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Smith v. LeFleur

Alabama Court of Civil Appeals

October 11, 2019

Ronald C. Smith, Latonya Gipson, and William T. Gipson
v.
Lance R. LeFleur, in his official capacity as Director of the Alabama Department of Environmental Management

          Appeal from Montgomery Circuit Court (CV-17-900021)

          MOORE, Judge.

         Ronald C. Smith, Latonya Gipson, and William T. Gipson ("the appellants") appeal from a summary judgment entered by the Montgomery Circuit Court ("the trial court") in favor of Lance R. LeFleur ("the director"), in his official capacity as the director of the Alabama Department of Environmental Management ("ADEM"). We reverse the summary judgment and remand the case to the trial court with instructions to enter a summary judgment for the appellants.

         Procedural History

         Since 2004, Ronald C. Smith has resided near the Stone's Throw Landfill located in Tallapoosa County.[1] During that time, ADEM has permitted the operators of the Stone's Throw Landfill to use at least one material other than earth to cover solid waste deposited in the landfill. Since 2005, Latonya Gipson has resided near the Arrowhead Landfill located in Perry County. William T. Gipson, Latonya's brother, has resided with her at the same location for the last 10 years. Since 2009, ADEM has permitted the operators of the Arrowhead Landfill to use several materials other than earth to cover solid waste deposited in the landfill.

          On January 9, 2017, the appellants[2] filed a multicount complaint seeking, among other things, a judgment declaring that ADEM had impermissibly adopted Ala. Admin. Code (ADEM), Rules 335-13-4-.15, -.22, and -.23 ("the alternative-cover-materials rules"), allowing landfill operators to use alternative materials to cover solid waste in violation of the Solid Wastes and Recyclable Materials Management Act ("the SWRMMA"), Ala. Code 1975, § 22-27-1 et seq., which, they argued, authorizes the use of only earth to cover solid waste. The appellants further requested that the trial court enjoin ADEM from enforcing the alternative-cover-materials rules and from permitting the continued use of alternative-cover materials at the Stone's Throw Landfill and the Arrowhead Landfill. The trial court dismissed the complaint, but, on appeal, this court reversed the judgment insofar as it dismissed the claims against the director. See Keith v. LeFleur, 256 So.3d 1206 (Ala. Civ. App. 2018).[3]

         Following the issuance of this court's opinion in Keith, the trial court entered a judgment dismissing the first five counts of the complaint as moot, [4] leaving for adjudication only the claims for a declaratory judgment and for injunctive relief. The appellants and the director both moved for a summary judgment as to those claims. The director argued that the appellants lacked standing to contest the validity of the alternative-cover-materials rules and asserted that those rules had been validly promulgated by ADEM pursuant to its statutory authority. The appellants asserted that they had standing to contest the alternative-cover-materials rules, which, they argued, had been adopted without statutory authority. On December 18, 2018, the trial court entered separate orders denying the appellants' summary-judgment motion and granting the director's summary-judgment motion. The appellants filed their notice of appeal to this court on January 23, 2019.[5] This court conducted oral arguments in the case on August 14, 2019.

         Regulatory Background

         In 1965, the United States Congress enacted the federal Solid Waste Disposal Act, formerly codified at 42 U.S.C. §§ 3521-3259, "primarily to provide federal support for development of state solid waste management plans." Kim Diana Connolly, Small Town Trash: A Model Comprehensive Solid Waste Ordinance for Rural Areas of the United States, 53 Cath. U.L. Rev. 1, 9 (2003). In response to the federal incentive, in 1969, the Alabama Legislature enacted this state's Solid Wastes Disposal Act ("the SWDA"). See Ala. Acts 1969, Act No. 771. The SWDA regulated the disposal of solid wastes within the state. The SWDA defined "solid wastes" to include "[a]ll putrescible and non-putrescible discarded materials," including, but not limited to, "garbage, "[6] demolition materials, and industrial waste. Act No. 771, § 1(c). The Act provided that

"[g]arbage and rubbish containing garbage shall be disposed of by sanitary landfill, approved incineration, composting, or by other means now available or which may later become available as approved by the Health Department and under the supervision and control of a governmental, private, or other agency acting within the provisions of this Act."

Act No. 771, § 2(b).

         The SWDA defined "landfill" as

"[a] method of compaction and earth cover of solid wastes other than those containing garbage or other putrescible wastes including but not limited to tree limbs and stumps, demolition materials, incinerator residues, and like materials not constituting a health or nuisance hazard, where cover need not be applied on a per day used basis."

Act No. 771, § 1(i), (now codified at Ala. Code 1975, § 22-27-2(20)) (emphasis added). The SWDA defined "sanitary landfill" as

"[a] controlled area of land upon which solid waste is deposited and is compacted and covered with compacted earth each day as deposited, with no on-site burning of wastes, and so located, contoured, and drained that it will not constitute a source of water pollution as determined by the Alabama Water Improvement Commission."

Act No. 771, § 1(h) (now codified at Ala. Code 1975, § 22-27-2(32)) (emphasis added).

