Mississippi Reports

(Miss. 11-30-2006) SIERRA CLUB, Everett Kennard And Boswell
And Willie (Bill) Carroll Cook d/b/a Cook Swine Farm. No.
2005-CC-01472-SCT. Supreme Court of Mississippi. November
30, 2006.




DISPOSITION: AFFIRMED — November 30, 2006.





1. In this administrative dispute, the Mississippi
Environmental Quality Permit Board (“Permit Board”) issued
an air pollution control permit to the owner and operator
of a swine concentrated animal feeding operation (“CAFO”).
Several neighbors appealed the Permit Board’s decision.
Finding that the agency’s decision to issue the permit was
supported by substantial evidence, we must affirm.


2. Bill Cook is the owner and operator of a CAFO
in Oktibbeha County, Mississippi. The facility includes
eight barns housing up to 7,040 swine as they are being
grown from approximately forty to fifty pounds each to
approximately 250 pounds each. The barns have slatted
floors to allow the manure to drop into a holding area, and
a collection system flushes the waste into an anaerobic
lake. The liquid is later drawn from the top of the lake
and sprayed as fertilizer on fields. There is no dispute
that Cook’s facility meets the exacting federal and state
requirements for CAFOs with respect to the control of water
pollution. This case revolves around the sole issue of the
facility’s satisfaction of state air quality standards.

3. When Cook’s facility began operations in 1996,
the Permit Board did not require air pollution permits for
swine CAFOs. As such, the Permit Board only issued a
National Pollutant Discharge Elimination System (“NPDES”)
permit to Cook. That decision was appealed to the Chancery
Court of Oktibbeha County by Everett Kennard and others,
and the chancellor held the CAFO was required to obtain an
air permit. The Permit Board and Cook then appealed the
decision to this Court.

4. While the matter was on appeal, the Mississippi
Legislature amended Miss. Code Ann. Section 49-17-29 (Rev.
2002) to allow the Mississippi Environmental Quality
Commission (“Commission”) to establish categories of
sources not required to obtain an air permit and to allow
for the issuance of multimedia permits, that is, permits
combining both water pollution and air pollution control
standards. Because the resulting regulatory amendment by
the Commission did not exempt CAFOs, the parties agreed
Cook would submit an application for an air permit.

5. On December 13, 1999, Cook submitted his
application. The Mississippi Department of Environmental
Quality (“MDEQ”), acting as technical staff for the Permit
Board, created a draft permit and published a public notice
on October 18, 2000, inviting public comment on the draft
permit. After receiving many comments, MDEQ conducted a
public hearing on May 31, 2001. On March 12, 2002, MDEQ
recommended to the Permit Board that an air pollution
control chapter be added to Cook’s existing NPDES permit,
thus transforming it into a multimedia permit.[fn1] These
controls included the construction of a windbreak wall
behind the exhaust fans of each housing unit based on MDEQ
staff determinations that the exhaust fans were the primary
source of off-site odor transfer. After further review, the
Permit Board accepted MDEQ’s recommendation and issued the
multimedia permit to Cook.

6. The objectors to the permit (the Mississippi
Chapter of the Sierra Club, Everett Kennard, and Boswell
Kennard [hereinafter “Kennard”]), as well as Cook,
requested an evidentiary hearing before the Permit Board
regarding the multimedia permit. The Permit Board required
all parties to file written direct and rebuttal testimony
from witnesses prior to the hearing. In general, Kennard
argued the permit required too little of Cook and was thus
an arbitrary and capricious action, while Cook argued the
permit required too much and was thus an action beyond the
authority of the Permit Board.

7. On September 10, 2002, the Permit Board
conducted an evidentiary hearing on Cook’s multimedia
permit. The testimony of multiple lay witnesses and experts
was presented by the parties and considered by the Permit
Board. At the conclusion of the hearing, the Permit

8. Kennard again appealed the Permit Board’s
decision to the Chancery Court of Oktibbeha County, and
Cook cross-appealed. On August 25, 2003, the chancellor
denied both the appeal and cross-appeal, finding that

[t]he Permit Board has determined that the air pollution
control conditions of the permit are necessary to operated
the CAFO in compliance with the ambient air quality
regulation. That decision is supported by substantial
evidence, is not arbitrary or capricious, is within the
power of the Permit Board to make and does not violate
any statutory or constitutional right of Cook. The
Permit Board has determined that additional air pollution
control conditions are not necessary to operate the CAFO
in compliance with the ambient air quality regulation.
That decision is also supported by substantial evidence,
is not arbitrary or capricious, is within the power of
the Permit Board to make and does not violate a statutory
or constitutional right of the Objectors.

