# FILED Ap ril 25, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk IN THE COURT OF AP PEALS OF

TENNESSEE, WESTE RN SECTION AT NASHVILL E

_______________________________________________________ ) PROFILL DEVELOPMENT, INC., ) Davidson County Chancery Court ) No. 95- 174 8-III Plaintiff

/Appella nt. ) ) VS. ) C. A. NO. 01A01-9607-CH-00326 ) DON DI LLS, COMMI SSIO NER OF ) THE TENNESSEE DE PARTME NT ) OF ENVIRONMENT AND , ) CONSERVATION, ET AL , ) ) Defend ants/Appe

llees. )

)

______________________________________________________________________________ From the Chancery

Court of Davidson County at Nashville. Honorable Robert S. Brandt, Chancellor

J. Alan Hanover , James R . Newsom , III , Helen L. Keith , HANOVER, WALSH, JALENAK & BLAI R, PLLC, Memphis, Tennessee Attorney s for Plain

tiff/App ellant.

Charles W. Burson , Attorney Gene ral and Reporter Elizabeth P. McCarter , Senior Counsel Attorney for D efendants/Appellees Don Dills and Charles W. Burson Gary A.Davis , Knoxville, Tennessee Attorney for Def endant/A ppellee West Tenne sseans f

or Clean Wa

ter and E nvironme nt.

.

OPINI ON FIL

ED: AFFI RMED AND

REMANDED FARMER, J.
HIGHERS, J. : (Concur s) LILLARD, J. : (Concur s)This appeal f rom a dec larator

y ju dgment l awsuit ar

ose out of Appellan t’s attem p t s to construct an d to op erate a solid waste landfill. In 1992, Prof ill Development, Inc. (here inafter, “Profill”) applied t o the Tennessee Department of Environment and Conserva tion (hereinafter, “Department ”) for a solid waste disposal permit to construct and to operate a “Class I disposal fa ci li ty” in Gallaway, Fayette County , Tennessee. The Tennessee Solid Waste Disposal Act, T.C.A. §68-211-101 et seq . (1996) authorizes the Tennessee Solid Waste Di sposal Control Board (hereinafter, “the Board”) to promulgate r ule s governing solid waste processing and disposal facilitie s. These

rules have been promulgated by the Board as Tenn. Comp. R. & Regs. (hereinafter, “Rule”) 1200-1-7, et seq . A Class I disposal f

acility is:
[A] sanitary landfill which se rves a municipal, institutional, and /o r rural population and is used or to be used

for dispo sal of dom

estic wastes, commerc ial waste s, institutio nal waste s, municip al waste s, bulky wastes, l andscap ing and

land cle aring w astes, in dust rial wast es, construction/demolition wastes, f armingwastes, d

isc arde d automotive

tires, and dead a

nimals.
Rule 1200-1-7-.01(3)(a).

The 1989 enactment of T.C.A. § 68-211-70 1 et seq. , (hereinafter, “ Part Seven") permitted local governments that did not have zoning ordinances to approve or disapprove of landf ill proposal s submitted t

o the Dep artment. As originally e nacted, Part Seven gave cities and c ounties the authority to approve or disapprove of proposals for soli d waste f

acilitie s locate d within the ir respective boundaries and also gave cities the same authority over solid waste facilities located within one mile of municipal boundaries. In 1995, Part Seven w as amended so as to permit counties to approve or disapprove of solid waste facilities to be located within the municipal boundar ies.
As originally e

nacted in 1989, Part Seven contained the following provision:

This act shall remain e

ffectiv e until

the approval and effective implementation of

the plan as set

forth in Se

nate Bill 1322/Hou se Bill 1305 o f the Ninety-Sixth General Assembly , being the “Tennessee Sol id Waste Planning and Recovery Act”, if enacted, or June 30 , 1991, whichever shall first occur.1989 Tenn. Pub. Acts, chap. 515, §9. The Solid Waste Management Act of 1991, T.C.A. § 68-211-

801 et seq ., (hereinaft er, “Part Eight ") was enacted in response to the requirements imposed under the Ten nessee Solid Waste Planning and Recovery Act, T.C.A. §68-211-603 . (hereinafter, “Par t Six”). In 1991, the

legisla ture ame nded Par t Seven to e

xtend the e

xpiration da

te of Part Seven from June 30, 1991, until June 30, 1994. In 1994, the expiration provision was ag ain amen ded so as t o extend the expira tion date to June 30, 1995. O n March 1 5, 1995, th e gene ral asse mbly again amended Part Seven to remove the expiration clause altoge ther.

A pplications to construct and to operate disposal facilities such as the o ne Profil l submitted, consist of

two parts known as “Part I” a nd “Part II .” In June 1992, Profill submitted Part I to the D epartm ent. The Part I application, in addition to the landfill proposal, ref erenced a proposedmaterials recycling facility to be located

at the Fa ye tte County site. Profill submitted the first portion of the Part II application in May

1993, and it submitted the second portion of the Part II ap pl ic at io n i n M ay 1 99 4. Th e D ep ar tm en t r eg ul ar ly con ducts “completeness” reviews of applic ations in order

to ensure

that the n

umerous r

eports a nd plans su

bmitted by

the appli can t include all req uired compo nents and items. Upon the review of the Part I I application, the Department

determined that Profill’s application was incomplete. Therefore, the Depa rtment sent
a notice of incompleteness letter dated July 1, 1994. Prof ill submitted a revised applicatio n in August 1994.

Under

procedural rules governing consideration of landfill applications, the Department

must conduct its completeness review of the first phase of the Part II application within 30 days afte

r receipt of said application. The completeness review of the second phase must be conducted

within 45 days after r

eceipt of that portion of the application. Once the permit application has been certified to be complete, the Department has an

additional 270 days to conduct its technica l review, issue a tentative permit decision, conduct public hearings, and make a final dec ision upon the application. On September 2, 1994, the De partment notified Profill that its application was complete. That letter commenced the running of the 270 day

period for

the Department to review the appli cation, make tent ative an d final decisions the reon and either g rant or d eny the perm it.In December 1994, the Department sent a notice of deficiency

letter to Profill detailing fifteen technical deficiencies in the applica tion. One of the deficiencies cited in the December

1994, letter

referenced Profill’s failure to submit a separ ate notification for

its mater ials recyc ling facility. After

a meeting between officials from both the De partment an d Prof

ill, the Departm ent still concluded that the processing facility notification should be separated from the Class I landfill application. Profill filed with the Department a se parat e notific atio n for the processing facility

on March 2, 1995.

The Class I landfill application was submitted for consideration by the Department’s permit review c ommittee w

hich was to consider the application on April 13, 1995. However, the application was never considered because the Department was notifi ed on March 28, 1995, that FayetteCounty had “opted in” to the a mended Pa

rt Seven p

rovisions which pe

rmitted c ounties to disapprove of landfill proposals located within m unicipal boundaries. As amended, T.C.A. § 68- 211-105(h) states that the Commissioner:

[S]hall no t revi ew or ap

prove an y c onstruct

ion for a ny new landf

ill for solid waste disposal or for solid waste pr ocessing in any county or municipality which has adopted the provisions of §§ 68-211-701 -- 68-211-704 and § 68-211-707 until such construction has been approve d in acco

rdance with the pr

ovisions of

such sec tions.
Therefore, the Department ceased review of Profill’s application upon notifica ti on that Fa ye tte County had adopted Part Seven.

