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

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REL: October 11, 2019 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. ALABAMA COURT OF CIVIL APPEALS OCTOBER TERM, 2019-2020 _________________________ 2180375 _________________________ 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 2180375 Lance R. LeFleur ("the director"), in his official capacity as the director of the Management ("ADEM"). Alabama Department of Environmental 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. 1 The Stone's Throw Landfill was previously known as the Tallassee Waste Disposal Center. 2 2180375 On January 9, 2017, the appellants2 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-covermaterials 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. appeal, The trial court dismissed the complaint, but, on this court reversed the judgment dismissed the claims against the director. insofar as it See Keith v. LeFleur, 256 So. 3d 1206 (Ala. Civ. App. 2018). 3 2 In addition to the appellants, Anthony Keith and Esther Calhoun were named as plaintiffs in the complaint. Keith and Calhoun have not appealed, so we do not refer to them or their claims further in this opinion. 3 The complaint originally named ADEM as the defendant, but the complaint was later amended to name the director as a codefendant. In Keith, supra, this court affirmed the 3 2180375 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 authority. separate argued, had been adopted without statutory On December 18, 2018, the trial court entered 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 judgment insofar as it dismissed ADEM as a defendant. 4 Those counts involved claims that ADEM had discriminated against the plaintiffs based on their race and had failed to adopt appropriate grievance procedures to address that alleged racial discrimination. See Keith, supra. Those counts are not at issue in this appeal and will not be discussed further. 4 2180375 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"). 771. See Ala. Acts 1969, Act No. The SWDA regulated the disposal of solid wastes within the state. The SWDA defined "solid wastes" to include "[a]ll 5 This court has appellate jurisdiction over appeals "from administrative agencies." See Ala. Code 1975, § 12-3-10. Our supreme court has held that this court has "'exclusive jurisdiction of all appeals involving the enforcement of, or challenging, the rules, regulations, orders, actions, or decisions of administrative agencies,' even when the appeal is, in form, an appeal from a circuit court." Ex parte Mt. Zion Water Auth., 599 So. 2d 1113, 1119 (Ala. 1992) (quoting Kimberly–Clark Corp. v. Eagerton, 433 So. 2d 452, 454 (Ala. 1983)). This appeal lies within this court's exclusive appellate jurisdiction because it arises from a judgment entered by a circuit court adjudicating a challenge to the validity of the rules of an administrative agency. 5 2180375 putrescible including, and but non-putrescible not limited discarded to, materials, and industrial waste. "garbage,"6 materials," demolition 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 6 The SWDA defined "garbage" as: "Putrescible animal and vegetable wastes resulting from the handling, preparation, cooking and consumption of food, including wastes from markets, storage facilities, handling and sale of produce and other food products, and excepting such materials that may be serviced by garbage grinders and handled as household sewage." Act No. 771, § 1(c) (now codified at Ala. Code 1975, § 22-272(11)). 6 2180375 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, § 22-272(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, § 22-272(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). States Through the RCRA, Congress ordered the United 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 7 2180375 sanitary landfills, regulations 40 requiring C.F.R. Part "[p]eriodic 257, which application included 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." (1981). Ala. Admin. Code, Rule 335-13-4-.22(1)(a)1 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: 8 2180375 "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 sanitarylandfill 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 9 2180375 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." In 1993, ADEM also Id. 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 7 A "disease vector" is "an organism that is capable of transmitting a disease from one host to another." Ala. Admin. Code (ADEM), Rule 335-13-1-.03(38). 