|Legal Opinion: |
Text of Document: September 3, 1993
Your question is, can the City either prohibit or regulate blasting by a certain rock quarry for the purpose of preventing damage to houses within the vicinity of the quarry? The answer is yes, but only to a limited extent.
Blasting within the corporate limits is an activity that may be a regulated (but generally not entirely prohibited) by a municipality. [See 31 AmJur2d, Explosions and Explosives, sec. 29; 7A McQuillin, Municipal Corporations, sec. 24.459; Pacific States Supply Co. v. City and County of San Francisco, et al., 721 F. 727 (1909)] However, that is true only to the extent that the state has not preempted the regulation of blasting by municipalities. It is clear that the state has the power to pre-empt municipal regulation in areas of its choosing. [See Nichols v. Tullahoma Open Door, Inc., 640 S.w.2d 13 (Tenn. App. 1982)]
As I told you during our visit a few days ago, the state has preempted the regulation of blasting by municipalities in Tennessee Code Annotated, section 68-105-101 et seq. That statute establishes certain blasting standards and concludes by providing that:
This chapter is extended to and shall preempt and supersede all existing and future county, town, city or municipal ordinances or regulations respecting the subjects covered by the chapter.
But note that the statute bars municipal regulation of blasting only "respecting the subjects covered by the chapter." Nothing there appears to prohibit a municipality from regulating the hours of blasting, blast noise, and smoke and dust levels.
With respect to the hours of blasting, one of the complaints from citizens is that the quarry has blasted between 6:15 A.M. and 9:30 P.M. (Note that the site plan proposal submitted to the City Planning Commission on September 25, 1985, in which the quarry declared that blasting would occur between the hours of 7:00 A.M. and 5:00 P.M., Monday through Saturday. The blasting records complied by the State Fire Marshal's Office indicate blasts occurred later than 5:00 P.M., although none indicate log blasts as late as 9:30 P.M. The ownership of the quarry has apparently changed since 1985.) However, the State Fire Marshal's investigation indicates a blasting log may not have been kept in some instances.
With respect to blasting noise, the city already has noise regulations found in the Municipal Code, title 11, chapter 5. However, I do not advise the city to rely on them in this case. I think it should adopt some reasonable objective noise regulations. The problem such regulations is that they require some fairly sophisticated noise measurement instruments, but they are more defensible against a determined challenger.
With respect to smoke and dust, the city has a good precedent in Penn-Dixie Cement Corporation v. City of Kingsport, 225 S.W.2d 270 (1949). In that case the Tennessee Supreme Court declared the City of Kingsport could declare certain levels of smoke and dust a nuisance under a general power granted to the city under both its charter and the general law to define, prohibit, abate, suppress, prevent, and regulate all acts, practices, conduct, business, occupations, callings, trades, uses of property and all other things whatsoever detrimental, or liable to be detrimental, to the health, morals, comfort, and to exercise general police power.
The Court rejected Penn-Dixie's argument that the in order to abate smoke and dust nuisances, the city had to be granted express powers to control smoke and dust, saying:
The emission of dense smoke and dust into the atmosphere in populous cities may be declared a public nuisance and dealt with appropriately, under a general power to define and abate nuisances or to enact ordinances on behalf of the public health and welfare, since the emission of such smoke and dust is an annoyance and an interference with comfort, is destructive of property and under some conditions injurious to health.
The City has a general grant of power in its charter in language almost identical to the one found in the Kingsport City Charter. [See Section 3(8)]
As in the case of noise, the city's regulation of dust and smoke would be more defensible if it adopted some reasonable objective dust and smoke standards.
In theory, Penn-Dixie goes beyond the scope of dust and smoke from cement plants, and can be applied to dust and smoke, and to noise and property damage, arising from blasting operations, even in small cities. But the state blasting standards present a problem for that theory with regard to damages caused by blast velocity and impact. I have reviewed in detail the results of the State Fire Marshal's investigation of the quarry upon the complaints of nearby property owners. The investigation apparently found that, except for a few minor violations of the blasting standards not pertinent to the velocity and impact of the blasts, the quarry's blasting operations conformed to the state blasting standards.
I do not think it necessary to reiterate the law of nuisance in Tennessee further than was ably done Mark Reineke, Sessions Attorney, in a memorandum to Representative Mae Owenby on April 26, 1993, on the blasting problem in the city. In theory, as the memorandum correctly implies, the quarry's compliance with the state blasting standards does not necessarily relieve it from being subject to a nuisance suit. Some aspects of a lawful business operation may be a nuisance, and subject to abatement. However, I doubt that the city would be successful in a nuisance suit to entirely prohibit blasting or regulate it in the areas covered by the state blasting standards where the quarry conforms to those standards.
But once again, that still leaves open to municipal regulation and nuisance suit the areas of blasting hours, blast noise, and smoke and dust. I do want to point out to the city that regulations in these areas and nuisance suits which can arise from them can be very expensive enterprises whose outcomes are highly uncertain.
Mr. Reineke's memorandum suggests zoning as a possible municipal approach to the problem. Unfortunately for that approach, if I understand the facts correctly, the quarry is legally operating in an area zoned for quarries. In theory, the city could change the zone to prohibit quarry operations, but under Tennessee Code Annotated, section 13-7-208 the present quarry would be protected as a preexisting non-conforming use.
The residents in question probably have a nuisance and damage suit of their own. As I understand it, a nuisance and damage suit was brought several years ago by some of the same resident now complaining of damage to their homes and other problems related to blasting, and that an injunction was issued at least with regard to some aspects of the quarry's blasting operations, and that the damage claims are still pending. If that is true, the residents should certainly check with a private attorney on the possible application of the injunction to the present owners of the quarry, and the status of their claims for damage. If the residents can prove the damages in question arose from the blasting, the quarry is strictly liable for them; the residents need not prove the damages were caused by negligent blasting. [See City of Knoxville v. Peebles, 87 S.W.2d 1022 (1935). Also see 20 ALR2d 1372, especially section 20 on the issue of blasting as a nuisance]
Incidentally, the bill proposed in the memorandum to Ms. Owenby as a possible solution to the blasting problem there would actually operate to the detriment of the citizens. It would replace the strict liability standard for blasting in Tennessee with a negligent blasting standard. Under that bill unless the property owner could show the the damage was done by negligent blasting, he could not recover his damages. As pointed out above, as the law presently stands, blasters are strictly liable for blasting damages.
Municipal regulation governing blasting hours, noise, and dust and smoke may help the residents in those areas of concern, but may not prevent future blast damage. That problem might be solvable only by litigation against the quarry on their part.
Let me know if you want further help on this issue. It is a mess that has no easy solution.
Sidney D. Hemsley
Senior Law Consultant