City of Attalla v. Dean Sausage Co., Inc.

• Decision Date: 11 July 2003
• Citation: 889 So.2d 559
• Parties: CITY OF ATTALLA et al. v. DEAN SAUSAGE COMPANY, INC., et al.
• Court: Alabama Court of Civil Appeals

889 So.2d 559

CITY OF ATTALLA et al. v. DEAN SAUSAGE COMPANY, INC., et al.

2011214.

Court of Civil Appeals of Alabama.

July 11, 2003.

Certiorari Denied October 10, 2003.

Certiorari Denied March 19, 2004.

Christina D. Knowles of Henslee, Robertson, Strawn & Knowles, L.L.C., Gadsden, for appellants.

F. Michael Honey of Inzer, Haney & McWhorter, P.A., Gadsden, for appellees Dean Sausage Company, Inc., Machine Products Company, Inc., and Trambeam, Inc.

John F. DeBuys and Elizabeth B. Shirley of Burr & Forman, LLP, Birmingham, for appellee AAA Plumbing Pottery, Inc.

Lorelei A. Lein, league counsel, Montgomery, amicus curiae Alabama League of Municipalities.

Alabama Supreme Court 1021796.

Certiorari Denied (as to AAA Plumbing Pottery) October 10, 2003.

Certiorari Denied (as to Dean Sausage Company) March 19, 2004.

PITTMAN, Judge.

The City of Attalla ("the City") and its mayor and city council appeal from a trial court's judgment requiring them to provide sewer service to certain nonresidents and businesses located in the City's police jurisdiction but outside its corporate limits.

On January 29, 2002, Dean Sausage Company, Inc.; Machine Products Company, Inc.; and Trambeam, Inc. (hereinafter referred to collectively as "the businesses") filed an action requesting a temporary restraining order and a permanent injunction to prevent the City and its mayor and its city council members (hereinafter referred to collectively as "the City defendants") from terminating sewer service to those businesses. The next day the City defendants filed an answer and counterclaim, requesting that the trial court enter an order requiring the businesses to disconnect from the City's sanitary sewer system. The City also filed an objection to the businesses's request for a temporary restraining order. Following a hearing on February 1, 2002, the trial court issued a temporary restraining order enjoining the City defendants from discontinuing sewer services to the businesses.

On April 15, 2002, AAA Plumbing Pottery, Inc. ("AAA") filed a separate action requesting a temporary restraining order and a permanent injunction to prevent the City defendants from terminating sewer service to AAA. On that same day, the trial court issued a temporary retraining order that prevented the City defendants from terminating sewer service to AAA. The City defendants answered AAA's complaint and counterclaimed for a declaratory judgment that the City defendants owed no duty to provide sewer service in the City's police jurisdiction; the City defendants also requested that the trial court issue an order requiring AAA to disconnect from the City's sewer system. On April 19, 2002, the trial court consolidated the two actions.

All of the parties' claims were tried on June 12 and 13, 2002. Charles O'Rear, the City's mayor, testified at length about the City's sewer problems. O'Rear stated that on February 1, 2002, the City had been notified by the Alabama Department of Environmental Management ("ADEM") that the City's sewer system had been found to be in violation of the Alabama Water Pollution Act because the system contained more than the maximum permissible amounts of Biochemical Oxygen Demand ("BOD") concentrations and Total Suspended Solids ("TSS") and because the system had had an inordinate amount of sewer overflows. The record reveals that, following ADEM's imposition of fines against the City for those violations, ADEM required the City to enter into a "consent order" to cure all continuing violations of environmental regulations within three years. Under that consent order, the City must change its maintenance and operating procedures, spend $150,000 to install upgrades to the City's sewer-treatment facility, and spend $3,000,000 to upgrade and rehabilitate the sewer lines in the sewer system. Complying with the consent order has forced the City to borrow to its limit; the City does not levy or collect any taxes in its police jurisdiction. O'Rear also stated that those sewer-rehabilitation expenses were incurred only by the City and its residents and that the improvements were being made only to the system inside the City's corporate limits.