On Apr il 18, 19 95, Profill filed with the Tennessee Solid Waste Disposal Control Board a petition for declaratory

order seeking a determination of the va lidity and applicability

of Part Seven, as amended. Pursuant to T.C.A. § 4-5-223, the board declined to issue a declaratory

order in the matter and waived jurisdiction on all issues before it. By consent order entered June 6, 1995, the Board ordered that the petition be submitted t o the Davidson County Chancery Court for consideration and determination. Thereafter, on Jun e 6, 1995 , Profill filed its Complaint for Declaratory

Judgment. The chancellor entered an orde r granting West Tennesseans for Clean Water and Environme

nt (here inafter “West Ten

nessean s”) per

mi ssion t o interve

ne as a pa rty defenda nt. The defendants filed motions to dismiss and for summary judgment. The trial court granted in partand denied in part t he mot ion to dismiss filed by West Tennesseans. Specifically , the trial court dismissed Profill’s claims brought pursuant to the Commerce Clause and Supremacy

Clause of the United Sta

tes Constitu

tion and le

ft the re maining claims fo r trial.

The trial court granted summary judgmen t to the state defendants on the following claims: (1) the 1 995 amend ments to Pa

rt Seven d id notapply to Profill because the City of Gallaway had not op ted to be cove red by it; (2) the a pplication of the 1995 amendments violated the Commerce Clause of the United States Constitution; (3) the appl ication of the 199 5 amendme nts impaired the right of Prof ill to contract

under the United Sta

tes Constitu

tion; (4) Pr

ofill’s pr operty had been taken without due process of law in violation of the United States Constitution; and (5) the enactment

of the 1995 amend ments was a sus pen si on o f th e ge ner al l aw i n vi ol ati on o f Ar t. II, Section 8 of the Tennessee Constitution. The remaining claims ag ainst the S tate pro ceeded to trial, without intervention of a jury, on January 8 and 9, 1996, and February 5 and 6, 1996.

The trial court filed a

me morandum opinion stating its findings of fact and conclusi ons of law . Judgment was ente red deny ing the r elief sou ght, an d Profill a ppeals.

ISSUES
Profill raises the following issues for review:

1. Whether, due to the “effective implement ation” of Part Eight, P art S even expired prior to the enactment of the 1995 Amendmen

ts. 2. Whether

due to the provisions of [T.C.A.] § 68-211-707, Part Seven is inapplicable to the Profill application. 3. Whether Pa

rt Seven a pplies to the Solid Waste Processing Faciliti es propos ed by

Profill. 4. Whether Part Seven is preempted by the Resource Conservation and Recovery Act of 1976, 42 U.S.C. §§ 6941 et seq ., pursuant to the Supre

macy Clause of the United States Constitution. 5. Whether Pr

ofill’s r ights to a dministra tive due p rocess have been denied. 6. Whether

the “loc al veto” authority granted by

Part Seven is an unconstitutional delegation of legislative power in violation ofthe Tennessee Constitution. 7. Whether Part Seven suspend s the general law by permitting local governmental entitles to determine legislative policy of statewide concern in violation of the Tennessee Constitution. 8. Whe ther [T. C.A.] § 68-211-105(h) has been repealed by implication by [T.C.A.] § 68-211-707(b). 9. Whether

the application of Part Sevento the Prof ill landfi ll applica tion imper

missibly impairs Pr

ofill’s c ontract

ual rights.
Appellees have submitted the following issue for review:

Does the exemption in [T.C.A.] § 68-211-706(b) for publi cly owned landfills violate equal protection?
I. Part Seven Had Not Expired Prior to 1995

Profill asserts t hat Part Se

ven expire d by

its own ter

ms prior to

the 1995 a

mendment s. As orig inally

adopted in 1989, T.C .A. § 68-2 11-708 (1 989), re ad as follows:

This act shall remain

effectiveuntil the approval and effective implementation of the pla n as set f orth in Senate Bill 1322/

House Bill 1305 of the Nin

ety -Sixth Gene

ral Asse mb l y, being

the “Tennessee Solid Waste Planning and Recove ry Ac t,” if enacted, or June 30, 1991, whichever shall first occur.
1989 Tenn. Pub. Acts, chap. 515, § 9.

1991 Tenn. Pub. Acts, chap. 451, § 85 amend ed § 708 to

extend the

expiration

date to Ju ne 30 , 1 99 4. Su bs eq ue nt ly, 1994 Tenn. Pub. Acts, chap. 784, § 1 further amended § 708 and extended t

he expira tion date until June 30, 1995. On Marc h 13, 1995, the gen eral as sembly

again amended Part Seven to remove the expiration clause from § 708, and said law was enacted on March 15, 1995.

As originally e nacted in 1989, Part Seven gave county legislative bodies the authority to disapprove plans for landfills in un incorp orated areas only , and reserved for municipalities thesamepower over proposed landfills within incorporated areas and those located within one mile of the munic ipality . Beca

use Profi ll’s propo sed landf ill was loc ated with

in the incorporated town

of Ga ll aw ay, Faye

tte County’s legislative body could not ve to Profi ll’s plans despite the county’s opposition. The 1995 amendments to Part Seven granted counties veto authority regarding proposed landfillswithin muni cipalitie s. That se ction pro vides in r elevant part:

No construction shall be initiated for any new land fill for s olid waste disposal or

f or solid waste processing until the plans for such new la nd fi ll ha ve be en su bm it te d t o a nd ap pr ov ed by:

. . . . (2) Both the county

legislative body a

nd the governing body of the municipality in which the proposed landfill is located, if such new construction is located in an incorporated are a; . . .

T.C.A. §68-211- 701 (1995 ). Fay ette Count

y a dopted the

1995 amendments to

Part Seven on March 28, 1995.

As originally e nacted in 1989, Part Seven would have expired upon the occurrence of one of two alternative conditions. These conditions were either the approval and eff

ectiv e implementation of the plan as set forth in the Ten

nessee So lid Waste

Planning and Reco very

Act, compiled in Part Six or June 30, 1991 , whichever occurred f irst. Prof ill asser ts that when the 1991 general assembly enacte d Part Eig

ht, which is the “Sol

id Waste Ma

nageme nt Act of 1 991,” that action constituted the approval and effective implementation of the “ plan” required by

Part Six.

The plan required by

Part Six and refer

red to in 1 989 Tenn. Pub. Acts, chap. 515, § 9, is a blueprint for a statewide, comprehen sive solid waste management progra m that the Department

was required to establish no later than January 1, 1991. There is no explanation by what is meant by the terms “ effective implementation” of the plan refer enced in 1989 Tenn. Pub. Acts, chap. 515, § 9. Con sequentl y, it is incumbe

nt upon the

Court to loo

k to the le gislativ e history in order to determine what the gener al assembly meant by

“effective implementation.”

