IN TIIE CIRCUIT COURT OF CONECUH COTINTY.

TOWI\ OF REPTON, ALABAMA and TERRI CARTER, MAYOR OF REPTON,

Plaintiffs,
v.

CIVIL ACTION NO.:

cv-2011-

CONECUH CO[I|[TY COMMISSION and CONECUH WOODS LLC.

Defendants.

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:

PARTIES. JURISDICTION. AND VENUE

1. 2. 3.

Plaintiff the Town of Repton ("Repton") is a municipality located in Conecuh

County, Alabama.

Plaintiff Terri Carter ("Carter") is an adult resident of Conecuh County, Alabama.

Mayor of Repton, Alabama.

She is the

Defendant the Conecuh Counfy Commission ("Commission") is a governing body

of Conecuh County, Alabama, and the host government authority, pursuant to Ara. CooB
S

22-27-48, for the proposed landfill at issue.

Defendant Conecuh Woods LLC is an Alabama limited liability company with its

4.

principal address, as listed in its organizational documents, in Monroeville, Alabama.

Conecuh Woods LLC is a necessary party Alabama Rules of Civil Procedure.

in this action pursuant to Rule 19 of

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.

STATEMENT OF THE FACTS

7.

On January 2I,2011, Conecuh Woods LLC submitted to the Commission an

Application for Approval

of

Proposed Conecuh Woods Solid Waste Management

Facility, Conecuh County, Alabama (Jan. 19, 2011) ("Application"). (Exhibit 1).

8.

The Application is for the construction of a 5,100-acre solid waste disposal

facility to be located one mile south of Repton, Alabama, in an unincorporated part of

Conecuh County. The facility is proposed to have 1,600 acres of active disposal cells and

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.

According to the U.S. Fish

& Wildlife

Service ("FWS"), Conecuh County is

known to be or believed to be home to the endangered red-cockaded woodpecker and

wood stork, the endangered gray bat, the threatened Red Hills salamander,
endangered Louisiana

the
are

quillwort plant, and three species of freshwater clam that

candidates for listing: the Choctaw bean, the Alabama pearlshell, and the narrow pigtoe.

See U.S. Fish

& Wildlife Service

Species Report, Conecuh County, at

http://ecos.fws.gov/tess public/counWSearch!speciesByCounWReport.action?fips=01035
(last visited

Apr.20,20lI).

Furthermore, Conecuh County is also within the range of the

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-

Downstream of the proposed landfi.ll, Escambia Creek ultimately flows through

the reservation of the Poarch Band of Creek Indians, the only federally-recognized Native

American tribe in the state of Alabama.

13. 14. 15.

The proposed landfill

will be located within the Bahamas Fracture Seismic Zone.

The proposed landfrll is within one mile of at least two churches and encompasses

at least one historic cemetery (the

Monis Cemetery).

Despite repeated guarantees, assurances, and commitments in the Application to

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-

27-l to 22-27-94, the Commission is authorized to approve or disapprove applications for

solid waste disposal facilities in its jurisdiction in accordance with state law and the
County's solid waste management plan. AI-e. CooB
S

22-27-48.

t7.

Conecuh County's solid waste management plan, the Conecuh County Solid

Waste Management Management

Plan Update (Sept. 2004) ("Conecuh County Solid

Waste

Plan" or "Plan"), was approved by the Alabama Department of

Environmental Management ("ADEM") on March 17,2005, and is effective tbrough

2014. (Exhibit 2).

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

22-27-48(a);Plan, Article III, Section 13.2.

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.

20. 21. 22.

On January 27,2011, the Commission issued notice of a March L0,2011 public

hearing on the proposed landfill in The Evergreen Courant.

(Exhibit 3).

The notice did not contain a "description of the proposed action to be taken" as

required by the

ASWDA. Ale. Coor

$ 22-27-48(a).

The March 10,2011pubtic meeting occurred on a Thursday at9:00 a.m., when

many of the interested people were required to be at

work. The hearing took place

at

Reid State Technical College in Evergreen, Alabama. Class was in session during the
public hearing and parking was denied to non-students.

23.

Of the one hundred and

seventeen (117) people who were able

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.

The Commission has repeatedly denied requests by citizens to comment on the

proposed landfill.

25. At the regularly

scheduled January 24,2011 Commission meeting, concerned

citizens opposing the landfill were denied a place on the Commission's agenda.

26. At the April lL, 2AI1 public engineering

work session, citizens attending the

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

18, 2011 Commission meeting, the Commission denied the request

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).

a fact of which the Commission

29.

Numerous governmental resolutions have been submitted in opposition to the

proposed landfill by Repton and surrounding communities, including Baldwin, Monroe,

and Escambia Counties, along with more than ten other municipalities and the Poarch Band of Creek Indians.

30.

On February 24,2011, the Coastal Gateway Regional Economic Development

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

in opposition to the landfill, noting concems about pollution of the

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.

On behalf of Citizens for a Clean Southwest Alabama, Southern Earth Sciences,

Inc., a regional geotechnical and environmental construction materials testing firm,

conducted

technical evaluation

of the Application, which was presented to

the

Commission on January 19, 2011. (Exhibit

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

Fracture Seismic Zone, nearby where an earthquake

measuring 4.9 on the Richter scale occurred

in 1997. Further, the topography of the site

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

opposing the landfill and critiquing the adequacy

comment letter from the Town of Repton. (Exhibit 5).

of the Application, including

34.

