By Crystal McGough, Associate Editor
MONTGOMERY – The Environmental Management Commission held a meeting at 11 a.m., Feb. 10, at the ADEM offices at 1400 Coliseum Boulevard in Montgomery, to discuss the Moody landfill fire. Nearly two weeks ago, several organizations, including the Environmental Defense Alliance, GASP, and Cahaba Riverkeeper announced their intents to attend the meeting and request that they be allowed to make presentations to the commission on the subject.
Former Environmental Management Commission chair Dr. Samuel Miller headed the meeting, in the absence of the current chair and vice chair. Despite the absences, the meeting did have a quorum.
Alabama Department of Environmental Management (ADEM) Director Lance LeFleur attended the meeting and made the following statement to the Commission:
“First, I want to express our sincere empathy and concern for those who have had their lives upended by the fire at the vegetative waste disposal site near Moody. We know many have been affected by smoke. Some have had to temporarily move to avoid exposure. We have heard people’s frustrations – and we share them.
“From the beginning, we recognized the best way to protect their health and safety is to put out the fire and thus eliminate the smoke as quickly as possible.
“To that end, from the moment the fire was reported to us, ADEM has been actively involved in efforts to extinguish the fire. ADEM immediately engaged with the Moody Fire Department, the Alabama Forestry Commission, the St. Clair County Commission, the State Emergency Management Agency, the St. Clair County Emergency Management Agency and others.
“Unfortunately, none of us has the resources or ability to extinguish an underground fire of this nature.
“We also reached out to the EPA to ask for assistance. Because the fire involved vegetative materials not subject to either state or federal regulations, the EPA said at the time that it lacked authority to take action. ADEM persisted, however, and asked the EPA to deploy its advanced air monitoring units to clearly determine the level of risk that smoke from the fire posed to public health. The EPA agreed, and its tests found the presence of four chemicals above the accepted minimal risk level on the fire site itself and two of the chemicals above the accepted minimal risk level offsite at a single home about 300 feet from the fire.
“As unwelcome as that finding was, it did allow ADEM to then ask the EPA to take the lead in extinguishing the fire. Unlike state or local agencies, the EPA does have resources and contractors on retainer with the expertise to tackle an underground fire like this one. The EPA agreed, and work to put out the fire began January 19.
“Work is proceeding well. Smoke from the fire has been greatly reduced. EPA expects the fire to be out in a matter of weeks if not sooner.
“We want the public to know that ADEM personnel are on site every day. We are providing regular updates to the public at MoodyFireUpdate.com. In addition to the air monitoring at the six nearby stationary monitors and the EPA mobile air monitors, the Department is monitoring water quality. Test results show the fire does not appear to be having any discernable effect on water quality. We will continue to monitor water quality and report our findings along with air monitoring results.
“As we have stated before, ADEM will investigate and take appropriate enforcement action against the site operator after the fire is out.
“This fire is an extraordinary event. It exposed shortcomings in the ability and authority of state and local governments to respond to situations that are outside the scope of regulated activities but nonetheless pose risks to the public. We are in talks with representatives of county governments and other agencies about ways to close these gaps.
“Our goal, as always, is to protect the health and safety of our citizens and the environment, and to make sure we have the tools and authority to do so. We must work together and do all we can to ensure an incident like this does not happen again.”
During the public comments portion of the meeting GASP staff attorney Sidni Elise Smith and Environmental Defense Alliance (EDA) attorney David A. Ludder spoke on the landfill fire.
“GAPS is the Greater Birmingham Alliance to Stop Pollution,” Smith said. “Just to address some failures, I’m going to go through a quick timeline. … I went through ADEM’S e-file for ELI, which is the Environmental Landfill Incorporation, which is the location of where this Moody landfill fire is taking place. … Dating back to January of 2013, there was a record of complaint filed that was closed a couple of months later. There was no further action taken after it was investigated. Throughout these different notices of violations and side-investigation memos, you’ll see descriptions talking about it being an unauthorized dump, that the landowner is not innocent, it was marked as a fire hazard potential on several occasions.
