MISSISSIPPI LEGISLATURE

1998 Regular Session

To: Agriculture; Conservation and Water Resources

By: Representative Simmons (37th)

AN ACT TO CREATE A NEW CODE SECTION TO BE CODIFIED AS SECTION 19-5-131, MISSISSIPPI CODE OF 1972, TO PROHIBIT THE CONSTRUCTION, ESTABLISHMENT OR OPERATION OF SWINE FARMS IN ANY COUNTY OF THIS STATE IF THE CONSTRUCTION, ESTABLISHMENT OR OPERATION OF SWINE FARMS HAS BEEN DISAPPROVED IN THAT COUNTY BY THE COUNTY ELECTORATE IN AN ELECTION HELD FOR SUCH PURPOSES, OR IF ALL NECESSARY PERMITS FOR SUCH PURPOSES HAVE NOT BEEN ISSUED BY THE PERMIT BOARD; TO DEFINE THE TERM "SWINE FARM" AS USED IN THIS ACT; TO CREATE A NEW CODE SECTION TO BE CODIFIED AS SECTION 19-5-133, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT FROM AND AFTER JULY 1, 1998, ANY PERSON WHO INTENDS TO CONSTRUCT, ESTABLISH OR OPERATE A SWINE FARM SHALL FILE WRITTEN NOTICE OF INTENT WITH THE BOARD OF SUPERVISORS OF THE COUNTY IN WHICH SUCH FARM IS TO BE LOCATED; TO PRESCRIBE THE CONTENTS OF SUCH NOTICE; TO REQUIRE THE BOARD OF SUPERVISORS TO PUBLISH SUCH NOTICE OF INTENT; TO AUTHORIZE AN ELECTION TO BE HELD IN ANY COUNTY UPON PETITION ON THE QUESTION OF PROHIBITING THE CONSTRUCTION, ESTABLISHMENT OR OPERATION OF SWINE FARMS IN THE COUNTY; TO AMEND SECTION 49-17-29, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT THE ISSUANCE BY THE PERMIT BOARD OF ONE OR MORE PERMITS TO ANY PERSON FOR THE CONSTRUCTION, ESTABLISHMENT OR OPERATION OF A SWINE FARM SHALL NOT BE CONSTRUED TO AUTHORIZE A SWINE FARM IN ANY COUNTY IN WHICH SWINE FARMS HAVE BEEN DISAPPROVED BY THE COUNTY ELECTORATE IN AN ELECTION HELD FOR SUCH PURPOSES; AND FOR RELATED PURPOSES. 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. The following shall be codified as Section 19-5-131, Mississippi Code of 1972:

19-5-131. From and after July 1, 1998, no person may construct, establish or operate a swine farm in any county of this state if the construction, establishment or operation of swine farms has been disapproved by the county electorate in an election held for such purposes as provided under Section 19-5-133, or if such person has not been issued all necessary permits for such purposes by the Permit Board under Section 49-17-29. For the purposes of this section and Section 19-5-133, the term "swine farm" means a tract of land devoted to raising two hundred fifty (250) or more animals of the porcine species.

SECTION 2. The following shall be codified as Section 19-5-133, Mississippi Code of 1972:

19-5-133. (1) From and after July 1, 1998, any person who intends to construct, establish or operate a swine farm, as such term is defined in Section 19-5-131, shall file written notice of intent with the board of supervisors of the county in which such farm is to be located, and shall describe in sufficient detail the location of such farm, the approximate size of the tract of land to be devoted to such farm, the number of swine proposed to be raised on such farm, the proximity of such farm to residential property and populated areas, the method and manner by which air and water contaminants and pollutants will be discharged, treated and neutralized, and such other information as the board of supervisors may require to determine generally the effect which such farm will have upon the surrounding community. Each person who files notice of intent with the board of supervisors shall attach to the notice a certified copy of all permits issued to such person by the Permit Board for such operation under Section 49-17-29 or, if no permits have been issued to such person, a certified copy of all applications for permits filed with the Permit Board. The notice, along with all papers and documents filed with the notice, shall be kept on file in the office of the chancery clerk and, upon request of any person, shall be made available for examination and reproduction.

