Twitty v. North Carolina

No. 82-1180 (4th Cir. December 27, 1982)

The Fourth Circuit affirms the district court's ruling, 12 ELR 20336, that the Environmental Protection Agency (EPA) had acted within its authority under the Toxic Substances Control Act in approving the dumping of polycholorinated biphenyls at a state landfill next to appellants' land. The district court had ruled that the nuisance claims against the dump were not ripe, as no dumping had yet occurred, and that there was no taking of property without compensation. The court of appeals notes that the validity of one EPA site-specification waiver, the constitutionality of a local hazardous waste landfill ban, and the feasibility of other disposal sites are no longer at issue. The court then adopts the district court's opinion as to all remaining issues litigated below.

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

Counsel for Appellees
Rufus I. Edmisten, Attorney General; William A. Raney Jr.
P.O. Box 629, Raleigh NC 27602
(919) 733-3377

Wendy B. Jacobs, Anthony C. Liotta, David T. Buente Jr., Anne S. Almy
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-4010

Bryan, J., joined by Winter and Russell, JJ.

[13 ELR 20788]

BRYAN, J.:

Now appealed is the refusal of the Federal District Court for Eastern North Carolina to enjoin as a nuisance the dumping by that State upon its own land adjoining that of Henry and William Twitty and Jean Davis Adams (plaintiffs or landowners) of wastes containing toxic polychlorinated biphenyls (PCBs). The Environmental Protection Agency (EPA) had given its approval of the deposit.

Initially instituted in the State Court by the landowners to obtain the injunction or, in the alternative, to recover damages, the suit was removed to the Federal Court by the EPA when it was added as a defendant. That Court in a summary judgment held that the EPA Administrator had acted within the scope of his authority in approving the site and that the approval was not arbitrary, capricious, or an abuse of discretion. The Court further denied injunctive relief on the ground that it was not warranted by the evidence proffered by the landowners. At the same time it rejected the prayer for recovery of damages inasmuch as the occupancy was not a taking under the principles of eminent domain and no injury had been occasioned in the operation of the project, since no dumping had begun — simply the siting had been found permissible — but the right to damages for injuries, if any, stemming from the subsequent operation of the dump was not adjudicated or intended to be adjudicated.

We note that several matters raised and decided below are no longer at issue on appeal. The State voluntarily undertook to forego one of the waivers to PCB dumpsite specifications granted by the EPA Administrator in his preliminary approval, thereby adding an extra measure of protection against toxic waste leakage at the site. A local county ordinance ostensibly banning all hazardous waste landfills in the area has been nullified by both subsequent State regulation of toxic waste and the county's settlement [13 ELR 20789] of its related lawsuit,¹ thus avoiding any possible preemption issue arising from conflict with the Toxic Substances Control Act, 15 U.S.C. §§ 2601 et seq. Finally, appellants conceded at oral argument that they had no factual basis for maintaining that any of the other ninety sites considered by North Carolina would be a better disposal location.

With regard to the remaining claims, we adopt the precise and meticulous opinion of the District Judge setting out his findings of fact and conclusions of law. Twitty v. North Carolina, 527 F. Supp. 778 [12 ELR 20336] (E.D.N.C. 1981).

Affirmed.

1. See Warren County v. State of North Carolina, 528 F. Supp. 276 [12 ELR 20402] (E.D.N.C. 1981).