AlaFile E-Notice

03-CV-2020-900663.00

To: DAVID ALAN LUDDER

court.notices@enviro-lawyer.com

NOTICE OF ELECTRONIC FILING

IN THE CIRCUIT COURT OF MONTGOMERY COUNTY, ALABAMA

ENVIRONMENTAL DEFENSE ALLIANCE ET AL V. LANCE R. LEFLEUR, DIRECTOR ET

03-CV-2020-900663.00

The following complaint was FILED on 5/18/2020 7:46:33 AM

Notice Date: 5/18/2020 7:46:33 AM

GINA J. ISHMAN
CIRCUIT COURT CLERK
MONTGOMERY COUNTY, ALABAMA
251 S. LAWRENCE STREET
MONTGOMERY, AL, 36104

334-832-1260
 DOCUMENT 1
ELECTRONICALLY FILED
5/18/2020 7:46 AM
03-CV-2020-900663.00
State of Alabama Case Number: CIRCUIT COURT OF
COVER SHEET MONTGOMERY COUNTY, ALABAMA
Unified Judicial System
CIRCUIT COURT - CIVIL CASE 03-CV-2020-900663.00
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. LANCE R. LEFLEUR, DIRECTOR ET AL

First Plaintiff: Business Individual First Defendant: Business Individual

Government Other Government Other

NATURE OF SUIT: Select primary cause of action, by checking box (check only one) that best characterizes your action:

TORTS: PERSONAL INJURY OTHER CIVIL FILINGS (cont'd)

WDEA - Wrongful Death MSXX - Birth/Death Certificate Modification/Bond Forfeiture Appeal/
TONG - Negligence: General Enforcement of Agency Subpoena/Petition to Preserve

TOMV - Negligence: Motor Vehicle CVRT - Civil Rights

TOWA - Wantonness COND - Condemnation/Eminent Domain/Right-of-Way
TOPL - Product Liability/AEMLD CTMP - Contempt of Court
TOMM - Malpractice-Medical CONT - Contract/Ejectment/Writ of Seizure
TOLM - Malpractice-Legal TOCN - Conversion
TOOM - Malpractice-Other EQND - Equity Non-Damages Actions/Declaratory Judgment/
TBFM - Fraud/Bad Faith/Misrepresentation Injunction Election Contest/Quiet Title/Sale For Division

TOXX - Other: CVUD - Eviction Appeal/Unlawful Detainer

FORJ - Foreign Judgment
TORTS: PERSONAL INJURY FORF - Fruits of Crime Forfeiture
TOPE - Personal Property MSHC - Habeas Corpus/Extraordinary Writ/Mandamus/Prohibition
TORE - Real Properly PFAB - Protection From Abuse
EPFA - Elder Protection From Abuse
OTHER CIVIL FILINGS
FELA - Railroad/Seaman (FELA)
ABAN - Abandoned Automobile
RPRO - Real Property
ACCT - Account & Nonmortgage
WTEG - Will/Trust/Estate/Guardianship/Conservatorship
APAA - Administrative Agency Appeal
COMP - Workers’ Compensation
ADPA - Administrative Procedure Act
CVXX - Miscellaneous Circuit Civil Case
ANPS - Adults in Need of Protective Services

ORIGIN: F INITIAL FILING A APPEAL FROM O OTHER

DISTRICT COURT

R REMANDED T TRANSFERRED FROM

OTHER CIRCUIT COURT

Note: Checking "Yes" does not constitute a demand for a

HAS JURY TRIAL BEEN DEMANDED? YES NO jury trial. (See Rules 38 and 39, Ala.R.Civ.P, for procedure)

RELIEF REQUESTED: MONETARY AWARD REQUESTED NO MONETARY AWARD REQUESTED

ATTORNEY CODE:
LUD001 5/18/2020 7:46:31 AM /s/ DAVID ALAN LUDDER
Date Signature of Attorney/Party filing this form

MEDIATION REQUESTED: YES NO UNDECIDED

Election to Proceed under the Alabama Rules for Expedited Civil Actions: YES NO
 DOCUMENT 2
ELECTRONICALLY FILED
5/18/2020 7:46 AM
03-CV-2020-900663.00
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,

v. Civil Action No.

