City of Gallatin v. Cherokee County

• Decision Date: 17 January 1983
• Docket Number: No. TY-81-107-CA.,TY-81-107-CA.
• Parties: CITY OF GALLATIN v. CHEROKEE COUNTY.
• Court: U.S. District Court — Eastern District of Texas

563 F. Supp. 940

CITY OF GALLATIN v. CHEROKEE COUNTY.

No. TY-81-107-CA.

United States District Court, E.D. Texas, Tyler Division.

January 17, 1983.

John O. Davis, A.D. Henderson, Palestine, Tex., Mike Hatchell (for appeal purposes), Ramey, Flock, Hutchins, Jeffus, McClendon & Crawford, Tyler, Tex., for plaintiff.

Larry R. Sinclair, Rusk, Tex., John Robert Adamson, Jacksonville, Tex., for defendant.

Memorandum Opinion

JUSTICE, Chief Judge.

The plaintiff, the City of Gallatin, Texas, has brought this civil action under the "citizen suit" provision of the Resource Conservation and Recovery Act of 1976, as amended ("RECRA"). 42 U.S.C. § 6972(a), § 6901, et seq. In its complaint, plaintiff alleges that the defendant, Cherokee County, Texas, is constructing an "open dump", which is prohibited by RECRA at 42 U.S.C. § 6945(a). Defendant's proposed municipal solid waste disposal site is an "open dump", plaintiff charges, because there is a "reasonable probability that it will have adverse effects on health and the environment." 42 U.S.C. § 6944(a). Specifically, it is alleged by plaintiff that contaminated water will seep out of the landfill and pollute potable ground water and surface water beyond the perimeters of the landfill site. See 40 C.F.R. § 257.3-3 to § 257.3-4.

Defendant contends that whatever contaminated water may collect in the landfill site will be adequately contained on the site by a three-foot compacted clay liner that is being installed in the floor of the pit; that any matter that may leak through the liner (called "leachate") will not flow in the direction of known off-site sources of drinkable ground water or surface water; and, further, that any leachate that may ultimately wend its way into sources of drinking water will not be contaminated.

This case came to trial September 21-23, 1981, with the bulk of the evidence being directed to the question of the sufficiency of the clay liner to contain contaminated water. The evidence was highly technical and contradictory.

At the time of trial, the parties were aware of no published case in which a citizen's suit had been brought to enforce 42 U.S.C. § 6945(a), or, indeed, any other provision of RECRA pertaining to non-hazardous waste. Throughout the trial, both parties acted on the assumption that the statute in question was, in fact, a direct federal prohibition of "open dumping." Several months prior to trial one Federal court had, in fact, so interpreted § 6945(a). O'Leary v. Moyer's Landfill, Inc., 523 F.Supp. 642 (E.D.Pa.1981). Nevertheless, upon close inspection of the statute, it has been respectfully concluded that the precedent cannot be followed, and that the parties have misinterpreted the meaning, scope, and application of § 6945(a).

II.

The RECRA Legislation

Congress first acknowledged the threat to public health and welfare posed by the problem of solid waste by enacting P.L. 89-272, the Solid Waste Disposal Act of 1965. This legislation authorized the Secretary of Health, Education and Welfare to conduct research into techniques of solid waste disposal, and to provide financial and technical assistance to states in implementing safe solid waste disposal plans. Subsequently, in the Resource Recovery Act of 1970, Congress encouraged the recovery of reusable materials and energy from solid waste, and it transferred federal responsibility for administration of the Act to the newly created Environmental Protection Agency ("E.P.A.").¹

The Resource Conservation and Recovery Act of 1976 marked the first direct federal regulation in the field of solid waste. The regulatory provisions of the Act appear to be restricted, however, to that particularly toxic subclass of solid wastes categorized as "hazardous wastes." See subchapter III of the Act, 42 U.S.C. §§ 6921-6931. The problem of non-hazardous municipal and industrial solid waste, on the other hand, appears to have been attacked through an incentives system, whereby the granting of federal funds would be conditioned upon a state's implementation of solid waste disposal plans complying with minimum federal standards. See subchapter IV of the Act, 42 U.S.C. §§ 6941-6949.

The House Report of the Committee on Interstate and Foreign Commerce, which reported favorably on the bill that eventuated in RECRA, evinces three legislative motives for adopting this divergent approach to the dual problems relating to the disposal of hazardous and non-hazardous waste. First, it was recognized that hazardous waste disposal presented the more exigent and intractable health hazard.

