USA – ALABAMA Law and Practice Contributed by: John M. Johnson, Lana A. Olson, W. Larkin Radney IV and Brian P. Kappel, Lightfoot, Franklin & White, LLC
3. Environmental Protections 3.1 Protection of Environmental Assets ADEM is the primary agency in charge of protecting environmental assets in Alabama. It shares most of its responsibilities with the EPA. In addition, the Alabama Department of Conservation and Natural Resources (ADCNR) is in charge of the state’s parks and man- ages wildlife, freshwater fisheries, marine resources and state lands. 3.2 Breaching Protections A party breaching environmental protection rules is subject to civil fines, orders for corrective actions and, in some cases, criminal penalties. ADEM is primar- ily responsible for enforcement. Private civil liability is also possible where individual, as opposed to state- owned, rights are violated. 4. Environmental Incidents and Permits 4.1 Investigative and Access Powers ADEM is charged with administering, enforcing, and ensuring compliance with Alabama’s environmental statutes and the permits issued under them. ADEM may issue notices, orders and permits; hold hearings; and enforce environmental requirements across air, land and water programmes. The Department has statutory authority to enter regulated facilities during reasonable hours to inspect, investigate, obtain sam- ples, monitor operations, and examine or copy required records to assess compliance. The right to enter and inspect is embedded across the programmes ADEM administers, including solid waste management facili- ties and materials recovery facilities, hazardous waste generation, transportation, treatment, storage, or dis- posal facilities, and permitted air sources. Where a facility is subject to an ADEM permit or regulatory pro- gramme, on-site inspections and records access do not require a court order or third-party approval. They are authorised by statute and implemented by permit conditions and programme rules. When ADEM believes a violation has occurred, it may issue a Notice of Violation and, where appropriate, an administrative order assessing civil penalties or requir- ing corrective measures. Before issuing a civil penalty
order, ADEM provides written notice of the alleged violation and an opportunity for an informal confer- ence with the director or designee. If ADEM proceeds to a penalty order, that order will include findings of fact and be served consistent with applicable proce- dural requirements, and the respondent may request a hearing before the Alabama Environmental Manage- ment Commission (EMC) within 30 days. The EMC’s order approving, modifying or disapproving ADEM’s action constitutes the Department’s final action and is subject to judicial review on the administrative record within the time specified by statute. ADEM may also file civil actions, seek injunctive relief, and co-ordinate with the Attorney General as provided by law. Approval procedures for investigations and access are grounded in statute. Routine compliance inspections and document requests are conducted under ADEM’s statutory authority and permit conditions. They do not require separate judicial pre-approval. If a facility refuses lawful entry or production of records, ADEM may seek judicial enforcement or other remedies pro- vided by statute and rule. 4.2 Environmental Permits/Approvals ADEM’s permitting functions are centralised in its Permits Division and carried out under the Alabama Environmental Management Act and specific statutes for air, water, solid waste, hazardous waste, coastal resources and related programmes. The Department issues permits, licences, certifications and approvals to control emissions to air, discharges to waters of the state and management of land-based activities, including solid and hazardous waste, consistent with federal and Alabama standards. Public participation is an integral part of permitting. Draft permits are noticed for public comment under programme-specific rules. For example, major air construction and Title V operating permits are subject to public notice and comment; solid waste permit- ting provides for notice, receipt of public comments, responses to comments, and Department action; and hazardous waste permitting incorporates Federal public participation requirements. If ADEM denies a permit application or issues a permit with conditions an applicant contests, that adminis-
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