Jump to Navigation
Jump to Content

Environmental Defense Fund v. Lamphier

ELR Citation: 13 ELR 21094
Nos. No. 82-1631, 714 F.2d 331/20 ERC 1780/(4th Cir., 08/04/1983) Aff'd

The Fourth Circuit affirms the district court's determination, 12 ELR 20843, that appellants' storage of drummed liquid wastes violated the notification and permit requirements of the Resource Conservation and Recovery Act (RCRA), §§3005 and 3010, and Virginia nuisance law, and warranted injunctive relief.

First, the court holds that appellants must comply with RCRA §3005 because they were storing wastes on their land as of the effective date of the Act and because they incinerated and therefore "treated" some wastes subsequent to that date. Appellants are not generators and therefore do not qualify for the small-generator exemption. Next, the court holds that by allowing Environmental Protection Agency inspection of their land and by filing a reclamation plan, appellants did not satisfy the notification and permit requirements of RCRA. RCRA does not provide for constructive notification; rather, detailed procedures for compliance are contained in regulations and appellants were advised of their noncompliance. Also, appellants' reclamation plan did not address the drummed wastes and therefore did not satisfy all notification requirements.

The court then holds that statutory and common law injunctive relief is consistent with the citizen suit provision of RCRA under which environmental appellees brought suit. When citizens bring suit as private attorneys general rather than to assert private rights, nothing in RCRA bars the court from enforcing the Act through an injunction. The court rules that Virginia hazardous waste statutory law does not supersede the state's common law of nuisance because it contains no express language or necessary implication as required by Virginia law for preemption to apply. The court further rules that injunctive relief, if sought by government or private attorneys general, does not require proof of irreparable injury as appellants assert. Injunctions to enforce public health legislation are proper if in the public interest, and because RCRA allows injunctions to enforce its requirements, irreparable injury need not be pleaded or proven. The court also holds that the injunction, which requires appellants to open their property to state inspectors at reasonable times, is sufficiently specific to apprise appellants of what actions they should take.

Finally, the court rejects all claims by appellants that certain evidence was improperly admitted at trial and that the trial court erred in not holding a formal hearing on the issue of duplication of attorney effort before awarding fees. The court holds that the trial court took duplication of effort into consideration by reducing counsels' requests for fees by five percent.

Counsel for Appellants
Richard R. Nageotte
Nageotte, Borinsky & Zelnick
14908 Jefferson Davis Hwy., Woodbridge VA 22191
(703) 550-9291

Counsel for Appellees
Timothy G. Hayes
Environmental Defense Fund, Inc.
11 S. 12th St., Suite 314, Richmond VA 23219
(804) 780-1297

Patrick O'Hare Sr., Ass't Attorney General
Supreme Ct. Bldg., 101 N. 8th St., Richmond VA 23219
(804) 786-2071

Before WINTER, Chief Judge, and MURNAGHAN and ERVIN, Circuit Judges.