10 2180375 (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 determined by [ADEM]. "(1) The suitability and volume of any soils for daily, intermediate and final cover requirements shall be determined by soil borings and analysis. "(2) Any proposal to use alternate cover systems shall be submitted to and approved by [ADEM] prior to implementation." Rule 335-13-4-.15 (emphasis added). Those 1993 amendments established the alternative-materials-cover rules challenged 11 2180375 by the appellants in this litigation. The alternative- materials-cover rules have remained in effect since 1993 without substantive change. 8 In 2005, the Alabama Legislature adopted ADEM's definition of "municipal solid waste landfill," providing that "[a] municipal solid waste landfill is a sanitary landfill." Ala. Acts 2005, Act No. 2005-302, § 1 (now codified at Ala. Code 1975, § 22-27-2(23)). enacted any The Alabama Legislature has not statute specifically construction/demolition-inert landfills addressing or industrial landfills but, instead, has maintained the general definition of "landfill," since the inception of the SWDA, as a method of disposing of construction/demolition materials and industrial waste by "compaction and earth cover." Ala. Code 1975, § 22- 27-2(20). As noted earlier, in 2008 the Alabama Legislature renamed the SWDA, and it is now known as the SWRMMA. 2008, Act No. 2008-151, § 1. drafted, maintains much of 8 See Ala. Acts The SWRMMA, as currently the regulatory framework ADEM revised its administrative code in 1996 and 2018, but those revisions did not alter the alternative-materialscover rules in any significant aspect. 12 2180375 established in the SWDA, including maintaining that ADEM shall have regulatory control over solid waste disposal. See Ala. Code 1975, § 22-27-7. The SWRMMA continues to define "landfill," see Ala. Code 1975, § 22-27-2(20), and "sanitary landfill," § 22-27-2(32), as did the SWDA as methods of disposal of solid waste by "compaction and earth cover" or by "compact[ing] and cover[ing] with compacted earth." SWRMMA also continues to define "municipal solid The waste landfill," as did the 2005 amendment to the SWDA, to provide that "[a] municipal landfill." solid § 22-27-2(23). waste landfill is a sanitary As under the SWDA, the SWRMMA provides that "garbage 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 [ADEM]." Ala. Code 1975, § 22-27-3(d). In adopting the SWRMMA, the legislature added Ala. Code 1975, § 22-27-10(a), which provides, in pertinent part: "Solid waste shall be collected, transported, disposed, managed, or any combination thereof, according to the requirements of this article, and the rules of [ADEM] ..., as authorized by this article, and if disposed of in this state, shall be disposed in a permitted landfill or permitted 13 2180375 incineration, or reduced in volume through composting, materials recovery, or other existing or future means approved by and according to the requirements of [ADEM], under authorities granted by this article." Finally, the 2008 amendments also added Ala. Code 1975, § 2227-17, which provides, in pertinent part: "(a) Beginning on October 1, 2008, the following disposal fees are levied upon generators of solid waste who dispose of solid waste at solid waste management facilities permitted by [ADEM] subject to this chapter, which shall be collected in accordance with subsection (b): ".... "(4) Regulated solid waste that may be approved by [ADEM] as alternate cover materials in landfills shall be assessed the disposal fees applicable in subdivisions (1) and (2)." (Emphasis added.) Issues The judgment appellants of the request trial that court this insofar court as it reverse the granted the director's summary-judgment motion and denied the motion for a summary judgment filed by the appellants. Lakes Dist., North Alabama Conference, See Mountain United Methodist Church, Inc. v. Oak Grove Methodist Church, 126 So. 3d 172, 180 (Ala. Civ. App. 2013) ("Where cross-motions for a summary 14 2180375 judgment are filed in the trial court, the party whose motion was not granted is entitled to have that motion reviewed on appeal from the grant of the opponent's motion."). As framed by the parties, the issues before this court are: (1) whether the appellants have standing to contest the alternative-covermaterials rules and (2) whether ADEM exceeded its statutory authority in adopting the alternative-cover-materials rules. Standard of Review "This Court's review of a summary judgment is de novo. Williams v. State Farm Mut. Auto. Ins. Co., 886 So. 2d 72, 74 (Ala. 2003). We apply the same standard of review as the trial court applied. Specifically, we must determine whether the movant has made a prima facie showing that no genuine issue of material fact exists and that the movant is entitled to a judgment as a matter of law. Rule 56(c), Ala. R. Civ. P.; Blue Cross & Blue Shield of Alabama v. Hodurski, 899 So. 2d 949, 952–53 (Ala. 2004). In making such a determination, we must review the evidence in the light most favorable to the nonmovant. Wilson v. Brown, 496 So. 2d 756, 758 (Ala. 1986). Once the movant makes a prima facie showing that there is no genuine issue of material fact, the burden then shifts to the nonmovant to produce 'substantial evidence' as to the existence of a genuine issue of material fact. Bass v. SouthTrust Bank of Baldwin County, 538 So. 2d 794, 797–98 (Ala. 1989); Ala. Code 1975, § 12–21–12. '[S]ubstantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.' West v. Founders Life Assur. Co. of Fla., 547 So. 2d 870, 871 (Ala. 1989)." 