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Lawsuit
Lawsuit
COMPLAINT
Plaintiffs, the Town of Repton, Alabama, and Terri Carter, Mayor of Repton
(collectively, "Plaintiffs"), file this Complaint against Defendants, the Conecuh County
Commission and Conecuh Woods LLC (collectively, "Defendants"), stating as follows:
1. 2. 3.
County, Alabama.
She is the
of Conecuh County, Alabama, and the host government authority, pursuant to Ara. CooB
S
4.
the
5.
This Court has jurisdiction over this action pursuant to the Code of Alabama
(1975), Sections 6-6-220 to 6-6-232, Rules 57 and 65 of the Alabama Rules of Civil
Procedure, and Ex parte Board ofPardons and Paroles,793 So. 2d 774 (Ata.2000).
6.
Venue is proper in this Court because the controversy involves a proposed landfill the
within Conecuh County, Alabama, and the arbihary and capricious actions of
Conecuh County Commission in Conecuh County.
7.
of
Facility, Conecuh County, Alabama (Jan. 19, 2011) ("Application"). (Exhibit 1).
8.
is intended to accept up to 10,000 tons of garbage every day from all states east of the
Mississippi River and the state of Louisiana.
9.
& Wildlife
wood stork, the endangered gray bat, the threatened Red Hills salamander,
endangered Louisiana
the
are
candidates for listing: the Choctaw bean, the Alabama pearlshell, and the narrow pigtoe.
http://ecos.fws.gov/tess public/counWSearch!speciesByCounWReport.action?fips=01035
(last visited
Apr.20,20lI).
gopher tortoise's eastem population, which is also being considered for listing as a
threatened population.
10. 11.
The local groundwater table is believed to be within 25 feet of the land surface on
the proposed landfill's site. The westem boundary of the proposed landfill fronts Escambia Creek and several
tributaries to Escambia Creek are located within the landfill property. Portions of the landfrll are within the creek's floodplain andJor are within wetlands.
12-
the reservation of the Poarch Band of Creek Indians, the only federally-recognized Native
The proposed landfrll is within one mile of at least two churches and encompasses
Monis Cemetery).
the host government, the Application does not contain a host government agreement
(either as executed or in draft form).
16.
Under the Alabama Solid Waste Disposal Act ("ASWDA"), ALA. Coon $$ 22-
22-27-48.
t7.
Conecuh County's solid waste management plan, the Conecuh County Solid
Waste
18.
According to the ASWDA and the Conecuh County Solid Waste Management
Plan, within 90 days of receiving an application or proposal for a solid waste disposal facility, the Commission must either approve or deny the application. Failure to act on a
proposal within 90 days constitutes approval by the local goveming body (i.e., the Commission). Ale. Copn
g
19.
Pursuant to the ASWDA and the Conecuh County Solid Waste Management PIan,
the Commission must provide an opportunity for public comment on a solid waste
disposal facility application. Ar.a. Coop g 22-27-48(a); Plan, Article
III, Section
13.2.
(Exhibit 3).
The notice did not contain a "description of the proposed action to be taken" as
required by the
$ 22-27-48(a).
at
Reid State Technical College in Evergreen, Alabama. Class was in session during the
public hearing and parking was denied to non-students.
23.
to attend
the
March 10,2011 public meeting and stay long enough to comment before returning to
work, only six comments were in favor of the landfrll, two of which were comments by Mr. Jimmy Stone, the developer of the proposed landfill, and his attorney.
24.
proposed landfill.
citizens opposing the landfill were denied a place on the Commission's agenda.
meeting attempted to offer public comments, but their requests were denied by the
Commission.
27
At the April 1 1,2011 public engineering work session, Mr. Richard Nix, attorney
for the Conecuh County Commission, said the Commission would publish a transcript of
minutes from the work session so members of the public unable to attend the meeting could review the minutes. However, the transcript was not made available to the public
prior to the Cornmission's vote on the Application. In fact, upon information and belief,
the transcript has not been completed as of the date of this filing.
28.
At the April
by an attorney for the Town of Repton to comment on the proposed landfill and on the county's current solid waste management practices (e.g., identification of the landfill
currently utilized by the county for waste disposal
feigned ignorance).
29.
and Escambia Counties, along with more than ten other municipalities and the Poarch Band of Creek Indians.
30.
