Environmental Defense Fund, Inc. v. Lamphier
| Decision Date | 04 August 1983 |
| Docket Number | No. 82-1631,82-1631 |
| Citation | 714 F.2d 331 |
| Parties | , 71 A.L.R.Fed. 166, 13 Envtl. L. Rep. 21,094, 13 Fed. R. Evid. Serv. 1787 ENVIRONMENTAL DEFENSE FUND, INC., Chesapeake Bay Foundation, Inc., Plaintiffs, and Commonwealth of Virginia, ex rel. State Board of Health, State Health Commissioner, Plaintiff-Intervenor, Appellees, v. James LAMPHIER, Mrs. James (Janet A.) Lamphier, Defendants, Appellants. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Richard R. Nageotte, Woodbridge, Va. (Nageotte, Borinsky & Zelnick, Woodbridge, Va., on brief), for appellants.
Timothy G. Hayes, Environmental Defense Fund, Patrick A. O'Hare, Sr. Asst. Atty. Gen., Richmond, Va. (Jeter M. Watson, Chesapeake Bay Foundation, Ashland, Va., on brief), for appellees.
Before WINTER, Chief Judge, and MURNAGHAN and ERVIN, Circuit Judges.
The cause of this appeal is a judgment by the district court holding that the defendants violated state and federal antipollution laws and committed a common law nuisance. We discern no merit in the assorted contentions on appeal, and accordingly we affirm.
James and Janet Lamphier are co-owners of a farm in Culpeper County, Virginia. Since 1974 the farm has been headquarters for "Jim's Liquid Waste," a sole proprietorship belonging to James Lamphier and engaged in the business of industrial waste disposal.
In the fall of 1979, the Virginia State Water Control Board ("SWCB") and the State Department of Health ("SDH") 1 learned that Lamphier was transporting various wastes to his farm and disposing of them by land application and lagooning of bulk liquids, and burial of drummed liquids. After visits to the farm, both state agencies ordered Lamphier to cease his disposal activities. On December 5, 1979, the SWCB issued an emergency order requiring Lamphier to contain all runoff from lagoons and land application areas and submit a list of wastes deposited at the facility. Subsequently, the SWCB ordered Lamphier to devise a land reclamation plan and to construct proper facilities for the disposal of septic wastes. In compliance with these orders, Lamphier halted dumping activities (although he continued to receive shipments of wastes through March, 1980) and, sometime after November 5, 1980, submitted a plan for waste containment and land reclamation to both the SWCB and the SDH. The SWCB subsequently approved the plan, but the SDH did not.
In March, 1980, an investigator for the SDH visited the Lamphier farm and found several 55-gallon drums containing solvents buried on the property. On April 11, 1980, the SDH investigator returned along with a special agent of the state police and, armed with a search warrant, collected samples of well waters and of wastes found in numerous barrels. Tests performed on these samples revealed a high degree of flammability, which under regulations of the Resource Conservation and Recovery Act of 1976 ("RCRA"), 42 U.S.C. §§ 6901 et seq., qualified the wastes as hazardous. See 40 C.F.R. § 261.21.
At about the same time, William Gilley, director of SDH's Division of Solid and Hazardous Waste, wrote Lamphier that disposal of flammable solvents was a violation of state law. Lamphier did not respond to Gilley's request for information pertaining to the nature and origin of the wastes.
On April 28, 1980, Lamphier's attorney, Richard Nageotte, requested by letter a meeting with Gilley at the SDH. Gilley did not respond. On May 9, 1980, Nageotte again wrote Gilley, asserting that the drummed solvents were not harmful, but that nevertheless he had advised Lamphier to dig up the drums and place them in a "covered area." The SDH never approved of (nor objected to) this action.
On June 16, 1980, federal officials intervened. Representatives from the Environmental Protection Agency ("EPA") visited the farm to ascertain whether the materials posed an "imminent hazard" warranting immediate action under § 7003 of RCRA, 42 U.S.C. § 6973. Samples taken revealed no imminent hazard, but in the report to the SWCB, Jack Brinkmann of the EPA left open the possibility that other RCRA violations might be present.
On August 19, 1980, the notification requirements of RCRA, 42 U.S.C. § 6930, went into effect. As of that date, all operators of waste disposal sites were required to notify the EPA of their activities. After August 19, 1980, no hazardous waste could be stored lawfully unless notification had been given. Lamphier never filed formal notification with the EPA.