The chancellor also noted that “[a]n administrative appeal
is not a means to have a court re-weigh evidence and reach
a different conclusion.” The chancellor found the Permit
Board’s decision was supported by substantial evidence, was
not arbitrary or capricious, was within the Permit Board’s
power, and did not violate any party’s rights. Therefore,
the chancellor affirmed the Permit Board’s decision.

9. Aggrieved, Kennard filed this appeal, raising
three issues for our review: (1) whether the Permit Board’s
interpretation of Mississippi Air Quality Standard APC-S-4
was unreasonable and contrary to the regulation’s plain
language; (2) whether the Permit Board provided sufficient
findings of fact and conclusions of law with respect to the
technical and expert evidence presented to it; and (3)
whether the Permit Board’s decision not to require a
monitoring regime for Cook’s facility was arbitrary and
capricious. We find no merit in Kennard’s assignments of
error and affirm the chancellor’s judgment.


10. We review this matter under the same standard
recognized by the chancellor in his review of the
administrative order issued by the Permit Board.
Understanding he was not sitting as a fact-finder in a
nuisance trial, but rather was acting as an appellate court
reviewing a decision of an administrative agency, the
learned chancellor articulated the correct standard as

An administrative appeal is not a means to have a court
re-weigh evidence and reach a different conclusion. And a
permit from an administrative agency is not an
authorization to operate a nuisance. A court performs two
different functions when determining whether to enjoin a
permitted operation as a nuisance and when determining to
reverse or affirm an administrative decision. The court
must respect that difference. An equity suit is fact
driven. An administrative appeal is law driven. Both
proceedings are ultimately public policy driven. And
public policy is uniquely fitted for the legislature. The
legislature has delegated the permitting decision to the
Permit Board.

By statutory mandate, “[a]ppeals shall be considered only
upon the record as made before the Permit Board.” Miss.
Code Ann. § 49-17-29(5)(b) (Rev. 2002). See also
Golden Triangle Reg’l Solid Waste Mgmt. Auth. v. Concerned
Citizens Against the Location of the Landfill, 722 So. 2d
648, 652 (Miss. 1998). This Court has previously held:

Matters of law will be reviewed de novo, with great
deference afforded an administrative agency’s construction
of its own rules and regulations and the statutes under
which it operates. Therefore, an agency’s decision will
not be disturbed on appeal absent a finding that it (1)
was not supported by substantial evidence, (2) was
arbitrary or capricious, (3) was beyond the power of the
administrative agency to make, or (4) violated some
statutory or constitutional right of the complaining

McDerment v. Miss. Real Estate Comm’n, 748 So. 2d 114, 118
(Miss. 1999) (internal citations omitted).

11. Substantial evidence is “something less than a
preponderance of the evidence but more than a scintilla or
glimmer. The reviewing court is concerned only with the
reasonableness of the administrative order, not its
correctness.” Miss. Dep’t of Envtl. Quality v. Weems, 653
So. 2d 266, 280-81 (Miss. 1995) (internal citations
omitted). An action “is arbitrary or capricious if the
agency entirely failed to consider an important aspect of
the problem, or offered an explanation for its decision
that runs counter to the evidence before the agency or is
so implausible that it could not be ascribed to a
difference in view or the product of agency expertise.” Id.
at 281 (internal citations omitted). A rebuttable
presumption exists in favor of agency decisions, and this
Court may not substitute its own judgment for that of the
agency. Miss. Comm’n on Envtl. Quality v. Chickasaw County
Bd. of Supervisors, 621 So. 2d 1211, 1216 (Miss. 1993).

12. Against this background of authority and
precedent establishing our standard of review, we now
proceed to review the Permit Board’s decision.

I.Whether the Permit Board’s interpretation of Mississippi
Air Quality Standard APC-S-4 was unreasonable and contrary
to the regulation’s plain language.

