Lewis v. Ala. Dep't of Envtl. Mgmt.

• Court: Alabama Court of Civil Appeals
• Writing for the Court: MOORE, Judge.
• Citation: Lewis v. Ala. Dep't of Envtl. Mgmt., 363 So.3d 1008 (Ala. Civ. App. 2021)
• Docket Number: 2200431
• Decision Date: 08 October 2021
• Parties: Bobby LEWIS, Michael Del Vecchio, David Del Vecchio, Peggy R. Del Vecchio, William P. Novack, and Tara Novack v. ALABAMA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT; Lance R. LeFleur, in his official capacity as director of the Alabama Department of Environmental Management; Alabama Environmental Management Commission; Samuel L. Miller, Kevin McKinstry, Thomas P. Walters, Ruby L. Perry, Mary J. Merritt, and John H. Masingill III, in their official capacities as members of the Alabama Environmental Management Commission; and the City of Dothan

363 So.3d 1008

Bobby LEWIS, Michael Del Vecchio, David Del Vecchio, Peggy R. Del Vecchio, William P. Novack, and Tara Novack v. ALABAMA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT; Lance R. LeFleur, in his official capacity as director of the Alabama Department of Environmental Management; Alabama Environmental Management Commission; Samuel L. Miller, Kevin McKinstry, Thomas P. Walters, Ruby L. Perry, Mary J. Merritt, and John H. Masingill III, in their official capacities as members of the Alabama Environmental Management Commission; and the City of Dothan

2200431

Court of Civil Appeals of Alabama.

October 8, 2021

Rehearing Denied December 10, 2021

Certiorari Denied March 4, 2022

Alabama Supreme Court 1210176

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

Steve Marshall, att'y gen., and Anthony Todd Carter and Paul Christian Sasser, Jr., asst. atty's gen., Alabama Department of Environmental Management, for appellees Alabama Department of Environmental Management and Lance R. LeFleur in his official capacity as director of the Alabama Environmental Management Service; and F. Lenton White, Dothan, and William S. Cox and Jude Halawi of Bradley Arant Boult Cummings LLP, Birmingham, for appellee City of Dothan.

MOORE, Judge.

Bobby Lewis, Michael Del Vecchio, David Del Vecchio, Peggy R. Del Vecchio, William P. Novack, and Tara Novack ("the landowners") appeal from a judgment entered by the Montgomery Circuit Court ("the trial court") in favor of the Alabama Department of Environmental Management ("ADEM"); Lance R. LeFleur ("the director"), in his official capacity as the director of ADEM; the Alabama Environmental Management Commission ("the EMC"); Samuel L. Miller, Kevin McKinstry, Thomas P. Walters, Ruby L. Perry, Mary J. Merritt, and John H. Masingill III, in their official capacities as members of the EMC ("the EMC commissioners"); and the City of Dothan ("the City"). We reverse the trial court's judgment.

Statutory Background

The Solid Wastes and Recyclable Materials Management Act ("the SWRMA"), Ala. Code 1975, § 22-27-1 et seq., regulates the disposal of solid waste in this state. In enacting the SWRMA, the legislature intended "[t]o develop an integrated system of planning for solid waste management in the state by local governments, regional planning commissions and the department." Ala. Code 1975, § 22-27-42(1). The "department" referred to in § 22-27-42(1) is ADEM. Ala. Code 1975, § 22-27-2(6). The SWRMA expressly recognizes

"the responsibilities of units of local government for the orderly management of solid wastes generated within their jurisdictions[ ] and ... require[s] that decisions about the management of solid wastes shall be based on comprehensive local, regional and state planning. The terms and obligations of [the SWRMA] shall be liberally construed to achieve remedies intended."

Ala. Code 1975, § 22-27-41. Accordingly, the SWRMA provides that each municipality in the state shall submit to ADEM and maintain and implement "a plan for the management of solid waste generated within its boundaries." Ala. Code 1975, § 22-27-47(a).

"In addition to any regulatory bodies, the governing body of a county or municipality has a responsibility for and the authority to assure the proper management of solid wastes generated within its jurisdiction in accord with its solid waste management plan. A governing body may assign territories and approve or disapprove disposal sites in its jurisdiction in accord with the plan approved for its jurisdiction. Such approval or disapproval of services or activities described in the local plan shall be in addition to any other approvals required from other regulatory authorities and shall be made prior to any other approvals necessary for the provision of such services, the development of a proposed facility or the modification of permits for existing facilities."

Ala. Code 1975, § 22-27-48(a).