LANCE R. LeFLEUR, in his official

capacity as Director of the Alabama
Department of Environmental
Management and in his individual capacity,

Defendant.
____________________________________/

COMPLAINT FOR DECLARATORY AND

INJUNCTIVE RELIEF AND NOMINAL DAMAGES

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

Ala. Admin. Code r. 335-1-1-.06.

Jurisdiction and Venue

2. This action arises under Ala. Code 1975 §§ 6-6-223, 6-6-226, 6-6-230 and

36-12-40 and Ala. Admin. Code r. 335-1-1-.06.

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

jurisdiction of circuit courts as to equitable matters or proceedings shall extend . . . To all

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”).

4. The official and individual residence of defendant Lance R. LeFleur is in

Montgomery County, Alabama. Accordingly, venue is appropriate in Montgomery

County, Alabama. 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

5. Defendant Lance R. Lefleur is an individual and the Director of the

Alabama Department of Environmental Management (hereinafter, “ADEM”) and a public

officer. He was appointed by, and serves at the pleasure of, the Environmental

Management Commission of ADEM. ADEM is a State agency within the Executive

Branch of State Government created, in part, to “to protect human health and safety.”

ADEM and its employees are under the direction, supervision, and control of Defendant

Lance R. LeFleur.

6. Plaintiff Environmental Defense Alliance is an Alabama nonprofit

corporation the purpose of which is to further the conservation, preservation, protection,

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maintenance, improvement, and enhancement of human health and the environment on

behalf of its members and the public. The Alliance administers a Government

Accountability program to ensure that agency decision-making is transparent, fair,

rational, lawful and protective of human health and the environment.

7. Plaintiff GASP, d/b/a Gasp (hereinafter, “Gasp”), is an Alabama nonprofit

corporation the purpose of which is to further the conservation, preservation, protection,

maintenance, improvement and enhancement of human health and the environment on

behalf of its members and in the public interest. Gasp’s mission is to advance healthy air

and environmental justice in the greater-Birmingham area through education, advocacy,

and collaboration.

General Allegations of Fact

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

the release of hazardous substances into the environment.

9. As a result of soil sampling in the neighborhoods of Collegeville, Fairmont

and Harriman Park in northern Birmingham, Alabama (collectively referred to hereinafter

as the “35th Avenue Site”), on March 17, 2011, the United States Environmental

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Protection Agency (hereinafter, “EPA”) determined that a time-critical contaminated soil

removal action under the Comprehensive Environmental Response, Compensation, and

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.

The notice invited Drummond Company, Inc. to participate in the time-critical

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

proceeded to implement the time-critical contaminated-soil removal action using public

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,

“SE+C”) on November 22, 2013 to render to Balch “advice, representation, and

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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

engaged the Oliver Robinson Foundation, Inc. (hereinafter, “Foundation”) on February

16, 2015 (retroactive to December 1, 2014), to render to Balch “advice, representation,

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 –

Foundation agreement on behalf of the Foundation and was identified therein as a

principal of the Foundation.

12. On July 1, 2014, Gasp submitted a petition to the EPA pursuant to

CERCLA, 42 U.S.C. § 9605, requesting that EPA perform a preliminary assessment of

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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,

Alabama (hereinafter, the “Pinson Valley Neighborhood Site).”

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

remedial action(s), if any, may be appropriate.” Id.

14. Balch, Drummond and SE+C sought to influence ADEM Director Lance R.

LeFleur, Environmental Management Commission Chair Houston Lanier Brown, II,

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

Valley Neighborhood Site.