13. Kennard takes issue with the Permit Board’s
interpretation of Mississippi Air Quality Standard APC-S-4,
arguing the Permit Board erroneously focused on a single
factor and ignored the factors favorable to the objectors.
This led to an unreasonable interpretation of the
regulation at odds with its plain and unambiguous language.
Therefore, Kennard argues the Permit Board’s decision
should be reversed and the matter remanded with
instructions as to the regulation’s proper interpretation.

Mississippi Air Quality Standard APC-S-4

14. This Court’s only precedent addressing state
regulation of odor is Mississippi Air & Water Pollution
Control Permit Board v. Pets & Such Foods, Inc., 394 So. 2d
1353, 1355 (Miss. 1981), where this Court reversed the
agency’s decision because the regulation in effect at that
time failed to set an objective standard “with which to
measure concentrations of odors in the ambient air.” The
next year, the Legislature addressed the regulation’s
deficiency by amending Miss. Code Ann. Section 49-17-19
(Rev. 2002) to read, “[i]n establishing ambient air quality
standards for odor, the commission shall adopt recognized
objective standards if they exist. In the absence of a
recognized objective ambient air quality standard for odor,
the commission may adopt such subjective standards as may
be appropriate.”

15. Based on the amended statute, the Commission
adopted the current version of APC-S-4, which provides:

There shall be no odorous substances in the ambient air
in concentrations sufficient to adversely and

(1) affect human health and well-being;

(2) interfere with the use of enjoyment of property; or

(3) affect plant or animal life.

In determining that concentrations of such substances in
the ambient air are adversely and unreasonably affecting
human well-being or the use or enjoyment of property of
plant or animal life, the factors to be considered by the
Commission will include, without limiting the generality
of the foregoing, the number of complaints or petitioners
alleging that such a condition exists, the frequency of
the occurrence of such substances in the ambient air as
confirmed by the Department of Environmental quality
staff, and the land use of the affected area.

Through this amendment, the Commission provided the
necessary objective standards by adding three reasonably
measurable parameters.

16. According to Kennard, the Permit Board
improperly focused on the second factor, “the frequency of
the occurrence of such substances in the ambient air as
confirmed by the Department of Environmental quality
staff,” and since MDEQ staff could not confirm the existence
of off-site odors, the Permit Board obviously failed to
consider the other factors when issuing a permit with such
lax restrictions. Kennard points to passages in the Permit
Board’s findings allegedly bearing out this erroneous
interpretation, such as the following:

The factors required to be considered by the Commission
limit the applicability of the section in recognition that
APC-S-4 is a subjective standard, the application of which
by the Commission or Permit Board must rely in chief on
the expertise of the agency and the evidence gathered by
its staff. Thus, the Commission built into the regulation
the requirement that violations of the standard be judged
not only by the land use of the area and the number of
complaints received from the public, but also by the
number of times that MDEQ staff can confirm these
occurrences. That part of the standard will almost always
work to limit the Commission’s and the Permit Board’s
involvement with odor issues to those cases where MDEQ
staff can verify the nature, frequency, and severity of
the complaints.

17. Generally, this Court accords great deference
to an agency’s interpretation of its own rules and
regulations. Molden v. Miss. State Dep’t of Health, 730 So.
2d 29, 32-33 (Miss. 1998). However, where an administrative
agency’s interpretation is contrary to the unambiguous
terms or best reading of a statutory provision, the agency
is not entitled to deference. Miss. Gaming Comm’n v.
Imperial Palace of Miss., Inc., 751 So. 2d 1025, 1029
(Miss. 1999). In this case, we find no error in the Permit
Board’s construction and application of the pertinent

18. Kennard’s claim that the Permit Board ignored
the complaints made by neighbors of the CAFO is not
supported by the record. The Permit Board detailed several
of the neighbors’ complaints in its findings, and it
ultimately affirmed the imposition of multiple air quality
control requirements. In fact, the Permit Board noted that
“[i]t is chiefly in response to the complaints of offsite
odors registered by the Kennard family and other Cook
neighbors that MDEQ suggested several odor control features
be included in the Cook facility multimedia permit. . . .”
Kennard’s dissatisfaction with the extent of air quality
control measures ordered by the Permit Board does not
indicate the Permit Board disregarded complaints by
neighbors or suggest the Permit Board elevated MDEQ staff
findings to a level of unwarranted importance.

