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03-CV-2020-900664.00
GINA J. ISHMAN
CIRCUIT COURT CLERK
MONTGOMERY COUNTY, ALABAMA
251 S. LAWRENCE STREET
MONTGOMERY, AL, 36104
334-832-1260
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ELECTRONICALLY FILED
5/18/2020 8:11 AM
03-CV-2020-900664.00
State of Alabama Case Number: CIRCUIT COURT OF
COVER SHEET MONTGOMERY COUNTY, ALABAMA
Unified Judicial System
CIRCUIT COURT - CIVIL CASE 03-CV-2020-900664.00
GINA J. ISHMAN, CLERK
(Not For Domestic Relations Cases) Date of Filing: Judge Code:
Form ARCiv-93 Rev. 9/18
05/18/2020
GENERAL INFORMATION
IN THE CIRCUIT COURT OF MONTGOMERY COUNTY, ALABAMA
ENVIRONMENTAL DEFENSE ALLIANCE ET AL v. HOUSTON LANIER BROWN, II, MBR, ENVTL. MGMT. COMM'N
NATURE OF SUIT: Select primary cause of action, by checking box (check only one) that best characterizes your action:
ATTORNEY CODE:
LUD001 5/18/2020 8:11:51 AM /s/ DAVID ALAN LUDDER
Date Signature of Attorney/Party filing this form
Election to Proceed under the Alabama Rules for Expedited Civil Actions: YES NO
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ELECTRONICALLY FILED
5/18/2020 8:11 AM
03-CV-2020-900664.00
CIRCUIT COURT OF
MONTGOMERY COUNTY, ALABAMA
GINA J. ISHMAN, CLERK
IN THE CIRCUIT COURT FOR MONTGOMERY COUNTY, ALABAMA
ENVIRONMENTAL DEFENSE
ALLIANCE and GASP, d/b/a Gasp,
Plaintiffs,
Defendant.
____________________________________/
Nature of Action
1. This is an action for declaratory and injunctive relief and nominal damages
to redress violations of the Alabama Open Records Act, Ala. Code 1975 § 36-12-40, and
2. This action arises under Ala. Code 1975 §§ 6-6-223, 6-6-226, 6-6-230 and
3. This Court has jurisdiction under Art. VI, § 142(b), Ala. Const. 1901 (Off.
Recomp.) (“The circuit court shall exercise general jurisdiction in all cases except as may
otherwise be provided by law”); Ala. Code 1975 §§ 6-6-222 (“Courts of record, within
their respective jurisdictions, shall have power to declare rights, status, and other legal
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relations whether or not further relief is or could be claimed”); 6-6-500 (“Injunctions may
be granted . . . by the judges of the . . . circuit courts”); 12-11-31 (“The powers and
civil actions in which a plain and adequate remedy is not provided in the other judicial
tribunals”); 12-11-33 (“Circuit courts, when exercising equitable jurisdiction, must take
cognizance of the following cases: (1) When the defendants reside in this state”).
Ala. Code 1975 §§ 6-3-2(a)(3), 6-3-2(b)(3); Little v. State, 44 So. 3d 1070, 1072-73 (Ala.
2010).
Parties
(hereinafter, “ADEM”) and a public officer. He was last appointed by Governor Robert
Julian Bentley. ADEM is a State agency within the Executive Branch of State
Government created, in part, “to protect human health and safety.” The Commission
selects and advises the director of ADEM and establishes environmental policy for the
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behalf of its members and the public. The Alliance administers a Government
behalf of its members and in the public interest. Gasp’s mission is to advance healthy air
and collaboration.
8. The ABC Coke facility is located in Tarrant, Alabama. The facility was
constructed in 1919 and has been in operation ever since. The facility produces foundry
coke and furnace coke that are sold or used in the coking process. The facility is the
largest merchant producer of foundry coke in the United States. The facility has been
owned by Drummond Company, Inc. since 1985. The operation of the facility has resulted in
as the “35th Avenue Site”), on March 17, 2011, the United States Environmental
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Liability Act (hereinafter, “CERCLA”), 42 U.S.C. § 9606, was warranted to reduce the
potential human health risks to residents within the 35th Avenue Site.