On November 5, 1980, a meeting was held between Nageotte and representatives of the SWCB, the SDH, and the EPA. Lamphier's proposal for refurbishing the waste disposal operation was rejected by the agency representatives as unsatisfactory under RCRA. The SWCB then assumed responsibility for supervising a plan to reclaim the land. Shortly thereafter a formal reclamation plan was submitted by Lamphier and accepted by the SWCB. The SDH also reviewed the plan but neither approved nor rejected it. Reclamation was begun and some of the bulk wastes neutralized. However, a large number of 55-gallon drums containing waste liquids remained on the land, and these liquids became the source of the controversy in this litigation.
On November 19, 1980, major new RCRA provisions went into effect, requiring all hazardous waste treatment, storage and disposal facilities to register for permits or non-permit interim status and to comply with certain operating standards. Lamphier took no action to obtain an operator's permit.
On February 19, 1981, Gilley wrote Lamphier on behalf of the SDH and EPA regarding RCRA permit requirements, advising Lamphier to remove all drummed wastes still stored at the farm to a properly registered facility.
Nageotte responded to Gilley on February 27, 1981, that the material contained in the drums was "nothing more than solvents" which he opined were not hazardous. Furthermore, stated Nageotte, the barrels were being held at the direction of the SDH; therefore, the SDH should assume responsibility for obtaining the necessary permits.
In a letter dated March 16, 1981, Gilley reiterated RCRA requirements, noting that SDH lab tests had shown the materials to be hazardous. He also asserted that SDH had not ordered continued storage of the barrels on Lamphier's property; rather, statements by SDH representatives to Lamphier's employees on earlier occasions were made in the context of preventing disposal of the drummed fluids on the farm in a manner inconsistent with state regulations.
On June 5, 1981, Gilley sent Lamphier a copy of the Virginia Hazardous Waste Management Regulations and the RCRA notification form, again urging compliance with federal and state law. Nageotte wrote Gilley on June 26, 1981, that all the material contained in the barrels had been incinerated, on Nageotte's advice, and that therefore a storage permit was no longer required.
Gilley answered in letters dated July 14 and 30 that Lamphier's unauthorized incineration of the waste solvents was an apparent violation of state and federal law, and that he was notifying the EPA of the matter.
The Environmental Defense Fund, Inc. ("EDF") and the Chesapeake Bay Foundation ("CBF"), two private environmental groups, joined the dispute on October 5, 1981, by filing a complaint against Lamphier under the "citizen suit" provision of RCRA, 42 U.S.C. § 6972, alleging violations of RCRA notification and permit requirements, 42 U.S.C. §§ 6930 and 6925. The Commonwealth of Virginia intervened on January 12, 1982, appending several state law charges to EDF and CBF's action. In addition to injunctive relief, the Commonwealth sought response costs under the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. §§ 9601 et seq.
After a bench trial, the court found the defendants guilty of common law nuisance and of violations of RCRA and Virginia state law. As relief, the court issued an injunction ordering Lamphier henceforth to comply with applicable hazardous waste regulations. The court further ordered the Lamphiers to provide the plaintiffs and plaintiff-intervenors access to the farm for the purpose of monitoring wastes. Fees and costs were also awarded.
Lamphier's 2 first contention on appeal is that the prohibitions of RCRA do not apply to him.
Under 42 U.S.C. § 6925, anyone "owning or operating a facility for the treatment, storage, or disposal of hazardous waste" as of November 19, 1980, must obtain operating permits from the EPA. Lamphier attempts to argue that because no wastes were brought to the farm after March, 1980, and because the barrels on the property remained there only by order of the SDH, Lamphier cannot be considered to have been "operating a facility for the treatment, storage, or disposal of hazardous waste" as of November 19, 1980, the date section 6925 came into effect.
"Storage" of wastes is defined at 40 C.F.R. § 260.10 as "the holding of hazardous waste for a temporary period, at the end of which the hazardous waste is treated, disposed of, or stored elsewhere." Lamphier's contention that no wastes were brought in after March, 1980, is thus immaterial where he continued to store substances deposited at the farm prior to that date. At trial, William Gilley testified that SDH had never ordered Lamphier to hold the barrels at the farm, and the district court so found. This finding is supported by a letter dated March 16, 1981, from Gilley to Nageotte in which Gilley states that Lamphier "was and is free to dispose of this material elsewhere in a manner consistent with federal EPA regulations at specifically permitted sites." Moreover, by burning the wastes in early 1981, Lamphier "treated" them, see 40 C.F.R. § 260.10, without notifying EPA or obtaining a permit from EPA as required under 42 U.S.C. §§ 6930 and 6925. 3
Operators who generate less than one thousand kilograms of hazardous waste per month are exempt from the...
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