19. APC-S-4 requires the Permit Board to examine
three relatively objective factors in arriving at its
permitting decisions, and the regulation also allows for
additional considerations. The Permit Board had before it
credible, albeit conflicting, evidence, and we are unable
to say it did not consider all of this evidence in arriving
at its decision. The record does not indicate the Permit
Board’s interpretation and application of APC-S-4 was
contrary to the plain language of the regulation. As such,
its interpretation is entitled to the requisite deference
by this Court. See Miss. State Tax Comm’n v. Mask, 667 So.
2d 1313, 1314 (Miss. 1995).[fn2]

Economic burden of air quality control measures

20. Kennard also argues the Permit Board
unreasonably interpreted various regulations to find it
“[could not] include terms that impose a large economic
burden in the permit.” Not only does Kennard overstate the
conclusion of the Permit Board with respect to the role of
economically burdensome control measures, Kennard cannot
show that the Permit Board’s interpretation of the
regulatory scheme was in any way erroneous or unreasonable.

21. The Mississippi Administrative Procedures Act
requires that prior to the adoption of a rule or
significant amendment, each agency proposing such rule must
consider the “economic impact the rule will have on the
citizens of our state and the benefits the rule will cause
to accrue to those citizens.” Miss. Code Ann. Section
25-43-3.105 (Rev. 2002). Moreover, Miss. Code Ann. Section
49-17-34(2) (Rev. 2002) specifically mandates that

[a]ll rules, regulations and standards relating to air
quality, water quality or air emissions or water discharge
standards promulgated by the commission after April 16,
1993 shall be consistent with and shall not exceed the
requirement of federal statutes and federal regulations,
standards, criteria and guidance relating to air quality,
water quality, or air emission or water discharge

22. Finally, the Legislature has given the
following unambiguous instructions regarding the adoption
of environmental regulations:

It is the intent of the Legislature to provide protection
for the public health and safety and the environment for
the citizens of Mississippi. In providing for such
protection, the Legislature recognizes that environmental
rules and regulations should have an identifiable
scientific basis and should be adopted after consideration
of the costs to the regulated community of implementing
the rule or regulation.

Act of July 1, 1994, ch. 598 § 2(1), 1994 Miss. Laws
(codified as amended at Miss. Code Ann. § 49-2-11
(Rev. 2002)).

23. Given this legislative framework, the Permit
Board properly read APC-S-4 to require cost effective
measures, if possible, to achieve the stated goal of the
regulation. Additionally, nowhere in the Permit Board’s
findings does the agency state that costly control measures
will never be ordered. It simply found that in this case,
current violations of APC-S-4 did not exist to a degree
that would justify the imposition of conditions in Cook’s
permit that would place a potentially insurmountable
economic burden on the facility. Crediting the evidence
presented by MDEQ staff and the expert testimony of Dr. Mike
Williams, the Permit Board found the installation of a
windbreak wall was a reasonable means of meeting state air
quality standards, and the more elaborate measures
advocated by Kennard’s expert, Dr. Ronald Miner, were

24. Despite Kennard’s protestations to the
contrary, the Permit Board obviously determined the
requirements it placed in Cook’s air quality permit would
result in the facility’s compliance with state air quality
standards. Its interpretation of APC-S-4 was neither
unreasonable nor contrary to the plain language of the
regulation. Therefore, this Court defers to the Permit
Board’s interpretation.

II. Whether the Permit Board provided sufficient findings
of fact and conclusions of law with respect to the
technical and expert evidence presented to it.

25. Kennard next argues the Permit Board ignored
“voluminous technical evidence and expert testimony
submitted with respect to the odor and human health impacts
of industrial hog farms,” resulting in findings of fact and
conclusions of law insufficient for appellate review. Thus,
Kennard asks this Court to reverse the Permit Board’s
decision and remand the matter so proper findings can be

26. We have held that an agency must clearly
explain its factfinding and reasoning for a decision in
order to facilitate review by the courts. McGowan v. Miss.
State Oil & Gas Bd., 604 So. 2d 312, 324 (Miss. 1992).
Conclusory remarks alone do not equip a court to review the
agency’s findings. Miss. Sierra Club, Inc. v. Miss. Dep’t of
Envtl. Quality, 819 So. 2d 515, 524 (Miss. 2002).
Accordingly, findings on factual issues must be specific
enough for the reviewing court to determine whether the
decision is supported by substantial evidence. Id. at 523.