It is evident that whenthe 1989 general assembly passed Part Seven, it intended that local gover

nment aut hority over landfill plans would expire upon the passage of Part Eight. Profill’scontention in this regard is correct. Representa tive Jacks on, the spo nsor of Part Seven, in an appearance

before the House Committee on state and local go vernment was asked about the expiration

of Part Se

ven:
Rep. Jackson: Mr. Chairman, amendment number one, which was discusse d with the s ubcommi ttee, would spe cify that this bi ll woul d sunset upon the effective implementation of the comprehensive plan as provided for in ChairmanIvy Hillis’ bill and Senator G reer’ s bill.

. . . . Mr. Chairman: When t he ot her plan is adopted by the le gi sla tur e, the n th is s uns et s th

is b ill ? Rep. Jackson: That’s correct.

It is evident that both the Chairman and RepresentativeJackson were referring to Part Eig ht as “the other plan.” Pa rt Seven' s Senate sponsor wa s Senator Darnell . In a

debate before the Senate on May 25, 1989, Se

nator Da rnell expla

ined whe n Part Seve

n would te

rminate:

Senator Darnell: If I

could expl ain the b ill to the me mbers. This is a solid-waste disposal act that will allow a sys tem to go

into effect that is the equivalent to a zoning operation. And in this instance bec ause amendments that have been adoptedin the Hou se, the wholeproce ss is going to sunset when Senator Greer’ s bill comes into play July 1, 1991. So the bill is going to have a short life-span because of the c omprehensive planning that Senator Greer’s bill calls for. It allows those counties that do not hav e a comprehensive zoning plan . . . to opt into this legislation and, in effect, give them an opportunity to review applica tions for landfills.

Senator Greer had been the sponsor of the 1989 ra tional planning approac h enact ed asPart S ix. T.C.A. § 68-211-601 et seq.

The Court finds that had itnot been for subsequent amendments to Part Seven that occurred in the 1991, 1994 and 1995 legislative sessions , Part Seven would have expired upon enactment

of Part Eight. It was clea

rly the intent of the g eneral assembly in 1989 that passage of

Part Eight would operate as “effective implementation” of the plan required by

Part Six. However, the1991 general assembly passed Part

Eight and extended the expiration date for Part Seven from June 30, 1991, until June 30, 1994. The Court finds it noteworthy that the legislature e nacted Part Eight and amended Part Seven at the same time, on the same date and in the same act. Furthermore, both Senators Greer and

Darnell, key

players in the

enactment of Part Seven in 1989, were also sponsors of 1991 Tenn. Pub. Act, chap. 451. Evidently , in 1991, the general assembly no longer intended that the enactme

nt of Part Eight would automa

tically cause Pa rt Seven t o expire. By 1991, the legislative intentwas that the authority of the local governments and the p olit ical process permitted by Part Seven wou ld no t expire au tomatica lly w hen Part E

ight wa s passed. The ge neral a ssembly

is presumedto hav e know ledge of its prio r enact ments and

to know the s tate of th

e law at t he time it passes legislation. Neff v. Cherokee Ins. Co. , 704 S.W.2d 1, 4 (Tenn. 1986). Therefore, we find that by 1 991, “ef

fective implement

ation” of the Part S ix plan m eant s ometh ing ot her th an the passa ge of Part Eight.

If

Part Eight is not “the plan” the n the Cour

t is left to determine from the legislative intentwhat “the plan” is. Part Eight contemplated that the implementation of the State plan woul d
occur over a number of years. A comprehensive statewide plan was pr edicated upon the submission and approval of nine regional plans that were to have been submitted to the State planning office by December

31, 1993. Section 81 4(a) wa s amende d in 1993 in order to extend the date for submission of the regional plans to July 1, 1994. Part Eig ht gives deference to P art Seven and its goal of providing local control over the location of solid waste facilities by Part Eight's provisions giving regional approval authority to new solid waste fa cilities once the region’s plan has been approved by the Department. The Department’s divisionof solid waste assistance is charged with facilitating the implementation of the State plan. The division’s director, Paul Evan Davis, testified at trial that the passage of Part Eight was the fir st step in the planning process and that the plan ha d not been effec tively

implemented and would not be finally implemented until his division had approved region al plans f

or each of the solid waste r

egions.

The passage of

Part Eight did not constitute effective implementation of the Par t Six plan. In 19 91, 1994, a

nd 1995, th

e gene ral asse mbly did not i ntend that the passage of Part Eight would constitute effective implementation of the Part Six plan. While the legislature may have intended in 1989 for Part Seven to expire upo n the passage of Part Eight, that legislative intentchanged

by 1991 when Part Seven w as amended to extend its expiration date until 1994. The legislature again extended the expiration date of Part Seven in 1994 and re move d it altog ether in 1995. The Court finds that the genera l assembly ex pressed its view that Part Eight had not been effec tively

implement

ed and tha

t more time

was nec essary

for deve lopme nt and approval of the regional plans. When the legislature amended Part Seven in 1995 to remove t he expiration date altogether, its intent was that Part Seven had not expired and would not expire.

The Court finds that it has been the intent of the general assembly

since at least 1991 that landfill location decisions should be subject to the political process. Good, bad or indiff erent, this is the public

policy of this Stat

e as determined by

the general assembly . Accordingly , the Court affirms the chancellor’s decision finding that Par t Seven had not expired in 1995.
II. Part Seven Does Not Require Both the County and the Municipality to Adopt

Its Pro visions in Ord er for it t o Apply

Profill argues alternatively

that even if Part

Seven is still in effect, that part does not apply to the facts of the instant case because the City of Gallaway , where the landfill was to be located, had not adopted

or “opted into” Part Seven. Theargument is premised on the theory that boththe city and the municipality must adopt Part Seven before its provisions will ap ply . Profill cites T.C. A. § 68-21 1-707(a ), which states in r

elevant part:

The provisions of §§ 68-211-701 - 68- 211-705 and this section sh al l o nl y app ly in any county or municip ality

in which it

is approved by a two-thirds (2/3) vote of the appropriate legislative body. . . .

Since the property on w

hich Profill had proposed constructing the landfill i s locate d within

the City of Gallaway

and be caus e Gallaway

never adopted Part Seven using the proce dure established by T.C.A. § 68-211-707, Profill asserts that Part Seven is not applicable to it.

Part Seven provides for approval by either a county

or a city or both wher

e a proposed solid waste facility is to be loca ted in an incorporated municipality. Specifically, T.C.A. § 68-211- 701 state s in relev ant part :No construction shall be initiated for any ne w landfill f

or solid wa ste di sp osal or for solid waste processing until the plans for such new landfill h ave bee

n submitted

to and app

roved by :

. . . . (2) Both the county

legislative body

and the governing body of the mun

icipality in which the proposed landfill is located, if such new construction is located in an incorporated are a.

