Four County (NW) Regional Solid Waste Management District Board v. Sunray Services, Inc.

971 S.W.2d 255, 334 Ark. 118, 1998 Ark. LEXIS 454
CourtSupreme Court of Arkansas
DecidedJuly 9, 1998
Docket97-1133
StatusPublished
Cited by4 cases

This text of 971 S.W.2d 255 (Four County (NW) Regional Solid Waste Management District Board v. Sunray Services, Inc.) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Four County (NW) Regional Solid Waste Management District Board v. Sunray Services, Inc., 971 S.W.2d 255, 334 Ark. 118, 1998 Ark. LEXIS 454 (Ark. 1998).

Opinion

Robert L. Brown, Justice.

This appeal arises out of litigation by appellee Sunray Services, Inc., a firm that constructs and operates solid-waste landfills, in which Sunray claimed that certain regulations adopted by the appellant Four County (NW) Regional Solid Waste Management District Board (District Board) violated state law. The District includes Washington, Benton, Carroll, and Madison Counties. The trial court upheld two of the District Board’s regulations but struck down six others as not being based upon generally accepted scientific knowledge or engineering practices, as required by Ark. Code Ann. § 8-6-724 (Supp. 1997). The trial court granted summary judgment in favor of Sunray with respect to another regulation requiring a two-mile buffer zone between solid-waste landfills and certain named bodies of water. The District Board and the State urge on appeal that the trial court did not apply the proper standard of review for the six regulations and further erred in concluding that the regulations violated state law. They claim, in addition, that summary judgment regarding the two-mile buffer zone was inappropriate because a fact issue developed based on expert testimony regarding the efficacy of that regulation. We agree with the District Board and the State and reverse the judgment and dismiss the complaint regarding the six regulations. With respect to the regulation for a two-mile buffer zone, we also agree with the appellants, and we reverse and remand for trial. The District Board has filed a motion to substitute counsel, and we grant that motion.

A brief history of the legislation and this lawsuit is helpful. In 1991, the General Assembly passed Act 752, which created eight Regional Solid Waste Management Districts and empowered each district to adopt regulations that were consistent with, but no more restrictive than, applicable environmental protection performance standards adopted by state law or incorporated by reference to federal law. See 1991 Ark. Acts 752. In 1993, the General Assembly expressly removed the authority of municipalities and counties to adopt environmental ordinances that were more restrictive than state or federal law absent a fully-implemented comprehensive area-wide zoning plan. See 1993 Ark. Acts 1280 § 2. The General Assembly also authorized Regional Solid Waste Management District Boards to adopt more restrictive standards for the location, construction, and maintenance of landfills than required by the state and federal governments. See 1993 Ark. Acts 1280 § 5. In December 1993, the District Board enacted permanent regulations known as Chapter E regulations pursuant to Act 1280, which restricted the location, operation, maintenance, and design of solid-waste landfills and provided financial requirements and a means for enforcing the regulations.

Sunray first challenged the Chapter E regulations in federal district court. That court abstained from hearing state-law questions. As a result, Sunray challenged the Chapter E regulations in the Washington County Chancery Court. That court initially granted summary judgment in favor of the District Board on March 22, 1995. Sunray appealed the judgment to this court.

In 1995, the General Assembly amended the Arkansas Code to provide that Regional Solid Waste Management District Boards could adopt more restrictive requirements only if the requirements are based upon generally accepted scientific knowledge or engineering practices. 1995 Ark. Acts 902 § 1, now codified at Ark. Code Ann. § 8-6-724 (Supp. 1997). On Sunray’s motion, this court remanded the matter to the trial court on September 11, 1995, for the purpose of considering the effect of Act 902 on the Chapter E regulations and the trial court’s summary-judgment order.

On April 2, 1996, Sunray filed its fourth amended complaint against the District Board and sought judgment declaring that the Chapter E regulations were invalid. The catalyst for the complaint was Sunray’s interest in developing a solid-waste landfill in Durham, which is located in south Washington County.1 On remand, Sunray specifically challenged the following Chapter E regulations on various grounds, including the allegation that they were not based upon generally accepted scientific knowledge or engineering practices: (1) § 11.02, which governed the two-mile watershed buffer; (2) § 12.01, which required a full-time, on-site inspector; (3) § 12.03(a), which required quarterly testing of groundwater monitoring wells; (4) § 12.03(b), which mandated a preconstruction inventory of wells within a one-half mile radius of the site; (5) § 13.01(a)(2), which mandated detailed geologic mapping of the site and the area within one mile of the boundary of the site; (6) § 13.01(a)(3)(A)(ii), which required subsurface exploration to evaluate overburden; (7) § 13.01(a)(3)(B)(ii), which mandated geophysical logs of borings that included acoustic logs and video logs; (8) § 13.01(a)(3)(B)(iii), which required the geophysical study of the site to include two of five listed methodologies; (9) § 13.01(a)(3)(C)(ii), which mandated that preferred contaminant transport pathways be determined by dye traces; and (10) § 13.02, which required the use of a double composite liner in conjunction with a leachate detection and collection system.

Also on April 2, 1996, Sunray moved for summary judgment on the basis that there was no genuine issue of material fact that these regulations violated § 8-6-724. On June 6, 1996, the trial court allowed the State of Arkansas to intervene as a party defendant, and both the State and the District Board opposed Sunray’s summary-judgment motion. Sunray subsequently abandoned its motion as to all regulations except for § 11.02, which required the two-mile watershed buffer zone. On September 26, 1996, the trial court entered an order in which it concluded that the two-mile watershed buffer was not based upon generally accepted scientific knowledge or engineering practices and, thus, was violative of § 8-6-724.

After a three-day trial, the trial court entered an order on June 23, 1997, which incorporated a June 11, 1997 letter opinion to counsel. The trial court made detailed findings of fact and concluded that the above-referenced regulations, except for three, were not based upon generally accepted scientific knowledge or engineering practices. Two exceptions were § 12.03(a), which mandated quarterly testing of groundwater monitoring wells and § 13.01(a)(3)(A)(ii), which required subsurface exploration of overburden through hydraulic conductivity tests. The parties stipulated that § 13.01(a)(2) was valid so long as the requirement was limited to mapping the surface. At trial, it developed that the increased cost per household for the Chapter E regulations would be $0.82 a month or less than $0.03 per day.

I. Standard of Review

The District Board and the State first contend that the trial court applied the wrong standard under § 8-6-724 for reviewing the Chapter E regulations. The standard, to repeat, was enacted in 1995 by Act 902 and reads as follows:

Regional solid waste management boards may adopt more restrictive standards for the location, design, construction, and maintenance of solid waste disposal sites and facilities than the state or federal governments, provided such standards are based upon generally accepted scientific knowledge or engineering practices and are consistent with the purposes of this subchapter.

Ark. Code Ann.

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Bluebook (online)
971 S.W.2d 255, 334 Ark. 118, 1998 Ark. LEXIS 454, Counsel Stack Legal Research, https://law.counselstack.com/opinion/four-county-nw-regional-solid-waste-management-district-board-v-sunray-ark-1998.