27. In this case, the Permit Board was presented
with conflicting yet credible testimony from expert
witnesses, lay witnesses, and MDEQ staff. The Permit Board
drafted twenty-five pages of findings and conclusions which
referenced key portions of the evidence offered by Kennard.
While the findings may not have referred to each piece of
technical evidence before the Permit Board, this Court does
not require administrative agencies to exhaustively discuss
in their findings every bit of evidence presented for their
consideration. Rather, the agency’s findings must be
specific enough to allow this Court to evaluate whether the
decision is supported by substantial evidence.

28. The Permit Board has provided such findings,
including a discussion of the testimony by Dr. Miner,
Kennard’s expert who recommended more restrictive control
measures, and an explanation of the technical evidence and
testimony refuting Dr. Miner’s conclusions. The findings
reveal the Permit Board rejected Dr. Miner’s “worst-case
view” based on testimony and technical evidence presented
by Dr. Williams; Dwight Wylie, Chief of MDEQ’s Air
Division; Jerry Cain, Chief of MDEQ’s Environmental Permits
Division; and the Iowa Concentrated Animal Feeding
Operations Air Quality Study, Final Report (Iowa State
University and The University of Iowa Study Group, February

29. Essentially, the crux of Kennard’s complaint
with the Permit Board’s findings is that the agency did not
give the desired discussion of or credence to his evidence
and expert. However, that dissatisfaction does not equate
with insufficient findings. The Permit Board included ample
discussion of the reasoning for its findings, allowing for
proper appellate review. The Permit Board found that odor
problems existed at Cook’s facility, although perhaps not
to the extent argued by Kennard, and it took positive steps
to address those problems with the inclusion in Cook’s
permit of an air pollution chapter requiring several
control measures, including a windbreak wall. Finally, it
fully explained its decision not to include further
measures suggested by Kennard’s expert, Dr. Miner.[fn4]

30. The Permit Board provided sufficient findings
of fact and conclusions of law with respect to the
technical and expert evidence presented to it. The decision
to affirm the air permit as previously issued was supported
by substantial evidence, was neither arbitrary nor
capricious, was within the Permit Board’s power, and was not
violative of any party’s rights. As such, this Court
affirms the Permit Board’s decision.

III. Whether the Permit Board’s decision not to require a
monitoring regime for Cook’s facility was arbitrary and

31. Kennard finally argues the Permit Board’s
failure to require a program to monitor odor as a term in
Cook’s permit was arbitrary, capricious, and contrary to
law. We find no legal merit to this argument. As a separate
issue, the Permit Board directed MDEQ staff “to develop a
monitoring program around the Cook facility to try to
determine with some degree of accuracy the strength and
frequency of occurrence of offsite odor,” and to report
back with its findings. Then, should the collection of
additional data so require, the permit could be reopened
and amended based on the new information. As previously
noted, the Permit Board believed that Cook’s facility
emitted some amount of objectionable odor, but its extent
was difficult to quantify. The Permit Board’s decision to
further study the situation and possibly revise the permit
based on the results of that study cannot be considered
arbitrary or capricious.


32. Faced with conflicting yet credible testimony,
the Permit Board made the following observation:

Put bluntly, if the Permit Board accepts only the
testimony of Kennard’s witnesses, then the permit
recommendations of MDEQ are not sufficient. But if the
Permit Board accepts only the testimony of Cook’s
witnesses, then the Permit Board has no justification for
requiring the additional odor and emission control
elements of the multimedia permit. The Permit Board finds
that the objective truth, if such a state exists with
odor, is somewhere in the middle.

After evaluating the evidence presented by both sides, the
Permit Board arrived at a decision imposing several air
quality control requirements on Cook’s facility. We agree
with the chancellor that the Permit Board’s decision was
supported by substantial evidence and may not be disturbed
on appeal.