10. On September 20, 2013, the EPA notified Drummond Company, Inc. that it
had been identified as a “potentially responsible party” for the release of hazardous
substances from the ABC Coke facility into the environment of the 35th Avenue Site.
contaminated soil removal action and advised Drummond Company, Inc. that it “may be
required to perform cleanup actions to protect the public health, welfare or the
environment” and “may also be responsible for costs incurred by the EPA in cleaning up
the Site . . ..” Drummond Company, Inc. did not accept the EPA’s invitation and EPA
funds.
11. Drummond Company, Inc. engaged Balch & Bingham, LLP (hereinafter,
“Balch”) to oppose and minimize any liability Drummond might have under CERCLA for
the release of hazardous substances from the ABC Coke facility into the environment,
including any obligation to reimburse EPA for the costs of any removal or remedial
action. Balch, in turn, engaged Southeast Engineering & Consulting, LLC (hereinafter,
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assistance from time to time as requested by Balch during the term of this Agreement in
connection with environmental and regulatory and political matters as well as other issues
identified by Balch that are of direct interest to Balch and/or its clients.” Balch partner
and attorney Joel Iverson Gilbert executed the Balch – SE+C agreement on behalf of
Balch and was designated therein as Balch’s representative for the administration of the
agreement. Onis (“Trey”) Glenn, III executed the Balch – SE+C agreement on behalf of
SE+C and was identified therein as a principal of SE+C. Subsequently, Balch also
and assistance from time to time as requested by Balch during the term of this Agreement
in connection with environmental and regulatory and political matters as well as other
issues identified by Balch that are of direct interest to Balch and/or its clients.” Balch
partner and attorney Joel Iverson Gilbert executed the Balch – SE+C agreement on behalf
of Balch and was designated therein as Balch’s representative for the administration of
the agreement and was designated therein as Balch’s representative for the administration
of the agreement. Oliver Robinson (a/k/a Oliver L. Robinson, Jr.) executed the Balch –
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the hazards to public health and the environment which are associated with the release of
hazardous substances from the ABC Coke facility into a residential area of Tarrant,
13. On September 22, 2014, EPA published proposed revisions to the National
Priorities List (hereinafter, “NPL”) which included the addition of the 35th Avenue Site
on the NPL. 79 Fed. Reg. 56538 (Sep. 22, 2014). “The NPL is intended primarily to
guide the [EPA] in determining which sites warrant further investigation. These further
investigations will allow the EPA to assess the nature and extent of public health and
environmental risks associated with the site and to determine what CERCLA-financed
Management Commission Chair Houston Lanier Brown, II, ADEM Director Lance R.
LeFleur, Attorney General Luther Johnson Strange, and Governor Robert Julian Bentley
to undertake official actions in opposition to (a) EPA’s listing of the 35th Avenue Site on
the NPL, (b) EPA’s grant of Gasp’s petition for a preliminary assessment of the hazards
to public health and the environment which are associated with the release of hazardous
substances from the ABC Coke facility into the Pinson Valley Neighborhood Site, and (c)
an EPA site investigation finding that the release of hazardous substances from the ABC
Coke facility resulted in hazards to public health and the environment within the Pinson
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and through their respective attorneys, submitted a written request to Houston Lanier
16. On December 27, 2019, Defendant Houston Lanier Brown, II, by and
through ADEM General Counsel Steven Shawn Sibley, served a response to the
Environmental Defense Alliance and Gasp request dated November 1, 2019 stating as
follows:
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withheld from disclosure to the Environmental Defense Alliance and Gasp numerous
records responsive to their November 1, 2019 request. For example, Defendant Houston
from agents or employees of Balch (e.g., Joel Iverson Gilbert) and SE+C (e.g., Onis
environment in Jefferson County (including, but not limited to, the 35th Avenue Site and
contamination of the environment in Jefferson County (including, but not limited to, the
Brown, II and agents or employees of Balch (e.g., Joel Iverson Gilbert) regarding
(including, but not limited to, the 35th Avenue Site and Pinson Valley Neighborhood
Site);
(d) notes and summaries of meetings between Houston Lanier Brown, II and
agents or employees of Balch (e.g., Joel Iverson Gilbert), SE+C (e.g., Onis “Trey” Glenn,
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III and Willie Scott Phillips, Jr.), and the Foundation (e.g., Oliver L. Robinson, Jr.)