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15. On November 1, 2019, the Environmental Defense Alliance and Gasp, by

and through their respective attorneys, submitted a written request to ADEM Director

Lance R. LeFleur seeking to inspect and copy the following described records:

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 any agent or employee of
the Alabama Department of Environmental Management (including but not
limited to, yourself and Vernon Barnett) and any agent or employee of
[specified entities] during the calendar years of 2013 through 2019 and
concerning the business and activities carried on by you as Director or other
agents or employees of the Alabama Department of Environmental
Management 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), regardless of where or
how these records may be maintained or stored . . ..”

and

all draft and final documents prepared by agents or employees of the

Alabama Department of Environmental Management evaluating EPA’s
Hazard Ranking System score and methodology for deriving the HRS site
score for the 35th Avenue Site; and all draft and final documents prepared
by agents or employees evaluating ABC Coke’s contentions about
deficiencies in EPA’s Hazard Ranking System score and methodology for
deriving the HRS score for the 35th Avenue site.

An accurate and complete copy of the request is attached hereto as Exhibit A.

16. On December 27, 2019, Defendant Lance R. LeFleur, by and through

ADEM General Counsel Steven Shawn Sibley, served a response to the Environmental

Defense Alliance and Gasp dated November 1, 2019 stating as follows:

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Copies of public documents responsive to your joint requests directed to . . .

Director LeFleur, in addition to those made available earlier on August 9,
2018 (copy of cover letter attached), are available via the Department’s
eFile public document system at http://app.adem.alabama.gov/eFile/
(utilizing the search criteria set forth in the August 9, 2018 cover letter) and
at http://app.adem.alabama.gov/eFile/Correspondence.aspx.

An accurate and complete copy of the response is attached hereto as Exhibit B.

17. Defendant Lance R. LeFleur knowingly and without authority withheld

from disclosure to the Environmental Defense Alliance and Gasp numerous records

responsive to their November 1, 2019 request. For example, Defendant Lance R. LeFleur

withheld from disclosure the following:

(a) numerous electronic mail messages received by agents or employees of

ADEM (e.g., Allison (“Vernon”) Barnett and Lance R. LeFleur) from the specified

entities (e.g., Balch and SE+C) regarding contamination or potential contamination of the

environment in Jefferson County (including, but not limited to, the 35th Avenue Site and

Pinson Valley Neighborhood Site);

(b) numerous electronic mail messages sent by agents or employees of ADEM

(e.g., Allison (“Vernon”) Barnett and Lance R. LeFleur) to the specified entities (e.g.,

Balch and SE+C) regarding contamination or potential contamination of the environment

in Jefferson County (including, but not limited to, the 35th Avenue Site and Pinson

Valley Neighborhood Site);

(c) letters sent by agents or employees of ADEM (e.g., Lance R. LeFleur) to

the specified entities (e.g., City of Birmingham and City of Tarrant) regarding

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contamination or potential contamination of the environment in Jefferson County

(including, but not limited to, the 35th Avenue Site and Pinson Valley Neighborhood

Site);

(d) notes and summaries of numerous telephone conversations between agents

or employees of ADEM (e.g., Allison (“Vernon”) Barnett and Lance R. LeFleur) and the

specified entities (e.g., Balch and SE+C) regarding contamination or potential

contamination of the environment in Jefferson County (including, but not limited to, the

35th Avenue Site and Pinson Valley Neighborhood Site);

(e) calendar information of scheduled meetings between agents or employees

of ADEM (e.g., Lance R. LeFleur and Allison (“Vernon”) Barnett) and the specified

entities (e.g., Balch, Drummond, SE+C, and members of the Alabama Environmental

Management Commission) regarding contamination or potential contamination of the

environment in Jefferson County (including, but not limited to, the 35th Avenue Site and

Pinson Valley Neighborhood Site);

(f) notes and summaries of numerous meetings between agents or employees of

ADEM (e.g., Lance R. Lefleur, Marilyn G. Elliott, Phillip D. Davis, Ronald W. Gore,

Allison (“Vernon”) Barnett, and Vernon H. (“Chip”) Crockett) and the specified entities

(e.g., Balch, SE+C, Drummond, and members of the Alabama Environmental

Management Commission) regarding contamination or potential contamination of the

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environment in Jefferson County (including, but not limited to, the 35th Avenue Site and