T.C.A. § 68-211-701(1995). The Court finds that the approval mechanism established by Part Seven does not require that both the county and city adopt Part Seven. T.C.A. § 68-211-707(a) grants the option of opting-in at

the discretion of the county and the municipality. There fore, we decline to find that local governments are under a ny obligation to adopt the provisions of Part Seve n. Even before the 1995 amendments, T.C.A. § 68 -2 11 -7 01 gr an te d m un ic ip al it ie s, su ch as th e C it y of Ga ll aw ay, the exclusive right to opt into Part Seven. The City of Gallaw ay ch ose not to o pt in to Part Seven when it was the

only gover nmental entity

entit led to do so

in rega rd to a la

ndfill with

in its boundaries. By

not adopting Part Seven, the City of G allaway entere d into contracts in 1992 w ith Profill for the c onstruct

ion of the landfill f acility . A local government’s failure to opt into Part Seven operate s as defacto approva l of th e p roposed landfill, thus permitting companies such as Profill to seek a pproval d irectly from the D epartme

nt. The Court finds no requirement that both the city and the county must adopt the provisions of Part Seven in order for that Part to apply . Adoption of Part Seven by e

ither or both entities is sufficient for the provisions of Part Seven to apply
. III. Part Seven Applies to the Solid Waste Processing Facilities

In addition to

the landf il l, Profill a

lso planne d to constr

uct and to

operate a solid
wa st e p ro ce ss in g f ac il it y. Profill asserts on appeal that Part Seven does not apply to the proposed solid waste processing facility , and argues that the Department has not de monstrated a basis for its failure to gran

t or deny approva l for the p

rocessing fac ility . Profill ma intains tha

t it inte nds to operate the processing fac ility rega rdless of the outcome of the landfill application.

Rule 1200- 1-7-.02( 1)(c) p rovides t hat cer tainclasses of activ

ity s hall be deemed to have a “permit-by -rule” if certain conditions are met. One such enterprise noted in Rule 1200-1-7- .02 (1) (c) (1) (I) is a

processing facility . Under the permit-by-rule procedure, an applicant is entitledto approva l from the Departm ent if it de

monstrate s that all t

he requi rements of the rule have been
or w ill be met b efore o peratio n of the f

acility begins. Profill as serts tha t it has met

a ll th e require ments to construct a processing facility
. Theref ore, Prof ill asser ts that it is entitled to an order directing the Department to dispose of the processing facility notification rega rdless of whether Profill prevails on the landfill issue.

The proposed solid waste processing facility was a part of

the origina

l permit application which was certified as complete by the Department on September 2, 1994. Rule 1200-1- 7-.07(6)(b) states tha

t a permit

applica tion for a process ing fac ility

shall b e acte d upon by the Department

within ninety day s after the application is certif ie d as compl ete. Ac cording ly, Profill asserts that the Department should haveacted on its notification for the processing facility no later than December 1, 1994. By letter dat ed Decemb er 7, 199 4, the De partmen t reques ted that Pr

ofill separa te the proc essing f

acility notifica tion from t

he la ndfill app lication a

nd submit a

separa te notifica tion for th

e proce ssing fa

cility . Profill c omplied with the Department’s request by fili ng a separa te notification on March 2, 1995. Profill asserts the Departm ent could not reas onably

presume that the processing facility

notification was dependent upon the landfill application; therefore, the Department

should have acted upon the notification regar ding the process ing facility

within nine

ty days of Mar

ch 2, 1995.

The Court concludes that Profill’s argument has no merit. Profill expressly waived the 90 day dea

dline in order to have i ts proce ssing fa cility consider ed toge ther with the landf ill application. In a Decembe r 22, 1994, letter to the Department responding to the Department’s notice of deficiency

letter, Profill’s representative William Hagerman stated:

If the Department is concern ed about the shorter period for the Depart me nt’s permit determination of Permit-by- Rule facilities as compared to that of the land disposal unit, Profill acknowledges that by incorporation of the Permit-by -Rule faci lities within this Application with the land di sposal unit (a unit that requires lengthy review by t

he Depa rtment), Profill ha s forfe

ited its rig hts as provided by the Rules to a shorter

permit determination period on the Per

mitby-Rule fac ilities.

Profill also maintains that Part Seven applies to landfills only, and has no applicationwhatsoever to solid waste p rocessi ng fac ilities. T. C.A. § 68- 211-701 s tates in pe rtinent pa rt:

No construction shall be initiated for any new landfill

for solid w aste dispo sa l or for solid waste processing until the plans for such new landfill have been submitted

to and appr oved by

. . . . (Emphasis added.)
T.C.A. § 68 -211-702

defineslandfill a s follows:

For purposes of this part, “landfill or landfilling” means any

land used for di spos al of s olid waste by filli ng and c overi ng.

When called upon to cons true stat utes, cou rts presu me that the

gener al assemb ly selected the words deliberately , Tenn. Manufactured Hous ing Ass’n. v . Metropol

itan Gov’t

. , 798 S.W.2 d 254, 257 (Tenn. App. 1990), and that each word is a nec essary pa rt of the statute. Ten n . Growers, Inc. v. King , 682 S.W.2d 203, 205 (Tenn. 1984). Statutory wor ds draw their meaning from the context of the entire statute, Knox County ex rel Kes sel v. Lenior City, Te

nn. , 837 S.W.2d 382, 387 (Tenn. 1992), and from the statute’s purposes and objectives. Dorrier v

. Dark , 537 S.W.2d 888, 892 ( Tenn. 197 6); Pearson v. Hardy , 853 S.W.2d 497, 500 (Tenn. App. 1992).

The gener al assemb ly w as imprecise in the use of the term “landfill.” The definition of “landfi ll ” cont ained in T .C.A. § 68- 211-702 d oes not co ntain any

refer ence to “ solid wast

e processing.” Likewis e, the defin itio n of “s olid waste proces sing” found in T.C.A. § 68-211-103(11) does not c ontain an

y r efere nce to “l andfill.”

Specific ally , that section state s:

“Solid Waste pro cessing ” means a n operat ion for the purpose of modifying the

chara cteristi cs or pro

perties of solid wa ste to facilita te transportation or dis posal of sol id was te inc ludi ng, but not limited to, incineration, compo stin g, sepa ratio n, grin ding, shred ding, and volume reduction.
We, nonetheless, find it to be the general assembly ’s intent that Part Seven applies to solid wast

e proce ssin g faci lities as well as to landfills. The general assembly intended that the approval provisions of Part Seven apply to constr uction of solid wast

e proce ssing fa

cilities a s well as to land fills for solid waste disposal because the gener al assembly

specific ally

refer enced “ solidwaste

process ing” in

T.C.A. § 68 -211-701 . A statute should not b e constr

ued in a manner that would render any of its language superfluous. Horne v. Cox , 551 S.W.2d 690, 6 91 (Tenn . 1977); Tidwell
v. Collins , 522 S.W.2d 674, 676-77 (T enn. 1975). F urthermore, we find it to be the genera l assembly’s intent, as interpreted by the Department, that Part Seven apply to solid waste processing facilities as well as to landfills. In an Aug ust 15, 1995, memorandum, Joe Sanders, an attor ney in the Department’s office of ge neral counsel, stated the Department’s position that “[t]he Jackson Law applies to ‘new’ landfills and ‘new’ solid waste processing facilities.”
Our supr eme cour t in Jackson Exp

ress, Inc. v. Tennes

see Public Ser

vic e Co mm. , 679 S.W.2d 942, 945 (Tenn. 1984), held that courts must give great def erence and

controlling weight to an agency ’s interpretation of its own rules. As the supreme co urt sta ted, administrative interpretation “becomes of controlling weight unless it is plainly err oneous or inconsistent with the regulation.” Jackson Express, Inc. 679 S.W.2d at 94 5; See also, Compton v. Tennessee Dept. of Public Welfare , 532 F.2d 561, 565 (6th Cir. 1976). The Court finds that the Department has th e knowledge, expertise and experience and is charged with the administration of the tech nical de tails of the statute. Accordingly , the Department’s decisions concerning the applicability of technica l terms of the statute areentitled t o defer ence in t he same manner a s other te chnical decision s. Wayne County v. Sol

id Waste Di

sposal Contro l Board , 756 S.W.2d 274, 279-280 (Tenn. App. 1988). It is un di sp ut ed th at Pr of

il l’ s p ro po se d r ec ycl in g f ac il it y is a s ol id wa st e p ro ce ss in g f ac il it y. Therefore, such facilities are subject to the provisions of Part Seven.
IV. The Federal Resource Conservation and Recovery A ct Does Not Preem pt Part Seven