Alliance, a regional alliance that markets and promotes economic development within
five counties in southwest Alabama (Choctaw, Clarke, Conecuh, Escambia and Monroe),
passed a resolution
water tables in the region and leachate from the landfill entering the aquifers serving
Alabama and Florida counties to the south of the proposed landfill.
31.
In response to the proposed landfill's negative impact on the real estate market in
the area, the Monroe County Board of Realtors, a group composed of real estate agents
from Monroe County, Conecuh County, Escambia County, and Clark County, passed a
resolution on March 2,2011, in opposition to the landfill.
32.
technical evaluation
the
4).
Based on a number
of factors, the
evaluation concluded that the proposed site for the landfill was unsuitable. Specifically,
the evaluation determined that the proposed site was located in an unstable area near
sinkholes and
in the Bahamas
is such that the proposed disposal cells and barrier areas are bounded generally to the
north, south and.ior west by drainage features (i.e., unnamed tributaries to Escambia
Creek) which will prevent direct overland flow of storm water and./or leachate to one of
the two proposed sediment basins.
33.
The Commission has received scores of other letters from concerned citizens
34.
On April 18, 2011, the Commission voted in favor of the Conecuh Woods LLC
a resolution
Application, nor did the Commission articulate a reason for its vote. Furthermore, the Commission held the meeting in the Commission's chambers, despite the chambers' insufficient space, the chambers' inability to accommodate concerned citizens interested
35.
because the Application was considered in the absepce of the public notice and comment
identified in
Waste
Section 22-27-48
Management Plan.
of the Alabama
The Commission Has Failed to Provide Adequate Public Comment and Public Notice Opportunities in Violation of the ASWDA
36. 37.
Plaintiffs incorporate and reallege each and every allegation set forth above herein
by reference.
The Commission has failed to provide adequate public comment and public notice
38.
providing public notice of any application or proposal for a new landfill, "at a minimum hold at least one pgblic hearing thereon . . ." (emphasis added). Furthermore, the public notice associated with this public hearing must "contain at a minimum a description of
the proposed action to be considered [i.e., the
"lalll pertinent
during normal business hours at a location readily accessible to the public." See
Att.
Coop 5 22-27-48(a) (emphasis added). The Commission has failed on all three counts.
39.
First, the Commission has chosen to ignore the intent and spirit of the ASWDA
by electing, in the face of unprecedented public interest in this matter, to hold a single
public meeting on this highly conhoversial matter (on March I0,2011), and by refusing
to hear public comments in other venues (e.g., regular county commission meetings and a
public engineering work session on April 11,2011). The intent of the ASWDA is to
allow the comments and opinions of citizens to be fully heard by the county commission
on a matter of this importance, and the Commission clearly ignored that intent by instead holding a single public hearing at an inconvenient time and forum.
40.
The single public meeting that was held was inadequate. The meeting was held at
9:00 a.m. on a weekday. Such timing significantly limited and restricted the ability of all
potentially interested members of the public to attend. Furthermore, the public meeting
was held at Reid State Technical College, a location where there was no (or, at best, very
limited) parking. Such a meeting is not a "public" meeting and thus failed to meet the
requirements of the ASWDA.
41.
Second, the public notice for the March 10,2011 public meeting, as published in
the January 27, 2011 edition of The Evergreen Courant (Exhibit 3), does not contain a
"description of the proposed action to be taken [i.e., the landfill]" as required by the
$ 22-27-a8@). Rather,
will
landfill within Conecuh County, Alabama, against the criteria set out in the Conecuh
County Solid Waste Management Plan." Although the public notice notes that copies
of
the proposal and the plan were available for review, such availability does not meet the requirement that a description of the proposed action be provided. Indeed, the public
notice did not even provide a general location of the proposed landfill. It certainly did not mention key facts related to the landfill (e.g., the landfill's service area or estimated daily volume). Accordingly, this notice was defective'
42.
Third, the Commission failed to make available for inspection "lalll pertinent
documents
LLC to the Commission regarding certain operations of the landfill (e.g., payment of
development fee and host government fees). Assuming that these guarantees, assurances,
and commitments have been or
agreement, then
been
commitments have not been formally captured in writing by the Commission in a binding
document, then
informal, unsubstantiated assurances to meet the requirements of the Conecuh County Solid Waste Management Plan or Section 22-27-48 of the ASWDA.
43.
