Chemical Waste Management, Inc. v. Broadwater, 84-7662

• Decision Date: 29 April 1985
• Docket Number: No. 84-7662,84-7662
• Citation: 758 F.2d 1538
• Parties: CHEMICAL WASTE MANAGEMENT, INC., Emelle Facility, Plaintiff-Appellee, v. Joe B. BROADWATER, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1538

758 F.2d 1538

22 ERC 1777

CHEMICAL WASTE MANAGEMENT, INC., Emelle Facility, Plaintiff-Appellee, v. Joe B. BROADWATER, et al., Defendants-Appellants.

No. 84-7662.

United States Court of Appeals, Eleventh Circuit.

April 29, 1985.

David A. Ludder, Ala. Dept. of Environmental Management, Mark A. Peycke, Montgomery, Ala., for Broadwater & AL Dept. of Envir. Management.

Fournier J. Gale, III, Maynard, Cooper, Frierson & Gale, Birmingham, Ala., J. Brian Molloy, Wald, Harkrader & Ross, Mary F. Edgar, Washington, D.C., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Alabama.

Before VANCE and JOHNSON, Circuit Judges, and MORGAN, Senior Circuit Judge.

PER CURIAM:

Chemical Waste Management, Inc., ("CWM") brought this action in federal district court against the Alabama Department of Environmental Management ("ADEM") and the department's Director, Joe B. Broadwater, seeking modification of a preliminary injunction previously entered by the district court against enforcement of an ADEM order requiring CWM to remove large quantities of the toxic chemical, PCB, from a CWM storage facility located near Emelle, Alabama, in a manner allegedly inconsistent with directives issued by the federal Environmental Protection Agency ("EPA"). ADEM's response to the district court's injunction had been to revoke its original order, dated April 16, 1984, and issue on July 10, 1984, a second order which CWM contends also requires removal of the PCB waste in a manner contrary to EPA directives. As CWM requested, the district court modified its prior injunction so as to prohibit ADEM attempts to enforce the second order as well. ADEM then filed this appeal. Given the present posture of the case, we decline to reach the merits of the important legal issues presented ¹ but must instead dismiss this appeal as moot.

As reflected in the briefs and acknowledged by counsel at oral argument, on December 19, 1984, while this appeal was pending, Alabama Attorney General Charles Graddick entered into a consent agreement with CWM and the EPA establishing a 12-month schedule for the disposal of 2.8 million gallons of PCB waste stored at the Emelle facility. ² Attorney General Graddick signed the agreement as representative for the State of Alabama. The agreement on its face binds "all branches, agencies, [and] departments ... of the Government of the State of Alabama" to a "covenant not to initiate or maintain any civil claim or civil cause of action against CWM ... with respect to the Emelle facility based on facts or circumstances known by ... the State ... as of October 12, 1984." CONSENT AGREEMENT AND ORDER paragraphs II(A)(2), XIV(A). ADEM Director Broadwater was apparently not invited and did not participate in the negotiations which culminated in the Attorney General's execution of the consent agreement.

ADEM argues before this Court that, under Alabama's enabling statutes, Attorney General Graddick's signature on the agreement does not bind the ADEM, and thus ADEM can maintain the present appeal. By statute, the ADEM has the "exclusive regulatory authority over all hazardous waste transporting, storage, treatment and disposal or other management practices in the state...." Ala.Code Sec. 22-30-4(a) (1984). On the other hand, the Attorney General is by statute given the direction and control of "[a]ll litigation concerning the interest of the state, or any department thereof," Ala.Code Sec. 36-15-21 (1977), and he "shall...