Pr ofill claims that Part Seven is preempted by the Federal Resource Conservation and Recove ry Act (hereinafter “RCRA”), 42 U.S.C. § 6901 et seq. , which contains the feder a l requi rement s for solid a

nd hazard

ous waste manage ment. The

chance llor dismiss ed this cla

im pursuant to Rule 12.02(6) T.R.C.P. The Court finds that the federal act explicitly a ddressed the issue of preempt ion and specifically p

rovided t hat state s may

enact r equirem ents that are more stringent than the federal requirements. Fede ral preemption of

state law s arises f

rom the Sup

remacy Clause of the United States Constitution. Und er the Supremacy Clause, f ederal law may

preempt the conflicting state law wh er e ( 1) Co ng re ss en ac ts a f ed er al la w t ha t e xp li ci tl y pr ee mp ts st at e a ut ho ri ty,(2) where Co ngressimpliedly enacts a per vasive scheme o f feder

al regulation tha

t occupie s a field leaving the states no room to supplement the scheme, or (3) where s tate law actually conflic ts with federal law. See Ga de v. Nat’l Solid Wastes Management Assoc. , 505 U.S. 88, 112 S.Ct. 2374, 2383 (1992). Wh

ere Cong ress expressly

addresses the issue of federal pree mption of state law, courts should limit their preemption analysis to the meaning of the state law prov isi on instead of addressing the issue of implied preemption. Cipollone v. Liggett Group, Inc. , 505 U.S. 504, 112 S.Ct. 2608 (199 2); Vango M edia v. T he City of N

ew York , 34 F.3d 68, 72 (2d Cir. 1 994). The United States Supreme Court stated in Cipollone :

When Congress has considered the issue of pree mption and h a s i ncludedin the enacted legislation a provision explicitly a ddres sin g that issue, and when that provision pr ovides a “reliable indicium of congressionalintentwith resp ect to state authority,” . . . “there is no need to infer congressional intent to preempt state laws fr om the substantive provisions” of the legislation.
Cipollone , 112 S.Ct. at 2618.

Co ngress expressly addressed the preemption issue in RCRA. Section 3009 of RCRA, 42 U.S. C. § 6929, p rovides i n pertine

nt part:
Upon the effec tive date

of reg ulations under thissub-cha pter no Sta

te or political subdivision may impose any requirements less stringent than those aut

horized under this s ub-chapter resp ecting the same matter as governed by

such regulations, except that if application of a regulationwith r espect t o any matter under this su

bchapte r is postponed or enjoined by

the actio n of any

court, no state or political subdivision shall be p

rohibited from ac ting with

respec t to the same aspect of such matter until such time as such reg ulation ta kes eff ect. Nothingin this chapter sha ll be const rued to proh ibit any Stateor po litical subdivisio n thereof f

rom imposing any requirements, including those for site s electio n, which are more stringent than those imposed

by such re

gulations. (Emphasis added.)
Congre ss expressly

address ed the pr

eemption issue of s tatelaw when enacting RCRA. Therefore , in determining whether the RCRA preempts Part Seven, the analy sis should

be limited

to the expr

ess language without any

consideration of implied preemption. Cipollone , 112 S.Ct. at 2618.

The United States Environmental Protection Agency (hereinafter, “EPA”) has madeit

clear that its criteria for the design and operation of municipal solid waste landfills do not preempt state authority to enact more

stringent statutes and reg ulations f or locat ion of solid

waste la ndfills. See 56 Fed. Reg. 50978, et seq . (Oct. 9, 1991) . Specifically, the EPA regulations state:

EPA’s approac

h to Stateprogram approval recog nizes the traditional Staterole in implementing landfill standards and protecting g round water. EP A f

ul ly in tends tha

t States wi ll maintain

the lead role in implementing this program. EPA’s goal is for all States to apply for and receiveapproval of

their pro grams. Under th is rule, Sta

tes will have the flexibi lity

to tailor s tandard s to meet th eir stat e-spec ific condition s.

Id . at 50994.
Contrary

to Profill’ s a ssertio ns, the Court does not find within RCRA either an express or implied federal preemption of state requirements re garding site location. I n fact, states may adopt more stringent procedures. I n T ennes see, Par

t Seven au

thorizes lo cal gov ernment s to either approve or disapprove

of the loc ation of s olid waste facilitie s, but that Pa

rt does no t impose
a ban on solid waste disposal. The Court fi nds th at Profill has failed to demonstrate federal preemption by the RCRA of the Tennessee Solid Waste Dispos al statu tes. Accordingly , the chancellor’s decision dismissing this claim is affirmed.

V. Profill Has Not Be

en Denied D ue Proc

ess

Profill asserts t hat ther e has bee n a denia l o f administrative due process of law arising from the Depar tment’s alleged delay in processing the permit application in order to allow the legislature to amend Part Seven. Profi ll conten ds the De partmen t intention ally

“slow wa

lked” its permit applica tion under

pressur e from the

Speaker of the Te

nnessee House of

Represe ntatives, Jimmy Nai feh, and the Speaker of the Tennessee Senate, L ieutenant Governor John Wilder, who each represent the district in which the proposed landf ill is located.

Profill further asserts that the D ecember 7, 1994, notice of deficiency letter was arbitrary in nature in that the sole basis upon whi ch such a letter may be issued is when theapplication does not c omply with the sp ecific r

equirem ents cont ained wit hin the rules. Prof

ill asser ts that the notice of deficiency

letter was contrary

to the Dep artment’s Sep tember 2, 1994, notice of compliance letter. Rule 1200-1-7-.02(3)(b)1 states that, after a notice of compliance letter is issued, the Commissioner may

only ask for clarification of items in an application and that such reque st does notrender the application incomplete. Profill asserts that the delay in the processing of the application was due solely to political pressur e placed upon the Department by the Speakers and

that the defenda

nts did not rebut the clear inference that the a pplication was delayed for political reasons rather than for legitimate administrative concerns. On September 2, 1994, the Department issued
a notice of compliance letter. According to Rule 1200-1-7-.07(6)(b), the Department was required to complet e consideration of Profill’s application within 270 day s of September 2. The gener a l assembly passed the amendments to Part Seven, and the a mendment s were signed into law by the Governor on March15, 1995. The amendments were enacted within 270 day s of September 2, 1994, the date of

the notice of complianceletter. 1995 Tenn. Pub. Act, chap. 5, § 1 amended T.C.A. § 68- 211-701 by inserting

langua ge that made Par t Seven av ailable

to counties even where the proposed lan dfill was loca

ted within

a municip ality . Fay

ette Count

y a dopted Pa

rt Seven, as ame nded, o n March28, 1995. Immediately there after, the Department ceased processing Profill’s application. Profill asserts that it has demonstrated by a preponderance of the evidence that its application was “politically killed” and that, as suc h, it has been denied administrative due process.

