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16 ELR 20501 | Environmental Law Reporter | copyright © 1986 | All rights reserved United States v. Waste Industries, Inc.No. 80-4-CIV-7 (E.D.N.C. June 1, 1985)The court rules that a state hazardous waste agency's failure to take reasonable and necessary steps to monitor groundwater near a solid waste landfill at Flemington, North Carolina, in which hazardous wastes were disposed might constitute "contribution to" the disposal of hazardous wastes under § 7003 of the Resource Conservation and Recovery Act (RCRA). Ruling on sections of a 1981 magistrate's opinion not addressed in an earlier opinion that was reversed by the 4th Circuit, the court adopts the magistrate's opinion with numerous exceptions. The court first rejects the magistrate's conclusion that § 7003 of RCRA is not the source of substantive principles of liability and that it makes available relief other than injunctive relief. The court rules that the restrictions in § 7002(b) and (c) do not apply to a § 7003 action by the government and rejects the magistrate's conclusion that they apply, but do not bar the instant action. Without discussing the effects of the 1984 amendments to RCRA, the court notes that § 7003 preempts state law actions to preempt hazardous waste nuisances creating imminent and substantial endangerments to the environment. The court then rules that the magistrate erred in deciding that the Federal Tort Claims Act and citizen suit provision of RCRA waive the federal government's sovereign immunity as to a claim for contribution or indemnity concerning cleanup of a hazardous waste site. Moreover, the basis for plaintiff's contribution claim, the alleged failure of the federal government to properly regulate the site, collapses because plaintiff cited no regulatory obligation violated by EPA and no acts causally related to the hazardous waste pollution. After commenting on a number of minor points, the court rules that the state Department of Natural Resources (DNR) might be liable for contribution under § 7003. Although the Department of Human Resources has jurisdiction over solid waste landfills, DNR has responsibility for hazardous waste and plaintiffs alleged that DNR knew at an early date that the landfill was contaminating groundwater with hazardous chemicals. Given the broad scope of the "contributing to" standard of liability under § 7003, the court denies DNR's motion to dismiss. Counsel for Plaintiff Anne Strickland Counsel for Defendants William L. Hill II Daniel C. Oakley, Special Deputy Attorney General Henry G. Foy J. A. Gardner III Britt, J.: This action was filed on 11 January 1980 by the United States of America on behalf of the Environmental Protection Agency (EPA) pursuant to Section 7003 of the Resource Conservation and Recovery Act (RCRA). See 42 U.S.C. § 6973. The EPA seeks injunctive relief to remedy an imminent and substantial endangerment to health and the environment allegedly caused by the improper disposal of hazardous waste at the Flemington landfill in New Hanover County, North Carolina. The EPA brought this action against Waste Industries, Inc., and Waste Industries of New Hanover County, Inc. (collectively referred to as Waste); The New Hanover County Board of Commissioners (NHC); and the individual owners and lessors of the land used for the Flemington landfill (Royals). The North Carolina Department of Human Resources (DHR), the North Carolina Department of Natural Resources and Community Development (DNR), several trash haulers, residents of the Flemington area, and the Flemington Residents Association (FRA) have been brought into this action as thirdparty defendants. After this action was referred to Magistrate Charles K. McCotter for proposed findings and recommendations this court granted [16 ELR 20502] the defendants' motion to dismiss. The Fourth Circuit reversed and remanded to this court for further proceedings consistent with its opinion. This action is now before the court on the parties' objections to those portions of the magistrate's memorandum and recommendation which were not ruled on by the Fourth Circuit. The facts of this case have been exhaustively set forth by the magistrate and by the Fourth Circuit, and there is no need to repeat them here. Several parties have objected to the magistrate's findings of fact because those findings were not specifically qualified as being made only for the purpose of ruling on the various motions that are pending. With regard to these objections, the magistrate's findings were of course made only for the purpose of ruling on the pending motions. None of these findings are set in stone, and the parties will have the opportunity at trial to establish the facts relevant to this case. With this one qualification, the magistrate's findings of fact are adopted by this court. The magistrate's conclusions of law are divided into eight sections (A through H). Section A provides general background information on the RCRA and is