(2) Not later than fifteen (15) days following receipt of any person's notice of intent to construct, establish or operate a swine farm in the county, the board of supervisors shall cause such notice of intent to be published once each week for three (3) consecutive weeks in some newspaper having a general circulation in the county. The publication shall identify the person who filed the notice of intent, shall describe the property and location where the swine farm is intended to be operated and shall inform the public where such notice and documents relating thereto may be examined and reproduced.

(3) Upon a petition filed with the board of supervisors and signed by at least fifteen percent (15%) or one thousand five hundred (1,500) of the qualified electors of any county, whichever is the lesser, asking for an election to determine whether to prohibit the construction, establishment or operation of swine farms in that county, then an election shall be held throughout the county on such question not more than sixty (60) days following the filing of the petition. Notice of the election shall be published once each week for three (3) consecutive weeks in some newspaper having a general circulation in the county. The election shall be conducted by the county election commissioners in the same manner and according to the same procedure for the holding of special elections. When the results of any such election have been canvassed by the election commissioners of the county, and certified, the construction, establishment or operation of swine farms in that county shall be prohibited if a majority of the qualified electors who vote in the election vote in favor of prohibiting the construction, establishment or operation of swine farms. If a majority of the qualified electors who vote in the election vote against prohibiting the construction, establishment or operation of swine farms in the county, then swine farms shall not be prohibited in the county. An election on the question of prohibiting the construction, establishment or operation of swine farms in a county shall not be held in the same county more often than once each five (5) years.

(4) The failure of a county to prohibit the construction, establishment or operation of swine farms in that county shall not be construed to authorize a swine farm to be constructed, established or operated without obtaining and complying with all necessary permits issued by the Permit Board or in violation of all applicable state and federal laws, rules and regulations, including, but not limited to, the Mississippi Air and Water Pollution Control Law, the Solid Waste Disposal Law of 1974, and the federal Clean Water Act, as amended.

SECTION 3. Section 49-17-29, Mississippi Code of 1972, is amended as follows:

49-17-29. (1) (a) It is unlawful for any person (i) to cause pollution of the air in the state or to place or cause to be placed any wastes or other products or substances in a location where they are likely to cause pollution of the air; and (ii) to discharge any wastes, products or substances into the air of the state which exceed standards of performance, hazardous air pollutant standards, other emission standards set by the commission, or which reduce the quality of the air below the air quality standards or increments established by the commission or prevent attainment or maintenance of those air quality standards. Any such action is hereby declared to be a public nuisance.

(b) It is unlawful for any person to build, erect, alter, replace, use or operate any equipment which will cause the issuance of air contaminants unless that person holds a permit from the Permit Board, except repairs or maintenance of equipment for which a permit has been previously issued.

(2) (a) It is unlawful for any person (i) to cause pollution of any waters of the state or to place or cause to be placed any wastes in a location where they are likely to cause pollution of any waters of the state; (ii) to discharge any wastes into any waters of the state which reduce the quality of those waters below the water quality standards established therefor by the commission; or (iii) to violate any applicable pretreatment standards or limitations, technology-based effluent limitations, toxic standards or any other limitations established by the commission. Any such action is hereby declared to be a public nuisance.

(b) It is unlawful for any person to carry on any of the following activities unless that person holds a current permit therefor from the Permit Board as may be required for the disposal of all wastes which are or may be discharged into the waters of the state: (i) the construction, installation, modification or operation of any disposal system or part thereof or any extension or addition thereto; (ii) the increase in volume or strength of any wastes in excess of the permissive discharges specified under any existing permit; (iii) the construction, installation or operation of any industrial, commercial or other establishment, including irrigation projects or any extension or modification thereof or addition thereto, the operation of which would cause an increase in the discharge of wastes into the waters of the state or would otherwise alter the physical, chemical or biological properties of any waters of the state in any manner not already lawfully authorized; (iv) the construction or use of any new outlet for the discharge of any wastes into the waters of the state.