15 2180375 Dow v. Alabama Democratic Party, 897 So. 2d 1035, 1038–39 (Ala. 2004). Discussion I. Standing In Keith, supra, this court explained: "'A party establishes standing to bring a ... challenge ... when it demonstrates the existence of (1) an actual, concrete and particularized "injury in fact" –- "an invasion of a legally protected interest"; (2) a "causal connection between the injury and the conduct complained of"; and (3) a likelihood that the injury will be "redressed by a favorable decision." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). A party must also demonstrate that "he is a proper party to invoke judicial resolution of the dispute and the exercise of the court's remedial powers." Warth [v. Seldin], 422 U.S. [490,] 518, 95 S.Ct. 2197, 45 L.Ed.2d 343 [(1975)].' "Alabama Alcoholic Beverage Control Bd. v. Henri–Duval Winery, L.L.C., 890 So. 2d 70, 74 (Ala. 2003). See also Ex parte Alabama Educ. Television Comm'n, 151 So. 3d 283, 287 (Ala. 2013)." 256 So. 3d at 1210-11. Section 41-22-10, Ala. Code 1975, a part of the Alabama Administrative Procedure Act, Ala. Code 1975, § 41-22-1 et seq., incorporates the requirement of standing by providing that 16 2180375 "[t]he validity or applicability of a rule may be determined in an action for a declaratory judgment or its enforcement stayed by injunctive relief in the circuit court of Montgomery County, unless otherwise specifically provided by statute, if the court finds that the rule, or its threatened application, interferes with or impairs, or threatens to interfere with or impair, the legal rights or privileges of the plaintiff. ..." (Emphasis added.) In Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992), the United States Supreme Court explained that a party asserting standing to contest environmental regulations bears the burden of proving each element of standing. In response to a motion for a summary judgment, the party asserting standing cannot rest on mere allegations, but must set forth specific facts in affidavits or other evidence proving each element of standing. 504 U.S. at 561. To meet their burden, the appellants presented evidence in support of their summary-judgment motion indicating that the Stone's Throw Landfill and the Arrowhead Landfill have been permitted by ADEM to use, and have used, alternativecover materials in their alternative-cover-materials operations rules 9 pursuant adopted by to ADEM.9 the The Although the director argues in his brief to this court that the Gipsons indicated in their affidavits that they did 17 2180375 evidence presented by Smith in his affidavit indicates that he lives within 2,500 feet of the Stone's Throw Landfill; that he had observed tarps being used as alternative cover at that landfill; that he had observed vultures accessing solid waste through holes in those tarps; that the operation of that landfill has generated and exposed him on an almost daily basis to offensive odors that have negatively affected his use and enjoyment of his property; that the operation of the landfill has exposed him to vultures, feral dogs, and coyotes, among other pests, that have entered his property; and that the value of his property has declined as a result of the operation of that landfill. The evidence presented by the Gipsons in their affidavits indicates, among other things, that they live within 120 feet of the Arrowhead Landfill; that the operation of that landfill has generated and exposed them on an almost daily basis to offensive odors that have affected them physically and have negatively affected their use and enjoyment of their property; not know whether the Arrowhead Landfill had used alternativecover materials, the appellants submitted, in support of their summary-judgment motion, a transcript of the deposition testimony of Eric Sanderson, the chief of the solid-waste branch of the land division of ADEM, who testified that the Arrowhead Landfill had used synthetic tarps. 