Marshall Durbin & Co. of Jasper v. Environmental Management Commission

519 So. 2d 962, 1987 Ala. Civ. App. LEXIS 1506, 1987 WL 2989
CourtCourt of Civil Appeals of Alabama
DecidedDecember 16, 1987
DocketCiv. 6047
StatusPublished

This text of 519 So. 2d 962 (Marshall Durbin & Co. of Jasper v. Environmental Management Commission) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Marshall Durbin & Co. of Jasper v. Environmental Management Commission, 519 So. 2d 962, 1987 Ala. Civ. App. LEXIS 1506, 1987 WL 2989 (Ala. Ct. App. 1987).

Opinion

PER CURIAM.

This case involves a request by Marshall Durbin & Company (Durbin) that the Environmental Management Commission (Commission) change an administrative rule, regulation, or standard. Previously, an appeal was taken to this court in this case which resulted in the matter being remanded to the trial court to consider Durbin’s request for certiorari. Marshall Durbin & Co. v. Environmental Management Commission, 495 So.2d 79 (Ala.Civ.App.1986). Other issues which are related to, but not determinative of, the problems in this case have been decided by other appellate courts. Marshall Durbin Co. v. United States Environmental Protection Agency, 788 F.2d 1490 (11th Cir.1986); Marshall Durbin & Co. v. Jasper Utilities Board, 483 So.2d 399 (Ala.1986).

After remand, this matter was submitted to the trial court upon the stipulated administrative record. The action of the Commission was affirmed by the trial court on June 10, 1987, and the relief sought by Durbin was denied. A timely appeal was [963]*963perfected by Durbin. We are indebted to able counsel of both sides for most helpful briefs.

Durbin’s poultry processing plant in Jasper uses the sewer service which is provided by the Jasper Utilities Board (Jasper), and Durbin pays a user rate to Jasper therefor. Jasper’s treated sewage is discharged into Town and Cane Creeks, and Jasper is required to obtain and have a National Pollutant Discharge Elimination System (NPDES) permit.

Jasper’s NPDES permit expired in 1984. The Alabama Department of Environmental Management (Department) issued a draft permit in May 1985 and a final NPDES permit in December 1985 to Jasper. Those permits used the required 7Q10 standard, which is the “minimum 7-day low flow that occurs once in 10 years.”

The Commission of the Department has seven members, consisting of a physician, a professional engineer, an attorney, a chemist or veterinarian, a person certified by the national water well association certification program, a biologist or ecologist, and one Alabama citizen who is not required to have any specialized expertise. Each member, except for the last mentioned one, must have familiarity with, or training in, environmental affairs. Ala. Code (1975), § 22-22A-6(b). The Commission is responsible for developing the environmental policy of this state and for establishing, adopting, modifying, repealing, or suspending Alabama’s environmental rules, regulations, and standards. Ala. Code (1975), § 22-22A-6(a).

In April 1985 Durbin petitioned the Commission to amend that section of the Alabama Water Quality Criteria and Use Classification which requires the use of the 7Q10 standard for design flow criteria. Durbin contended that the more appropriate standard for design flow criteria would be 30Q5, which is “the minimum 30-day low flow that occurs once in 5 years.” In the alternative, Durbin requested a variance for Town and Cane Creeks so as to allow the use of the 30Q5 standard. Two affidavits were included in Durbin’s petition. One affidavit largely relied upon a draft of a report for a branch of the United States Environmental Protection Agency. The other affidavit (and its accompanying data) apparently was not signed by the proposed affiant or by a notary public.

Evidently, Jasper’s present sewage treatment plant must be replaced by a new plant in order to meet the 7Q10 standard, but the present plant would comply with the 30Q5 standard. User fees of Jasper have materially increased in order to provide some of the funds needed for the construction of the new plant.

Durbin also sought to downgrade Town and Cane Creeks from 3.0 to 2.0 parts per million of dissolved oxygen. However, at a Commission meeting one of Durbin’s representatives admitted that Durbin did not have a problem with the present dissolved oxygen level standard (3.0) for the two creeks. Accordingly, we consider only the requested standard change from 7Q10 to 30Q5.