County (including, but not limited to, the 35th Avenue Site and Pinson Valley
Neighborhood Site);
limited to, the 35th Avenue Site and Pinson Valley Neighborhood Site); and
limited to, the 35th Avenue Site and Pinson Valley Neighborhood Site).
Plaintiffs’ request to inspect and copy any records described in their November 1, 2019
request.
Every citizen has a right to inspect and take a copy of any public writing of
this state, except as otherwise expressly provided by statute. * * *
provides:
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(3) Requests for records and information must be made to the Office
of the Director at the Department's Montgomery address. Responses to
such requests shall be made within 10 working days after receipt in the
Office of the Director.
***
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***
All public officers and servants shall correctly make and accurately keep in
and for their respective offices or places of business all such books or sets
of books, documents, files, papers, letters and copies of letters as at all
times shall afford full and detailed information in reference to the activities
or business required to be done or carried on by such officer or servant and
from which the actual status and condition of such activities and business
can be ascertained without extraneous information, and all of the books,
documents, files, papers, letters, and copies of letters so made and kept shall
be carefully protected and safely preserved and guarded from mutilation,
loss or destruction.
***
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***
withheld from disclosure to the Environmental Defense Alliance and Gasp records that
are responsive to their November 1, 2019 request to inspect and copy records.
that any of the records withheld from disclosure to the Environmental Defense Alliance
27. A proper construction of Ala. Code 1975 § 36-12-40 and Ala. Admin. Code
r. 335-1-1-.06 is necessary to determine Plaintiffs’ right to inspect and copy those records
28. A proper construction of Ala. Code 1975 § 36-12-40 and Ala. Admin. Code
to withhold from disclosure those records withheld from disclosure to the Environmental
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24 hereof.
30. Defendant Houston Lanier Brown, II’s failure to disclose those records
withheld from disclosure to the Environmental Defense Alliance and Gasp is beyond his
Houston Lanier Brown, II is not permanently enjoined from withholding records from
disclosure to the Environmental Defense Alliance and Gasp in violation of Ala. Code
1975 § 36-12-40 and Ala. Admin. Code r. 335-1-1-.06. An award of money damages
against Defendant Houston Lanier Brown, II in his official capacity is precluded by Ala.
Const. art.1, § 13. Even if an award of money damages could be granted against
Defendant Houston Lanier Brown, II in his official capacity, such an award would not
not permanently enjoined from continuing to withhold records from disclosure to the
Environmental Defense Alliance and Gasp in violation of Ala. Code 1975 § 36-12-40 and
Ala. Admin. Code r. 335-1-1-.06 outweighs any harm an injunction may cause Defendant
Defense Alliance and Gasp will continue to suffer the deprivation of their right to inspect
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and copy the requested records. Defendant Houston Lanier Brown, II will suffer no harm
and Gasp in violation of Ala. Code 1975 § 36-12-40 and Ala. Admin. Code r. 335-1-1-.06
will not disserve the public interest. Ala. Code 1975 § 36-12-40 and Ala. Admin. Code r.
335-1-1-.06 permit citizens to learn about the activities and business conducted by public
officers, partly so that they may hold public officers to account for inappropriate activities
and decisions.
24 hereof.
35. Defendant Houston Lanier Brown, II’s failure to disclose those records
withheld from disclosure to the Environmental Defense Alliance and Gasp is beyond his
Defendant Houston Lanier Brown, II’s failure to disclose those records withheld from
disclosure to the Environmental Defense Alliance and Gasp in violation of Ala. Code
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A. That the Court grant a judgment against Defendant Houston Lanier Brown,
II in his official capacity declaring that he has unlawfully withheld from disclosure
2019;
Lanier Brown, II in his official capacity, and all other persons in active concert or
participation with him who receive actual notice of the injunction, from continuing to
withhold from disclosure records requested by the Environmental Defense Alliance and
D. That the Court award Plaintiffs costs of this action to be paid by Defendant
Defendant Houston Lanier Brown, II in his individual capacity under the common benefit
doctrine; and
F. That the Court award Plaintiffs such other and additional relief to which
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Respectfully submitted,
s/ David A. Ludder
David A. Ludder (LUD001)
