CANTON, Miss. (WJTV) – While one landfill in Madison County has been struck down by the Department of Environmental Quality another is trying to expand its current dumping grounds. But serious legal questions linger over if it’s done properly.
Since 1986 the City of Canton has been operating this landfill off Soldier Colony Rd. Taking in non-hazardous waste from six different counties. To keep services up city leaders believe it’s time to grow but many legal checkpoints aren’t adding up in the necessary order.
The Canton landfill is reaching capacity with only a few years of life left pushing the city to file for a lateral expansion.
“We have about three years left and anytime you’re developing a landfill you need to plan for the future,” Melon Garrett, Director of the Landfill told us.
“It is critically important for the citizens to know that in three years they’ll be no place for them to put their garbage,” Mayor William Truly Jr. added. “That’s why the city along with the director is working extraordinarily hard to go on and build additional cells.”
But first, the land must be properly zoned and per zoning laws. In Canton’s website’s most recent zone map, the property is listed as an industrial park. Meaning the dump only has to be 1,000 feet from residential areas. But MDEQ contradicted this when the expansion was first proposed.
“The city has acknowledged that the currently proposed expansion area is located within one mile of two areas that meet the definition of a residential area,” Trent Jones of the MDEQ Permit Board said. “Also, the landfill is not currently located within an industrial park.”
With landfills prohibited from coming within one mile of neighborhoods with more than 20 homes, Canton attempted to seek a variance to “residential setback” from the MDEQ commission claiming no opposition from nearby homeowners.
“There was a formal public meeting on the residential setback. That was held in the City of Canton on January 12th, 2019,” City Attorney Kimberly Banks claimed. “The city has not received any additional comments from the public on the residential setback proposal or any other matter pertaining to the residential setback for the lateral expansion permit application. In addition the city landfill staff about the lateral expansion.”
“Asking the residents in the area is it ok to expand so we needed to get their permission,” Mayor Truly Jr. added. “That’s why we were given the variance because it was ok with them.”
As we traveled into communities less than a mile from the expansion site they seemed unaware of this project. All answering “no” to questions about public meetings and flyers being handed out explaining this project.
A Solid Waste Plan can’t be amended until after an accurate public hearing. This is all explained in a 2011 Supreme Court Case between Hinds County and the Department of Environmental Quality. Then according to the latest approval of Canton’s Solid Waste Plan in 2018, the city must “formally amend the plan where a newly expanded facility is proposed.” This wasn’t done when it reached MDEQ.
“Because the regulations do not describe a method for any exception to this siting criteria,” Jones told the Commission in a January meeting. “MDEQ advised the city that the only available action to the city without a significant design change to the disposal area was to petition the commission on environmental quality for a siting criteria variance.”
But under MS code 49-17-29 only the permit board may make decisions and be the “exclusive administrative body” to give out permits or make modifications. In this case, the future of Canton’s permit relied on a vote by the commission which “can’t be construed” to the permit board’s decision.
The commission is granted by law to give variances for exemptions to prevent pollution. However, under this code, garbage like in Canton was determined to “endanger public health”. Excluding it from any exemption.
MDEQ emphasized getting a variance does not guarantee a permit will be issued and will hold more meetings for public comment for anyone who holds the opposition to the landfill. They defended all their approaches to this matter in statements given to us. You can read their full responses and explanations below.
Question 1: By law code 49-17-17 (i) Exemptions and Variances can only be issued to “abatement and prevention of pollution”, how does expanding a landfill for garbage waste fall under that category when the site is within a mile of residential areas and rule 1.1.B doesn’t list garbage disposal as an exception for the variance?
