Legal Lode: Losing Site

“You're yes then you're no. You're in then you're out.” Annoyance and dashed hopes, as expressed in lyrics popularized by Katy Perry. For Haas Trucking Inc., a Mississippi landfill owner, the words must hit close to home.

In February 2006, the Hancock County (Miss.) Solid Waste Authority (HCSWA) invited applications from developers and operators of Class I rubbish sites in the county to determine if new sites were needed and, if so, to add them to HCSWA's solid waste plan. Such sites may accept construction and demolition debris, cardboard boxes, tree limbs and stumps, and other nonputrescible wastes. Here's what's at stake: unless a site is included in a local solid waste plan, no state permit can be approved for a landfill located there.

Haas submitted a request to include its facility in the plan amendment, highlighting the site's “[g]ood location for possible future landfill services.” An engineering firm hired by HCSWA to help select sites agreed. Hass offered “a conveniently located landfill that will reduce transportation costs,” the firm reported.

Shortly before the end of the year, HCSWA filed its ratified proposed amendment with state environmental officials. Among other elements, the proposal identified eight new waste disposal sites, including the Haas facility. For its part, the state, rather than either accepting or rejecting the proposal in a timely fashion as required by law, notified HCSWA by letter that the proposed amendment called for too many sites. To help the authority trim its list of sites, the state offered — and HCSWA accepted — the services of Neel-Schaffer Engineers.

In June 2007, Neel-Schaffer recommended three sites to meet the county's needs. None of them was owned by Haas. Two months later, after studying the recommendations, HCSWA approved a revised plan amendment, eliminating the originally proposed eight sites in favor of only one additional Class I rubbish site, known as the King site, which Neel-Schaffer had short-listed.

Although Haas promptly filed suit in state court challenging HCSWA's decision, the case slogged along until early 2009 when the trial judge handed down an order affirming the revised plan amendment. HCSWA “clearly lays out the reasons and evidence [for selecting] the King site as a Class I rubbish site to the exclusion of other applicants,” his order said. Haas appealed.

A three-judge panel of the Mississippi Court of Appeals affirmed the lower court ruling, finding that the failure of the state to deny or approve HCSWA's 2006 proposal (with the Haas site) did not prevent HCSWA from later submitting a revised plan amendment (minus the Haas site) and that the decision was sufficiently supported by evidence.

“[T]he Authority … considered multiple factors in selecting the King site over other sites,” the opinion stated. “Furthermore, the engineering reports … show … substantial advantages to the King site over … Haas Trucking's … site.”

Notably, a different attack on the trial court decision came via a friend-of-the-court brief filed by another in-then-out site owner. Boudin Environmental charged that HCSWA unlawfully delegated its governmental responsibilities to a private entity by engaging an engineering firm to participate in the site selection process. However, the appeals court brushed aside the contention. “[I]t is logical that an agency such as the Authority will rely on the expertise of engineering firms in making such decisions when confronted with a problem beyond the Authority's … expertise,” the panel said.

BARRY SHANOFF is a Rockville, Md., attorney and general counsel of the Solid Waste Association of North America.

Haas Trucking, Inc. v. Hancock County Solid Waste Authority, No. 2009-CA-00373-COA (Miss.App. March 2, 2010)

The legal editor welcomes comments from readers. Contact Barry Shanoff via e-mail: [email protected].

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