The procedure to be followed by the Commission in adopting, amending, or repealing rules, regulations, or standards is set out in Ala. Code (1975), § 22-22A-8. When the Commission held its May 1985 meeting, it was determined that there were no existing procedural regulations to guide it in deciding whether to engage in the rule-making process when called upon to do so through a petition filed by an interested party. The Commission appointed a subcommittee to develop the criteria to utilize and apply in such instances. The following threshold criteria were adopted by the Commission on July 10, 1985, after being developed and proposed by the subcommittee.

“1. Whether the proposed rule is unconstitutional or beyond the statutory authority of the agency to adopt;
“2. Whether the proposed rule would promote the legislative intent and purposes of the statute which the Alabama Department of Environmental Management and the Environmental Management Commission are charged to implement;
“3. Whether the petition is supported by such substantive, credible and rele[964]*964vant information which would reasonably support the proposed rule in the absence of contradictory evidence or other relevant factors which the Commission might legitimately consider;
“4. Whether the petition is redundant because petitioner has had a prior opportunity to present relevant evidence on the subject matter of the petition and the petitioner unjustifiably failed to present any such evidence;
“5. Whether alternative avenues for the same or similar relief sought are presently available to the petitioner or have in the recent past been made available to the petitioner;
“In addition, on all petitions for rule-making changes the Commission should take into consideration the manner in which the new rule would impact the overall regulatory scheme of the [Department] and whether such new rule, if implemented, would promote the basic underlying public policy of the statutes, rules, and regulations for which [the Department] is charged with implementing.”

The subcommittee further recommended that Durbin’s petition be dismissed as failing to meet all of the above-referenced criteria, and the Commission complied with that recommendation. Durbin then filed its complaint in the circuit court, and Dur-bin timely appealed from the trial court’s final judgment on July 10, 1987, which upheld the action of the Commission and denied Durbin’s relief.

In reviewing the action of an administrative agency, a court is normally limited to a review of the administrative record, Ex parte Smith, 435 So.2d 108 (Ala.Civ.App. 1983), and the standard of review in certio-rari matters is usually confined to a consideration of the proper application of the law involved and whether the ruling was supported by any legal evidence. Marshall Durbin & Co., 495 So.2d at 81. A court in reviewing the action of an administrative agency through certiorari proceedings “does not pass upon the wisdom of the decision of the agency nor is it within the purview of courts to pass upon the merits of a particular action of an administrative agency when the agency exercised its discretion in choosing the method of achieving legislative objectives.” Alabama Board of Nursing v. Herrick, 454 So.2d 1041, 1043 (Ala.Civ.App.1984) (citations omitted). A court must give great weight to the reasoning and decision of the administrative agency. City of Birmingham v.

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Related

ALA. BD. OF NURSING v. Herrick
454 So. 2d 1041 (Court of Civil Appeals of Alabama, 1984)
Sexton v. TUSCALOOSA CTY. CIV. SERVICE BD.
426 So. 2d 432 (Court of Civil Appeals of Alabama, 1983)
Illinois Central Railroad v. Thomas Alabama Kaolin Co.
153 So. 2d 794 (Supreme Court of Alabama, 1963)
Ex Parte Smith
435 So. 2d 108 (Court of Civil Appeals of Alabama, 1983)
City of Birmingham v. JEFFERSON COUNTY BD.
468 So. 2d 181 (Court of Civil Appeals of Alabama, 1985)
Marshall Durbin & Co. v. ENVIRON. MANAGEMENT
495 So. 2d 79 (Court of Civil Appeals of Alabama, 1986)
Marshall Durbin & Co. v. Jasper Utilities Board
483 So. 2d 399 (Supreme Court of Alabama, 1986)

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Bluebook (online)
519 So. 2d 962, 1987 Ala. Civ. App. LEXIS 1506, 1987 WL 2989, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marshall-durbin-co-of-jasper-v-environmental-management-commission-alacivapp-1987.