The purpose of the public notice and comment procedure is to provide the
Commission with information that would enable it to make a rational and not arbitrary
decision. By violating the public notice and comment procedure, the Commission failed
to make a rational decision and instead has rendered an arbitrary and capricious decision in violation of applicable law. The Application Fails to Satisfv the Specific Criteria Set Forth in Section 22-27-48(a) of the ASWDA
Plaintiffs incorporate and reallege each and every allegation set forth above herein
by reference. The Application failed to satis$ the required criteria set forth in Section 22-27-
48(a) of the ASWDA. Pursuant to Section 22-27-48(a)(1) of the ASWDA, the County Commission must
evaluate the "consistency of the proposal with the jurisdiction's solid waste management need as identified in its
47.
With respect to the foregoing criterion, the proposed landfill is clearly not
in its Plan.
The Conecuh County Solid Waste Management PIan states that "there do not appear to be
any municipal solid waste disposal capacity issues facing the County for many years,"
and that the nearby Timberlands Landfill's remaining capacity "meets the needs of the
County for the planning period of this Update." SeePlan, Article III, Section 7.2.
48.
evaluate the "the relationship of the proposal to local plannsd or existing development or
the absence thereof, to major transportation arteries and to existing state primary and
secondary roads."
49.
With respect to the foregoing criterion, the proposed landfrll bears no relationship
to local planned or existing development. The Application notes three municipalities and
these
developments are already being adequately serviced by other landfills and do not support
the need to locate a new regional landfill in Conecuh County. Fur*rer, no examples
planned development are offered.
of
50.
51.
With respect to the foregoing criterion, the proposed landfrll is not located in the
vicinity of existing industries in the state that generate large volumes of solid waste, or in the vicinity of areas projected for development of industries that
will
generate solid
waste. The two industries mentioned in the Application-Hyundai and Airbus North
American Engineering Facility-are flawed examples. Hyundai is centrally located in
the state and closer to other landfills, and the award of the Air Force's air tanker contract went to Boeing, rather than Airbus, earlier this year, which calls into question the status
of the facility as a generator of large volumes of solid waste that would utilize
proposed landfill.
the
52.
the impact of a proposed facility on public safety and provisions made to minimize the
impact on public health and safety.
53.
With respect to the foregoing criterion, the impact of the proposed facility on
public safety and provisions made to minimize the impact on public health and safety are uncertain at best and have been inadequately assessed by the Commission. Such
uncertainties include, but are not limited to: (a) the landfill's impacts to local drinking water, considering the shallow water table at the proposed site; (b) the impacts to surface water (i.e., nearby Escambia Creek); (c) the landfill's vulnerability to seismic events; (d)
the facility's inability to provide adequate cover for the landfill's waste from soils on site, based on
tt,
proposed site as poor for daily and final cover; and (e) the facility's plan for obtaining
watel since, according to the Application, the facility will either obtain water from
Repton or rcly on an on-site drinking well, but Repton has said it will not provide utilify
services to the landfill and the Application states that there are no water wells on site.
54.
the social and economic impacts of a proposed facility on the affected community,
including changes in property values, and social or community perception.
55.
With respect to the foregoing criterion, the only certain social and economic
impacts of a proposed facility on the affected community, including changes in property values, and social or community perceptions,
will
fails to offer support for its assertions of favorable social and economic impacts, and it is
patently obvious that the "social or community perception" with respect to the proposed
56.
numerous factual errors that, by their very nature, precluded the Commission from rationally and properly considering the Application.
57.
For the above stated reasons, the Commission's decision to approve the landfill
Plaintiffs incorporate and reallege each and every allegation set forth above herein
by reference.
the
Commission should consider how well the planned facility addresses these requirements [i.e., the "specific State and Federal siting requirements for the particular type of facility in question," as set forth in the Conecuh County Solid Waste Management Plan in Article III, Section 111. Should
be
Rather than fully considering the exclusionary factors as its own Plan requires it to do,
the Commission simply relied on assurances that future studies and other assessments
performed at a later time would suffice.
6I.
For example, the Commission accepted the Application's "assurances" for the
following:
if
any
O) That Conecuh Woods LLC will obtain "confirmation with ADEM of the actual extent of the floodplain," indicating that the actual extent of the
floodplain is currently unknown. Id.,page 3-9.
snrvey
(c) That the "required specific historical and archaeological will be conducted." Id.,page 4-20.
resources
are
(d) That wetlands impacts will somehow be mitigated, although no details provided. Id.,page 3-11.