adopted by this court. Section B addresses various challenges to the RCRA which were subsequently ruled on by the Fourth Circuit. Therefore, the parties are referred to the Fourth Circuit's opinion in this case for any questions concerning the constitutionality, applicability, or scope of relief authorized by the RCRA. See United States v. Waste Industries, Inc., 734 F.2d 159 [14 ELR 20461] (4th Cir. 1984). Also, as the magistrate noted, this action is not barred by the doctrine of laches. Section C of the magistrate's conclusions of law addresses general principles of nuisance law and is adopted by this court with two exceptions. First, the magistrate's finding that "Section 7003 cannot be interpreted as a source of substantive duties or liabilities" must be modified in light of the Fourth Circuit's opinion in this case. See Mem. Op. at 28. As the Fourth Circuit explained "Congress intended Section 7003 to function both as a jurisdictional basis and a source of substantive liability.' See United States v. Waste Industries, Inc., 734 F.2d at 167. Second, the magistrate explained that there are three possible remedies to abate a nuisance under the common law. This court notes, however, that only injunctive relief is available under Section 7003. See 42 U.S.C. § 6973. Section D of the magistrate's conclusions of law addresses the applicable law and jurisdictional basis for the numerous counter-claims, cross-claims and third-party claims. This section is divided into eleven subsections, and each of these will be addressed separately. Subsection 1 discusses the citizens suits provisions in Section 7002 of the RCRA. See 42 U.S.C. § 6972. Section 7002(a) provides for a suit (1) against any person for "violation of any permit, standard, regulation, condition, requirement, or order which has become effective pursuant to" the RCRA or (2) against the administrator for failure to perform nondiscretionary acts or duties. Id. In addition, section 7002(f) preserves any rights "under any statute or common law to seek enforcement of any standard relating to the management of solid waste or hazardous waste or to seek any other relief (including relief against the administrator, or a State agency)." Id. Two conclusions by the magistrate in subsection 1 require further discussion. First, the magistrate concluded that the notice requirements and other restrictions contained in Sections 7002(b) and (c) did not bar any of the claims in this action. The magistrate based this conclusion on the fact that the purpose behind the notice provisions was satisfied even though the specific requirements of Sections 7002(b) and (c) were not satisfied. This court agrees with the magistrate's conclusion for a different reason. The restrictions found in Sections 7002(b) and (c) are irrelevant to suits brought under the Section 7003 imminent hazard provisions. "The nature of an emergency lawsuit is clearly different from one in which a violation of a requirement or standard must be alleged." See United States v. Hooker Chemical & Plastics Corp., 101 F.R.D. 451 (W.D.N.Y.), aff'd, 749 F.2d 968 [14 ELR 20875] (2d Cir. 1984). Section 7003 is designed to provide the administrator with overriding authority to respond to situations involving a substantial endangerment to health or the environment, regardless of other remedies available through the provisions of the Act. See United States v. Waste Industries, 734 F.2d at 166, quoting from the "Eckhardt Report." Therefore, the notice requirements and other restrictions contained in Sections 7002(b) and (c) do not bar any of the claims in this action. Second, the magistrate concluded that the Section 7002(f) "savings clause" preserved any actions, including state law claims, that would have been maintainable even in the absence of the Section 7002(a) "citizens suits" provisions. This court agrees. It is important to note, however, that the "savings clause" has no effect on the injunctive relief available under the Section 7003 imminent hazard provisions. Private remedies, in addition to those expressly provided, should not be implied from a "savings clause." See Middlesex County Sewer Authority v. Sea Clammers, 453 U.S. 1 [11 ELR 20684] (1981). Thus, suits under Section 7003 can be brought only by the EPA, and not by private citizens. Furthermore, the comprehensive nature of Section 7003 and the important federal interest involved clearly indicate that Congress intended to preempt state law actions to abate public nuisances which create an imminent and substantial endangerment to the environment. Subsection 2 addresses the federal government's sovereign immunity to claims for contribution and indemnity. The magistrate concluded that both the Federal Tort Claims Act (FTCA) and the citizens suits provisions of the RCRA waive the United States' sovereign immunity. This court disagrees. First, as explained before, the citizens suits provisions of Section 7002 are irrelevant to this action. Second, none of the RCRA provisions waive the United