Posted on September 9, 2013 by Jarred Taylor
For those of you who interact now with, or may in the future interact with, the Alabama Department of Environmental Management (ADEM), whether its staff or the lawyers who make up ADEM’s Office of General Counsel (OGC), meet ADEM’s General Counsel, Tom Johnston:
Q: Tell me a little bit about your background, how long you’ve been at ADEM, how long as General Counsel, and the make-up of the OGC.
A: I attended the University of California, Berkeley, earning a B.S. in Resource Economics, and came back home to Alabama to get my law degree from the University of Alabama School of Law, receiving my J.D. in 1983. I have been with the OGC for 25 years, representing ADEM in civil enforcement actions, in defensive litigation before the Alabama Environmental Management Commission (AEMC), and in state and federal courts, both at the trial and the appellate levels. I was appointed as the agency’s General Counsel in 2010, following the retirement of long-time General Counsel Olivia Rowell. Currently, there are nine attorneys on staff with the OGC, including myself. While an effort is made to allow staff attorneys to develop expertise by working closely with an assigned ADEM program, our attorneys are also encouraged to provide assistance outside their assigned area, which allows them to expand their individual experiences and remain current in the broad array of environmental law.
Q: What has been one of the more interesting or challenging legal issues you or the OGC has handled, and how did it turn out?
A: The case that comes to my mind is one that presented significant issues of public health and safety, combined with the complexity of the underlying subject matter and the science and technology involved. I refer to the permit appeal and legal challenges lodged against the Chemical Weapons Incinerator built at the Anniston Army Depot in Calhoun County, Alabama to destroy the stockpile of chemical agent and munitions that had been stored at the depot since World War II. The potential impact on the surrounding communities from an accidental release of aging chemical agent was down-right frightening, regardless of whether the release was the result of continued storage, an operational accident, sabotage, or terrorism. From beginning to end, the permits issued by ADEM for the incinerator underwent the most detailed processing and review in the Department’s history, a process that extended beyond ten years. As the attorney in the Office of General Counsel assigned to the case, I provided assistance along the way, from the public hearings during the notice and comment permitting, to the administrative permit appeals initiated before the AEMC, to collateral challenges lodged in trial court and pursued through appellate review. The administrative hearing in the permit appeal was the longest in ADEM history and, at over 700 pages, generated the most extensive recommendation to date from an AEMC hearing officer.
In the end, 12 years after the Army’s initial application to ADEM, the Supreme Court of Alabama upheld all permits issued by ADEM, without modification. For myself (and the Army, DOD, and private attorneys also involved), the joy and professional satisfaction of obtaining that legal victory will be long remembered. Even so, that joy was surpassed in December, 2011, with the announcement that the incinerator had destroyed the last remaining munition, and had forever removed from the consciousness of that community the specter of an agent-related accident. Over the life of the incinerator project, more than 4.5 million pounds of chemical agent – including over 600,000 rockets, projectiles, mines and mortars – were successfully and safely destroyed without major incident.
Q: ADEM has changed over the years, and I know the OGC has changed, too. What are some of the more significant changes you’ve seen in your time at ADEM?
A: The more significant changes I have witnessed during my twenty-five years with ADEM result from advancements in information technology. From advances in word-processing and database management to electronic filings and use of the internet, these developments have fundamentally changed not only how we handle the Department’s business, but also the public’s ability to interact with ADEM. Utilizing the tools now available through advancements in information technology and the internet, ADEM is now one of the most transparent agencies in Alabama state government, and a leader in transparency among the state environmental agencies in EPA Region IV. With the development of the ADEM website, citizens now have access to a wide range of electronic data and may tailor search queries by facility name, permit number, or location and community. Through our website, citizens may now file complaints and research information. The Department has engaged in a concerted effort through workshops and community outreach to provide “how-to” instructions on using the ADEM website. Regulated entities also have benefited through the ability to file reports electronically, such as discharge monitoring reports, thereby avoiding potential mistakes and errors from manual entry of data.
Q: Is funding still a big problem for ADEM and the OGC? What are some other significant issues?
A: Funding and budgetary constraints at the state and federal level continue to present some of the most significant challenges to ADEM I have observed since joining the staff in 1988. As a result, ADEM has had to take steps to cut back and streamline. Last summer our director announced the sale of the Department’s surveillance airplane. A hiring freeze was implemented and staffing levels have decreased through attrition. In the Office of General Counsel, we have not filled two attorney slots and one of our support positions. Employees have not received merit raises in five years, cost of living adjustments have been stayed, and promotional opportunities are limited. Yet, even with these constraints, environmental management by ADEM has performed in the upper percentile in national rankings. I give credit for these rankings to the dedicated men and women who staff ADEM, and the guidance and leadership from the front office.
Q: Are there particular legal or substantive issues the OGC or ADEM is working on that you can share; or perhaps issues you see coming down the road with which ADEM or the OGC will have to deal?
A: One issue we are seeing on a recurring basis arises from activities conducted by business organizations that enjoy limited liability under state law, i.e. limited liability companies or “LLCs.” What was once a form of business organization little noticed by ADEM, the use of LLCs appears to have skyrocketed in areas of activity subject to ADEM regulation. Whether the activity involves development of a residential subdivision, or the operation of a private wastewater treatment facility, when a LLC engages in activities that result in significant environmental impact and damages, the assertion of limited liability by those responsible stymies enforcement efforts and limits the ability of courts to grant relief. When construction activities undertaken by a LLC result in impacts to streams and tributaries, or damages the property of adjoining land-owners, courts are looking at ADEM and private plaintiffs and asking: “What can I do if there are no assets in the company?” We are aware of cases now where the limited liability form of organization has resulted in either no remediation of impacted property, or emergency response remediation conducted on the public dime. In this respect, the LLC business organization has allowed the de facto shifting of financial responsibility from the LLC investors to others.