On April 18, 2011, the Commission voted in favor of the Conecuh Woods LLC
a resolution

Application. The Commission did not pass or adopt

in favor of granting the

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

in attending the meeting, and explicit written

held in an adequate venue.

requests beforehand that the meeting be

35.

In approving the Application, the Commission acted arbitrarily and capriciously

because the Application was considered in the absepce of the public notice and comment

requirements of the ASWDA and because

it failed to satis$r the criteria

identified in
Waste

Section 22-27-48
Management Plan.

of the Alabama

Code and the Conecuh County Solid

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

opportunities, as required by the ASWDA at Section22-27-48(a)'

38.

The ASWDA requires tbat a host government such as the Commission, in

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

landfrl| . . . ." Finally, in connection with

the proposal's public notice,

"lalll pertinent

documents shall be available for inspection

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

ASWDA. See Arl.. Coon

$ 22-27-a8@). Rather,

it simply states that the Commission

will

consider the application "proposing the establishment of a municipal solid waste

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

. . . during normal business hours at a location

readily accessible to the

public." See Arl^. CooE 5 22-27-48(a)

(emphasis added). The Application contains a

number of references to guarantees, commitments, and assurances by Conecuh Woods

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

will be formalized in a host government

agreement, then
been

such a host government agreement

is a "pertinent document" that must have

available to the public for inspection. Conversely,

if such guarantees, assurances, and

commitments have not been formally captured in writing by the Commission in a binding
document, then

it was per se arbitrary and capricious

for the Commission to rely on such

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

44. 45. 46.

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

plan." In the case of

Conecuh County, the "plan" in question is

the Conecuh County Solid Waste Management Plan.

47.

With respect to the foregoing criterion, the proposed landfill is clearly not
in its Plan.

consistent with the jurisdiction's solid waste management need as identihed

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.

Pursuant to Section 22-27-48(a)(2) of the ASWDA, the County Commission must

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

the Evergreen Industrial Park with respect to this requirement. However,

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.

Pursuant to Section 22-27-48(aX3) of the ASWDA, the County Commission must

evaluate "the location

of a proposed facility in relationship to existing industries in the

of solid waste, or the relationship to the areas projected

state that generate large volumes

for development of industries that will generate solid waste."

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.

Pursuant to Section 22-27-48(a)(5) of the ASWDA, the Commission must assess

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,

National Resources Conservation Service's rating of the soil types at the

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.

Pursuant to Section 22-27-48(aX6) of the ASWDA, the Commission must assess

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

be negative ones. The Application

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

landfill is decidedly negative.

56.

Generally speaking, and in addition to the foregoing, the Application contained

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

Application was arbitrary and capricious.

The Application Fails to satisfv the Required criteria of thLe Conecuh Countv Solid Waste Manasement Plan

58. 59. 60.

Plaintiffs incorporate and reallege each and every allegation set forth above herein

by reference.

In considering the Application, the Commission failed to fully consider all

the

required criteria of the Conecuh County Solid Waste Management Plan.

The Commission failed to consider the "Exclusionary Guidelines" provided in

Article III, Section 12.2 of the Plan, which states as follows:

When considering approval

of solid waste facilities, the County

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

a proposed facility not meet these siting requirements, it should

excluded from further consideration by the Commission.

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:

(a) That "a specific study will be conducted to determine

endangered species exist on or adjacent to the page 3-7 .

if

any

property." see Application,

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

of safely permitting, constructing, operating, maintaining, and ultimately closing

landfill. The Application fails to provide any relevant information in that

regard,

particularly with respect to Conecuh Woods LLC's financial resources and previous
experience with regulatory agencies and regulated facilities.

63'

Generally speaking, and in addition to the foregoing, the Application contained

nurnerous factual elrors that,

by their very nature, precluded the Commission from

rationally and properly considering the Application.

64'

The Commission did not have adequate technical or financial information to make

a decision on the Application and has acted arbitrarily and capriciously

in approving the

Application.

COUNT

I:

Declaratorv Judement

65'

Plaintiffs incorporate and reallege each and every allegation set forth above herein

bv reference.

66.

There is a justiciable confoversy between the Plaintiffs and the Commission as

Plaintiffs' legal rights have been violated by the Commission. Plaintiffs are seeking a
declaratory judgment determining that the Commission

did not have

adequate

information to properly consider and approve the Application for the proposed landfill
and acted

arbitarily and capriciously and in violation of applicable law in approving the

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

II: Petition for Writ

of Certiorari

67. 68.

Plaintiffs incorporate and reallege each and every allegation set forth above herein

by reference.

The Court has author$ to review the Commission's decision through

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

writ of certiorari lies to review the rulings of

an

administrative board or commission.").

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

in violation of applicable law in approving the 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 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

71. 72. 73.

Plaintiffs incorporate and,reallege each andevery allegation set forth above herein

by reference.

Plaintiffs seek an injunction requiring the Commission to follow the applicable

law when considering and acting upon the Application or any resubmission thereof.

Plaintiffs seek an injunction barring the Commission from acting in an arbitrary

and capricious manner when considering the Application or any resubmission thereof.

PRAYER FOR RELIEF

WHEREFORE, Plaintiffs request the Court to order relief as follows:

(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

public adequate opportunify to comment on the proposed landfrlt;

(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.

all of the costs associated with this litigation

to

ls/

James L. Noles Jr.

One of the Attorneys for Plaintiffs

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

COUNSEL FOR TOWN FOR REPTON

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

Monroeville, Alabama 36460

lsl

James L. Noles Jr.

Of Counsel