18 2180375 that the operation of the landfill has exposed them to buzzards and flies, among other pests, that have entered their property; and that the value of their property has declined as a result of the operation of that landfill. The director asserted in his summary-judgment motion that the appellants had not demonstrated standing because, he argued, they could not show a causal link between their claimed injuries and the alternative-cover materials permitted at the nearby landfills from which they were claiming injury. The United States Supreme Court has observed that "there must be a causal connection between the injury and the conduct complained of -- the injury has to be 'fairly ... trace[able] to the challenged action of the defendant, and not ... th[e] result [of] the independent action of some third party not before the court.'" Lujan, 504 U.S. at 561 (quoting Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 41-42 (1976)). The appellants presented evidence indicating that their rights to the use and enjoyment of their properties had been adversely affected by the operation of the landfills near their homes and that those landfills have been authorized to use, and have used, alternative-cover materials in lieu of 19 2180375 earth cover or compacted earth. The director argues that the appellants did not prove specifically that they suffered increased adverse environmental impacts due to the use of alternative-cover materials in lieu of earth cover or compacted earth. We conclude that this argument is misplaced. In order to have standing to contest the alternative-covermaterials rules, the appellants did not have to prove that the alternative-cover materials were not as effective as earth cover or compacted earth at controlling odors, disease vectors, and other harmful environmental effects of solidwaste disposal.10 evidence indicating They only had to present substantial that the use of alternative-cover materials was causing or threatening to cause injury to their private-property interests, which they did. Compare Student Pub. Interest Research Grp. of New Jersey, Inc. v. Tenneco Polymers, Inc., 602 F. Supp. 1394, 1397 (D.N.J. 1985) (holding that the plaintiffs in that case had proved standing by showing that pollution of waters had adversely affected their 10 Accordingly, to the extent the director argues that the assertions in the appellants' affidavits that earth cover or compacted earth controls odors and disease vectors better than the alternative-cover materials used at the landfills were due to be stricken, we note that we have reached our determination without regard for those assertions. 20 2180375 interests and stating that the plaintiffs were not required to further prove the degree of pollution caused by particular discharges in order to maintain standing). We conclude that the appellants have presented sufficient evidence from which it can be reasonably inferred that the use of alternativecover materials at the Arrowhead Landfill and the Stone's Throw Landfill "interferes with or impairs, or threatens to interfere with or impair," the appellants' legal rights or privileges. See § 41-22-10 and Medical Ass'n of State of Alabama v. Shoemake, 656 So. 2d 863, 865-68 (Ala. Civ. App. 1995) (discussing the "liberal construction" of § 41-22-10). Therefore, the appellants have established standing to challenge the alternative-cover-materials rules. In Massachusetts v. Environmental Protection Agency, 549 U.S. 497, 518 (2007), the United States Supreme Court stated, in pertinent part: "When a litigant is vested with a procedural right, that litigant has standing if there is some possibility that the requested relief will prompt the injury-causing party to reconsider the decision that allegedly harmed the litigant. [Lujan v. Defenders of Wildlife, 504 U.S. 555, 572 n.7, (1992)]; see also Sugar Cane Growers Cooperative of Fla. v. Veneman, 289 F.3d 89, 94–95 (C.A.D.C. 2002) ('A [litigant] who alleges a deprivation of a procedural protection to which he is entitled never 21 2180375 has to prove that if he had received the procedure the substantive result would have been altered. All that is necessary is to show that the procedural step was connected to the substantive result')." In Duke Power Company v. Carolina Environmental Study Group, Inc., 438 U.S. 59 (1978), the United States Supreme Court considered the standing of certain landowners who lived in close proximity to nuclear-power plants to contest an act limiting the liability of the owners of those plants in the event of a single nuclear accident. The Supreme Court concluded that, because the nuclear-power plants that were allegedly injuring the landowners would not have been in operation absent the act at issue, the injury suffered by the landowners would likely be redressed by the invalidation of the act. 438 U.S. at 77-78. Thus, it landowners had standing to contest the act. The appellants in the present case held that the Id. have presented evidence indicating that the Stone's Throw Landfill and the Arrowhead Landfill each qualify as a municipal