Pinson Valley Neighborhood Site);

(g) final intra-agency written communications regarding contamination or

potential contamination of the environment in Jefferson County (including, but not

limited to, the 35th Avenue Site and Pinson Valley Neighborhood Site);

(h) draft intra-agency written communications regarding contamination or

potential contamination of the environment in Jefferson County (including, but not

limited to, the 35th Avenue Site and Pinson Valley Neighborhood Site);

(i) final documents prepared by agents or employees of ADEM evaluating

EPA’s Hazard Ranking System score and methodology for deriving the HRS site score

for the 35th Avenue Site;

(j) draft documents prepared by agents or employees of ADEM evaluating

EPA’s Hazard Ranking System score and methodology for deriving the HRS site score

for the 35th Avenue Site;

(k) final documents prepared by agents or employees of ADEM evaluating

ABC Coke’s contentions about deficiencies in EPA’s Hazard Ranking System score and

methodology for deriving the HRS score for the 35th Avenue Site; and

(l) draft documents prepared by agents or employees of ADEM evaluating

ABC Coke’s contentions about deficiencies in EPA’s Hazard Ranking System score and

methodology for deriving the HRS score for the 35th Avenue Site.

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18. Defendant Lance R. LeFleur stated no reasons for denying Plaintiffs’

request to inspect and copy any records described in their November 1, 2019 request.

Count I - Claim for Declaratory Relief

19. Plaintiffs incorporate by reference paragraphs 1 through 18 hereof.

20. Ala. Code 1975 § 36-12-40 provides:

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. * * *

21. Ala. Admin. Code r. 335-1-1-.06 - Availability of Records and Information

provides:

(1) Public inspection of records. Except as provided herein, any

records, reports, rules, forms, or information obtained under the Act and the
official records of the Department shall be available to the public for
inspection. Requests for permission to inspect such records should be made
to the Department of Environmental Management at its Montgomery,
Alabama office, unless otherwise directed in published organizational,
procedural, or regulatory statements pertaining to specific records or classes
of records. Such requests should state the general subject matter of the
records sought to be inspected to permit identification and location.

(2) Exceptions. Upon a showing satisfactory to the Director by any

person that records, reports, or information, or particular parts thereof (other
than emission, effluent, manifest, or compliance data) to which the
Department has access, if made public, would divulge production of sales
figures or methods, processes, or production unique to such person, or
otherwise tend to affect adversely the competitive position of such person
by revealing trade secrets, the Director shall consider such records, reports,
or information, or particular portion thereof, confidential. Any showing of
confidentiality must be based on statutory authority which empowers the
Department to grant confidentiality for the particular program in question
and must accompany the documents, records, reports, or information
provided to the Department. If a claim covering the information is received
after the information itself is received, efforts, as are administratively

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practicable can be made, will be made to associate the late claim with the
copies of the previously submitted information in the file.

(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.

***

(5) Denial of requests for, or non-existence of, information. If it is

determined pursuant to this Part that requested information will not be
provided or that, to the best knowledge of the Director, requested
information does not exist, the Director shall notify in writing the party
requesting the information that the request is denied and shall state the
reasons for denial and shall maintain a file of such denials.

(6) Copies of documents. If it is determined that information

requested may be disclosed, the requesting party shall be afforded the
opportunity to obtain copies of the documents containing such information.
However, records shall not be released for copying by non-Division
personnel except by permission of the Director or his designee. When a
determination not to disclose a portion of information requested has been
made, records shall be prepared for copying on nonexcepted portions of the
information. * * *

(7) Requests which do not reasonably describe records sought. The

Department may communicate with the requester to clarify records sought
and with a view toward reducing the administrative burden of processing a
broad request and minimizing the fees payable by the requester.

***

22. In addition, Ala. Code 1975 § 36-12-2 provides:

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

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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.