In order to prevail on a procedural or administra tive due p

rocess violation c laim, Profill must demon strate th at it posse ssed a co nstituti on al ly protect ed liber ty o r proper ty in terest. Board of Regent

s of State Co lleges v

. Roth , 40 8 U.S . 564, 92 S.Ct. 2701, 2705-06, 2709 (1972). A person ’s intere st in a go vernmen t benefitis a prope

rty interest subject to due process protection only if the entitlement to the benefit is supported by statute or rules. Perry v. Sinderman , 408 U.S. 593, 92 S.Ct. 2694, 2 699 (1972 ). A state agenc y’ s proced

ural rule s cannot, by t

hemselve s, serve as the basis for a constitutionally protected property inter est. Clemente v. U.S. , 766 F.2d1358, 1364 (9th Cir. 1 985); Bills v. Henderson , 631 F.2d 1287, 1298-99 (6th Cir. 1980). In this instance, the rules govern ing th e proce dure t he Depa rtmen t is t o foll ow do n ot giv e rise to a gu arantee of du e processbecause

there is no proper

ty interest at stake . The ver

y r ules Prof ill reliesupon to ass ert a due process violation expressly state:The issuance of a per mit does no t convey

any propert y r ights of any sort, or a

ny exclusive privilege
.
Rule 1200-1-7-.02(4)(d)2.

Under the Rules, the Department had 270 day s from the issuance of th e notice of compliance letter on

Septembe

r 2, 1994, in which to

make a final determination to grant or to deny Profill’s application for a permit. O n De cember 7, 1994, the Department issued the notice of deficiency

letter which specified fifteen deficiencies the Department found w ith Profill’s application
. Rule 1200- 1-7-.07( 6)(c) e xpressly states:
The above time periods shall be stayed if: 1. The applicant requests that review be suspended. 2. The department issues a written notice of deficiency a nd until the applicant adequately addresses said deficiency
.

In this case , the Cour

t decline s to find tha

t Profill enj oyed a prope rty interest or entitlement

to a public

notice of a tentative approval rega rding the proposed landfill. Chongris v. Board of Appeals of the Town of Andover , 811 F.2d 36, 43-44 (1st Cir. 1987). Rule 1200-1-7- .02(4)(d)(2) operates to thwart claims of property rights or privilege in such instances. Fur the r , Profill knew that a complete application did not constitute “approval.”

Profill’s delay

argument centers around Wayne Schar

ber, the Departm ent’s de puty commissioner. Throughout the life of the Profill application, Scharber, acting under directions from then - Commissioner J. W. Luna, instructed Scharber to kee p Speaker Naifeh’s office informed about Profill’s application. Some time around F e bruary 15, 1995, Scha rber learned that Profill’s application might be considered at the March 1995 permit re view committee meeting. By this time, the bill to amend Part Seven hadbeen introduced into the general assembly and alleg edly there w ere discussions within the Department regarding the consequences of the proposed amendments for Profill. Thereafter, Scharber sug gested

to Tom Ties ler, Dir

ector of the Divisi on of Solid Wa ste Management

that consideration of Profill’s application should be postponed until April. According to Scharber, it was Tiesler who made the ultimate decision to postpone consideration of Profill’sapplication.

Profill expresses concern over Speaker Na ifeh ’s continuing contact with the Department

concerning Profill’s application. The trial court found, and we agree, that e ven if true, this has not de

prived Pr ofill of its administr

ative due processrights. The Spea ker, af ter all, repres ents the people in the affec ted are a. Appellees con cede tha t both spea

kers show ed inter

est in the applic ation as early

as 1992. Nonetheless, the Department continued processing of the application and issued a notice of compliance on the hydrog eological component of the application in 1993, and later, a notice of compliance on the remainde r of the application in 1994.

There is evidence that therewere n umerous unresolved questions within the Department

concer ning Pro fill’s ap

plication and th at, a s Scharber testified, it simply made more
sense to delay the perm

it review committe e ’s consid

eration of Profill ’s applic ation until those questions had been resolved. I n December 1994, the

Departm ent had r equeste d that Prof

ill separa te its landfill and materials recy cling facility

applica tions. Prof

ill did not file a separate notification for the processing facility

until March 2, 1995. Furthermore, Profill had not submitted the “k e y personne l” disclosur

e forms required by

T.C.A. § 68-211-106(h), which the Division had requested regarding Profill’s principals. Scharber testified that the sugge stion of a one month delay was made to avoid any

potentia l problemsfor the D epartme nt; he did n ot want Pr

ofi ll’s permit application considered until all questions had been resolved.

Profill has not demonstrated that it has been deprived of a viable propert y in terest in violat ion of the administrative due process of law. No constitutional right arises dur ing the application process for

a permit. State ex rel. SCA Chemical Waste Services, Inc. v. Konigsburg , 636 S.W.2d 430, 437 (Ten n. 1982); Schneider v. Lazarov , 390 S.W.2d 197, 200 (Tenn. 1965); Howe Realty Co. v. City of Nashville, et al., 141 S.W.2d 904, 906-7 (Tenn. 1940). Any re striction
or limitation upon the D epartme nt’s discr etion to iss ue or den

y a permit is the 270 day time period of Rule 1200-1-7-.07(6), and these rules were properly promulg atedin accordance with T.C.A. § § 4-5-201 et seq. (1991). T

he Depa rtment did

not excee d the 270 d ay

time limit. Without taking into consideration the stay

of proceedings create d by the notice of deficiency

letter of December 7, 1994, only 207 days passed f

rom issuance of

the notic e of comp liance le tter on Se ptember 2, 1994, un

tilFaye

tte County opted into Part Seven on March28, 1995, and the Department stopped processing the application. However, considering that the stay entered December

7, 1994, w as not lift

ed until March 2, 1995, only 122 of the 270 days had ela

psed.

