Meriwether Landfill Appeal Follows on the Heels of Longleaf CO2 Appeal

21 08 2008

 

With the ink barely dry on the Court of Appeals acceptance, another appeal seeks to define the role of ALJs in environmental appeals. 

 

GreenLaw, Friends of the Chattahoochee, Inc. and Sierra Club sought to overturn an ALJ’s decision upholding an EPD permit for the Longleaf facility.  On appeal to Superior Court, Fulton County Superior Judge Thelma Wyatt Cummings Moore sided with environmental groups opposing the project by ruling in June that the permits are invalid because they don’t regulate CO2, which has been linked to global warming.  You can obtain a copy of Judge Moore’s decision here.  One of the issues on appeal is whether the state Environmental Protection Division should place legal limits on emissions of carbon dioxide by the planned $2 billion Longleaf Energy Station in rural southwest Georgia.  Yet, another issue was the proper standard of review to be used by an ALJ on appeal.

Right on the heels of that appeal is Zarate, et. al. v. EPD v. Greenbow, LLC, Civil Action No. 2008-CV-152006 in the Superior Court of Fulton County, preparing to be heard by a different Fulton County Superior Court Judge, Judge Ural D. Glanville.  This is an appeal from an Administrative Law Judge’s decision upholding a landfill permit in Northwest Meriwether County, Georgia, proposed by Greenbow, LLC, of Montgomery, Alabama.   Central to this appeal is the same standard of review issue.  The Superior Court oral argument is scheduled for August 25, 2008, at 8:30am in Courtroom 5F.

Standard of Review:

Though the Longleaf appeal has the bigger issue of regulation of carbon dioxide emissions, at issue in both matters is the standard of review for Administrative Law Judges.  Under Georgia law, when an ALJ reviews a challenge to a permit issued by EPD the ALJ conducts an evidentiary hearing, not an appellate review of the record.  As in other such evidentiary proceedings, the law requires application of a de novo standard of review.  OSAH Rule 21 (3) (“The hearing shall be de novo in nature[.]”)(emphasis added).  As recently ruled by Judge Cummings Moore of Fulton County Superior Court when faced with the same standard of review dispute on the part of an ALJ, there is no requirement that petitioners affirmatively prove that EPD’s decision, or its view of the facts, was “unreasonable.”

Accordingly, in evaluating petitioners’ claims and the evidence offered regarding those claims, O.C.G.A. § 12-2-2(c)(2)(A) and OSAH Rule 21 the Meriwether citizens argue that the ALJ was prohibited from deferring to EPD’s judgment on issuance of the landfill permit. 

Background:

On December 21, 2007, The Georgia Environmental Protection Division (EPD) in Atlanta issued a permit to Greenbow LLC of Montgomery, Alabama for the operation of the Turkey Run Municipal Solid Waste Landfill in Northwest Meriwether County.   The Landfill will be located in a municipal water supply watershed, on 1500 acres along  highway  54 near the town of Lone Oak, Georgia.

The issue became controversial approximately three years ago, when The Meriwether County Board of Commissioners approved Greenbow’s application for the landfill.  Many citizens expressed concern that the Meriwether County Commission acted in haste, and without due diligence, in approving the application, without considering the full impact of their action on the citizens who live closest to area where the proposed landfill will be operated.  

Growing concern over the landfill prompted the reinstatement of Meriwether County’s NAACP, as well as the formation of other groups who have now united in their effort to protest the landfill.   In addition, other organizations, such as Anniston based Community Against Pollution (CAP), have become involved and pledged to assist local citizens in challenging the landfill.

On May 19, 2008 at an Administrative hearing, an ALJ ruled in EPD’s favor, however Eco-Action pledged to take their fight to the next level, which will mean filing an appeal in Superior Court.  Briefs have been filed by both sides and the hearing is set for August 25, 2008, at 8:30am in Courtroom 5F, before Judge Ural D. Glanville. 

 

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Governor Perdue Halts Water Supply, Land Conservation Grants

21 08 2008

 

Atlanta Business Chronicle – by Dave Williams Staff Writer

Georgia’s budget crunch is starting to affect the state’s water supply and land conservation efforts.

The Georgia Environmental Facilities Authority announced Thursday that Gov. Sonny Perdue’s budget office has suspended funding for two grant programs approved by the General Assembly earlier this year amid much fanfare.

The move will affect $40 million the governor and legislature earmarked for water supply grants. Much of that money was expected to go toward efforts to build more reservoirs, a key component of the new statewide water management plan lawmakers adopted in January.