MDEQ: This question assumes a misreading of the statute. The statute reads as follows: The commission shall have and may exercise the following powers and duties: (i) To adopt, modify, repeal, and promulgate, after due notice and hearing, and, where not otherwise prohibited by federal or state law, to make exceptions to and grant exemptions and variances from, and to enforce rules and regulations implementing or effectuating the powers and duties of the commission under Sections 49-17-1 through 49-17-43 and Sections 17-17-1 through 17-17-47, and as the commission may deem necessary to prevent, control and abate existing or potential pollution. The phrase “and as the commission may deem necessary to prevent, control and abate existing or potential pollution” is a continuation of the description of the general purpose of the Commission’s authority to adopt, modify, repeal …rules and regulations implementing or effectuating the powers and duties of the Commission as defined in state environmental laws, but also recognizes the Commission authority to adopt rules it determines are necessary to control pollution. Within the rule-making authority is clearly granted the ability “to make exceptions to and grant exemptions and variances from” the Commission’s own regulations. The phrase is not a limitation on the Commission’s authority to grant variances or exceptions but is rather a statement recognizing the broad authority to the Commission to adopt regulations to address pollution.
MDEQ: The exemptions listed in Rule 1.1.B (11 Miss. Admin. Code, Pt. 4, R. 1.1.B) are recognized exemptions to the Nonhazardous Solid Waste Management Regulations’ full-body those exemptions are not applicable here. There is no assertion that the proposed landfill expansion is exempt from the solid waste regulations. The City of Canton requested a variance to one of the standard siting criteria. The city requested that the Commission allow a reduced setback from the standard requirement of one mile to an approximately 0.8-mile setback to residential areas to the northeast and southeast of the landfill. The variance granted by the Commission allows the city to design and develop the landfill project and submit a permit application with this reduced setback of 0.8 miles (0.2 miles less than the standard). It should be noted that the city previously had already operated the landfill within a mile of the residential area on the north because the historic areas were first permitted in 1986 before the one-mile residential setback being adopted.
Question 2: To your knowledge when was the City of Canton’s last Solid Waste Plan Updated, 2018? In your approval of that plan, MDEQ wrote “The city shall formally amend the plan where a new or expanded facility is proposed.” However, Trent Jones and City Attorney Kimberley Banks said back in January at your meeting “The only available to the city WITHOUT significant design change to the proposed disposal area was to petition the commission.” But how can that be legal if the SWP hasn’t been amended like the policies say it has to?
MDEQ: The city’s solid waste plan has been amended several times and the Commission had to approve the amendments each time a substantive change was made. The city’s amendment to its original solid waste management plan was formally approved through Commission in 2004 to address the city’s long-term disposal needs through the proposed landfill capacity expansion of the Canton Landfill. In 2018, the city developed a comprehensive update of their solid waste plan that brought forward the previously approved long-range solid waste management plans for the expansion of the landfill. The approval order recognizes a potential total disposal area of 139 acres for the municipal solid waste landfill. The current landfill is permitted for 49 acres; therefore, the plan allows the city to apply for permits for an expansion of the disposal area of up to 90 acres. Each time the local solid waste plan was amended and/or updated, the city conducted a public participation process and held public hearings on the long-range solid waste plan which includes a proposed expansion of the landfill.
Question 3: Under MS Code 49-17-29, Sec. 3 It’s illustrated how decisions and policymaking on permits fall under the permit board and “Shall not be construed to be an act of commission.” Does the Commission moving ahead to approve this variance to allow “the proposed design of the expansion area to not bear modified for Canton,” As Trent Jones said in January a violation of that law?
MDEQ: No, the Commission’s action to allow a variance to reduce the one-mile setback to a 0.8-mile setback to residential areas in no way guarantees the City of Canton that a permit will be approved with the reduced setbacks. The variance, which only the Commission could grant in this scenario, simply allows MDEQ staff and the Environmental Quality Permit Board to consider a permit application containing the reduced setback, which without the variance could not have even been considered. The city must now apply to the Mississippi Permit Board for environmental permits for the proposed expansion. These permit applications must include a detailed design, operating plan, monitoring provisions, and demonstration of compliance for the review by MDEQ staff. Ultimately, the Permit Board will decide whether a proposed landfill expansion with the reduced setback to residential areas will be approved.