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Twitty v. North Carolina

Citation: 12 ELR 20336
No. No. 80-41-CIV-5, 527 F. Supp. 778/16 ERC 2042/(E.D.N.C., 11/25/1981)

The district court approves defendants' disposal of polycholorinated biphenyls (PCBs) in a state-owned landfill in Warren County, North Carolina against an array of challenges based on federal and state law. Plaintiffs, owners of property adjoining the landfill, sought injunctive or monetary relief after the state's application for approval of the disposal site was granted by the Environmental Protection Agency (EPA). The court rules that plaintiffs' cause of action alleging nuisance must fail since defendants' actions are authorized by the Toxic Substances Control Act (TSCA). In addition, plaintiffs' claim that defendants violated a county ordinance prohibiting PCB disposal is not actionable since TSCA preempts such local ordinances. The court rules that the Regional Administrator's decision to waive certain regulatory requirements in approving the site was neither arbitrary nor capricious. Next, it rules that plaintiffs' claim that the PCB disposal constitutes a taking entitling them to compensation is not actionable since there has been no damage to plaintiffs' property. Finally, defendants were not required to prepare an environmental impact statement (EIS) under the National Environmental Policy Act since PCB disposal is governed by TSCA, which contains no EIS requirement but does provide extensive procedures that are the functional equivalent of an EIS.

[Cases dealing with factual circumstances are reported at 12 ELR 20285 — Ed.]

Counsel for Plaintiffs
Lewis A. Thompson III
Banzet, Banzet & Thompson
P.O. Box 535, Warrenton NC 27589
(919) 257-3166

Counsel for Defendants
W. A. Raney Jr., Special Deputy Attorney General
P.O. Box 629, Raleigh NC 27602
(919) 733-3377

Samuel T. Currin, U.S. Attorney
P.O. Box 26897, Raleigh NC 27611
(919) 755-4530