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Warren County v. North Carolina

Citation: 12 ELR 20402
No. No. 79-560-CIV-5, 528 F. Supp. 276/16 ERC 2047/(E.D.N.C., 11/05/1981)

The court rejects Warren County, North Carolina's federal and state law challenges to decisions of the state to use, and of the Environmental Protection Agency (EPA) to approve the sue of, a parcel of land in the county as a disposal site for soil contaminated with polychlorinated biphenyls (PCBs). The court first finds that although the county has a sufficient "personal stake" in the matter to have standing, its interests are not all within the "zones protected" by the applicable statutes. It may not assert the claim that the disposal site is a public nuisance, because the applicable North Carolina statute requires that such actions be brought by local health officers. The county is also not a citizen within the meaning of the Toxic Substances Control Act's (TSCA's) citizen suit provision, because its powers are derivative and not based on inherent sovereign authority. On the other hand, the county has standing to bring challenges under both the National Environmental Policy Act (NEPA) and the North Carolina Environmental Policy Act (NCEPA), both of which address environmental risks of the type alleged. The county also has standing for its claim that the state action violates the state Administrative Procedure Act. In addition, it is the logical party to seek enforcement of the county ordinance prohibiting PCB disposal within its borders. Finally, the court concludes that on the basis of case law under NEPA and in the absence of cases establishing a test under state law, that the county has standing to challenge the adequacy of the environmental impact statement (EIS) prepared under the NCEPA because of the potential loss of tax revenue and damage to the county's environment. The court next turns to the subtantive claims, including those with respect to which plaintiff lacks standing. It first states that North Carolina's use of its property in a manner authorized by valid statute may not be enjoined as a public nuisance. Next, it holds that EPA's failure to prepare an EIS before approving the site did not violate NEPA, because the procedures it followed in approving the site under TSCA are the functional equivalent of EIS procedures. Nor was EPA's approval of the site arbitrary and capricious, because the administrative record reveals a rational basis for the decision. The court then rules that the Warren County ordinance banning PCB disposal is implicitly preempted by TSCA because it conflicts with the objectives of the federal statute and its effect is to frustrate totally Congress' scheme for ensuring safe disposal of PCBs. Finally, the court rules that the EIS prepared by the state under the NCEPA is not defective. Applying the NEPA "rule of reason" standard of review in the absence of applicable state case law, the court finds that the EIS adequately describes the project and that the state considered all reasonable alternatives presented and all the potential environmental consequences which were not extremely unlikely. It grants defendants' motion for summary judgment on all claims.

Counsel for Plaintiff
Norman B. Smith
Smith, Patterson, Follin, Curtis, James & Harkavy
704 Southeastern Bldg., Greensboro NC 27401
(919) 274-2992

Charles T. Johnson Jr., Cty. Attorney
P.O. Box 646, Warrenton NC 27589
(919) 257-3748

Counsel for Defendants
W. A. Raney Jr., Special Deputy Attorney General
Justice Bldg., Corner Wilmington & Morgan, Raleigh NC 27602
(919) 733-3377

James L. Blackburn, U.S. Attorney
P.O. Box 26897, Raleigh NC 27611
(919) 755-4530