solid-waste landfill, an industrial la n d fi l l , and a construction/demolition-inert landfill.11 The appellants have 11 The permits for both landfills identify the landfills solely as municipal solid waste landfills. However, throughout this litigation, the parties have consistently 22 2180375 further presented evidence indicating that ADEM approved the use of materials other than earth cover or compacted earth to cover solid waste at the landfills pursuant to the permitting process outlined in Rule 335–13–4–.15(2). It is undisputed that ADEM relies exclusively on Rule 335–13–4–.22(1)(a)1. and Rule 335–13–4–.23(1)(a)1. to permit the use of alternativecover materials industrial and at municipal solid-waste landfills construction/demolition-inert and landfills, respectively. Thus, like in Duke Power Co., the appellants in this case have shown a likelihood that, but for the rules pursuant to which the permits for the use of alternative-cover materials had been granted, the Stone's Throw Landfill and the Arrowhead Landfill would not have been permitted to use alternative-cover materials in their daily operations. Accordingly, we conclude that the appellants have demonstrated standing to challenge ADEM's alternative-cover-materials rules, and we hold that the trial court erred in granting ADEM'S motion for a summary judgment and in denying the identified the landfills alternatively as industrial landfills and construction/demolition-inert landfills because the landfills have been permitted to accept industrial waste and construction/demolition waste. 23 2180375 appellants' motion for a summary judgment on the ground that the appellants lacked standing. II. Whether the Challenged Rules Are Valid Section 41-22-10, Ala. Code 1975, provides that a trial court can declare an administrative rule invalid "if it finds that [the rule] violates constitutional provisions or exceeds the statutory authority of the agency or was adopted without substantial compliance with rule-making procedures provided for in this chapter." The appellants argue that the alternative-cover-materials rules are invalid because, they assert, the rules exceed the statutory authority granted by the SWRMMA and, by implication, its predecessor statute, the SWDA. An administrative rule out of harmony with statutory law is a nullity, Alabama Dep't of Revenue v. Jim Beam Brands Co., 11 So. 3d 858, 864 (Ala. Civ. App. 2008), because an administrative agency has no power to adopt a rule or regulation that subverts or enlarges upon statutory policy. Ex parte Jones Mfg. Co., 589 So. 2d 208, 210 (Ala. 1991). The appellants argue that the alternative-cover-materials rules impermissibly enlarge upon the statutory law that requires that solid waste be covered by earth. 24 2180375 As explained in our discussion of the regulatory background, ADEM adopted the alternative-cover-materials rules in 1993. At that time, the SWDA provided that garbage and rubbish containing garbage could be disposed of by, among other methods, "permitted landfills" or "by other means" "approved by [ADEM]." summary-judgment Ala. Code 1975, § 22-27-3(d). motion, the director argued In his that the reference to "other means" in the SWDA empowered ADEM to promulgate rules providing for coverage of garbage at landfills within the state by material other than earth. We disagree. The SWDA listed a variety of methods of disposing of garbage, such as by disposal in a "sanitary landfill," by "approved incineration," by "composting," "or by other means." Ala. Code 1975, § 22-27-3(d). In general, the term "or" is conjunctive and is used as a function word to indicate an alternative. Merriam Webster's Collegiate Dictionary 872 (11th ed. 2003). "different." The word "other" is defined as "not the same" or Merriam Webster's Collegiate Dictionary 878 (11th ed. 2003). "Means" is defined as "something useful or helpful to a desired end." Merriam Webster's Collegiate 25 2180375 Dictionary 769 (11th ed. 2003). In context, the phrase "or by other means" as contained in the SWDA referred to methods of disposing of solid waste distinct and different from those specifically listed in the statute, such as disposal in a sanitary landfill. In adopting the alternative-cover-materials rules, ADEM did not establish a new, distinct, and different means of disposing of solid waste. In his deposition, Eric Sanderson, the chief of the solid-waste branch of the land division of ADEM, explained that, in 1993, when ADEM adopted the definition of "municipal solid waste landfill" in rule 335-131-.03, ADEM did not attempt to recognize some new type of useful method for achieving the purpose of disposing of solid waste. Instead, he explained, ADEM merely intended to update its terminology to conform to EPA regulations.12 As ADEM made explicit in its definition of "municipal solid waste landfill" in Rule 335-13-1-.03, which our legislature later adopted in 12 Sanderson testified that ADEM used the term "sanitary landfill" before 1993 but that it started using the term "municipal solid waste landfill" after 1993 in order to conform to subtitle D of the RCRA, which introduced the latter term. Sanderson testified that there was no substantive distinction between a sanitary landfill and a municipal solidwaste landfill. 