U.S. v. Waste Industries, Inc.
| Decision Date | 08 May 1984 |
| Docket Number | A-1,No. 83-1320,83-1320 |
| Citation | 734 F.2d 159 |
| Parties | , 14 Envtl. L. Rep. 20,461 UNITED STATES of America, Appellant, and Flemington Residents Association, Residents of the Flemington Area, Plaintiffs, v. WASTE INDUSTRIES, INC.; Waste Industries of New Hanover County, Inc.; New Hanover County; The New Hanover County Board of Commissioners; Ellen Williams, Vivian Wright, Claud O'Shields, Howard Armistead, Karen Gottovi, members of the present New Hanover County Board of Commissioners; A.D. Royal; Catherine G. Royal; Carmen M. Butler as Executor of The Estate of Lore R. Butler; Charles A. Royal, Jr.; Faye B. Royal; Eloise R. Peixotto; Elliott R. Peixotto; Mildred R. Simpson; Stephen D. Royal; Patricia V. Royal; Mildred Fleming; and Carmen M. Butler, Appellees, v. NORTH CAROLINA DEPARTMENT OF HUMAN RESOURCES and its Secretary, Sarah T. Morrow; North Carolina Department of Natural Resources and Community Development and its Secretary, Howard N. Lee; City of Wilmington;Sanitation Services, Inc.; Trash Removal Services, Inc.; Bill Hufham, Trading and Doing Business as Rural Enterprises; Jerry Saunders, Trading and Doing Business as A & M Sanitation; Daniel A. Malpass and wife, Janie C. Malpass; Rita Faye Joyner and James V. Joyner, Jr., By Their Duly Appointed Guardian Ad Litem, Annie M. Parker; Kathy Joyner Shoaf; Helen L. Henderson; Willie Jones and wife, Kathleen Jones; Annie M. Parker; Thomas W. Malpass; Jack Malpass and wife, Nancy N. Malpass; Daniel J. Malpass and wife, Ada C. Malpass; B.F. Eichorn, Jr. and wife, Juanita Eichorn; William Fales; Joseph Dale Watts and wife, Barbara W. Watts; Harvey D. Hales and wife, Karen L. Hales, Third-Party Defendants, Chemical Manufacturers Association, Amicus Curiae. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Wendy B. Jacobs, Dept. of Justice, Washington, D.C. (Courtney Price, Acting Gen. Counsel, Environmental Protection Agency; Carol E. Dinkins, Asst. Atty. Gen., Washington, D.C., Samuel T. Currin, U.S. Atty., Gary Clemmons, Asst. U.S. Atty., Raleigh, N.C., Martin W. Matzen, Dept. of Justice, Washington, D.C., on brief), for appellant.
A. Dumay Gorham, Jr., Wilmington, Del. (Marshall, Williams, Gorham & Brawley, Fred B. Davenport, Jr., Murchison, Taylor & Shell, William L. Hill, II, Hogue, Hill, Jones, Nash & Lynch, Wilmington, N.C., on brief), for appellees.
Robert W. Frantz, Chemical Manufacturers Ass'n, Washington, D.C. (David F. Zoll, Vice President and Gen. Counsel, Richard G. Stoll, Deputy Gen. Counsel, Washington, D.C., on brief), for amicus curiae.
Before WIDENER and SPROUSE, Circuit Judges, and BUTZNER, Senior circuit judge.
After the Environmental Protection Agency (EPA) investigated the Flemington landfill waste disposal site in New Hanover County, North Carolina (the Flemington landfill) for possible water pollution in the surrounding area, the United States of America for the Administrator of the EPA initiated this action against Waste Industries, Inc.; Waste Industries of New Hanover County, Inc.; the New Hanover County Board of Commissioners; and the individual owner-lessors 1 of land used for the Flemington landfill (all defendants will be referred to collectively as the landfill group). The EPA demanded affirmative action by the landfill group under section 7003 of the Resource Conservation and Recovery Act of 1976 (Act), 42 U.S.C. Sec. 6973, to abate alleged threats to public health and the environment posed by hazardous chemicals leaking from the Flemington landfill, to monitor the area for further contamination, to reimburse the EPA for money spent on the area, and to provide residents with a permanent potable water supply. 2 The district court granted the landfill group's motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a cause of action and the EPA brought this appeal. We reverse.
