Covington v. Jefferson County
| Citation | 358 F.3d 626 |
| Decision Date | 05 February 2004 |
| Docket Number | No. 02-36000.,No. 02-36035.,02-36000.,02-36035. |
| Parties | Michael COVINGTON; Karla Covington, Plaintiffs-Appellants, v. JEFFERSON COUNTY; State of Idaho; District 7 Health Department, Defendants-Appellees. Michael Covington; Karla Covington, Plaintiffs-Appellees, v. Jefferson County; State of Idaho, Defendants, and District 7 Health Department, Defendant-Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Margaret B. Hinman, Pike & Smith, Idaho Falls, Idaho, for plaintiffs-appellants-cross-appellees Michael and Karla Covington.
Robin D. Dunn, Dunn & Clark, P.A., Rigby, Idaho, for defendant-appellee Jefferson County.
Gregory L. Crockett, Hopkins Roden Crockett Hansen & Hoopes, PLLC, Idaho Falls, Idaho, for defendant-appellee-cross-appellant District 7 Health Department.
Appeal from the United States District Court for the District of Idaho; B. Lynn Winmill, Chief District Judge, Presiding. D.C. No. CV-01-00369-BLW.
Before: Kim McLane WARDLAW, Ronald M. GOULD, and Richard A. PAEZ, Circuit Judges.
Opinion by Judge GOULD; Concurrence by Judge GOULD.
The Covingtons, who live across from a county dump, brought this citizen's suit against Jefferson County and District 7 Health Department ("D7HD"), charging violations of the Clean Air Act ("CAA") and the Resource Conservation and Recovery Act ("RCRA" a.k.a. the Solid Waste Disposal Act ("SWDA")). On cross-motions for summary judgment, the district court held that the Covingtons lacked standing to advance the CAA claim and had standing to assert the RCRA claims. The district court awarded summary judgment on these RCRA claims to Defendants. The parties cross-appealed. We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm in part, reverse in part, and remand for trial.
This dispute centers on a landfill directly across the street from the home of the Covingtons. When the Covingtons first bought their home, it was across the street from a gravel pit. In 1995 Jefferson County converted the gravel pit to a non-municipal solid waste landfill ("NMSWL") for bulky waste. Jefferson County owned and operated the landfill at all relevant times. The landfill operation was approved initially and then overseen by District 7 Health Department according to an Operational Plan as required by Idaho regulations. The Operational Plan dealt with siting, operational requirements, and compliance with applicable Idaho regulations. Nonetheless, the Covingtons encountered problems with the landfill.
Under Idaho law, responsibility for regulatory oversight of solid waste facilities is split between the State Department of Environmental Quality ("DEQ") and the District Health Departments ("DHDs"). The division of responsibilities between these two organizations is defined in a Memorandum of Understanding ("MOU").1
After the approval of the Operational Plan, D7HD inspected the landfill on twenty-five occasions. Although D7HD has been satisfied with Jefferson County's follow-up to D7HD's criticisms, D7HD has on occasion noted the disposal of improper material at the landfill and has commented that the landfill has not always had adequate cover and compaction, leading the landfill to fall under Idaho's "open dump" definition.
The operation of the landfill generated a series of complaints by the Covingtons to Jefferson County and to D7HD. Although the landfill was inspected many times, no changes were made to address the Covingtons' concerns. After giving notice to required governmental and private parties on May 17, 2001, the Covingtons brought a citizen suit against Jefferson County and D7HD on July 25, 2001, in the United States District Court for the District of Idaho. The suit claimed violations of CAA due to Jefferson County's failure to comply with federal regulatory procedures designed to prevent the improper release of ozone-depleting substances. The suit also asserted three violations of RCRA: (1) that state regulations had been violated, thus violating RCRA; (2) that federal "open dump" criteria had been violated; and (3) that non-containerized liquid hazardous waste had been deposited at the landfill in violation of 42 U.S.C. § 6924.
After receiving notice of the Covingtons' intent to sue on May 17, 2001, and shortly before the lawsuit was filed, the County and D7HD entered into a formal Plan of Correction on July 23, 2001. Shortly after the lawsuit was filed, the County and D7HD also entered into a revised Plan of Operation on July 31, 2001. The Plan of Correction and revised Plan of Operation included requirements to cap a portion of the landfill, and to prevent and monitor groundwater contamination. Neither the Plan of Correction nor the revised Plan of Operation deterred the Covingtons from filing suit.