26 2180375 2005, see Ala. Acts 2005, Act No. 2005-302 (now codified at Ala. Code 1975, § 22-27-2(23)), "[a] municipal solid waste landfill is a sanitary landfill." Therefore, in adopting the new term "municipal solid waste landfill," ADEM did not approve a new means of disposing of solid waste. Instead, ADEM actually maintained the former method of disposing of solid waste by deposit into a sanitary landfill for compaction and coverage by compacted earth. The 1993 amendments to ADEM's administrative code also introduced the new descriptive terms "industrial landfill" and "construction/demolition-inert landfill." However, the introduction of those terms, which we note have never been codified, did not establish any previously unrecognized in Alabama. new type of landfill The SWDA had already defined "landfill" as "[a] method of compaction and earth cover of solid wastes other than those containing garbage or other putrescible wastes ...." Ala. Code 1975, § 22-27-2(20). We further note that the ADEM regulations themselves have consistently defined the term "landfill" identically to the statute as "a method of compaction and earth cover of solid wastes other than those containing 27 garbage or other 2180375 putrescible wastes ...." Ala. Admin. Code (ADEM), Rule 335-13-1-.03(75). By that broad definition, "landfill" refers to a method of disposing of all nonputrescible solid waste, including industrial waste and construction/demolition materials, through compaction and earth cover. Indeed, when it amended Rule 335-13-4-.23(1)(a)1. in 1993, ADEM simply substituted the new terms "industrial landfill" and "construction/demolition-inert landfill" for the previous term "landfill." Those new terms can be described only as more specific descriptions of the general term "landfill." The definitions and of "industrial landfill" "construction/demolition-inert landfill" adopted by ADEM, see Ala. Admin. Code (ADEM), Rule 335-13-1-.03(67) & (28), do not in any way alter the meaning of the general term "landfill" as being a method of disposing of solid waste through compaction and earth cover. We conclude that, in adopting the alternative-covermaterials rules, ADEM did not approve "other disposing of garbage and other solid waste. means" of Instead, ADEM only recognized new terminology describing the same methods of disposal of solid waste by landfill and sanitary landfill. 28 2180375 Under the alternative-cover-materials rules, solid waste would still be disposed of at landfills, i.e., the same means as before, only now the landfill operators could be permitted to use material other than earth cover or compacted earth to cover the solid waste. 13 The SWDA granted ADEM the authority to "adopt such rules and regulations as may be needed to meet the requirements of this article." Ala. Code 1975, § 22-27-7. Thus, ADEM was autorized to make only such rules as were consistent with the requirements of the SWDA. Because the SWDA required that solid waste deposited at any landfill be covered by earth, ADEM had no authority to adopt rules permitting coverage of solid waste deposited at landfills by alternative materials. When the legislature amended the SWDA in 2005 to adopt the definition legislature of "municipal maintained that solid "[a] landfill is a sanitary landfill." waste landfill," municipal solid the waste Ala. Acts 2005, Act No. 2005-302, § 1 (now codified at Ala. Code 1975, § 22-27-2(23)). 13 ADEM also authorized coverage of solid waste deposited in sanitary landfills at less than daily intervals, but that provision is not before the court and will not be discussed further. 29 2180375 The 2005 act carried forward the previous definition of "sanitary landfill" contained in the SWDA as a "controlled area of land upon which solid waste is deposited and is compacted and covered with compacted earth ...." codified at Ala. Code 1975, § 22-27-2(32)). Id. (now The 2005 amendments did not in any way alter the previous statutory scheme requiring solid waste deposited at landfills to be covered by earth. When the legislature amended the SWDA in 2008 to establish the SWRRMA, the legislature maintained the same definitions of "landfill," see Ala. Code 1975, § 22-27-2(20), "sanitary landfill," see § 22-27-2(32) and "municipal solid waste landfill," see § 22-27-2(23), indicating the legislative intent that solid