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Browning-Ferris Indus. of Ala., Inc. v. Alabama Dep't of Envtl. Management

Citation: 17 ELR 20088
No. No. 85-7639, 799 F.2d 1473/24 ERC 2034/(11th Cir., 09/22/1986)

The court holds as ripe for judicial review a constitutional challenge to a state statute that requires the legislature's prior approval to the siting of any hazardous waste treatment or disposal facility. The court first holds that even though the legislative approval would not be required until the permitting process was first completed, which could take up to five years, there was a sufficient showing of hardship to establish ripeness where the prospective hazardous waste facility operator had already invested over $1 million, and the investment would either have to be abandoned or substantial additional sums spent to complete the permitting process. The court rejects the defendant's argument that the issues are not yet ripe for judicial review, noting that since the legislature had already failed to consider an earlier by the prospective operator for siting approval, there was doubt as to whether the permit could ever be obtained. The controversy surrounding the legality of the statutory provision is beyond the nature of an abstract question, since the statute's very existence may preclude plaintiff from continuing with its plans.

Counsel for Plaintiffs-Appellants
Walter R. Byars
Steiner, Crum & Baker
8th & 10th Floors, First Alabama Bank Bldg., P.O. Box 668, Montgomery AL 36101-0668
(205) 832-8800

Counsel for Defendants-Appellees
Robert A. Huffaker
Rushton, Stakely, Johnston & Garrett
184 Commerce St., P.O. Box 270, Montgomery AL 36195
(205) 834-8480

Mark Alan Peycke
1751 Federal Dr., Montgomery AL 36130
(205) 271-7855

Before CLARK, Circuit Judge, HENDERSON*, and Wisdom**, Senior Circuit Judges.