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National Solid Wastes Management Ass'n v. Alabama Dep't of Envtl. Management

ELR Citation: 21 ELR 20637
Nos. No. 90-7047, 924 F.2d 1001/32 ERC 1717/(11th Cir., 02/07/1991) Vacated & remanded in part

On a motion for rehearing, the court holds that a portion of its prior decision at 20 ELR 21316, which addressed a preemption challenge to Alabama's regulations prohibiting land disposal of untreated wastes, has not been mooted, and the issue of whether Alabama's regulations requiring preapproval for out-of-state hazardous waste shipments impermissibly burden interstate commerce presents a material issue of fact suitable for remand to the district court. A trade association initially challenged Alabama's land disposal regulations as violating the Supremacy Clause of the U.S. Constitution because they failed to allow the same variances as those granted by the Environmental Protection Agency (EPA). The EPA variances since expired, and as a result, no conflict exists between the challenged state land disposal regulations and the federal EPA regulations. The court first holds that its prior decision that Alabama's land disposal restriction regulations violate the Supremacy Clause is not mooted by the expiration of EPA regulations that established variances from the timetable for implementing the land disposal ban enacted by Congress in 1984. The court holds that although a live controversy over the disharmony between EPA variances and the challenged state regulations no longer exists, the issue falls within the "capable of repetition, yet evading review" exception to the mootness doctrine. EPA has already adopted, and Alabama has again rejected, additional national variances concerning other types of hazardous wastes. Thus, a sufficient likelihood exists that the plaintiffs will again be harmed in a similar way. The court next holds that expiration of the EPA variances raised a fact issue as to whether Alabama's preapproval regulations impermissibly burdened interstate commerce. The court had concluded in its prior decision that no local purpose existed for Alabama's regulations requiring hazardous waste generators to obtain Alabama's approval before shipping wastes there. However, now Alabama's land disposal regulations are in harmony with EPA regulations and are lawfully enforceable, and the court's conclusion in its earlier decision that no local purpose existed has been undercut. Thus, the court withdraws and remands the portion of its prior decision holding that Alabama's preapproval regulations violate the Commerce Clause.

[The court's earlier decision is published at 20 ELR 21316. The district court decision appears at 20 ELR 20603.]

Counsel for Appellant
Fournier J. Gale III
Maynard, Cooper, Frierson & Gale
1901 6th Ave. N., Ste. 2400, AmSouth Herbert Plaza, Birmingham AL 35203-2603
(205) 254-1000

Counsel for Appellee
Leonard G. Kendrick
Kendrick & Glassroth
505 S. Perry St., P.O. Box 910, Montgomery AL 36102
(205) 263-9900