The overriding concern of the Committee, however, is the effect on the population and the environment of the disposal of discarded hazardous wastes — those which by virtue of their composition or longevity are harmful, toxic or lethal. Unless neutralized or otherwise properly managed in their disposal, hazardous wastes present a clear danger to the health and safety of the population and to the quality of the environment.

House Report No. 94-1491 (H.R. 14496), 94th Cong., 2d Sess., p. 3 (1976), reprinted in 5 U.S.Code Cong. & Adm.News ("U.S.C.C. A.N.") 6238, 6241 (1976). See also 42 U.S.C. § 6901(b)(5).

Second, it was recognized that the existing federal programs, which encouraged techniques of resource recovery, were largely inapplicable to the threats posed by hazardous wastes; moreover, any sort of "incentives program" was likely to fail by reason of the high costs connected with the disposition of hazardous wastes.

However appealing the resource recovery solution to the discarded materials problem may appear, other aspects of the problem, associated with the disposal of hazardous wastes do not have the same attractive qualities. In order to solve this aspect of the problem the Committee recommends a regulatory approach. Hazardous wastes typically have little, if any, economic value; are often not susceptible to neutralization; present serious danger to human life and the environment; and can only be safely stored, treated or disposed of at considerable cost to the generator. Without a regulatory framework, such hazardous waste will continue to be disposed of in ponds or lagoons or on the ground in a manner that results in substantial and sometimes irreversible pollution of the environment.

5 U.S.C.C.A.N. at 6241.

Third, in RECRA, Congress was regulating in the field of waste disposal for the first time, for this area had, until 1976, been included within the exclusive regulatory powers of the states. In this initial excursion, Congress' restraint outside the narrow field of hazardous waste seems to reflect misgivings concerning the limits of its constitutional powers. See also 42 U.S.C. § 6975 (separability clause). The House Report observes (in language which is cited solely as a barometer of legislative intent):

Generally, hazardous waste is more likely to be the subject of interstate transportation than is non-hazardous industrial and municipal waste.

5 U.S.C.C.A.N. at 6247.

For all of the foregoing reasons, Congress appears to have adopted a markedly more circumspect approach to the problem of non-hazardous solid waste disposal than to that of hazardous waste disposal. The House Report outlines the Committee's impression of what the role of the federal government would be in supervising non-hazardous waste disposal in these terms:

The primary functions of the Office of Discarded Materials of the E.P.A. will be to develop reasonably flexible guidelines for State ... discarded materials plans. Such plans will prohibit open dumping and promote rehabilitation of existing open dumps. In addition to publishing guidelines, the Administrator will have authority to make grants to state or local governments for the planning and enforcement of their discarded materials plan. Further, technical assistance will be available to local and state governments .... The Federal guidelines published pursuant to Title subchapter IV are not mandatory upon the states; however, if a state seeks Federal financial assistance to develop a discarded materials plan, then such state is required to meet the Federal guidelines. Emphasis added. 5 U.S.C.C.A.N. at 6242.

It is the Committee's intention that federal assistance should be an incentive for state and local authorities to act to solve the discarded materials problem. At this time federal preemption of this problem is undesirable, inefficient, and damaging to local initiative.

... If these objectives are not met, the states and local authorities within the states will lose the federal or technical assistance. However, the provisions of this legislation specifically do not authorize the federal government to take over the responsibility for discarded materials disposal planning .... 5 U.S.C.C.A.N. at 6271.

It is the Committee's intent that the federal government will provide the technical assistance necessary for the states in cooperation with their own local governments, to develop an adequate regional system and the ability to implement such a system for the disposal of waste, without the federal government becoming additionally involved in the affairs of state or local government.

5 U.S.C.C.A.N. at 6278.

That Congress did, in fact, adopt a bifurcated approach in its treatment of hazardous and non-hazardous waste is apparent from the Act's "findings," "objectives," and its substantive terms. In subchapter I of the Act, Congress announces a legislative "finding"

that while the collection and disposal of solid wastes should continue to be primarily the function of State, regional, and local agencies, the problems of waste disposal as set forth above have become national in scope and in concern and necessitate Federal action through financial and technical assistance and leadership in the development, demonstration, and application of new and improved methods and processes to reduce the amount of waste and unsalvageable materials and to provide for proper and economical solid

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