After discovery for about ten months, all parties had moved for summary judgment. On cross motions for summary judgment, the district court held that the Covingtons did not have standing to bring the CAA claim but had standing to bring the RCRA claims. On the merits of the RCRA claims, the district court rejected the application of the state regulations, granted summary judgment to Appellees on the federal "open dump" criteria, and held that 42 U.S.C. § 6924 was only an enabling statute with no substantive prohibitions. The Covingtons appeal these decisions, save the ruling on standing under RCRA. D7HD cross-appeals the district court's ruling on standing under RCRA. Thus the appeal and cross appeal bring all issues into play.
The Covingtons, on the cross motions for summary judgment, submitted evidence of serious problems at the landfill.2 The Covingtons' affidavits and supporting documents gave evidence that the landfill mismanaged "white goods" (i.e., appliances) by not ensuring that chlorofluorocarbons ("CFCs") were treated as required by federal law.3 The Covingtons raised these concerns before filing suit. The United States Environmental Protection Agency ("EPA") also recognized a failure by the landfill to comply with federal record-keeping law. Although in 1999 the landfill began keeping records of CFC disposition of white goods, the records were generally incomplete.4
The Covingtons also offered evidence of fires at the landfill.5 In April 2000, the Covingtons observed a fire at the landfill and complained about it to Idaho's DEQ. DEQ personnel in their report noted that treated or formed lumber had been burned. DEQ personnel also detected the smell of pesticides. The Covingtons observed another fire in March 2002. Alerted to this fire by the Covingtons, Jefferson County and DEQ personnel jointly responded and their report noted that the remains of the fire included items such as oil and water filters, and a metal bed frame. The County, in response, submitted evidence that this second fire was caused by an unauthorized intruder who accessed the landfill through an unlocked gate.
The Covingtons' evidence also raised concerns about the type of waste accepted and disposed at the landfill. The Covingtons presented evidence of improper disposal of biological substances. More specifically, the Covingtons submitted evidence of the disposal of household garbage, spilled grain, grass clippings, straw, manure, and even rotting bird and cow carcasses.6 It is undisputed that the discarded biological waste (including straw, manure, bird and cow carcasses, and spilled grain) can create methane gas as it decomposes, which is both explosive and creates a foul odor. Though there are means to monitor for methane gas, the landfill does not do so.
The Covingtons also submitted evidence of improper disposal of hazardous material. The evidence documented the disposal of containers with hazardous content warnings, appliances containing fuel and oil, and items leaking oil.7 DEQ personnel in one of their reports acknowledged that improper items were being disposed of at the landfill, including leaking car batteries, crushed cans with oil, and waste oil.
The Covingtons also presented evidence that insufficient cover was applied to the landfill. Cover refers to placing a layer of dirt or gravel over the waste so as to minimize fires, vectors (scavenging creatures such as birds, animals, and/or insects) and scavenger access. An adequate cover is fundamental for a landfill. Yet, at the landfill, food stuffs and carcasses were left uncovered for more than a week with mice and flies swarming over the uncovered items.8 The County conceded that it had no equipment to provide cover until 1997, and though a bulldozer was staged at the landfill, no one operated the bulldozer until 2000. D7HD reported at least three occasions in 1999 that the landfill lacked adequate cover.
The proffered evidence also demonstrated that, to a degree, the landfill was accessible to the public and did not have complete access control.9 The Covingtons often observed human scavengers in the landfill. In addition to the main gate, there were at least three routes to access the landfill that were not secured until after the Covingtons filed suit. And there was evidence that one of the fires might have been started by unauthorized persons who gained access to the landfill.
The Covingtons also presented evidence of their concern over possible groundwater contamination. But, while some evidence shows lead contamination at an up-gradient well, the Covingtons presented no evidence that this contamination came from the landfill. Moreover, the Appellees' experts presented evidence, not contradicted by the Covingtons, that the groundwater contamination detected reflected the turbidity of the sample and that the sample was preserved with nitric acid. Repeated samples have not verified the contamination first detected.
D7HD raises a...
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