Dept. of Environmental Management v. Leaf

• Decision Date: 11 May 2007
• Docket Number: No. 2060026.,2060026.
• Citation: 973 So.2d 369
• Parties: ALABAMA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT v. LEGAL ENVIRONMENTAL ASSISTANCE FOUNDATION, INC.
• Court: Alabama Court of Civil Appeals

973 So.2d 369

ALABAMA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT v. LEGAL ENVIRONMENTAL ASSISTANCE FOUNDATION, INC.

No. 2060026.

Court of Civil Appeals of Alabama.

May 11, 2007.

Troy King, atty. gen., James L. Wright, assoc. gen. counsel and asst. atty. gen., and John P. Hagood, executive counsel and asst. atty. gen., Department of Environmental Management, for appellant.

David A. Ludder, Tallahassee, Florida, for appellee.

J. Lister Hubbard and Richard H. Allen of Capell & Howard, P.C., Montgomery,

for amicus curiae Alabama Pulp & Paper Council, in support of the appellant.

Thomas R. Head III and Thomas L. Casey III of Balch & Bingham, LLP, Birmingham, for amici curiae Business Council of Alabama and Alabama Coal Association, in support of the appellant.

THOMPSON, Presiding Judge.

The Alabama Environmental Management Commission ("AEMC") dismissed a request by the Legal Environmental Assistance Foundation, Inc. ("LEAF"), for a hearing on a civil-penalty order issued to Georgia Pacific d/b/a Fort James Operating Co. ("GP") by the Alabama Department of Environmental Management ("ADEM"). LEAF appealed the dismissal to the Montgomery Circuit Court, which entered a judgment reversing the dismissal and remanding the action to the AEMC for an evidentiary hearing. ADEM timely appealed the circuit court's judgment to this court.

This case presents a situation wherein a litigant admittedly is not injured or threatened with injury by an administrative order but nonetheless has sought a hearing and judicial review of the order. This court's decision depends upon the resolution of two interrelated issues. First, we must decide whether § 22-22A-5 and § 22-22A-7, Ala.Code 1975, as amended by Act No. 397, Ala. Acts 2003, validly entitle any person who commented on an ADEM penalty order to a hearing before the AEMC and to judicial review of any AEMC decision, or whether those sections as amended limit the right to a hearing and judicial review to persons aggrieved by the ADEM order. Second, based on our decision regarding the first issue, we must determine whether the circuit court had subject-matter jurisdiction to consider LEAF's appeal. Having reviewed the record and arguments of counsel, and having considered the statutes at issue in light of the constitutional limits of judicial power, we dismiss.

The Environmental Management Act

The procedural history of this case is best understood against the background of the Environmental Management Act ("the Act"), §§ 22-22A-1 to 22-22A-16, Ala. Code 1975, which governs the authority and procedures of ADEM and the AEMC. The Act was amended in 2003 to change certain language of § 22-22A-5 and § 22-22A-7. It is undisputed that the legislature enacted the 2003 amendments to the Act in response to a decision of the United States Court of Appeals for the Eleventh Circuit, namely: McAbee v. City of Ft. Payne, 318 F.3d 1248 (11th Cir.2003). In that case, a panel of the Eleventh Circuit Court of Appeals held that the Environmental Management Act, supra, and the Alabama Water Pollution Control Act, §§ 22-22-1 to 22-22-14, Ala.Code 1975, were not "comparable" to the federal Clean Water Act, 33 U.S.C. § 1319(g), for purposes of the "limitation-on-actions" provision of the Clean Water Act. The Alabama legislature subsequently enacted Act No. 397, Ala. Acts 2003, presumably to make the Environmental Management Act comparable to the federal Clean Water Act.

Section 22-22A-5(18)a authorizes ADEM to issue, orders assessing civil penalties to persons who violate certain environmental standards. As amended, that section also states, in relevant part:

"Before issuing any consent or unilateral order under this section, the department shall cause public notice to be published. . . . The notice shall . . . indicate that persons may submit written comments to the department and request a hearing on the proposed order within 30 days of the first date of publication . . . . After consideration of written comments, any information submitted at the hearing, if one was held, and any other publicly available information, the department may issue the order as proposed, issue a modified order, or withdraw the proposed order. . . . Upon issuance of an order, the department shall also provide written notice of the order by regular mail to each person who submitted written comments on the proposed order that contain a current return address. The notice shall reasonably describe the nature and location of the alleged violation and the amount of civil penalty, contain a summary of any required corrective measures, provide instructions for obtaining a copy of the order, and indicate that persons who submitted written comments on the proposed order may, within 30 days of the issuance of the order, request a hearing on the order before the Environmental Management Commission in accordance with Section 22-22A-7."

