EX PARTE LEGAL ENVIRON. ASSISTANCE FOUND., INC.

• Decision Date: 01 March 2002
• Citation: 832 So.2d 61,66 Ala. 2002
• Parties: Ex parte LEGAL ENVIRONMENTAL ASSISTANCE FOUNDATION, INC. (In re Legal Environmental Assistance Foundation, Inc. v. Alabama Department of Environmental Management et al.).
• Court: Alabama Supreme Court

832 So.2d 61

66 Ala. 2002

Ex parte LEGAL ENVIRONMENTAL ASSISTANCE FOUNDATION, INC.

(In re Legal Environmental Assistance Foundation, Inc. v. Alabama Department of Environmental Management et al.).

1000563.

Supreme Court of Alabama.

March 1, 2002.

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

James L. Wright and Harry A. Lyles, Department of Environmental Management, for respondents.

JOHNSTONE, Justice.

Legal Environmental Assistance Foundation, Inc. ("LEAF"), petitioned this Court for certiorari review of the no-opinion order of affirmance by the Court of Civil Appeals of a summary judgment entered by the trial court in favor of the Alabama Department of Environmental Management ("ADEM"). Legal Envtl. Assistance Found., Inc. v. Alabama Dep't of Envtl. Mgmt., (No. 2990902, December 15, 2000), 822 So.2d 490 (Ala.Civ.App.2000) (table). We granted the petition to determine whether the trial court erred in grounding the summary judgment on the premise that certain procedures promulgated by ADEM were not "rules" within the meaning of the Alabama statutes governing the promulgation of "rules" by administrative agencies in general and by ADEM in particular. The procedures promulgated by ADEM regulate the discharge of pollutants into Alabama waterways.

LEAF sued ADEM on the theory that the Implementation Procedures for Tier 2 of the Antidegradation Policy ("Implementation Procedures"), Ala. Admin. Code (ADEM) Rule 335-6-10-.04(03), constitute "rules" as defined in § 41-22-3(9), Ala.Code 1975, of the Alabama Administrative Procedure Act ("AAPA") and that ADEM did not fulfill the requirements of the AAPA or of the Alabama Environmental Management Act ("AEMA") for promulgating new rules. Relying on Alabama Department of Transportation v. Blue Ridge Sand & Gravel, Inc., 718 So.2d 27 (Ala.1998), ADEM moved for a summary judgment, which LEAF opposed. Likewise relying on Blue Ridge, the trial court entered the summary judgment in favor of ADEM. LEAF appealed to the Court of Civil Appeals, which affirmed without an opinion. Legal Envtl. Assistance Found., Inc., supra.

LEAF raises two issues. The first is whether the Implementation Procedures are "rules" as defined in § 41-22-3(9), Ala. Code 1975, which ADEM could not legally adopt without complying with the rulemaking provisions of the AAPA and the rulemaking provisions of the AEMA in § 22-22A-8, Ala.Code 1975. The second issue is whether the EPA required the adoption of the particular forms and procedures in the Implementation Procedures and thereby constituted the Implementation Procedures an exception to the definition of "rules," as explained by this Court in Blue Ridge. Because we hold the Implementation Procedures are "rules" and are not an exception to the definition of "rules," we reverse the affirmance of the summary judgment and remand this cause.

The Federal Antidegradation Policy, 40 C.F.R. § 131.12, requires a state to "develop and adopt a statewide antidegradation policy and identify the methods for implementing such policy." The Federal Antidegradation Policy specifies that statewide "policy and implementation methods shall, at a minimum, be consistent with the following": (1) protect existing uses of "instream water" and protect the level of water quality necessary to protect the existing uses; (2) maintain and protect "the quality of waters exceed[ing] levels necessary to support propagation of fish, shellfish, and wildlife" unless a state finds that lower water quality is necessary, but, in any event, the state must assure "water quality adequate to protect existing uses fully"; (3) assure that water quality and uses are not lowered below the existing statutory and regulatory requirements; and (4) maintain and protect high-quality waters where those waters constitute "an outstanding National resource." 40 C.F.R. § 131.12 (emphasis added).

ADEM revised its statewide "antidegradation policy," Ala. Admin.Code (ADEM) Rule 335-6-10-.04, effective April 3, 1991, in response to the mandates of the Federal Antidegradation Policy. However, the amended statewide antidegradation policy adopted by ADEM did not contain any methods or procedures for implementing the policy.