“You’ll see where the inspector marked waste descriptions as construction demolition waste, household waste, scrap tires, etc. And that goes on, where in 2017, it’s still some of the same things. They come out, they investigate, they still determine that the landfill is responsible for being an unauthorized dump. Several correspondences, several memos.
“Still, we’re in 2023 – we got the EPA sampling report where they revealed that there were chemicals identified that exceeded certain levels where removal action may be triggered. We know that they’re working on everything and the most recent document in the e-file is a letter from ADEM to the land owner requiring the operator to provide certain documents of certain transactions that are taking place with the landfill. So, with the Moody landfill fire timeline, we know that this was reported on Friday, Nov. 25, back in 2022, and to date, as you heard earlier, they are making efforts to extinguish the fire; that is a top priority. As an air pollution regulation organization, we are concerned with the lasting impacts beyond extinguishing fire. That is a public health concern.
“So going back to the failures, it is our assertion that ADEM failed to regulate. While we understand that ADEM claims they had no authority over ELI because the landfill was not regulated, there should have been rules in place for when a green waste landfill poses or presents as a regulated landfill, due to noncompliance, abuse of leniency, etc.
“… It is also our assertion that ADEM failed to enforce. So, while ADEM claims no authority for land matters, ADEM is still responsible for the air under the authority mentioned earlier.”
Additionally, Smith asserted that ADEM failed to respond, saying that GASP and the EDA both provided data that there was an air contaminant concern and ADEM failed to declare an air pollution emergency.
GASP’s final assertion, Smith said, was that the Commission failed to advise, and “ADEM was not properly advised by the Commission on how or what to do to effectively regulate ELI in the past five or so years, nor how to directly handle this Moody landfill fire situation.”
Smith proposed, on behalf of GASP, that the Commission needs to direct ADEM to regulate green waste, as it is part of the definition of solid waste. Her second proposal was that the Commission direct ADEM to create an action plan to tackle emergencies like this in the future. Thirdly, Smith proposed that ADEM include organizations like GASP, who represent the community, to contribute to discussions and planning of certain environmental rules, regulations and laws.
Next, Environmental Defense Alliance (EDA) attorney David A. Ludder addressed the Commission.
“In my opinion, the Department has sufficient statutory authority today to have regulated the environmental landfill site, as well as other green waste disposal sites,” Ludder said. “What I would like to do is very briefly summarize how I get to that conclusion.
“First off, this provision of the Code of Alabama says that solid waste shall be disposed according to requirements of this article and the rules of the department, and shall be disposed of in a permitted landfill. Of course, the Environmental Landfill Inc. site was not a permitted landfill.
“So, the question is what is solid waste? Does it include green waste? The statute defines solid waste as including ‘any other discarded materials.’ The statute does not define what discarded materials are, and when a statute is silent like that, the courts look to dictionary definitions of terms to find out what the ordinary usage of the term is.
“So, the dictionary definition of ‘material’ and ‘discarded’ are reflected here: material is basically any matter; and discarded is any material that has been rejected, cast aside, or abandoned, as no longer needed or wanted. So that is probably what the courts would look to, at least in the absence of a statutory definition.
“Now, in one ADEM rule on the solid waste program, there is a definition of discarded material – it’s very much like the dictionary definitions. It is material that is thrown away, abandoned, disposed of, or otherwise given up without the intent to reuse, recycle, or reclaim. Green waste that is put in a landfill is a discarded material … as defined both in the ADEM rule and in dictionary definitions.”
Ludder then reminded the Commission that, according to the Code of Alabama, solid waste, which by definition includes green waste, is required to be disposed of in a permitted landfill. He said the EDA is concerned about other green waste landfills in the state that are not being regulated.
Prior to public comments, Dr. Samuel Miller stated that, per the Commission’s rules, commissioners would not be responding to comments that could be of a legal nature, which would include any discussions of the landfill fire.
The next scheduled meeting of the Environmental Management Commission is April 14, 2023.