Another $10 million in grant funding affected by the order represented the next allocation in Perdue’s land conservation initiative, an effort to safeguard from development open space considered of significant value as a historical, cultural or natural resource.

 

The sluggish economy has sent state tax revenues plummeting in recent months, opening up a projected $1.6 billion budget shortfall that state agencies are being instructed to plug with spending cuts and reallocations of funding to what are considered the most essential programs and services.

 

Read on here.





EPD Reduces Fine Against Ringgold

21 08 2008

We now know the amount of Georgia’s Environmental Protection Division fine against the city of Ringgold, following a NewsChannel 9 investigation.

The Environmental Proptection Division fined the city $1,000 for the raw sewage leak into South Chickamauga Creek. The fine was reduced from $5,000, with the remainder going to clean-up.  The city has already spent more than $100,000 to pump out this storage pond and fill it. We discovered unsafe amounts of fecal matter came from the pond and drained into South Chickamauga Creek Catoosa county has agreed to reimburse the city with your tax dollars.

The drainage happened because the city never connected the sewage to Moccasin Bend, even though all it needed was a ten foot connection.After our investigation, the City connected the line to Moccasin Bend.  The City, County and E-P-D have not given an answer of why that connection didn’t happen earlier.

Read more here.





Chairman Waxman Issues Subpoena for EPA Wetlands Documents

21 08 2008

 

After EPA’s failure to respond to Chairman Henry A. Waxman’s previous demand for documents related to wetlands enforcement, he today issued a subpoena to compel EPA to provide unredacted copies of documents involving the agency. The subpoena compels production of documents related to a March 4, 2008 memo from EPA’s assistant administrator for enforcement, Granta Nakayama, that says RAPANOS v. UNITED STATES and CARABELL v. UNITED STATES  joint decision  by the U.S. Supreme Court [(Nos. 04-1034 and 04-1384) No. 04–1034, 376 F. 3d 629, and No. 04–1384, 391 F. 3d 704, vacated and remanded.] put in doubt which waters could be overseen and managed under the Clean Water Act.

According to Chairman Waxman, after the issuance of an EPA-Army Corps of Engineers guidance on incorporating the court ruling, EPA and the Army Corps abandoned their enforcement efforts.  Between July 2006 and December 2007, EPA decided not to pursue the enforcement of as many as 300 violations because of the jurisdictional uncertainty created by the Rapanos decision and the guidance, the memo says.





Longleaf CO2 Appeal Accepted by Georgia Court of Appeals

21 08 2008

On Wednesday, the Georgia Court of Appeals agreed to review a lower-court ruling that has halted plans for Longleaf coal-fired power plant, the state’s first in more than 20 years.  At issue is whether the state Environmental Protection Division should place legal limits on emissions of carbon dioxide by the planned $2 billion Longleaf Energy Station in rural southwest Georgia.  The plant is a project of Houston-based Dynegy Inc.

The project’s opponents, including an environmental group based at the proposed site of the plant in Early County, say the health impacts of coal-burning technology outweigh the plant’s potential economic benefits.  Appealing from the Administrative Law Judge’s ruling up-holding the permit, environmental groups GreenLaw, Friends of the Chattahoochee, Inc. and Sierra Club sought to overturn the ALJ’s decision.  At the Superior Court level, Fulton County Superior Judge Thelma Wyatt Cummings Moore sided with environmental groups opposing the project by ruling in June that the permits are invalid because they don’t regulate CO2, which has been linked to global warming.  You can obtain a copy of Judge Moore’s decision here.

The EPD and Dynegy sought to appeal the decision.  Late last month, the Georgia Chamber of Commerce also submitted a brief supporting the applicants.  See Longleaf Energy Associates v. Friends of the Chattahoochee, No. A08D0472 and Couch v. Friends of the Chattahoochee, No. A08D0473.  Both applicants seek the complete reversal of Judge Moore and argue that Massachusetts v. U.S. Environmental Protection Agency only held that the U.S. Environmental Protection Agency (EPA) could, not does regulate CO2 under the CAA.  The contention is that Judge Moore jumped the gun and should have waited on the EPA to make the decision as to whether and how to regulate CO2.  Longleaf’s Application can be found here, EPD’s Application here, and the Amici Application of the Chamber, here

As the appeal has been accepted, the case awaits docketing.  Upon docketing, the appellants will have 20 days to file their briefs, the environmental groups will have 20 days thereafter to respond.  Finally, the appellants will have 20 days to file any reply brief thereafter.  We will post upon docketing.