The district court, before ruling on the motion to dismiss, referred the case to a United States magistrate for factual development by order filed April 10, 1980. The magistrate issued lengthy factual findings which were taken as true by the district court for purposes of the motion. Essentially, the findings of fact showed that before 1968, New Hanover County, North Carolina (County) had no trash or solid waste disposal programs or facilities. Private trash and garbage dumps existed throughout the County, but most were simply the result of the public's disposal of garbage and waste on private property without the permission of the property owners. The County first began to address the problem in 1968 when it contracted with the city of Wilmington to use its landfill facilities. The County negotiated leases for two other landfill sites after finding that use of the Wilmington facility did not alleviate the problem. The County's experience with landfill operations was unsatisfactory, however, and in the fall of 1971, the County began looking for other solutions to its disposal problems. After some investigation, the County Board granted Waste Industries, Inc. and Waste Industries of New Hanover County, Inc. (referred to collectively as Waste Industries) an exclusive license to dispose of solid waste generated in the County.
Under the terms of the license, Waste Industries was to establish and operate landfills for the sanitary disposal of solid waste generated within the County on sites Waste Industries owned. Waste Industries was to obtain all licenses and permits for operation of the landfills. The license agreement contained several provisions common to County contracts at that time: it required (a) that Waste Industries hold the County harmless for claims arising out of Waste Industries' actions; (b) that Waste Industries provide a performance bond; and (c) that Waste Industries observe state and local regulations. It also, among other things, required Waste Industries to provide the County with a review of the volume of the material disposed. In return, Waste Industries gained an exclusive franchise to operate sanitary landfills within the County to provide sanitary disposal of solid waste, such as inflammable or toxic materials and industrial, commercial, and agricultural by-products. The Waste Industries-County agreement was renewed, rewritten, or amended in 1975, 1977, and 1978.
After signing the initial agreement in 1972, Waste Industries obtained several landfill sites, including the seventy-acre Flemington site leased from private owners. The Flemington leases granted Waste Industries sole use and control of the premises. The landfill Waste Industries then established on the site is situated in a hole from which sand has been removed, known as a "sand barrow pit"; the surrounding soil is composed of highly permeable sand. The Flemington landfill is within a mile of both the Cape New Fear and Northeast Cape New Fear Rivers. During the operation of the landfill, unknown quantities of solid and hazardous waste were buried at the site. These wastes began leaching through the sandy soil beneath them and into the groundwater aquifer below.
Before Waste Industries began operating the landfill, the residents of the Flemington community had high quality groundwater. Flemington area residents first noticed a decline in water quality in autumn 1977, when their water became foul in color, taste, and smell. Some residents suffered illnesses or side effects such as blisters, boils, and stomach distress they attribute to their use of well water. Residents complained to the County Board and demanded help.
In response to residents' demands, the County in 1978 placed surplus water tanks that it still operates in the Flemington area. Many residents, however, had found it difficult to use these tanks because of infirmity or disability. Many families wash their clothes at laundromats and drive to the homes of friends or relatives elsewhere to bathe. Others have abandoned their homes because of the contaminated water.
In addition to constructing the water tanks, the County in August 1978 referred the question of groundwater quality in and near the Flemington community to the North Carolina Department of Natural Resources and Community Development. The Department directed Waste Industries to cease disposing of waste at the Flemington landfill, which it did on June 30, 1979.
Meanwhile, the water contamination problem was brought to the attention of the EPA's regional office, which conducted hydrologic investigations of Flemington groundwater and well water in April, July, and September 1979. The September investigation was the broadest undertaken by the EPA and was designed to determine what landfill wastes were contaminating area groundwater and in what direction the contaminated aquifer groundwater was moving beneath the Flemington area. Analysis of Flemington area groundwater samples taken by the EPA revealed a large number of toxic, organic, and inorganic contaminants, including known carcinogens, resulting from improper disposal of waste at the Flemington landfill. The contaminants found beneath the landfill and in residential wells include tetrachloroethylene, benzene, trichloroethylene; 1, 2-dichloroethane; vinyl chloride, methylene chloride, and lead. These chemicals, migrating from the Flemington landfill, have been detected in residential wells at levels sufficient to affect adversely human health and the environment. The presence of chlorides, dichlorophenol, chlorobenzene, iron, manganese, phenol, and zinc has rendered the water in the wells unfit for human consumption because some of these chemicals are suspected carcinogens and all of them are a source of extremely bad taste or odor in water. Concentrations of lead, benzene, tetrachloroethylene, trichlorethylene, 1, 2-dichloroethane, and vinyl chloride found in three residential wells pose an unacceptably high risk of neurological damage in children and cancer in humans of any age.
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