Attorney for Environmental Defense Alliance
Law Office of David A. Ludder, PLLC
9150 McDougal Ct.
Tallahassee, FL 32312
Tel (850) 386-5671 Fax (850) 999-6435
Email davidaludder@enviro-lawyer.com
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A
November 1, 2019
Pursuant to Ala. Code §36-12-40, GASP and the Environmental Defense Alliance, both
Alabama non-profit corporations, request that you permit inspection and copying of all draft and
final records of communications, including intra-agency communications, letters, memoranda,
correspondence, facsimiles, electronic mail and text messages, calendar information, notes and
summaries of telephone conversations and meetings, and other records of communications
﴾including attachments﴿ between you and any agent or employee of the following entities during
the calendar years of 2013 through 2019 and concerning the business and activities carried on by
you as a member of the Alabama Environmental Management Commission regarding any
contamination or potential contamination of the environment in Jefferson County (including but
not limited to the 35th Avenue Site and Pinson Valley Neighborhood site) or related matter,
regardless of where or how these records may be maintained or stored:
Balch & Bingham, LLC (including, but not limited to, Joel I. Gilbert, Mary Samuels,
Steven G. McKinney, S. Grady Moore, Michael J. Davis and Irving W. Jones);
Alabama Office of the Attorney General (including, but not limited to, Luther J. Strange,
III, Steven T. Marshall, Kevin L. Turner, Robert G. Tambling, and G. Ward Beeson);
Drummond Company, Inc. (including, but not limited to, David Roberson and Blake
Andrews);
Alabama Office of the Governor (including, but not limited to, Robert Bentley, Kay Ivey,
Seth Hammett, Blaine Galliher, Jonathan Bargainer, and Carrie McCallum);
Alabama Department of Environmental Management (including, but not limited to,
Lance R. LeFleur and Vernon Barnett);
Alabama Environmental Management Commission (including, but not limited to, Debi
Thomas, W. Scott Phillips, James E. Laier, Samuel L. Miller, Terry D. Richardson, and
Mary J. Merritt);
Southeast Engineering & Consulting, LLC (including, but not limited, to Onis “Trey”
Glenn and W. Scott Phillips);
Blue Ridge Partners, LLC (including, but not limited to, Onis “Trey” Glenn and W. Scott
Phillips);
Alliance for Jobs and the Economy (including, but not limited to, David L. Roberson and
Mike Thompson);
The requested records should be provided in their original format (e.g., PDF, Word, etc.), if
available, with all original metadata included.
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provided to the Environmental Defense Alliance on December 15, 2017, August 8, 2018 and
August 9, 2018 or any records included in the Alabama Department of Environmental
Management’s eFile system under the categories of “Director’s Correspondence” or “35th
Avenue Superfund Site.”
If you have any questions regarding this request, please contact both of the undersigned.
Sincerely,
Haley C. Lewis
Attorney for GASP
2320 Highland Avenue, South
Suite 270
Birmingham, AL 35205
(205) 701-4277
David A. Ludder
Attorney for Environmental Defense Alliance
Law Office of David A. Ludder, PLLC
9150 McDougal Ct.
Tallahassee, FL 32312
(850) 386-5671
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Subject: RE: November 1, 2019 - Public Document Requests (copies attached) - Joint
Response
From: "Sibley, Shawn S" <SSibley@adem.alabama.gov> B
Sent: 12/27/2019 5:37:00 PM
To: "Haley Colson Lewis" <haley@gaspgroup.org>; "'David A. Ludder'"
<davidaludder@enviro-lawyer.com>;
CC: "'Tambling, Robert'" <Robert.Tambling@alabamaag.gov>; "Thomas, Debi"
<aemc@adem.alabama.gov>; "Jones, Azure" <AJones@adem.alabama.gov>;
Attachments: ADEM-EMC Cover Letter - EDA Public Record Request Dated 07-23-18 (08-09-
18).pdf; Request to Inspect and Copy Records--Director Lance LeFleur.pdf;
Request to Inspect and Copy Records--Hon. H. Lanier Brown, II.pdf
This electronic message transmission contains information from the Office of General Counsel for the Alabama Department of Environmental
Management which may be confidential or privileged. The information is intended to be for the use of the individual or entity named above. If
you are not the intended recipient, be aware that any disclosure, copying, distribution or use of the contents of this information is prohibited. If
you have received this transmission in error, please notify us by telephone (334) 271-7855 or by electronic mail immediately.
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