In 1995, LEAF complained to the EPA that ADEM had not adopted any methods or procedures to implement the revised antidegradation policy. In April 1997, the EPA regional administrator for Region IV in Atlanta informed ADEM by letter that he was "considering a recommendation" to the EPA administrator in Washington that "a federal promulgation is necessary to bring the statewide antidegradation policy into compliance with the requirements of the Clean Water Act." He asked ADEM "to take appropriate actions." The EPA regional administrator informed ADEM that if, within 90 days of its receipt of the letter, ADEM did not submit procedures to implement the statewide antidegradation policy, then he would recommend that the EPA administrator in Washington "prepare and publish proposed federal regulations setting forth a revised statewide antidegradation policy."

Shortly thereafter, ADEM developed and adopted the Implementation Procedures now at issue before us, which allow the maximum pollution allowable under the Federal Antidegradation Policy and which establish the criteria to be met, and the procedures to be followed to demonstrate that those criteria have been met, by applicants for permits to discharge pollutants into Alabama waterways. The Implementation Procedures contain an intermingling of forms and procedures. On August 25, 1999, the EPA regional administrator for Region IV approved the Implementation Procedures.

In adopting the Implementation Procedures allowing the pollution and establishing the criteria and procedures for permission to discharge, ADEM did not afford the public notice or opportunity to be heard or otherwise follow the requirements of the AAPA or the AEMA for the promulgation of "rules." Therefore, LEAF filed its civil action for declaratory and injunctive relief against ADEM. LEAF sought to enforce the rulemaking provisions of §§ 41-22-4, -5, and -23, and §§ 22-22A-8(a) and (b), Ala.Code 1975.

ADEM does not contend that it complied with the rulemaking requirements. Rather, ADEM contends that no such compliance was necessary because, ADEM further contends, the Implementation Procedures are not "rules" as defined in the AAPA or as governed by its requirements or the AEMA requirements for public notice, opportunity to be heard, and other safeguards.

The pertinent part of § 41-22-3(9) defines a "rule" as:

"Rule. Each agency regulation, standard, or statement of general applicability that implements, interprets, or prescribes law or policy, or that describes the organization, procedure, or practice requirements of any agency and includes any form which imposes any requirement or solicits any information not specifically required by statute or by an existing rule or by federal statute or by federal rule or regulation ...." (Emphasis added.)

Blue Ridge, supra, is distinguishable from the case now before us. In Blue Ridge, the Federal Highway Administration had issued a directive requiring "a bulk specific gravity greater than 2.550" for gravel used in hot-mix asphalt for roads and in the superstructures of bridges in federally funded highway projects in Alabama. 718 So.2d at 28. To comply with this federal requirement and thereby to obtain federal funding, the Alabama Department of Transportation ("ALDOT") amended its highway construction specifications to include this federal specification for the specific gravity of the gravel. The Blue Ridge plaintiffs sued ALDOT on the theory that this change in gravel specifications constituted a "rule" governed by the AAPA, which ALDOT had not followed in adopting the change. Holding that this change in gravel specifications did not constitute a "rule" that would require compliance with the AAPA, the Blue Ridge Court explained:

"The question is whether the standard specifications are `rules' within the meaning of § 41-22-3(9), Ala.Code 1975. [ALDOT] argues that they are not, but that they are only, as they purport to be, specifications for engineering details and materials that may be incorporated by reference into a request for bids for highway construction contracts. Section 41-22-3(9) defines `Rule' as `Each agency regulation, standard or statement of general applicability that implements, interprets, or prescribes law or policy, or that describes the organization, procedure, or practice requirements of any agency....'

"The standard specifications do not `describe[] the organization, procedure, or practice requirements of' [ALDOT]. Pursuant to the AAPA, [ALDOT] has adopted administrative rules that describe its organization, procedure, and practice requirements. See Alabama Administrative Code, Chapter 450-1-1 et seq.

"Nor do the standard specifications constitute an `agency regulation, standard or statement of general applicability that implements, interprets, or prescribes law or policy.'Rather, each of the specifications, including the amended specifications directly at issue here, is simply a term that may be incorporated into a contract between [ALDOT] and some other party. See generally § 41-16-27, Ala.Code 1975, which provides that, in accepting or rejecting competitive bids, an awarding authority may take into consideration `the qualities of the commodities proposed to be supplied, their conformity with specifications, the purposes for which required,' and so forth. Ala.Code 1975, § 41-16-27(a) (emphasis added [in Blue Ridge]). If an unsuccessful bidder or another interested party considers specifications for a given contract to be inappropriate, the competitive bid law provides a means for challenging the inclusion of those specifications. See § 41-16-31; White v. McDonald Ford Tractor Co., 287 Ala. 77, 248 So.2d 121 (1971). The fact that [ALDOT] has established standard specifications that it may

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