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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