The SWRMA authorizes the state's various municipalities to dispose of solid wastes in local sanitary landfills, subject to the approval of ADEM. See Ala. Code 1975, §§ 22-27-3(a), 22-27-7, and 22-27-10(a). No sanitary landfill may be established and operated without a permit. § 22-27-10(a). Under Ala. Code 1975, § 22-27-9(a), ADEM bears "the regulatory authority over the permitting and operation of solid waste management facilities, such as sanitary landfills." However, § 22-27-48(b) provides:

"[ADEM] may not consider an application for a new facility unless the application has received approval pursuant to [ Ala. Code 1975, §], 22-27-48.1 [,] by the affected local governing body. [ADEM] may not consider an application for a modified permit for a facility unless such application has received approval pursuant to this section by the affected local governing body."

(Emphasis added.)

Before approving the modification of a permit for an existing sanitary landfill, the governing body of a municipality must notify the public of the proposed modification and conduct a public meeting to receive comments relating to the proposal. § 22-27-48(e).

"In determining whether to recommend approval of the proposed issuance of or modification of a new or existing solid waste management site, the governing body shall consider each of the following criteria:

"(1) The consistency of the proposal with the jurisdiction's solid waste management need as identified in its plan.

"(2) The relationship of the proposal to local planned or existing development or the absence thereof, to major transportation arteries and to existing state primary and secondary roads.

"(3) The location of a proposed facility in relationship to existing industries in the state that generate large volumes of solid waste, or the relationship to the areas projected for development of industries that will generate solid waste.

"(4) Costs and availability of public services, facilities and improvements required to support a proposed facility and protect public health, safety, and the environment.

"(5) The impact of a proposed facility on public safety and provisions made to minimize the impact on public health and safety.

"(6) The social and economic impacts of a proposed facility on the affected community, including changes in property values, and social or community perception."

§ 22-27-48(c). The local governing body shall either approve or disapprove the proposed modification within 90 days. § 22-27-48(f).

Factual and Procedural Background

The City disposes of its solid waste in the City of Dothan Sanitary Landfill ("the landfill"). On October 21, 2013, ADEM issued a renewal of Solid Waste Disposal Facility Permit No. 35-06 ("the permit") for the landfill, indicating that the landfill consisted of approximately 78 acres, with 55 of those acres being designated for disposal operations at that time.

On April 1, 2014, the Board of Commissioners of the City ("the Board") adopted Resolution No. 2014-74 authorizing the City to enter into an agreement with CDG Engineers & Associates ("CDG") to design an expansion of the landfill and to assist in obtaining a modification of the permit for that expansion. On August 2, 2014, the City published in the Dothan Eagle, a local newspaper of general circulation, a "NOTICE OF HEARING TO ACCEPT PUBLIC COMMENT CONCERNING APPROVAL OF A MODIFICATION TO THE CITY OF DOTHAN LANDFILL." (Capitalization in original.) That notice provided, in pertinent part, that the City would be holding a hearing on September 2, 2014, to accept public comments regarding local approval of the expansion of the landfill. The notice also indicated that, in determining whether to recommend approval of the proposed expansion of the landfill, the Board would be considering each of the six criteria prescribed by § 22-27-48(c).

According to the minutes of the September 2, 2014, meeting, Daniel Wells, a CDG representative, indicated that CDG was still in the process of designing the proposed expansion to the landfill and that the "permitting plans [for the expansion of the landfill] should be completed by the end of 2014." Ernie Stokes, the City's chief civil engineer, estimated that the plans for the expansion would be submitted to ADEM in January 2015. The minutes further indicated that the City's "[Public Works Director, Jerry] Corbin[,] advised that there will be one more public hearing regarding the expansion of the ... landfill and a comment period will follow." Following the hearing, on September 16, 2014, the Board adopted Resolution No. 2014-246, which provided, in pertinent part, that "the City ... approve[d] the proposed expansion to the [landfill's] boundary ... to approximately 536 acres."

Several times between 2015 and 2018, the City applied to ADEM to modify the permit to allow for the expansion of the landfill to 522.19 acres, with a disposal area of 69.9 acres, with the last application for modification being filed on May 15, 2018. The City submitted Resolution No. 2014-246 with each application. In a final determination, dated May 6, 2019, ADEM approved the City's application for the modification of the permit to allow an expansion of the landfill.

On June 6, 2019, the landowners, among others, filed a request for a hearing before the EMC to contest ADEM's modification of the permit. The landowners, all of whom live on properties adjacent to the landfill, asserted a number of challenges to the modification of the permit and sought an order from the EMC disapproving the permit in its entirety. On June 13, 2019, the EMC assigned the matter to a hearing officer for administrative review. On July 10, 2019, the City filed a motion for leave to intervene in the proceedings pursuant to Ala. Admin. Code (ADEM), r. 335-2-1-.08(6). After an eight-day hearing, beginning on August 19, 2019, and ending on September 19, 2019, the hearing officer entered a report recommending that the EMC disapprove the modification of the permit due to ADEM's lack of compliance with § 22-27-48(b), among other...