City of Stonecrest, Ga. and Metro Green Recycling Navigate Facility Permit Process for Recycling Facility

When you hear or read about “startups,” chances are the first thing that comes to mind is a company in the first stages of operations. But startups are not limited to the private sector, and a launch in either sphere will have its hiccups. Metro Green Recycling, in early 2018, set about building a facility within the city to recycle used concrete and other construction materials.

Barry Shanoff

September 7, 2023

9 Min Read
City of Stonecrest, Ga. and Metro Green Recycling Navigate Facility Permit Process for Recycling Facility

When you hear or read about “startups,” chances are the first thing that comes to mind is a company in the first stages of operations.  But startups are not limited to the private sector, and a launch in either sphere will have its hiccups.   

In 2016, the city of Stonecrest was established as a new municipal corporation within DeKalb County, Georgia, and, in May, 2017, as prescribed by state law, a two-year period began for the orderly transition of governmental activities from the county to the city.  In the interim, the county continued to deliver within the city boundaries all services and functions it had provided preceding the city’s creation.

Metro Green Recycling, in early 2018, set about building a facility within the city to recycle used concrete and other construction materials. It located a large real estate parcel, applied for a business license, and requested assurance from the city that the property could be used for the company’s intended purpose. Stonecrest responded that Metro Green's "proposed recycling activities . . . are allowed on the subject property."

With this nod from the city, Metro Green acquired the land and continued the development process, which included applying for a solid waste handling permit from the Environmental Protection Division of the Georgia Department of Natural Resources (EPD).

Under state law, an applicant seeking a solid waste handling permit must provide written verification to EPD that, among other matters, "the proposed facility is consistent with the local, multijurisdictional, or regional solid waste management plan" (SWMP), and "the host jurisdiction and all jurisdictions generating solid waste destined for the applicants' facility can demonstrate that they are part of an approved [SWMP.]"  Accordingly, Metro Green asked the city for a "consistency letter" to include with its permit application.

The city responded by directing the company to obtain the letter from DeKalb County because, during the two-year transition period, Stonecrest was operating under the county's SWMP.  The county, however, declined to issue the letter, concluding from the information submitted by the company that the proposed facility was not consistent with its SWMP. Metro Green went back to the city and again requested a letter. After consulting with legal counsel, the city manager wrote to EPD, on October 31, 2018, stating:


          The City of Stonecrest, . . . has not yet adopted a Comprehensive Solid Waste

          Management Plan. However, as the City is still in its initial transition period, the City

          continues to be part of the DeKalb County Solid Waste Management Plan. *  *  *

          [T]he Solid Waste Permit Application associated with Metro Green Recycling's

          proposed operation of a recycling Material Recovery Facility (MRF) located . . . in the

          City of Stonecrest, Georgia complies with local zoning and land use ordinances, as well as

          the DeKalb County Solid Waste Management Plan.

Not quite a year later, EPD issued a solid waste handling permit to Metro Green.  In an accompanying letter, the EPD noted that although the permit was "now in effect," it was "subject to appeal for a period of thirty (30) days following its issuance, and [was] subject to modification or possible vacation if appealed.”  No appeal was filed.  After the city issued various building permits and a business license to Metro Green, construction of the facility began.  The project was up and running.  Or so it seemed.

In August 2020, the city sued Metro Green in Dekalb County Superior Court to halt construction and operation of the facility. The city alleged that it had mistakenly provided a consistency letter to EPD, that the facility did not comply with the county's SWMP, and that Metro Green's solid waste handling permit was "illegal."

The city requested a temporary restraining order, preliminary and permanent injunctions, and a declaratory ruling that the permit was null and void.

The city later amended its complaint, adding the EPD and its director, Richard E. Dunn, as defendants. With respect to these new defendants, the city sought a declaratory judgment that EPD acted improperly by relying on the city’s consistency letter and requested a writ of mandamus to compel EPD, through Dunn, to revoke Metro Green's permit.  (A writ of mandamus is a court order directing a government official to properly fulfill their duties or correct an abuse of discretion.  It is considered an extraordinary remedy called for only in exceptional circumstances.)

Promptly thereafter, the Southern Environmental Law Center (SELC), acting on behalf of the Citizens for a Healthy and Safe Environment (CHASE) and its initiative known as "Stop Metro Green," wrote to Dunn, requesting that EPD revoke Metro Green's permit and address rising community concerns regarding the facility. Dunn responded by noting that the pending litigation and issues raised in the letter overlapped, and adding:  “Accordingly, at this time EPD may not comment on these matters. Following the resolution of the Litigation, EPD will assess next steps in light of the decision of the Court.”