O'Rear also described the events leading to the present litigation. When the City engineers determined that most, if not all, of the blood and grease contained in the overflows occurring in many residents' homes was coming from the businesses located in the City's police jurisdiction, the City requested a meeting with business representatives to discuss options for solving the sewer problems. At that meeting in August 2001, O'Rear discussed several lawsuits that had been filed by City residents seeking damages for injuries caused by blood and grease backflows, as well as the ongoing problems caused by AAA and the businesses' use of the City's sewer system; he requested that the businesses consider annexation of their property into the City to help provide funds to pay for a solution to the City's sewer problems. O'Rear stated that the business representatives were very aloof and unconcerned by the City's problems; one representative told O'Rear that if the City needed to fix the sewer, the City should raise the rates paid by its residents, and another representative told the City to "go away and leave us alone."

Garry Shirley, general manager of Dean Sausage Company, Inc. ("Dean"), testified that Dean had been connected to the City's sewer system since 1960 and that Dean employed 120 people at the time of trial. Shirley stated that he did not know what the ADEM regulations regarding TSS and BOD limits required. During questioning by the City defendants' attorney, Shirley categorically denied that Dean put blood or grease refuse into the City's sewer system.

Galen J. Thackston, an environmental consultant who had been hired by Dean approximately six months before the trial to design a wastewater-treatment system for Dean, also testified. In his testimony, Thackston stated that Dean actually discharges substantial amounts of blood and grease into the City's sewer system. Based on Dean's reports to ADEM, Thackston stated that the new treatment system proposed by Dean would reduce the current oil, blood, and grease effluent of 250 parts per million to 60 parts per million. During cross-examination, Thackston testified that part of the proposed treatment plans that included land application would probably not be permitted by ADEM because of the high risk of runoff and overflow into streams and a lake near Dean's facilities.

Testifying for AAA, Shannon Burks, an environmental engineer with Ensor, stated that he had been hired to upgrade an existing water-treatment system at AAA so as to include wastewater treatment. Although the construction of the system was targeted for completion by October 2002, Burks admitted that the proposed plans had not received state or federal approval.

Michael D. Harris, the president of Machine Products Company, Inc. ("MPC"), testified that MPC had connected to the City's sewer system in the mid-1950s. According to Harris, MPC is a machine and fabrication business that employed 28 workers at the time of trial. During cross-examination, Harris stated that he, Trambeam, Inc., and Metal U.S.A. had contacted an environmental engineer who had informed those businesses that installing a separate wastewater-treatment system would cost between $40,000 to $50,000. Harris stated that it was his decision to pay that amount and to construct such a system rather than agree to annexation of MPC's property into the City because, Harris stated, MPC's employees would pay approximately $11,000 more annually in occupational taxes if annexation occurred.

Bert Miller, vice president of operations for Trambeam, Inc. ("Trambeam"), testified that the company is located directly behind MPC. Trambeam manufactures overhead cranes and employs approximately 24 workers. During cross-examination, Miller stated that he would rather build a separate wastewater-treatment plant costing between $40,000 and $50,000 than have Trambeam's employees pay the City's occupational tax, which, Miller stated, would be required if Trambeam were to be annexed into the City.

Gene Minton, plant manager of AAA, testified that he had worked in the plant since 1983. Minton stated that AAA manufactures porcelain and china sanitary fixtures such as commodes, tanks, lavatories, and urinals. The workforce of the business at time of trial was approximately 240 employees. Minton stated that the average monthly water consumption of the plant was 1,212,275 gallons and its average monthly sewage discharge was 252,658 gallons; he stated that the water that is not discharged as sewage is used in the manufacturing process. Minton attended the meeting in August 2001 when the parties tried to solve the on-going problems with the City's degrading sewer system. After consulting with two environmental engineers, AAA concluded that although the less expensive solution to the sewer problem would be to annex its property into the City, AAA would rather upgrade and build its own system and remain in the City's police jurisdiction.

Randall Wood, the City's superintendent of public works, testified regarding the sewer problems experienced by the City. Wood stated that he had worked for the City since 1992 and had worked exclusively with the wastewater treatment and collection system since 1998. Wood testified that he often had witnessed grease and blood in the effluent discharged by Dean into the City's sewer system and that that effluent was well beyond established BOD and TSS limits.

Allen Waldrup, who was hired by the City to be the project representative for a sewer-rehabilitation project within the City's corporate limits, also testified. Allen Waldrup stated that work on the sewer lines began in March 2002 and was ongoing. He stated that at least two or three times each week blood and grease accompanied by a strong odor would appear...