The burden o f proof i s upon Prof il l to demonstrate by a pr eponderance of the evidence that the Department intentionally de layed consideration o f its permit application. Upon due consideration of the evidence in this cause, we affirm the chancellor’s finding

that Prof ill failed to carry the burden of proof on this issue.
VI. Part Seven is Not an Unconstitutional Delegation of Legislative Power

Profill asserts t h at Part Seven amounts to an unconstitutional delegation of legislative power in violation of Article II

§ 3 of the Tennessee Constitution because it: (1) cont

ains no time limits in which local governments must act; (2) lacks adequa te standards or criteria for local gover nments to follow; and (3) provides that local governments may

opt into or out of

its provisions by a two-thirds vote of

the appr opriate legislative body. Contra ry to Profill’s assertions, the Court does not find th at Part Seven viola tes the Tennessee Constitution. While Article II § 3 of the Tennessee Constitution prohibits the general assembly from delegating its power to make the la w, it does not preclude the general a ssembly from deleg ating certain of its powers to gover nmental agencies and local gover

ning bod ies if it e stablishe s basic sta ndards to guide th eir acti ons. Mistretta
v. United States , 488 U.S. 3 61, 109 S.Ct. 647, 655 ( 1989); Lob elvil le Special School Dist. v. McCanless , 381 S.W.2d 273 (Tenn. 1964). In Lobelvil le , the Tennessee Supreme Court stated:

T he true distinction is between the delegation of po wer t o mak e the law, w

hich nec essarily

involves a

discreti on as to wh at it shallbe, and conferring an authority or discretion as to its execution, to be exercised under and in pursuance of the law; . . . it

is only necessary that the st

a tute establish a sufficient basic standard, a definite and certain policy and rule of action for theguidance of the instrumentality that is to administer the law . . . .

Lobelvil le , 381 S.W.2d at 274 (quoting 16 C.J.S. Constitutional Law § 133, pages 560-561).Profill incorrectly

asserts that Part Seven cont ains no time limit wit hin which the local government

must act in

approving or disa

pproving the sitin g of a new landfill o r solid wa ste processing facility . To the c ontrary , T.C.A. § 6 8-211-70 4(a) cl early

provides that

local g overnme

nts must make the decision regarding ap pr ov al or di sa pp ro va l o f p ro po se d l an df il ls wi th in th ir ty d ays after the notice and opportunity for public hearing provided

in § 703. Pa

rt Seven also details the methods and procedures by which local govern ments mu st conduct the approval process, which include public notice, comments a nd public h

earing s, and these procedures incorporate some of the time frames for issuance of public notice and submission of comments. See §§ 68-211-703(d), (e) and (f). Further

more, T.C .A. § 68-2 11-704(b ) sets for th the cr iteria which loca

l gover nments ar e to consider when evaluating landfill construction. The trial court found these criteria to be vague but noted tha t Profill di d not have

a justicia ble claim
.
Profill next asser

ts that the “opt-in/o pt-out” p rovisions o f T.C.A. § 68-211-707(b) constitute an unconstitutional delegation of authority in thata local g overnme

nt, actin g on a wh

im, may determine at any

given time whether Part Sev en shal l apply. This Court held in Menefee Crushed Stone Co., Inc. v. Taylor , 760 S.W.2d 223, 227 (Tenn. Ap p. 1988), that “[o]nly the legislature can say

what t he gener al law will be.” Part Seven gives local gove rnments discretion regarding whether to adopt it, but that is not the same as making a law’s ef fectiv eness dependent upon local government approval. The legislature has exclusive authority to determine whether there will be regulation

of landfills, and by ena

cting Part Seven, the genera l assembly has vested in loca l governments the power to accept or reject landfills within their boundaries.

The Court finds persuasive, the trial court’s analogy to local option liquor laws which have been held to be constitutional. In Clark et al. v. State ex rel Bobo , 113 S.W.2d 374, 379-80 (Tenn. 1938), the Tennessee Supreme Court held that the local option law reg arding liquor was complete upon its enactment by the g eneral assembly . The local referendum which was litig ated in Clarkdid not bear upon the effectiveness of the statewide la w but simply concerne d the law’s implementation in a particular locality
. Clark , 113 S.W.2d at 379-80. Appellees have pointed out other laws which permit local option, including horse ra cing, T .C.A. § 4- 36-401 (1 996); wheel taxes, T.C.A. § 5-8-102 (1993); metropolitan forms of government, T.C.A. § 7-2-106 ( 1992); and sales taxes, T.C.A. § 67-6-705 (1994).Part Sev en d oes not vi ol ate Art icl e II § 3 of the Tennessee Constitution because the effect iveness of Part Seven does not depend upon the approval of local g overnments. Local gover nments merely have

authority reg arding the implementation of Part Seve n within the ir particular locale. Accordingly , we do not find Part Seven to be an unconstitutional delegation of legislative power.

VII. Part Seven Does Not Suspend the General Law of the State

Profill asserts t hat t he 1995 a

me ndments to Part Seven, in conjunction with the require ments of T.C.A. § 68-211- 105(h), s uspend the gener al law of the State for the b enefit o f Faye tte County, in violation of Article XI § 8 of the TennesseeConstitution. Article XI § 8 of the Te nnessee Constitution requires that only gene ral laws are to be passed by the legislature . I t prohi bits the gen eral as sembl y from pas sing:

[A]ny law for

the benefit of indi viduals inconsiste nt with the general laws of the land; [or] . . . any law g ranting to any

individual or individu als, rights, privileges, immunitie [ immun ities ], or exemption s other than such as may be , by

the same law extended to any member of the c ommunity, who may be able to bring himself within th e provisions of such law.
Tenn. Const., art. XI, § 8. The Tenne ssee courts have interpreted Article XI § 8 as prohibiting the general assembly from passing

laws that affect

the rights of citizens without affecting others in a like condition elsewhere in the State. City of Tull ahoma, et al. v

. Bedford County, et a l. , 01S01-9511- CH-00208 (Tenn. Jan . 27, 1997) ; Jones v. Haynes , 424 S.W.2d 1 97, 199 (T enn. 1968 ); State ex rel. Hamby v. Cummin gs , 63 S.W.2d 515, 516 (Tenn. 1933).

Part Seven affects al l citizens in all counties and municipalities of the State. The Courtfinds tha

t the 1995 a

mendment s to Part Seven are a valid e xercise o f police

power th at is neutral and uni v ersal in its application to counties and municipalities throughout Tennessee. Accord in gl y, the Court declines to find that Part Seven violates Article XI § 8 of the Tennessee Constitution.VIII. T.C.A. § 68-211-105(h) Has Not Been R epealed by

the 1995 Amendments to P art Seven
On appea l, Profill a

rgues t hat the De

partmen t exceede d its authority

in terminating its review of the Profill application at the time Faye

tte County adopted Part Seven. Profill as serts that the Department should be directed to complete review of its application and t o make a determination upon the a pplicatio n. Profill maintains t hat the 199 5 amendments to Part Seven repealed by implication the prohibitive langua ge which is contained within T.C.A. § 68-211-105(h). That cod e sectio n states a s follows:

The commission er sh all not review or approve any construction for

any new land fill for solid w aste disp osal or f or solid waste processing in any

county or municipality

which has adopted the provisions of §§ 68-211- 701 -- 68-211-7 04 and § 68 -211-707 until such cons tru ction has been approved in accordanc e with provisions of such sections.

As amend

ed in 1995 , § 68-211 -707(a) provides :

The provisions of §§ 68-211-701 -- 68-211- 705 an d this section shall on ly apply

in any county or municip ality

in which it

is approved by a two-thirds (2/3) vote of the appropriate legislative bo dy. The provisions of §§ 68-211-701 -- 68-211-705 a nd thi s section are for local review and appr oval andshall be conducted prior to issuance of a permit by the d epartment of environment and conservation or the commissioner.