23. In addition, Ala. Code 1975 § 41-13-21 provides:

***

No state officer or agency head shall cause any state record to be

destroyed or otherwise disposed of without first obtaining approval of the
State Records Commission; * * *

24. In addition, Ala. Code 1975 § 13A-10-12 provides:

(a) A person commits the crime of tampering with governmental

records if:

***

(2) Knowing he lacks the authority to do so, he intentionally

destroys, mutilates, conceals, removes or otherwise substantially impairs the
verity or availability of any governmental record; or

(3) Knowing he lacks the authority to retain a governmental record

he refuses to deliver up the record in his possession upon proper request of
a person lawfully entitled to receive such record for examination or other
purposes.

25. Defendant Lance R. LeFleur knowingly and without authority 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.

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26. Plaintiffs dispute any contention by Defendant Lance R. LeFleur that any of

the records withheld from disclosure to the Environmental Defense Alliance and Gasp are

subject to a lawful claim of privilege or exception.

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

withheld from disclosure to the Environmental Defense Alliance and Gasp.

28. A proper construction of Ala. Code 1975 § 36-12-40 and Ala. Admin. Code

r. 335-1-1-.06 is necessary to determine Defendant Lance R. Lefleur’s authority to

withhold from disclosure those records withheld from disclosure to the Environmental

Defense Alliance and Gasp.

Count II - Claim for Permanent Injunctive Relief

29. Plaintiffs incorporate by reference paragraphs 1 through 18 and 20 through

24 hereof.

30. Defendant Lance R. LeFleur’s failure to disclose those records withheld

from disclosure to the Environmental Defense Alliance and Gasp is beyond his authority

or based on a mistaken interpretation of law.

31. Plaintiffs will suffer a substantial threat of irreparable injury if Defendant

Lance R. LeFleur 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

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Lance R. LeFleur in his official capacity is precluded by Ala. Const. art.1, § 13. Even if

an award of money damages could be granted against Defendant Lance R. LeFleur in his

official capacity, such an award would not redress the violation of Plaintiffs’ right to

inspect and copy records.

32. The threatened injury to Plaintiffs if Defendant Lance R. LeFleur is 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

Lance R. LeFleur. If an injunction is not granted, Plaintiffs Environmental Defense

Alliance and Gasp will continue to suffer the deprivation of their right to inspect and copy

the requested records. Defendant Lance R. LeFleur will suffer no harm if he is enjoined

from continuing to withhold disclosure of those records withheld from disclosure to the

Environmental Defense Alliance and Gasp.

33. Permanently enjoining Defendant Lance R. LeFleur 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 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.

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Count III - Claim for Nominal Damages

34. Plaintiffs incorporate by reference paragraphs 1 through 18 and 20 through

24 hereof.

35. Defendant Lance R. LeFleur’s failure to disclose those records withheld

from disclosure to the Environmental Defense Alliance and Gasp is beyond his authority

or based on a mistaken interpretation of law.

36. Plaintiffs are presumed to have suffered nominal damages as a result of

Defendant Lance R. LeFleur’s failure to disclose those records withheld 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.

Demand for Relief

Wherefore, Plaintiffs demand the following relief:

A. That the Court grant a judgment against Defendant Lance R. LeFleur in his

official capacity declaring that he has unlawfully withheld from disclosure records

requested by the Environmental Defense Alliance and Gasp on November 1, 2019;

B. That the Court grant a permanent injunction against Defendant Lance R.

LeFleur 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

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disclosure records requested by the Environmental Defense Alliance and Gasp on

November 1, 2019;

C. That the Court award each Plaintiff nominal damages to be paid by

Defendant Lance R. LeFleur in his individual capacity;

D. That the Court award Plaintiffs costs of this action to be paid by Defendant

Lance R. LeFleur in his individual capacity;

E. That the Court award Plaintiffs reasonable attorney fees to be paid by

Defendant Lance R. LeFleur in his individual capacity under the common benefit

doctrine; and

F. That the Court award Plaintiffs such other and additional relief to which

they may be entitled.