After the trial court granted CHASE’s request to intervene in the litigation, the group promptly filed a complaint, alleging claims against Metro Green, EPD and Dunn and seeking mandamus relief against Dunn and an injunction against Metro Green. The parties dueled with a flurry of motions to dismiss and motions for summary judgment. (A summary judgment is appropriate when no critical facts in the case are disputed and the requesting party has the law on their side.)

Following a hearing, the trial court granted judgment in favor of the city.  Specifically, the judge declared the permit null and void, concluding that Dunn acted outside of his authority and that Dunn grossly abused his discretion in failing to investigate and reach a decision on SELC's request that EPD revoke the permit.  The trial court then ordered that "Metro Green is permanently enjoined from engaging in any and all operations of its Facility unless and until it obtains a validly issued solid waste handling permit."  The trial judge also granted CHASE's request for mandamus relief against EPD and Dunn. All motions by EPD, Dunn and Metro Green were denied.  

On appeal, Metro Green, EPD and Dunn argued that Stonecrest failed to pursue its objectives through established administrative procedures within the Department and that CHASE had no clear legal right to mandamus relief.  The three-judge appellate panel agreed.  It reversed the trial court's ruling in favor of Stonecrest on its claim against EPD and Dunn and remanded the case so that the trial court could dismiss the declaratory judgment claim. As for CHASE's claim for mandamus relief against EPD and Dunn, it reversed the grant of summary judgment to CHASE.  Lastly, the panel reversed the award of injunctive and declaratory relief granted to Stonecrest against Metro Green.  In short, Metro Green and the state agency completely fended off the legal challenges.

As a general rule, a party unhappy with a state or federal agency’s decision must raise all issues and concerns with the agency and fully engage its in-house remedies before seeking any judicial relief from that decision, including a declaratory judgment or any extraordinary remedies.  An exception exists where an agency acts wholly outside its statutory authority.  

“This case does not involve a threshold issue of EPD jurisdiction; issuance of solid waste handling permits clearly falls within the agency's authority,” noted the panel. “Rather, the question [here] is whether [EPD] has properly exercised its authority to do so with respect to the challenged [permit]."

“Despite available procedures for administrative review, Stonecrest did not appeal EPD's decision to grant Metro Green a solid waste handling permit.,” the panel continued.  “Metro Green submitted a compliance letter signed by Stonecrest's city manager stating that Stonecrest remained part of DeKalb County's SWMP and that Metro Green's permit application complied with its requirements. After considering the letter and other materials submitted by Metro Green, EPD issued the permit. Although Stonecrest now asserts that the statements in its compliance letter were incorrect, the fact remains that the letter was provided by Stonecrest and submitted to EPD.”

Stonecrest had argued that EPD was wrong in relying on the compliance letter provided by its city manager. Its complaint asserted that the city manager lacked authority to issue the letter and that EPD had notice from DeKalb County that Metro Green's facility was not consistent with the county SWMP.  “These criticisms, however, go to EPD's procedure in analyzing the application materials provided by Metro Green, the panel responded.  “They do not allege that EPD acted entirely outside of its jurisdiction in granting the permit.”

As Stonecrest was required to exhaust its administrative remedies before bringing suit against EPD and Dunn, its failure to do so meant the trial court had no authority over the claim and thus no power to award judgment to Stonecrest.  Had the trial court acted correctly, it would have dismissed the city’s claims.

By alleging that Dunn had grossly abused his discretion by not investigating and responding to the allegations in its letter, CHASE sought to compel EPD and Dunn through mandamus to address its concerns and revoke the permit.  However, a court may issue a mandamus order only if no other adequate legal remedy exists and the applicant has a “clear legal right” to such relief.  A judge must find that a claimant seeks to compel an official or agency to perform a public duty that is unequivocally required by law. If applicable law gives the official or agency discretion to act or not act in a particular circumstance, mandamus will not be allowed.

“Nothing in the operative legislation, however, required Dunn to respond differently to [CHASE’s revocation] request,” the appeals court said. “As director, Dunn is empowered to supervise administration and enforcement of the Act, and he may conduct investigations to ensure compliance with the statutory scheme. * * * But we have not found, and CHASE has not cited, any provision requiring the director to treat a citizen complaint letter in any particular manner. * * * Dunn's general authority does not require him to respond to citizen complaint letters in a specified manner or pursuant to any particular timetable. On the contrary, [the statute] grants the director discretionary authority to ‘investigate any apparent violation of this part and to take any action authorized under this part as he deems necessary.’"      

Dunn, et al. v. City of Stonecrest, et al. and Metro Green Recycling Three, LLC v. City of Stonecrest, et al., Nos. A23A0655, A23A0656, Ga. Ct. App., Second Div., July 13, 2023.

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