Graves v. Fowl River Protective Ass'n, Inc.

• Decision Date: 21 December 1988
• Citation: 572 So.2d 441
• Parties: Stanley GRAVES, Alabama Environmental Management Commission, Alabama Department of Environmental Management, and Board of Water and Sewer Commissioners of the City of Mobile v. FOWL RIVER PROTECTIVE ASSOCIATION, INC., and South Alabama Seafood Association, Inc. FOWL RIVER PROTECTIVE ASSOCIATION, INC. v. BOARD OF WATER AND SEWER COMMISSIONERS OF the CITY OF MOBILE. Civ. 6466-A, 6466-X.
• Court: Alabama Court of Civil Appeals

Page 441

572 So.2d 441

Stanley GRAVES, Alabama Environmental Management Commission, Alabama Department of Environmental Management, and Board of Water and Sewer Commissioners of the City of Mobile v. FOWL RIVER PROTECTIVE ASSOCIATION, INC., and South Alabama Seafood Association, Inc.

FOWL RIVER PROTECTIVE ASSOCIATION, INC. v. BOARD OF WATER AND SEWER COMMISSIONERS OF the CITY OF MOBILE.

Civ. 6466-A, 6466-X.

Court of Civil Appeals of Alabama.

Dec. 21, 1988.

Rehearing Denied Jan. 25, 1989.

J.P. Courtney III of Lyons, Pipes & Cook, Mobile, for appellants Stanley L. Graves and Alabama Environmental Management Com'n.

Joe H. Little, Jr. and J.M. Druhan of Wilkins, Druhan, Ollinger & Holtz, Mobile, for appellant/cross-appellee Bd. of Water and Sewer Com'rs of the City of Mobile.

Chase R. Laurendine, Mobile, for appellee/cross-appellant Fowl River Protective Ass'n, Inc.

Olivia H. Jenkins, Montgomery, for appellant Alabama Dept. of Environmental Management.

Frank McRight of McRight, Jackson, Myrick & Moore, Mobile, for amicus curiae Mobile Area Chamber of Commerce.

INGRAM, Judge.

On December 10, 1981, the Alabama Water Improvement Commission (AWIC) issued a National Pollutant Discharge Elimination System (NPDES) permit to the Board of Water and Sewer Commissioners of the City of Mobile (board), authorizing the discharge of pollutants into Mobile Bay from a proposed location known as the Theodore outfall. In early 1982, an administrative appeal attacking the issuance of the permit was filed with AWIC by Fowl River Protective Association (Fowl River). The Alabama Department of Environmental Management (ADEM) and the Alabama Environmental Management Commission (AEMC) are successor agencies of AWIC.

A hearing officer was appointed, and a hearing was conducted and concluded in February 1984. On September 18, 1986, the hearing officer submitted to AEMC his findings of facts, conclusions of law, and recommendation, which upheld the permit with modifications. AEMC unanimously approved the hearing officer's recommendations and issued an order modifying the permit issued to the board.

Fowl River appealed the order to the Circuit Court of Mobile County. The trial court remanded the permit to the Commission for further consideration on the issue of stratification.

ADEM, AEMC, and the board appeal the trial court's order. Fowl River cross-appeals.

I.

This case was commenced prior to October 1, 1983; therefore, the Alabama Administrative Procedure Act has no application. § 41-22-27(e), Ala.Code 1975. State court review in this instance is governed by § 22-22A-7(c)(6), which provides the following:

"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 or the circuit court in which the applicant does business or resides for judicial review on the administrative record provided that such appeal is filed within 30 days after issuance of such order."