         In 1976, Congress completely restructured federal laws regulating solid-waste disposal through the passage of the Resource Conservation and Recovery Act ("RCRA") of 1976, Pub. L. No. 94-580, 90 Stat. 2795 (codified as 42 U.S.C. §§ 6901-6992k). Through the RCRA, Congress ordered the United States Environmental Protection Agency ("the EPA") to establish regulations "containing criteria for determining which facilities shall be classified as sanitary landfills and which shall be classified as open dumps ...." 42 U.S.C. § 6944(a). In 1979, the EPA acted on that legislative directive by promulgating regulations defining the minimum standards for sanitary landfills, 40 C.F.R. Part 257, which included regulations requiring "[p]eriodic application of cover material" described as "soil or other suitable material." 40 C.F.R. §§ 257.3-6(c)(4) and 257.3-8(e)(6) (emphasis added).

         Although the EPA regulations recognized that material other than soil could be used to cover solid waste at a sanitary landfill, the first comprehensive rules and regulations adopted pursuant to the SWDA in 1981 established that solid waste disposed into any "sanitary landfill" operated within the state "shall be covered" by "[a] minimum of six inches of compacted earth" "at the conclusion of each day's operation." Ala. Admin. Code, Rule 335-13-4-.22(1)(a)1 (1981). The regulations did not, at that time, authorize the use of any alternative materials to cover solid waste.

         In 1982, the Alabama Legislature created ADEM, Ala. Acts 1982, Act No. 32-612, § 4(i), and appointed ADEM as the state agency responsible for regulating solid-waste disposal. See Act No. 32-612, § 3(n); see also Ala. Code 1975, § 2-27-9 (enacted in 2008). On July 21, 1988, ADEM revised Rule 335-13-4-.22(1) to provide:

"(a) All waste [deposited in a sanitary landfill] shall be covered as follows:
"1. A minimum of six inches of compacted earth or other alternative cover material that includes but is not limited to foams, geosynthetic or waste products, and is approved by [ADEM] shall be added at the conclusion of each day's operation or as otherwise approved by [ADEM]."

Rule 335-13-4-.22(1)(a)1. (1988) (emphasis added). That 1988 amendment introduced into Alabama the option for sanitary-landfill operators to cover solid waste by materials other than earth.

         In 1991, the EPA promulgated regulations regarding the disposal of household waste in "municipal solid waste landfills," see 40 C.F.R. Part 258, pursuant to Subtitle D of the RCRA. See 42 U.S.C. §§ 6941-6949a. In response, on November 2, 1993, ADEM adopted new regulations incorporating the federal definition of "municipal solid waste landfill," see 40 C.F.R. § 258.2, as

"a discrete area of land or an excavation that receives household waste and that is not a land application unit, surface impoundment, injection well, or waste pile, as those terms are defined in this Rule. A MSWLF [municipal solid waste landfill] unit also may receive other types of solid wastes, such as commercial solid waste, nonhazardous sludge, conditionally exempt small quantity generator waste, industrial solid waste, construction/demolition waste and/or rubbish. Such a landfill may be publicly or privately owned. A MSWLF unit may be a new MSWLF unit, an existing MSWLF unit or a lateral expansion...."

Ala. Admin. Code (ADEM), Rule 335-13-1-.03 (1993) (a substantially similar definition is currently found in Ala. Admin. Code (ADEM), Rule 335-13-1-.03(88)). ADEM further clarified in the definition that "[a] municipal solid waste landfill is a sanitary landfill." Id.

         In 1993, ADEM also amended Rule 335-13-4-.22(1) to provide:

"(a) All waste [deposited at a municipal solid waste landfill] shall be covered as follows:
"1. A minimum of six inches of compacted earth or other alternative cover material that includes but is not limited to foams, geosynthetic or waste products, and is approved by [ADEM] shall be added at the conclusion of each day's operation or as otherwise approved by [ADEM] to control disease vectors, fires, odors, blowing litter, and scavenging."[7]

Ala. Admin. Code (ADEM), Rule 335-13-4-.22(1)(a)1. (1993) (emphasis added). ADEM furthermore introduced the terms "construction/demolition inert landfill" and "industrial landfill," see Ala. Admin. Code (ADEM), Rule 335-13-1-.03 (1993) (the definitions for these terms can now be found at Rule 335-13-1-.03(28) and (67)), and recognized that those types of landfills could use alternative-cover materials by amending Rule 335-13-4-.23(1) to provide:

"(a) All waste [deposited at a construction/demolition-inert landfill or industrial landfill] shall be covered as follows:
"1. A minimum of six inches of compacted earth or other alternative cover material that includes but is not limited to foams, geosynthetic or waste products, and is approved by [ADEM] shall be added at the conclusion of each day's operation or as otherwise approved by [ADEM] to control disease vectors, fires, odors, blowing litter, and scavenging."

Rule 335-13-4-.23(1)(a)1. (1993) (emphasis added). Finally, ADEM amended Rule 335-13-4-.15 to provide that

"[d]aily, weekly, or some other periodic cover shall be required at all landfill units, as ...

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