(3) (a) Except as otherwise provided in this paragraph, the Permit Board created by Section 49-17-28 shall be the exclusive administrative body to make decisions on permit issuance, denial, modification or revocation of air pollution control and water pollution control permits and permits required under the Solid Wastes Disposal Law of 1974 (Title 17, Chapter 17). Except as otherwise provided in this paragraph, the Permit Board, under any conditions that the board may prescribe, may authorize the Executive Director of the Department of Environmental Quality to make decisions on permit issuance, denial, modification or revocation. The executive director shall not be authorized to make decisions on permit issuance, denial, modification or revocation for a commercial hazardous waste management facility or a municipal solid waste landfill or incinerator. A decision by the Executive Director shall be a decision of the Permit Board and shall be subject to formal hearing and appeal as provided in this section. The Executive Director shall report all permit decisions to the Permit Board at its next regularly scheduled meeting and those decisions shall be recorded in the minutes of the Permit Board. The decisions of the Permit Board shall be recorded in minutes of the Permit Board and shall be kept separate and apart from the minutes of the commission. The decision of the Permit Board or the Executive Director to issue, deny, modify or revoke permits shall not be construed to be an order or other action of the commission.

(b) The Executive Director of the Department of Environmental Quality shall also be the Executive Director of the Permit Board and shall have available to him, as Executive Director of the Permit Board, all resources and personnel otherwise available to him as Executive Director of the department.

(c) All persons required to obtain an air pollution control or water pollution control permit or a permit under the Solid Wastes Disposal Law of 1974 (Title 17, Chapter 17) shall make application therefor with the Permit Board. The Permit Board, under any rules and regulations as the board may prescribe, may require the submission of those plans, specifications and other information as it deems necessary to carry out Sections 49-17-1 through 49-17-43 and Title 17, Chapter 17, or to carry out the rules and regulations adopted under those sections. The Permit Board, based upon such information as it deems relevant, shall issue, deny, modify or revoke air pollution control or water pollution control permit or permits required under the Solid Wastes Disposal Law of 1974 (Title 17, Chapter 17) under any conditions as it deems necessary. All permits issued by the Permit Board shall remain in full force and effect until the board makes a final determination regarding any reissuance, modification, or revocation thereof. The Permit Board shall take action upon an application within one hundred eighty (180) days following its receipt in the board's principal office. No action  which affects an existing permit shall take effect until the thirty (30) days mentioned in paragraph (4)(b) of this section has expired or until a formal hearing as prescribed in that paragraph is held, whichever is later. The issuance by the Permit Board of one or more permits to any person for the construction, establishment or operation of a swine farm, as such term is defined in Section 19-5-131, shall not be construed to authorize a swine farm in any county in which swine farms have been disapproved by the county electorate in an election held for such purposes as provided under Section 19-5-133.

(d)  All hearings in connection with permits issued, denied, modified or revoked and all appeals from decisions of the Permit Board shall be as set forth in this section.

(e) The Permit Board may issue general permits upon any conditions and subject to those procedures for public notice and hearings as provided by law, not inconsistent with federal law and regulations.

(4) (a) Except as required by this section, prior to the issuance, denial, modification or revocation of any air pollution control or water pollution control permit or permit required under the Solid Wastes Disposal Law of 1974 (Title 17, Chapter 17), the Permit Board, in its discretion, may hold a public hearing or meeting to obtain comments from the public on its proposed action.  Prior to the issuance, denial, modification pertaining to the expansion of a facility, transfer or revocation of a permit for a commercial hazardous waste management facility or a commercial municipal solid waste landfill or incinerator, the Permit Board shall conduct a public hearing or meeting to obtain comments from the public on the proposed action. That hearing or meeting shall be informal in nature and conducted under those procedures as the Permit Board may deem appropriate.

(b) Within thirty (30) days after the date the Permit Board takes action upon permit issuance, denial, modification or revocation, as shown on the minutes of the Permit Board, any interested party aggrieved by that action may file a written request for a formal hearing before the Permit Board. An interested party is any person claiming an interest relating to the property or project which is the subject of the permit action, and who is so situated that the person may be affected by the disposition of that action.

The Permit Board shall fix the time and place of the hearing and shall notify the permittee thereof.