(e) That, with respect to closure, post-closure care, and possible remediation costs, "ample reseryes will be allotted for the financial assuranca" of such responsibilities. Id.,page 3-13.
62.
The Commission failed to fully assess whether Conecuh Woods LLC is capable
the
regard,
particularly with respect to Conecuh Woods LLC's financial resources and previous
experience with regulatory agencies and regulated facilities.
63'
64'
The Commission did not have adequate technical or financial information to make
in approving the
Application.
COUNT
I:
Declaratorv Judement
65'
Plaintiffs incorporate and reallege each and every allegation set forth above herein
bv reference.
66.
Plaintiffs' legal rights have been violated by the Commission. Plaintiffs are seeking a
declaratory judgment determining that the Commission
adequate
information to properly consider and approve the Application for the proposed landfill
and acted
Application. More specifically, the Commission failed to provide adequate public notice
and denied the public adequate opportunity to comment on the proposed landfill in
violation of the ASWDA and the Conecuh County Solid Waste Management PIan. In
addition, the Commission failed to ensure that the Application met the required criteria
the ASWDA and the Conecuh County Solid Waste Management Plan.
of
COUNT
of Certiorari
67. 68.
Plaintiffs incorporate and reallege each and every allegation set forth above herein
by reference.
the
cornmon law remedy of certiorari. See Ex parte Board of Pardons and Paroles, 793 So.
2d 774, 776 (ALa.2000) ("In the absence of a statutory right to appeal, or any other
adequate remedy, a common-law
an
69,
The Plaintiffs have no statutory right to appeal the decision of the Commission
and seek a writ of certiorari to review the illegal actions of the Commission in approving the Application for a proposed landfill.
70.
The Commission did not have adequate information to properly consider and
approve the Application for the proposed landfill and acted arbitrarily and capriciously
and
the
Commission failed to provide adequate public notice and denied the public adequate opportunity to comment on the proposed landfill in violation of the ASWDA and the
Conecuh County Solid Waste Management Plan. In addition, the Commission failed to ensure that the Application met the required cirte/ra of the ASWDA and the Conecah
County Solid Waste Management Plan.
COUNT
III: Iniunction
Plaintiffs incorporate and,reallege each andevery allegation set forth above herein
by reference.
law when considering and acting upon the Application or any resubmission thereof.
and capricious manner when considering the Application or any resubmission thereof.
(a) Declare that the Commission acted arbitrarily and capriciously by failing to
provide adequate public notice in accordance with the ASWDA and the Conecuh
County Solid Waste Management Plan;
(b) Declare that the Commission acted arbitrarily and capriciously and in violation of
the ASWDA and the Conecuh County Solid Waste Management Plan denying the
(c) Declare that the Commission acted arbitarily and capriciously and in violation of
the ASWDA and the Conecuh County Solid Waste Management PIan in
approving the Application for the proposed landfill;
(d) Declare that the Commission's approval of the landfill is null and void; (e) Issue a injunction barring the Commission from violating applicable law and from acting in an arbitrary and capricious manner with respect to all fuither actions involving the Application or any resubmission thereof;
(f)
Set aside the decision of the Commission to approve the Application and require
the Commission to follow applicable law for any future consideration of the
Application; (g) Award attorneys' fees and Plaintiffs; and (h) Grant such other and further relief available under all applicable state laws and
any relief the Court deems just and appropriate.
to
ls/
OF COUNSEL:
James L. Noles Jr. Mary F. Samuels
Balch & Bingham LLP 1901 Sixth Avenue North Suite 1500 Birmingham, Alabama 35203 COLTNSEL FOR PLAINTIFFS
Charles B. Paterson W. Joseph McCorkle Jr. Balch & Bingham LLP 105 Tallapoosa Street Suite 200 Montgomery, Alabama 36104 COI.INSEL FOR PLAINTIFFS Greg L. Albritton 112-B Court Street Evergreen, Alabama 36401 251-578-69A0 galbrittton@.att.net
CERTIFICATE OF SERVICE I hereby certif that I have electronically filed the foregoing with the Clerk of the Court using the AlaFile system which will send notification of such filing and/or that a copy of the foregoing has been served upon the following by placing a copy of same in ttri United States mail, properly addressed and postage prepaid, on this the 20th day of
April,20Il:
Conecuh County Commission 111 Court Stfeet Evergreen, Alabama 36401 Conecuh Woods LLC l22Pneville Road
lsl
Of Counsel