Section 707(a) authorizes cities and counties to review and approve construction once they have opted i nto Part Seven. Section 105(h) is directed at the authority of the Commissioner and the Department

to revie w and app

rove con struction

once th e city

or county has opted into Part Seven and approve d the prop osed plan s. 1989 Tenn . Pub. Acts , chap. 515, § 13, which was deleted by the 1995 amendments to Part Seven, provided that citie s and cou

nties did n ot have lo cal appr oval rig hts i f the Depa rtment had “public noticed” its tentative approval of a landfill permit. Section 13 provided in relev ant part :

This act shall t ake effec t upon bec oming la w, the pub lic welfarerequiring it and shall beonly applica ble to any applica

tion for permit/registrationfor which a tentative approval/determination hasnot been public noticed by the commissioner.

1989 Tenn. Pub. Acts, chap. 515, § 13. As amended in 1995, § 707(a) provided that municipalities and counties would have local approval rights even if the Departm

ent had a lready begun t he permit review process so long as the Department had not approved or issued a permit. Instead of tentative approva l, which was the relevant event for cities and c ounties under the 1989 act, the relevant event under the 1995 amendments wa s final pe rmit appr oval.

The Co urt fin ds t hat Pro fil l’s arg um ent of r epe al b y imp li cat io n i s wi th out mer it . In Steinhouse v. Neal , 723 S.W.2d 625, 627 (Tenn. 1 987), the Tenness ee Supre

me Court he

ld that an implied repeal could only be found wheretwo statutes irreconcilably conflict or where two statutes govern the same subject ma

tter, in which case, the later enactment repea ls the former by implication. Courts should construe statutes so as to avoid placing one statute in conflict with another. Parkridge Hospital, Inc. v. Woods , 561 S .W.2d 754, 7 55 (T enn. 1978) . Wedo not find that§ 105(h) has been impl iedly repeal ed by

the 1995 a

mendment s to T.C.A. § 68-211- 707(a) b ecause the statut

es a r e complementary a

nd work in conjunction with one another.

IX. Par t Seven Do es Not Im

pair Any Co ntractua

l Rights of P

rofill

Profill asserts that the amendments to Part Seven u nla wfully impair its contractua l rights guara

nteed by the Tennessee a

nd United States Cons titutions. A s s uch, Pr ofill asserts that the amendments constitute an improper exercise of police power. T

he trial c ourt gr

anted De fendant s summary judgmen t on this cla

im.

Profill asserts that the contract it executed with theCity of Gallaway derived its force from the laws in effect at the time the contract was made in 1992. Those law s did not require co unty approva l, and neither Profill nor the City of Galla way recog nized that P

rofill wouldhave to obtain approval from the co un ty. Therefore, the adoption of Part Seven violated both the United States and Tennessee Constitutions by imposing an unanticipated step in the permit review pro cess which ultimately invalidated the contrac t.As this Court stated in Sher win W illi ams Co. v. Morr

is , 156 S.W.2d 350, 352 (Tenn. App. 1941), “[a]ll contracts are subject to be interfered with, or other wise affected by , subsequent statutes and ordinances enacted in the bona fide exercise of policepower.” As previously noted, the Courtfinds tha

t Part Seven is a bona fide exercise of police power that specifica lly addresses the public health, s afety

and welf are. Ac cordingly , Part Seven does not unlawfully impair Prof ill’s contractual rig

hts.
X. Part Seven Violates Equal Protection

The trial court concluded that Part Seven unconstitution ally di scrimina ted aga inst “private” landfillsthrough its exemptio n of coun

ty a nd municip ally

owned and/or oper

ated landfills found in T.C.A. § 68-211-7 06(b). Spec ifically, that section exempts from the local a pproval require ments of Part Seven: (1) privately owned land fills that o nly acce pt waste generated by

the
own er, and (2) landfills that are owned and/or operate d by a municipality . While the trial co ur t concluded

that Part Seven denied equal protection, the trial court appliedthe doctrine of elision due to the presence of a severability clause contained within 1989 Tenn. Pub. Acts, chap. 515, §11 and reached the determination that Profill had not been denied equal protection. We ag ree and affirm the trial court’s decision in this regard.

Appellees have raised the issue on app e al and assert that Part Seven does not deny equal protection. Conversely, Prof ill urges that the trial court was correct in its conclusion that Part Seven denied e qual prot

ection bu t asserts that the severability clause does not apply to the 1995 amendments. Therefore, the doctrine of e lision should not apply.

A cursory r

eview of Part Seven reveals that it does not treat all land fills eq ua ll y. Local governments cannot disappro ve plans for private landfillsto contai n solid was te solely generated by its owner a

nd canno t disappr

ove landf ills owned

or opera ted by a munic ip ality or
co un ty. Equal protection denial claims under both the Tennessee and United States Constitutions
are subject to the rational basis test, that is whether the classification has a reaso nable re lationship to a legit imate state interest. State v. Tester , 879 S.W.2d 823, 828 (Tenn. 1994). As the chancellor observed, the Depa

rtment cl assifieslandfillsaccord ing to wh at is put in them, not according to whoowns or

operates them. The

trial cou rt found a nd we ag ree, tha t there isno ration al basis to sustain Part Seven 's dis crimination against private landfills. Accordingly , we find this section to be unconstit utional.

A finding of unconstitutionality does not mean tha tPar t Seven in its entire ty is
unco nstitutiona l. A severability c lause contained within 1989 Tenn. Pub. Acts, chap. 515, § 11 states:

If

any provision of this act or the application thereof to any person or circ umstance

is held invalid, such invalidity shall not affect other provisions or applications of the act which can be given effect withoutthe invalid provision or applicat ion, a nd to that end the provisions of this act are declared to be severa ble.
1989 Tenn. Pub. Acts, chap. 515, §11.

The doctrine

of elision

is applic able in this instance . Our supr eme cour t noted in Lowe’s Companies Inc. v. Cardwel l , 813 S.W.2d 428, 430 (Tenn. 1991), that “a court may, under appropr iatecircumstances and in keeping with the expressed intent of a legislative body, elide an unconstitutional portion o f a statute and find the remaining provisions to be constitutional and effective.” The supr

eme court further noted that the expre ssed inte

nt of the legislativ e body

should appear on the fa

ce of the statute, a

nd the su preme c ourt d etermined that the inclusion of a
severa bility clause i s evidenc e of the l egisla ture’s e xpressed intent. Lowe’s Companies, Inc., 813 S.W.2d at 431. See also , Catlett v. State , 336 S.W.2d 8 (Tenn. 1960).

Th e legisla

ti ve intent

is cry stal clea

r due to the prese

nce of a severa bility clause within 1989 Tenn. Pub. Acts, chap. 515, the same chapter which also contained the unconstitutional § 12 wh ich was codified at T.C.A. § 68-211-706(b). We, therefore , conclude that Part Seven unconstit utionally discriminates against private owners and operators of landfills. Nonetheless, the remainder of

Part Seven is upheld as constitutionally valid by operation of

the doctrine of elision.

The judgment is affirmed, and the costs of this cause a re taxed to the appellant.________________________________ FAR MER , J.

______________________________ HIG HERS, J. (Conc

urs)

______________________________ LI LL ARD, J. (Conc

urs)