Administrative Procedure Act Inapplicable To County Board of Health

Ex parte GASP, [Ms. 1171082, Apr. 5, 2019] __ So. 3d __ (Ala. 2019). The Court (Mendheim, J.; Parker, C.J., and Bolin, Wise, Bryan, Sellers, and Stewart, JJ., concur; Mitchell, J., recuses) on certiorari review rejects the Court of Civil Appeals’ decision that the Alabama Air Pollution Control Act of 1971, § 21-28-1, et seq., preempts the rule-making procedures of the Alabama Administrative Procedure Act (“AAPA”), § 41-22-21, et seq., Ala. Code 1975. The Court noted that “‘the AAPA shall take precedence over any other statute which diminishes the rights created by the AAPA, unless that statute expressly provides otherwise.’” Ms. *11, quoting Ex parte Varner, 571 So. 2d 1108, 1109 (Ala. 1990) (some internal quotation marks omitted). Accordingly, the Court concluded “that the Court of Civil Appeals erred in affirming the trial court’s judgment on the basis of preemption.” Ms. *12.

The Court found the AAPA inapplicable for a different reason, holding that “the Jefferson County Board of Health is a ‘local governmental unit’ rather than a ‘state agency’ for purposes of the AAPA. Accordingly, it was unnecessary for the Board to comply with the notice and hearing requirements of the AAPA when it repealed Chapter 12 and adopted new rules for the Air Program.” Ms. *29.

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