Under this statute, the applicable standard of review arises by way of certiorari. Thompson v. Alabama Department of Mental Health, 477 So.2d 427 (Ala.Civ.App.1985). Under the rules of certiorari, the circuit court exercises a limited function in its review of quasi judicial acts of administrative officers and boards. Sanders v. Broadwater, 402 So.2d 1035 (Ala.Civ.App.1981). The review is limited to a determination of whether the act in question (the issuance of the permit) "was supported by any substantial evidence, or whether the findings and conclusions are contrary to the uncontradicted evidence, or whether there was an improper application of the findings viewed in a legal sense." Id. at 1036. Accordingly, an administrative agency's decision will be affirmed unless the complaining party can prove that the agency acted in an arbitrary and capricious manner or failed to comply with applicable law. Save Our Dunes v. Alabama Department of Environmental Management, 473 So.2d 521 (Ala.Civ.App.1985). We have consistently held that, if reasonable minds differ as to an administrative agency's action or there is a reasonable basis for its decision, the action is conclusive, and we will not substitute our judgment for that of the administrative agency. State Oil & Gas Board of Alabama v. Anderson, 510 So.2d 250 (Ala.Civ.App.1987); Waters v. City & County of Montgomery Personnel Board, 507 So.2d 951 (Ala.Civ.App.1986); Hughes v. Jefferson County Board of Education, 370 So.2d 1034 (Ala.Civ.App.1979).

As noted above, the trial court remanded the permit to AEMC for further consideration of the effects of stratification. The trial court found that

"the agencies below have not made substantial inquiry on a good and representative record into the effects of stratification by adopting the hearing officer's findings that 'such stratification is adequately compensated for by use of the averaging technique applied to the DEM.' "

The trial court further found that the agencies "failed to thoroughly investigate this phenomenon [stratification] and its possible effects."

Stratification is nothing more than a layering effect found in the water column. There is no dispute that, at times, the water in Mobile Bay is stratified. The dispute arises concerning whether or not the agencies took stratification into account in their modeling effort. Fowl River argues, and the trial court agrees, that the modeling method utilized by the agencies, the Dynamic Estuary Model (DEM), does not accurately depict the stratified waters of Mobile Bay. Therefore, Fowl River insists that the agencies' decision to uphold the permit was "arbitrary," "capricious," "unreasonable," and "not supported by substantial evidence." We have reviewed the voluminous record and have considered the expert testimony offered by both parties. We find AEMC's decision to be supported by substantial evidence.

The DEM is a modeling effort used to simulate a discharge and to determine the maximum allowable waste load which could be discharged without violating water quality standards. The DEM has been used in a number of bays in the United States and is the most proven model for estuary areas. The DEM is a two-dimensional model which simulates Mobile Bay. It is undisputed that the DEM cannot duplicate the stratified conditions of the Bay. Experts agreed that the best modeling effort would be the utilization of a three-dimensional model. However, Fowl River experts, as well as the agencies' experts, testified that they were unaware of the development of any proven three-dimensional model that could accurately depict Mobile Bay.

The project engineer for the study acknowledged that the DEM could not reproduce stratification precisely. The engineer testified that the model "takes into consideration stratification by taking the bottom and top water quality and averaging so in that way it considers stratified water body by taking an average between the top and bottom." He testified that because the DEM was incapable of precisely simulating stratification, there would be a slight overestimation of the waste load assimilative capacity of the Bay. He stated that in comparing the field testing results of both a two- and three-dimensional model, the difference in waste load allocations would be approximately ten percent. This evidence indicated that the stratification phenomenon would not make more than a ten percent difference in actual dispersion rates. Taking this evidence into consideration, the hearing officer modified the original permit to reduce the daily maximum discharge limitations for certain suspended solids and minerals by ten percent.

Other evidence similarly indicates that the agencies considered the issue of stratification in reaching their decision. The project engineer explained that "the concept that has been used in the analysis is that if the water quality objectives are achieved at the point of discharge, this will assure that water quality objectives will be met at any other point in the receiving waters." He testified that the DEM demonstrated compliance with the water quality criteria for that classification at the discharge point and at every other location in the Bay. The three Fowl River experts, as well as the agencies' experts, agreed that if water quality standards were achieved in the area of the discharge, there was no reason to think that the discharge...