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EUGENE B. PENICK, JR., D/B/A PENICK FOREST PRODUCTS v. MISSISSIPPI COMMISSION ON NATURAL RESOURCES

OCTOBER 26, 1988

EUGENE B. PENICK, JR., D/B/A PENICK FOREST PRODUCTS
v.
MISSISSIPPI COMMISSION ON NATURAL RESOURCES



BEFORE ROY NOBLE LEE, SULLIVAN and ZUCCARO

ROY NOBLE LEE, CHIEF JUSTICE, FOR THE COURT:

Eugene B. Penick, Jr., operator of a creosoting plant in Noxubee County, was ordered by the Bureau of Natural Resources to obtain a permit for its operation. He appealed the order of the full commission to the Chancery Court of Noxubee County, which upheld the order of the Bureau. He has appealed to this Court and assigns three (3) errors in the proceedings below.

Facts

 In 1950, Mr. Woody Jones obtained a lease on certain 16th Section land in Noxubee County. On this leasehold, he constructed and began to operate a creosoting plant. In 1965, the Corps of Engineers contacted Jones and advised that he could no longer allow creosote residue to run out on the ground. A holding pond was constructed, approved by the Corps of Engineers, which allowed the creosote runoff to go into the pond. The pond measured approximately 40 feet x 50 feet. Jones continued with his operation until 1973, when he sold out to Mr. Emmett Farrar, who owned and operated the business until appellant took it over in 1980. Appellant had leased the business with an option to purchase, but has never exercised his option.

 Appellant's troubles started approximately six (6) months after he assumed operation of the business. They came in the form of Environmental Protection Agency regulations which the State of Mississippi adopted in 1980. Appellant was informed by the Bureau on Natural Resources that the operation of the holding pond involved hazardous waste and that, in order to continue its operation, a permit would be required. To obtain a permit, the signatures of both the operator and owner was required. Appellant was more than willing to sign, but the owner, Farrar, wanted nothing to do with it, and refused to sign.

 Failure to have a permit is the cause of the real problem here. To state the problem simply: if appellant doesn't have a permit he cannot operate, and if he cannot operate the regulations require him to clean up his toxic pond. Cleaning up the pond would require financial resources far beyond that of appellant. Throughout the record, appellant indicates that he wants to do whatever is necessary to rectify the situation. He states that he has ceased operation of the pond and no longer discharges anything into it. This does not solve the problem, however. The toxic pond remains, and it is someone's responsibility to clean it up. The pond could remain, if appellant had the required permit

 because the permit provides for certain monitoring procedures.

 Since appellant had not obtained the permit he was ordered by the Mississippi Commission on Natural Resources on February 27, 1985, to cease operation of the hazardous waste unit and commence with closure of the unit. The order contained a complicated procedure and schedule to be followed in cleaning up the pond. The order also required appellant to obtain insurance for sudden and non-sudden releases of waste from the pond. The evidence is undisputed that the required insurance would have cost appellant approximately $40,000.

 Appellant appealed the Commission's order and on October 28, 1986, was granted a hearing before the full Commission. The evidence presented at the hearing revealed the following:

 (1) As long as Farrar refused to sign the permit appellant would be unable to obtain one.

 (2) Studies were conducted by experts at Miss. State University which revealed that no contamination of ground water had taken place outside the pond. These experts also testified that the pond sits on top of a chalk formation some 600 feet thick, and under this chalk formation runs the Utah Aquafier, and that for this pond to contaminate the Aquafier some 60,000 years would have to pass.

 (3) A financial expert from Miss. State University stated that appellant's approximate yearly income has been about $20,000. The expert stated that for appellant to be required to pay for the entire cleanup of the pond would be to surely place him in bankruptcy.

 (4) The estimated cost of cleanup could run anywhere from $50,000 to ...


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