waste disposed of in landfills within the state shall continue to be covered by earth. The legislature also reenacted § 22-27(3)(d), the statute authorizing ADEM to approve of of disposing of garbage "by other means," and enacted § 22-27-10(a), the statute authorizing ADEM to approve of disposing of solid waste by "other existing or future means." In so doing, the legislature continued to recognize that ADEM could adopt rules permitting the disposal of solid 30 2180375 waste in a manner other than by deposit into a landfill, a municipal solid-waste landfill, or a sanitary landfill, but the legislature did not authorize ADEM to alter the statutory definitions of those terms. The director argues that § 22-27-17(a)(4), Ala. Code 1975, which was added to the SWRMMA in 2008, "specifically acknowledges that ADEM may approve the use of 'alternative' cover materials." Section 22-27-17(a)(4) provides: "(a) Beginning on October 1, 2008, the following disposal fees are levied upon generators of solid waste who dispose of solid waste at solid waste management facilities permitted by [ADEM] subject to this chapter, which shall be collected in accordance with subsection (b): ".... "(4) Regulated solid waste that may be approved by [ADEM] as alternate cover materials in landfills shall be assessed the disposal fees applicable in subdivisions (1) and (2)." Section 22-27-17(a)(4) assesses a fee for regulated solid waste "that may be approved by" ADEM "as alternative cover materials" and that is deposited into landfills. However, nowhere in the SWRRMA does the legislature authorize ADEM to approve the use of regulated solid waste or any other alternative materials to cover solid waste in landfills. 31 To 2180375 the extent that ADEM asserts that § 22-27-17(a)(4) implies that authority, we note that that statute was part of the same 2008 amendments that established the SWRRMA and reenacted the definitions of "landfill," "municipal solid waste landfill," and "sanitary landfill," see See Ala. Acts 2008, Act No. 2008151, § 1, which maintain the requirement that solid waste be covered by earth. Accordingly, § 22-27-17(a)(4) cannot be construed to have impliedly repealed the requirement that solid waste definitions. Ass'n, 294 be covered by earth, as contained in those See Fletcher v. Tuscaloosa Fed. Sav. & Loan Ala. 173, 177, 314 So. 2d 51, 54 (1975) (recognizing that a new law impliedly repeals an old law when the new law amends the old law in substantial part so that the new law is inconsistent with the old law). that the legislature intended to alter We do not believe the consistent statutory scheme requiring that solid waste be covered by earth in such an indirect manner. In Department of Public Safety v. Freeman Ready-Mix Co., 292 Ala. 380, 384, 295 So. 2d 242, 245 (1974), our supreme court considered the interplay between Ala. Code 1940 (Recomp. 1958), Tit. 36, § 89 ("the truck-weight statute"), a statute 32 2180375 establishing the maximum weight for trucks traveling on Alabama's highways, and Ala. Code 1940 (Recomp. 1958), Tit. 51, § 697 ("the truck-taxing statute"), a statute establishing fees and taxes to Alabama's highways. be collected on trucks traveling on The truck-weight statute made it a crime for a truck using Alabama's highways to exceed a certain weight limit, but the truck-taxing statute imposed fees and taxes on trucks that arguably could exceed that limit. Freeman Ready-Mix Company and other companies using trucks to transport goods on Alabama's highways argued that the latter statute had impliedly repealed the former statute. Our supreme court rejected that argument, holding that the trucktaxing statute did not grant a license for trucks to exceed the weight limits established by the truck-weight statute. The truck-taxing statute imposed taxes based on the weight of the trucks, but it did not grant a license or privilege for trucks to exceed the weight limits established by the truckweight statute. The supreme court noted that a state "may constitutionally tax that which it prohibits." 386, 295 So. 2d at 246. 292 Ala. at The court concluded that the two statutes were not in conflict even though the truck-taxing 33 2180375 statute taxed trucks unlawfully exceeding the weight limits set forth in the truck-weight statute. In this case, § 22-27-17(a)(4) imposes a fee on regulated solid waste approved by ADEM as alternative-cover materials when deposited in Alabama landfills. schedule that essentially taxes at By instituting a feeleast one form of alternative-cover materials approved by ADEM, the legislature did not thereby authorize ADEM to adopt rules broadly permitting the use of alternative-cover materials to cover solid waste in the landfills within the state. As in Freeman Ready-Mix Co., we conclude that § 22-27-17 was intended solely to