st 1992, the Department di rected DSI to p

re pare a new hydroge

ologic report. Th

e Department

tentatively determined that DSI’s revised plans were “permittable” as long as DSI designed an d installed a composit

e liner with a geom

embrane component. Accordingly, the Department issued a notice that a s econd public hearing concerning the

expansion of the Mine Road Landfill woul d he held on July 29, 1993 at the McMinn Count y HighSchool cafeteria. Members of R.A .I.L.E. a nd R.A.I.L.E.’s

lawyer participated in the hearing and submitted additional written comments raising num

erous questions about D SI’s application.

The Department eve

ntually decided to grant DSI’s permit application . On December

2, 1993, the Director of the Division of Solid Waste Management informed R.A.I.L.E.’s

president by telephone

that the Department intend

ed to issue the

permit the next day, and R.A .I.L.E.’ s president passed thi s information on to R.A .I.L.E.’s members thatevening. The De partment formally

issued the permit on D

ecember 3, 1993 and sent written not ice of its actio

n to DSI by facsimile

transmission and overnight mail. On the same day, i tnotified R.A.I .L.E.’s president by telephone of its decision and als o ma iled R.A.I.L .E.’s presiden t a memorandum tra

nsmitting copies of both its letter to D SI and the permit it self. On December 14, 19 93, the Department

sent notice of its decision to grant the permit to all other persons who had requested notice of

the Depa rtment’s decision du

ring the May 1991 and Jul y 1993 public hearings.

On February 3, 1994,

R.A.I.L. E. filed a petiti

on for a common-law

writ of certiorari in the Chancery Court for Davidson County challenging the Department’s decision to issue DSI’s permit. Both the Department and DSI moved to dismiss the petition because it was not filed within sixty days after the issuance of the p

ermit as required by Tenn. Code Ann. § 27-9-102 (1980). The trial court de nied themotion, reasoningthat the time for se eking judicial re view began to run on D ecember 14, 1993 when the Departm

ent notified the public

of its permitting

decision rather than

on December

3, 1993 when the Department issued the permit and notif ied DSI and R.A.I.L.E . of its decision.

The trial court filed a memorandum and order in February 1995 upholding the Depart ment ’s decision to issue the permit for the expansion of the Mine Road-5-

Landfill. Specifically, t he trial court concluded that the Department pr operly implemented the “bad actor” provision wi th regard to DSI,

that the stream buffer zo

ne requirements

did not apply to DSI’ s application, and th at th e rec ord contained

m aterial evidence supporting th e Department’s d

ecisions that DSI w

as not a “ba

d actor” and that DSI’s proposed expansion will meet the geogr

aphic buffer standa

rds imposed by the solid wa

ste disposal regulati

ons.

II.

The pivotal issue on this app eal relates to the timeliness of R.A.I.L. E.’s petition for comm on-law writ of c

ertiorari. Te

nn. Code Ann. § 27- 9-102 requires these petitions to be filed “within sixty (60) days from the entry of the order or judgme nt.” Failure to comply with this re quirement results in

t he order or judgment be coming f inal and deprives the cou rts of jurisdictio n. See Wheeler v. C ity of M emphis , 68 5 S.W.2d 4, 6 (Tenn. Ct.App. 1984); Fairhaven Corp. v. Tennessee Health Facilities Comm’n , 566 S.W.2d 885, 886-87 (Tenn. Ct. A pp. 19 76). T hus, complying with Tenn. Code Ann. § 27-9-102 is mandato ry and j urisdictional. See Thandiwe v. Traughber , 909 S.W.2d 802, 804 (Tenn. Ct. App. 1994).

The Department issued

DSI’s permit on D

ecember 3, 1993. On the same day, i t notified the R.A.I.L.E.’s president of its decision by telephone and mailed him a copy of the permit that st

ated on its face tha

t it had been issued on De

cember 3, 1993. On December

14, 1993, the Depa

rtment mailed a

“Notice of Final Permit Decision” to all the persons who ha d requested notifica

tion of the Departm

ent’s decision

. R.A.I.L.E. filed

its petition for comm

on-law writ of

certiorari on Fe

bruary 3, 1995, sixty-two days after the date the permit was issued and fifty-one days after the notices of final decision were mailed.

Not surprisingly, R.A.I.L.E. asserts that the time for filing a common-law writ of certiorari should be

gin to run on the date tha

t the Department

mailed the

notice of f inal decision. In support of its assertion, it relies on Tenn. Comp. R. & Reg s. r . 1200-1-7-.02(3)(i

)(2) (1990) stating that “[a] final permit decision shall become effective upon the date of the se

rvic e of n otice of the decision unless a later date

is specified in the decision.” R .A.I.L.E .’s reliance on th is rule is misplaced because it-6-

overlooks the significant distinction between the date the decision is issued and the date the decision t akes effect.