States' immunity from suits for contribution or indemnity. See Massachusetts v. Veterans Administration, 541 F.2d 119 [6 ELR 20666] (1st Cir. 1976). Third, the United States' immunity in this action is not waived by the FTCA because the defendants never pleaded or otherwise relied upon the FTCA. Therefore, the United States is immune from the contribution and indemnity claims against it. Subsection 3 addresses the claims against the United States for (1) failure to promulgate rules and regulations; (2) failure to provide technical and financial assistance; and (3) the EPA's sanctioning and approval of the Flemington landfill. Even if the United States had waived its sovereign immunity as to these claims, none of the claims against the United States have any merit. First, the timely promulgation of rules and regulations by the EPA, while desirable, is not a prerequisite to suit under Section 7003. Second, the EPA is obligated to provide technical and financial assistance only upon the approval of a state plan for the disposal of hazardous waste. See 42 U.S.C. § 6947. There has been no contention by any of the defendants that the State of North Carolina submitted such a plan for the EPA's approval. Third, the pleadings and documents of record in no way show that the EPA "sanctioned" or "approved" the Flemington landfill. There is merely some evidence that an EPA representative visited the site at the behest of an independent third party and determined that there had been no violation of federal laws at that time. Such a visit in no way subjects the EPA to liability for contribution or indemnity to the defendants in this action. Finally, there is simply no causal connection between any of the EPA's alleged failures and the contamination of the Flemington landfill. In subsection 4 the magistrate discussed the Royals' claim of inverse condemnation against the United States. This court agrees with the magistrate's discussion and his recommendation that the United States' motion for summary judgment be granted. Subsection 5 addresses the pendent state claims in this action. In order to streamline this complex lawsuit, all pendent state claims are hereby dismissed. Subsection 6 addresses the law applicable to joint tortfeasors. This subsection is in accordance with law and is adopted by this court. Subsection 7 addresses the applicability of the eleventh amendment as to the claims against the state agencies. This subsection is in accordance with law and is adopted by this court. Subsection 8 addresses the applicability of governmental immunity to New Hanover County. The magistrate concluded that the claims against New Hanover County were not barred by governmental immunity because the Flemington landfill was a "proprietary" activity. This court agrees with the magistrate's conclusion but for a different reason. Under North Carolina law municipalities are not immune to claims for the "taking or damaging of property resulting from the creation or maintenance of a nuisance growing out of the disposal of garbage." See Koontz, v. City of Winston Salem, 280 N.C 513, 186 S.E.2d 897, 903 (1972). This "garbage disposal" exception applies to the claims against New Hanover County in this action. In subsection 9 the magistrate concluded that New Hanover [16 ELR 20503] County was not insulated from liability by virtue of its franchise to Waste Industries. This section is in accordance with law and is adopted by this court. Subsection 10 addresses the inverse condemnation claims against New Hanover County and the state agencies. The magistrate concluded that these claims survive the various motions to dismiss and for summary judgment. This court agrees as to New Hanover County but disagrees as to the state agencies. The doctrine of inverse condemnation has always been understood as referring to direct governmental appropriation, and not to indirect consequential injuries resulting from the exercise of lawful power. See, e.g., Midgett v. Highway Commission, 260 N.C. 241, 132 S.E.2d 599 (1963); McKinney v. Deneen, 231 N.C. 540, 58 S.E.2d 107 (1950). The actions taken by the state agencies were not sufficiently "direct" to support a claim for inverse condemnation against them. Subsection 11 addresses various motions by Gerald C. McKeithan and Trash Removal Service, Inc. This subsection is in accordance with law and is adopted by this court. Section E addresses the motion by the Flemington Residents Association (FRA) to intervene in this action on behalf of its members who are residents of the Flemington community. The magistrate concluded that the FRA's motion to intervene should be allowed. This court disagrees. The United States will adequately protect the Flemington residents' interests. Section F addresses the difficult situation faced by the Royals, who are the owners of the landfill site. This section is in accordance with law and is adopted by this court. Section G discusses the various contributors to the contamination of the Flemington landfill and the