generate revenue for ADEM and not to grant ADEM a license to permit the use of alternative-cover materials. Section 2227-17(a)(4) does not make lawful the use of alternative-cover materials otherwise prohibited by § 22-27-2(20), (23) & (32). ADEM last argues that its interpretation of the law should be given deference because, it says, it would disrupt the operation of the landfills at issue in this case, as well as other landfills throughout the state, to revoke the permits allowing the use of alternative-cover materials. "The correct rule is that an administrative interpretation of the governmental department for a 34 2180375 number of years is entitled to favorable consideration by the courts; but this rule of construction is to be laid aside where it seems reasonably certain that the administrator's interpretation has been erroneous and that a different construction is required by the language of the statute." Boswell v. Abex Corp., 294 Ala. 334, 336, 317 So. 2d 317, 318 (1975). We are not convinced that ADEM construed any particular provision of the SWDA to allow it to adopt the alternative-cover-materials rules. Instead, it appears rather conclusively that, in 1993, ADEM, without awaiting enabling legislation, simply adopted the relatively new EPA regulations allowing landfills to use materials other than earth to cover solid waste. ADEM effectively determined that Alabama should follow federal guidelines and enlarged upon the law regulating landfills to meet those guidelines without first receiving legislative authorization. agency cannot statute. A usurp (citation legislative regulation statutory policy." However, "[a]n administrative cannot powers or contravene subvert or enlarge a upon Ex parte Jones Mfg. Co., 589 So. 2d at 210 omitted). To the extent that ADEM may have interpreted some provisions of the SWDA and the SWRMMA to authorize it to make rules allowing for alternative-cover 35 2180375 materials, we hold that ADEM's interpretation is erroneous and that it is, in fact, inconsistent with the language in the SWDA and the SWRMMA requiring solid waste deposited at landfills to be covered by earth. 14 Despite the language in the SWDA and the SWRMMA requiring that solid waste deposited at landfills be covered by earth, Rule 335-13-4-.15 specifically allows ADEM to permit landfill operators to use alternative-cover materials to cover solid waste. Rule 335-13-4-.22(1)(a)1. allows solid waste deposited at municipal solid-waste landfills to be covered either by "[a] minimum of six inches of compacted alternative cover material" approved by ADEM. earth or other Rule 335-13-4- .23(1)(a)1. allows solid waste deposited at industrial and construction/demolition-inert landfills to be covered either by "[a] minimum of six inches of compacted earth or other alternative cover material" approved by ADEM. Those rules assume the power of ADEM to designate certain materials as 14 We do not mean to be understood as stating any opinion as to the efficacy of the use of alternative-cover materials. We decide only that, if materials other than earth should cover solid waste deposited at landfills within the state, then the legislature should be the one to amend the SWRMMA to reflect its decision as to that public policy. 36 2180375 effective to manage the adverse environmental effects of solid waste and to permit the use of those materials as suitable substitutes for earth cover or compacted earth. the SWDA and the SWRMMA do not contain We find that any language authorizing the use of alternative-cover materials to cover solid waste and imbuing ADEM with the power to make rules regulating the use of such alternative-cover materials. Thus, we conclude that ADEM exceeded its statutory authority in promulgating the alternative-cover-materials rules. ADEM was not authorized by the SWDA or the SWRMMA to amend Rule 335-13-4-.15, Rule 335-13-4-.22, or Rule 335-13-4.23 to permit Accordingly, we the use of conclude alternative-cover that the trial court materials. erred in entering a summary judgment in favor of the director with regard to the appellants' challenge to those rules, and, thus, that the trial court should have entered a summary judgment in favor of the appellants. Conclusion We hold that the trial court erred in entering a summary judgment in favor of the director. We therefore reverse that summary judgment and remand the case to the trial court with 37 2180375 instructions that it vacate the summary judgment that it entered in favor of the director, that it enter a summary judgment in favor of the appellants, and for it to take such other actions as are consistent with this opinion. REVERSED AND REMANDED WITH INSTRUCTIONS. Thompson, P.J., and Donaldson, Edwards, and Hanson, JJ., concur. 38

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