(Emphasis added). All of the above-quoted language was added by Act No. 397, Ala. Acts 2003.

Section 22-22A-7 governs the authority and procedures of the AEMC; subsection (c) provides in relevant part:

"Upon a proper request made in accordance with subdivisions (1) or (2) of this subsection and any hearing procedures prescribed by the Environmental Management Commission, any person aggrieved by an administrative action of the department shall be entitled to a hearing before the Environmental Management Commission or its designated hearing officer. To obtain a hearing on any order assessing a civil penalty issued pursuant to subdivision (18) of Section 22-22A-5, an aggrieved person shall either be subject to the order or have submitted timely written comments on the proposed order in accordance with subdivision (18) of Section 22-22A-5.

". . . .

"(6) Any order of the Environmental Management Commission made pursuant to the above procedure, modifying, approving or disapproving the department's administrative action, constitutes a final action of the department and is appealable to the Montgomery County Circuit Court . . . for judicial review on the administrative record provided that such appeal is filed within 30 days after issuance of such order."

(Emphasis supplied.) The emphasized language was added by Act No. 397, Ala. Acts 2003.

The Title to Act No. 397, Ala. Acts 2003, states:

"To amend Sections 22-22A-5 and 22-22A-7, Code of Alabama 1975, relating to enforcement actions by the Alabama Department of Environmental Management, to provide public notice and an opportunity to comment on a proposed administrative order assessing a civil penalty, to provide for hearings before an order is finalized under certain conditions, to provide notice of the issuance of a final order to persons who submitted written comments on the proposed order, to increase the period for appeal of the order to the Environmental Management Commission, to allow parties who submitted written comments on a proposed administrative order assessing a civil penalty to obtain a hearing on the order before the Environmental Management Commission, and to allow persons who participated as parties in the hearing before the commission to seek judicial review of the action of the commission."

(Emphasis supplied.)

Regarding hearings, the AEMC's administrative rules state, in relevant part:

"To obtain a hearing on any order assessing a civil penalty issued by the Department, an aggrieved person must either be subject to the order or have submitted timely written comments on the proposed order in accordance with Code of Ala.1975, § 22-22A-5(18)."

Ala. Admin. Code (ADEM) r. 335-2-1.04(2).

"A request for a hearing to contest an administrative action of the Department shall be made in writing and shall contain:

". . . .

"(c) a short and plain statement of the threatened or actual injury suffered by the person making the request as a result of the administrative action of the Department. . . ."

Ala. Admin. Code (ADEM) r. 335-2-1-.04(5). Alabama Admin. Code (ADEM) r. 335-2-1-.02 defines "aggrieved" as "having suffered a threatened or actual injury in fact."

Procedural History

On July 21, 2005, in accordance with the public-notice requirements of § 22-22A-5(18)a., Ala.Code 1975, ADEM published a proposed consent order that would assess civil penalties against GP for its violation of certain emission standards. On August 19, 2005, LEAF submitted written comments to ADEM in which it objected to the proposed order for various reasons. LEAF requested "that ADEM revise the draft order to address [specified] deficiencies," but it did not request a hearing before ADEM on the proposed order pursuant to the amended language of § 22-22A-5(18)a. On August 26, 2005, ADEM issued the consent order to GP without revising the order as LEAF had requested.

LEAF filed a request for a hearing with the AEMC on September 21, 2005. LEAF conceded that neither it nor any of its members had suffered an actual or threatened injury resulting from ADEM's issuance of the consent order to GP. Instead, LEAF argued to the AEMC that § 22-22A-5(18)a., as amended by Act No. 397, Ala. Acts 2003, entitles any person who commented on a proposed ADEM order to a post order hearing before the AEMC, regardless of whether such person was "aggrieved" by the order. ADEM moved to dismiss, asserting that LEAF lacked standing to pursue a hearing because LEAF had not suffered any threatened or actual harm as a result of the August 26, 2005, order to GP. ADEM also asserted that LEAF had not shown that it was "aggrieved" pursuant to § 22-22A-7(c), Ala.Code 1975, and Ala. Admin. Code (ADEM) r. 335-2-1-.04(5)(c), supra. On December 2, 2005, in accordance with the recommendations of the administrative law judge assigned to the matter, the AEMC granted ADEM's motion and dismissed LEAF's request for a hearing on the ground that LEAF did "not appear to be an aggrieved person within the meaning of ADEM Admin. Code. R. 335-2-1.02(b) and ADEM Admin. Code R. 335-2-1-.04(2)." LEAF filed a...