Another panel of this court rejec

ted a similar argum

ent with regard to a pe

tition for common-law writ

of certiorari fi

led by agroup of citizens seeking judicial review of a resolution granting

a special use perm

it for a sand and gra

vel excavating business. The Shelby County Board of Commissioners approved the resolution at its De cember

7, 1992 meeting, and on December 14, 1992, the mayor s igned th e resolution, and the county clerk p laced the resolution

w it h the county’s public records. On January 25, 1993, the Board dec lined to reconsider i

ts earlier decision, and the citizens group filed its petition for common-law writ of certiorari on February 23, 1993. In response to the Board’s motion to dismiss bas ed on Tenn. Code Ann. § 2 7-9-102, the citize

ns group argued that the Board resolution had not bee n “entered” until January 25, 1993. The trial court a

greed with the citi

zens group; however, this court reverse d, fin ding that the resolution had bee n entered on December

14, 1992 when the county cl erk filed it

with the county’s publ

ic records. See Brannon v. Count

y of Shelby , 900 S.W.2d 30, 33-34 (Ten n. Ct. App. 1994).

The Brannon v. County of S helby decision clearly poi nts out that the time f

or filing a common-law

writ of certiora

ri is measured fro

m the date of the

entry of the order f or which judicial revi

ew is sought. Under

the facts of this ca

se, the Department’s order was entered on Decemb er 3, 1993, wh en it was issued by the director of the Division of Solid

Waste Management, placed with the Department’s official records, and mai

led to the applicant

and other intereste

d parties. Nothing in this record indicates t

hat the permit issued

on December 3, 1993 was not the Department’s fi

nal permit decision.

R.A.I.L.E. points out that the permit did not bec ome effective on D

ecember 3, 1993 because the Department hadnot yet notified each person who had “submitted

awritten request f

or notice of the fina

l permit d ecision” in accordance with T enn. Comp. R. & Regs. r. 1200-1-7-.02 (3)(i)(1). While this is undoubtedly correct, neither the Tennessee Solid W

aste Disposal Act

, the Department’s regulations, nor any other applicable

law requires that these dates be the same. In fact, Tenn.Comp. R. & Regs.

r . 120 0-1-7-.02(3)(i) (2) contemplates th e possibility that perm

its may very well-7-

become effective after

the date they are is sued or the date of the mailing of the notice required by Tenn. Comp. R. & Regs. r. 1200-1-7-.02(3)(i)(1).

R.A.I.L.E. also argues that it is bad policy not to

eq uate the issuing date of a final permit de cision with the date of the notice of the decision because any other interpretation

of the rule would en

able the Departm

ent to defeat judicial r

eview of its decisions by “issuing” permits a nd then de la ying giving notice of its decision until the time for se eking judici al review has expi red. We need not a

ddress this hypothetical question here becau se it is undisput ed that R.A.I .L.E. received actual notice of the Department’s action on the day that the permit was issued and that the Department maile

d R.A.I.L. E. a copy of the pe rmit on the very day it

was issued.

I t should be evident to eve ry administrative a

gency that the courts will no t permit them to evade judicia

l review of their

decisions throu gh s ome artifice or procedural legerdemain. While it would have been preferable

for the Departme

nt to mail the notices to the persons requesting notice of its final decision on the same day itis sued the permit, the proce dure actually follow

ed by the Departme

nt did not materially

interfere with R.A.I.L.E.’s or any other party’s opportunity to

seek judicial review of its deci sion to grant DSI a p ermit to expand the M

ine Road Landfill.
Accordingly, we find that the trial court erre

d by denying the Depar

tment’s and DSI’s motion to dismiss R.A .I.L.E.’ s petition for common- law writ of cer

tiorari. Because we have decided thi s case on controlling p rocedural grounds,

we do not address R.A.I.L. E.’s issues conce rning the procedural soundness of the Department’s permittingprocess, the Department’s impleme ntation of the

“bad actor” provisions, or the adequacy of th e evidentiary supp ort for the Department’s decision.

III.

We reverse the

order denying

the Department’ s and SDI’s motion t o dismiss R esidents Against Industrial Landfill Expansion , Inc.’s petition for co mmon-law wri t of certiorari and r

emand the case for

the purpose of entering a n order dismissing the petition. We also tax the costs of this ap peal to R.A.I.L.E. and its surety for which execution, if necessary may issue.______________________________ WILLIAM C. KOCH, JR., JUDGE

CONCUR:

_______________________________ SAMUEL L. LEWIS, JUDGE

_______________________________ BEN H. CANTRELL, JUDGE