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
trative action may be appealed to the EMC by filing a timely hearing request, typically within 30 days of the contested action. The EMC may conduct the hearing itself or through a hearing officer, and issues a final order approving, modifying or disapproving ADEM’s action, which is then subject to judicial review on the administrative record within the statutory time frame. 4.3 Regulators’ Approach to Policy and Enforcement ADEM has a graduated but firm approach to compli- ance and enforcement. When a violation is identified, ADEM may issue a Notice of Violation and, where necessary, administrative orders requiring abatement, mitigation, cessation of activity, cleanup and/or the assessment of civil penalties. For orders assessing penalties, ADEM provides an opportunity for an infor- mal conference before issuance and provides notice and appeal rights as described above. ADEM may resolve matters through consent orders and, where applicable, civil penalties, consistent with its statu- tory authority to issue orders and settle enforcement actions. In appropriate cases, ADEM or the Attorney General may initiate civil actions seeking injunc- tive relief, damages or penalties. Programme rules also provide for programme-specific transparency and public notification, and ADEM maintains public records and provides public access to permit and enforcement files on its website consistent with its administrative rules. The EMC develops and adopts environmental rules, regulations and standards proposed by ADEM, and hears appeals of ADEM’s administrative actions. EMC proceedings operate under Commission rules of pro- cedure, provide for presentation of evidence consist- ent with the governing statutes, and culminate in final orders that are reviewable in circuit court as provided by law. 4.4 Transferring Permits/Approvals Permits transfer but they do not travel. A permit for a particular location can be transferred to another per- son or business, but a permit that applies to a particu- lar location cannot be transferred to another location. The transferability of permits is programme-specific and governed by the applicable statute and adminis- trative rules for each programme.
• Hazardous waste permits – Alabama’s hazard- ous waste permitting programme follows federal Resource Conservation and Recovery Act (RCRA) and EPA requirements. Changes in ownership or operational control are addressed through permit modification or reissuance under the hazardous waste permit rules. • Solid waste and related land programmes – solid waste permitting rules provide post comment actions (issuance, denial, or requests for additional information) and include procedures for permit modification, suspension or revocation. Appeals are to the EMC. • Air permits – air permitting programmes distinguish between construction permits and operating per- mits. Ownership or operator changes are handled through programme-specific administrative proce- dures. Because transfer requirements vary across pro- grammes, the controlling permit and programme rule will determine whether a permit may be transferred, whether a modification or reissuance is required, whether demonstrations (eg, financial assurance) must be made, what public notice applies, and what timing and application content are necessary. Oper- ating without proper permit coverage during or after a change in ownership or operation may constitute a violation and expose the operator to enforcement. 4.5 Consequences of Breaching Permits/ Approvals In addition to Consent Orders and civil fines, ADEM can revoke a permit for non-compliance with permit terms, failures to disclose information relevant to a permit, or operational changes.
5. Environmental Liability 5.1 Key Types of Liability
Regulated entities face civil and administrative liabil- ity for violations of applicable statutes, permits and regulations, with penalty exposure calibrated at times to the nature, duration and severity of the violation. Criminal liability can arise from knowing, intentional or grossly negligent conduct. For contamination mat- ters, responsibility in Alabama is programme specific,
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