Respectfully submitted,

s/ Haley Colson Lewis

Haley Colson Lewis (COL160)
Attorney for GASP, d/b/a/ Gasp
2320 Highland Avenue, South, Suite 270
Birmingham, AL 35205
Tel (205) 701-4277 Fax (205) 428-2182
Email haley@gaspgroup.org

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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November 1, 2019

Delivered Via Certified Mail

Return Receipt Requested
No. 7018 0360 0001 4409 6270

Mr. Lance R. LeFleur, Director

Alabama Department of Environmental Management
P.O. Box 301463
Montgomery, AL 36130-1463

Re: Request to Inspect and Copy Records

Dear Mr. LeFleur:

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 any agent or employee of the Alabama Department of
Environmental Management (including but not limited to, yourself and Vernon Barnett) 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 Director or other agents or employees
of the Alabama Department of Environmental Management 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), regardless of where or how these
records may be maintained or stored:

Alabama Department of Environmental Management (including, but not limited to,

Lance R. LeFleur, Vernon Barnett, Phillip Davis and Stephen Cobb);

Balch & Bingham, LLC (including, but not limited to, Joel I. Gilbert, Mary F. 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 D. Tambling, and G. Ward Beeson);
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Drummond Company, Inc. (including, but not limited to, David L. Roberson and Blake
Andrews);

ABC Coke, a division of Drummond Company, Inc.;

Alabama Office of the Governor (including, but not limited to, Robert Bentley, Kay Ivey,
Seth Hammett, Blaine Galliher, Jonathan Bargainer, Pam Chesnutt, and Carrie
McCallum);

Alabama Environmental Management Commission (including, but not limited to, Debi
Thomas, H. Lanier Brown, W. Scott Phillips, James E. Laier, Samuel L. Miller, Terry D.
Richardson, and Mary J. Merritt);

U.S. Environmental Protection Agency;

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);

Alabama Legislators (including, but not limited to, Oliver Robinson);

U.S. Legislators (including, but not limited to, staff);

City of Tarrant (including, but not limited to, Loxcil Tuck);

City of Birmingham (including, but not limited to, William Bell);

Alliance for Jobs and the Economy (including, but not limited to, David L. Roberson and
Mike Thompson);

Business Alliance for Responsible Development; and

Birmingham Business Alliance.

The requested records should be provided in their original format (e.g., PDF, Word, etc.), if
available, with all original metadata included.

This request is made to ascertain the official involvement of you, and agents or
employees of the Alabama Department of Environmental Management, in the aforementioned
environmental matters with the foregoing entities or their agents or employees. If you claim that
any of the requested records are exempt from disclosure, please state the basis for the claimed

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exemption and provide a listing of the records claimed to be exempt, including date, author(s),
recipient(s), and subject matter(s). You need not produce any records previously provided to the
Environmental Defense Alliance on 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.”

In addition to the foregoing, GASP and the Environmental Defense Alliance request that
you permit inspection and copying of all draft and final documents prepared by agents or
employees of the Alabama Department of Environmental Management evaluating EPA’s Hazard
Ranking System score and methodology for deriving the HRS site score for the 35th Avenue
Site; and all draft and final documents prepared by agents or employees evaluating ABC Coke’s
contentions about deficiencies in EPA’s Hazard Ranking System score and methodology for
deriving the HRS score for the 35th Avenue 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

cc: ADEM Public Records Officer

P.O. Box 301463
Montgomery, AL 36130-1463

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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

Haley and David,

Copies of public documents responsive to your joint requests directed to Commissioner Brown and Director
LeFleur, in addi on to those made available earlier on August 9, 2018 (copy of cover le er a ached), are
available via the Department’s eFile public document system at h p://app.adem.alabama.gov/eFile/ (u lizing the
search criteria set forth in the August 9, 2018 cover le er) and at
h p://app.adem.alabama.gov/eFile/Correspondence.aspx.
Best Regards, - Shawn
S. Shawn Sibley, General Counsel
Office of General Counsel
Alabama Department of Environmental Management
Post Office Box 301463
Montgomery, Alabama 36130-1463
(334) 260-4544 (Phone/Fax)
ssibley@adem.alabama.gov

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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