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Big Fork Mining Co. v. Tennessee Water Quality Control Bd.

Citation: 12 ELR 20127
No. No. 80-195-II, 620 S.W.2d 515/(Tenn. Ct. App., 05/15/1981)

The Tennessee Court of Appeals holds that the Tennessee Anti-Degradation Statement, an administrative rule promulgated by appellee pursuant to the Tennessee Water Quality Control Act, TENN. CODE ANN. §§70-324 et seq., and its application in the denial of appellant's permit application are constitutional. The Tennessee Water Quality Control Board affirmed the decision of the Tennessee Division of Water Quality Control denying appellant, a strip mining company, a national pollutant discharge elimination system (NPDES) permit based on the Anti-Degradation Statement. The appellate court upholds the board's decision, ruling that the statement is not unconstitutionally vague. The words "high quality water" and "waters of exceptional recreational or ecological significance," which appellant contends are unconstitutionally vague, are commonly understood when read in the context of the statement. The Act, which the Anti-Degradation Statement implements, is a remedial statute that carries a presumption of constitutionality and must be liberally construed to accomplish its purposes and policies. Turning to appellant's procedural challenges, the court rules that under the Act a hearing for review of a permit denial is not required to be completed within 60 days of receipt of the written petition; commencement of the hearing within 60 days is sufficient absent a showing of prejudice. In addition, the court rules that the burden of proof was properly placed on appellant, the party seeking affirmative relief. Finally, the court rules that the board's decision is supported by substantial and material evidence. The record clearly indicates that issuance of an NPDES permit to appellant might result in harm to one of Tennessee's last remaining high quality freshwater streams in an urban area and that the broad considered the conflicting interests and reached a proper result.

[Permission to appeal was denied by the Tennessee Supreme Court Aug. 31, 1981 — Ed.]

The full text of this opinion is available from ELR (10 pp. $1.75, ELR Order No. C-1269).

Counsel for Appellant
Michael W. Boehm, James Gentry
Gentry & Boehm
Suite 600, Dome Bldg., Chattanooga TN 37402
(615) 756-5020

Counsel for Appellee
William M. Barrick, Ass't Attorney General
450 James Robertson Pkwy., Nashville TN 37219
(615) 741-3491

Conner, J.