In conducting the hearing, the Permit Board shall have the same full powers as to subpoenaing witnesses, administering oaths, examining witnesses under oath and conducting the hearing, as is now vested by law in the Mississippi Public Service Commission, as to the hearings before it, with the additional power that the Executive Director of the Permit Board may issue all subpoenas at the instance of the Permit Board or at the instance of the permittee. Any subpoenas shall be served by any lawful officer in any county to whom the subpoena is directed and return made thereon as provided by law, with the cost of service being paid by the party on whose behalf the subpoena was issued. Witnesses summoned to appear at the hearing shall be entitled to the same per diem and mileage as witnesses attending the circuit court and shall be paid by the person on whose behalf the witness was called. Sufficient sureties for the cost of service of the subpoena and witness fees shall be filed with the Executive Director of the Permit Board at the time that issuance of the subpoena is requested. At a hearing, the permittee may present witnesses and submit evidence and cross-examine witnesses.

The Permit Board may designate a hearing officer to conduct the hearing on all or any part of the issues on behalf of the Permit Board. The hearing officer shall prepare the record of the hearing conducted by that officer for the Permit Board and shall submit findings of fact and recommended decision along with the record to the Permit Board.

Upon conclusion of the formal hearing, the Permit Board shall enter in its minutes the board's final decision affirming, modifying or reversing its prior decision to deny, modify or revoke a permit. That decision shall be final unless an appeal, as provided in this section, is taken to chancery court within twenty (20) days following the date the decision is entered in the board's minutes.

(c) Within twenty (20) days after the date the Permit Board takes action upon permit issuance as shown on minutes of the Permit Board, any person aggrieved of that action may appeal the action as set forth in subsection (5) of this section.

(5) (a) Appeals from any decision or action of the Permit Board shall be only to chancery court as provided in this subsection.

(b) Any person who is aggrieved by any final decision of the Permit Board issuing, denying, revoking or modifying may appeal that such final decision to the chancery court of the county of the situs in whole or in part of the subject matter. The appellant shall give a cost bond with sufficient sureties, payable to the state in the sum of not less than One Hundred Dollars ($100.00) nor more than Five Hundred Dollars ($500.00), to be fixed by the Permit Board and to be filed with and approved by the Executive Director of the Permit Board, who shall forthwith certify the filing of the bond together with a certified copy of the record of the Permit Board in the matter to the chancery court to which the appeal is taken, which shall thereupon become the record of the cause. An appeal to the chancery court as provided herein shall not stay the decision of the Permit Board. The aggrieved party may, within twenty (20) days following the date the final decision is entered on the board's minutes, petition the chancery court for an appeal with supersedeas and the chancellor shall grant a hearing on that petition. Upon good cause shown the chancellor may grant that appeal with supersedeas. If granted, the appellant shall be required to post a bond with sufficient sureties according to law in an amount to be determined by the chancellor. Appeals shall be considered only upon the record as made before the Permit Board. The chancery court shall always be deemed open for hearing of an appeal and the chancellor may hear the same in termtime or in vacation at any place in his district, and the appeal shall have precedence over all civil cases, except election contests. The chancery court shall review all questions of law and of fact. If no prejudicial error is found, the matter shall be affirmed. If prejudicial error is found the decision of the board shall be reversed and the chancery court shall remand the matter to the Permit Board for appropriate action as may be indicated or necessary under the circumstances. Appeals may be taken from the chancery court to the Supreme Court in the manner as now required by law, except that if a supersedeas is desired by the party appealing to the chancery court, that party may apply therefor to the chancellor thereof, who shall award a writ of supersedeas, without additional bond, if in the chancellor's judgment material damage is not likely to result thereby; but otherwise, the chancellor shall require a supersedeas bond as the chancellor deems proper, which shall be liable to the state for any damage.

SECTION 4. The Attorney General of the State of Mississippi shall submit this act, immediately upon approval by the Governor, or upon approval by the Legislature subsequent to a veto, to the Attorney General of the United States or to the United States District Court for the District of Columbia in accordance with the provisions of the Voting Rights Act of 1965, as amended and extended.

SECTION 5. This act shall take effect and be in force from and after July 1, 1998, or the date it is effectuated under Section 5 of the Voting Rights Act of 1965, as amended and extended, whichever date is later.