33. Kennard’s attack on the Board’s decision is
very different from a claim of nuisance or some other civil
wrong which requires a showing of wrongful conduct directed
at him. In his appeal of the decision of the Permit Board,
the sole question is whether the Permit Board’s decision to
issue the permit was supported by substantial evidence in
the record and within the body’s legislative grant of
authority. It was, and therefore we affirm both the
judgment of the chancellor and the decision of the Permit




a. The air requirements chapter requires the following best
management practices:

1. Operators of the facility shall practice odor control
methods during the course of manure removal and field
application. Odor control methods shall be those methods
identified in the Comprehensive Nutrient Management Plan
(CNMP) created for the facility. Odor reduction and
control shall be obtained through chemical, biological, or
mechanical means where deemed appropriate.

2. Operators shall consider wind direction and other
relevant conditions before spray application occurs.

3. Low pressure systems shall be used and spray head
orientation such to minimize aerosol drift and stripping
of volatile compounds.

4. Influent pipes shall not be designed such that a free
fall of wastes occurs from the influent pipe to the lagoon
or from the houses to the lagoon surface. Influent pipes
shall be designed for below-water discharge into the

5. Dead animals shall be stored in closed containers.
These “dead boxes” shall be completely closed and sealed
at all times except when depositing carcasses. Containers
with damaged lids are prohibited. The Pollution
Prevention Plan shall include an approvable method of
treatment and/or disposal of contaminated soils around the
dead animal handling and storage areas.

6. Facilities shall not expand operations, either in size
or number of animals, prior to amending or enlarging the
waste handling procedures and structures to accommodate
any additional wastes that will be generated by the
expanded operations. The facility shall not be expanded
without Permit Board approval.

7. Waste handling, treatment, and management shall not
result in the destruction or adverse modification of the
critical habitat of endangered or threatened species, or
contribute to the taking of endangered or threatened
species of plant, fish, or wildlife.

8. Solids, sludges, manure, or other pollutants removed
in the course of treatment or control of wastewaters shall
be disposed of in a manner such as to prevent significant
degradation of ambient air quality.

9. Dead animals shall be properly disposed of off-site
within three (3) days unless otherwise provided for by the
State Board of Animal Health. Animals shall be disposed of
in a manner to prevent significant degradation of ambient
air quality. Incinerators require additional permit
coverage from the Department and are not allowed by the
issuance of this permit.

10. Collection, storage, and disposal of liquid and solid
waste should be managed in accordance with recognized
practices of good agricultural management. The economic
benefits derived from agricultural operations carried out
at the land disposal site shall be secondary to the
proper disposal of waste.

b. The air requirements chapter requires the permittee to
submit a study plan to the Permit Board to determine the
optimum barn flushing frequency in order to minimize odors
associated with barn flushing by April 12, 2002 and begin
implementation of the study plan by April 26, 2002.

c. The air requirement chapter requires the permittee to
construct a dust control barrier (commonly known as an air
dam or windbreak wall, or the equivalent) at a suitable
distance behind the exhaust fans of each housing unit. The
barrier shall extend from the ground to a height exceeding
the tallest exhaust fan mounted in the housing unit and
shall be as wide as the housing unit. Alternatively,
mechanical dust collection devices may be installed on the
individual exhaust fans.

d. The multimedia permit includes the broad reopener
provision, as follows:

This permit shall also be modified, or alternatively,
revoked and reissued, for the inclusion of new Best
Management Practices (BMPs) and technology requirements if
the BMPs and technology requirements so approved:

(a) Contain different conditions or are otherwise more
stringent than any BMP or technology requirement in the
permit; or control any pollutant not limited in the

(b) The Air Pollution Control Requirements established in
this permit are subject to revision if and when more
stringent regulatory requirements become applicable.

[fn1] See the appendix for a list of the control features
added to Cook’s NPDES permit in the new air requirements
chapter. Board deliberated and then voted to affirm its
previous issuance of the Cook facility multimedia permit as

[fn2] Kennard’s position that the Permit Board’s decision is
no more than a litigating position, and thus not entitled
to deference, is equally unpersuasive. The Permit Board
considered the necessary factors under APC-S-4 and arrived
at a decision supported by substantial evidence.

[fn3] Significantly, there are no federal air quality

[fn4] Kennard’s charge that the Permit Board’s decision was
merely a way to avoid making a difficult and politically
volatile decision is completely unsupported by either the
facts or the law, and it does not warrant discussion by
this Court.