resulting ground water pollution of the surrounding area. This court adopts this section with one exception. The magistrate concluded that the claims against the Flemington landowners for contributing to the pollution "appear unsupported" and should be dismissed. This court agrees that the claims against the Flemington residents do "appear unsupported," but disagrees with the magistrate's conclusion that these claims should be dismissed. The other "contributors' to the pollution should be given an opportunity to support their claims that the Flemington residents have also contributed to the pollution. This court does agree, however, that the claims against the FRA should be dismissed. As a separate entity there is no evidence that the FRA contributed to the pollution. Also, as mentioned before, the counterclaims against the United States are dismissed. One further point requires clarification. The DNR argues that this court should dismiss the claims against it because the DNR has no regulatory or supervisory powers relating to solid waste disposal in landfills. This court disagrees. It is clear that the DHR is the state agency entrusted with the primary responsibility for regulating and supervising solid waste disposal in North Carolina. Nevertheless, the third-party complaints allege that the DNR "contributed" to the disposal of hazardous waste by failing to take reasonable and necessary steps to monitor the ground water near the Flemington landfill. Thus, the third-party complaints allege that the DNR should have discovered at an earlier date that the Flemington landfill was contaminating the local ground water. Keeping in mind that "contributing" to the disposal of hazardous wastes is to be interpreted liberally, the DNR's motion to dismiss must be denied. See United States v. Waste Industries, Inc., 734 F.2d at 167. Section H addresses the FRA's motion to intervene pursuant to Fed. R. Civ. P. 24(a) and Section 7002 of the RCRA. The right to intervene set forth in Section 7002 does not apply to suits brought under the Section 7003 imminent hazard provisions. See United States v. Hooker Chemical & Plastics Corp., 101 F.R.D. 451 (W.D.N.Y.), aff'd, 749 F.2d 968 [14 ELR 20875] (2d Cir. 1984). Thus, there is no basis in the RCRA for the FRA to intervene. Also, as mentioned before, the United States will adequately protect the interests of the Flemington landowners. Therefore, the FRA's motion to intervene is denied. The magistrate made thirty-two recommendations and ten orders in his 3 April 1981 memorandum opinion (the magistrate inadvertently skipped "No. 26" when numbering his recommendations). All recommendations and orders not specifically discussed herein are in accordance with law and adopted by this court. The following require further discussion: Recommendation No. 21: The state agencies' motion to dismiss the inverse condemnation claims against them is granted. NHC's motion to dismiss the inverse condemnation claims against it is denied. Recommendation No. 23: The Flemington residents' motion for summary judgment as to the third-party complaints of NHC, Waste and the Royals is denied. Recommendation No. 25: The Royals' and NHC's motion to dismiss the counterclaim of the Flemington residents is granted. Recommendation No. 26: There is no recommendation "No. 26." Recommendation No. 27: With respect to the counterclaims of NHC, Waste and the Royals, the United States' motion to dismiss is granted. Alternatively, considering the pleadings and affidavits filed herein and treating the motion to dismiss as one for summary judgment, said motion is granted as to all claims against the United States. Order No. 4: FRA's motion to intervene is denied. Order No. 6: By order filed 23 May 1980 the magistrate caused to be named as new party defendants in this action other residents in the Flemington area as well as nearby businesses. The parties have not caused service of process to be issued upon this order. Therefore, the magistrate's 23 May 1980 order is vacated as to both the residents and businesses named in that order. Order No. 8: Pursuant to Rule 14 the Royals are allowed do file a third-party complaint against Trash Removal Service, Inc., and/or its successor in business within twenty (20) days after the filing date of this order. Order No. 9: This court adopts the magistrate's realignment of the parties and claims in this action with four exceptions. First, the FRA is dismissed from this action. Second, the Flemington residents are realigned as original defendants rather than intervening plaintiffs. Third, any party realigned as an original defendant which has not responded to the United States' complaint shall have twenty (20) days from the filing date of this order to respond to said complaint. Fourth, all claims against the United States are dismissed. Order No. 10: The Flemington property owners' and residents' motion to intervene as plaintiffs is denied. 16 ELR 20501 | Environmental Law Reporter | copyright © 1986 | All rights reserved |