Ouachita Parish Police Jury v. American Waste and Pollution Control Co.
| Decision Date | 14 October 1992 |
| Docket Number | No. 24,415-CA,24,415-CA |
| Citation | 606 So.2d 1341 |
| Parties | OUACHITA PARISH POLICE JURY, Plaintiff-Appellee, v. AMERICAN WASTE AND POLLUTION CONTROL COMPANY, Defendant-Appellant. |
| Court | Court of Appeal of Louisiana — District of US |
C. Lynn Tubb, Parish Atty., Monroe, Phelps Dunbar by H. Alston Johnson, III, Steven J. Levine, J. Randall Trahan, Baton Rouge, for plaintiff-appellee/appellant, Ouachita Parish Police Jury.
Schwab & Walter by Gerald L. Walter, Jr., James C. Percy, Brent B. Boxill, Baton Rouge, Hudson, Potts & Bernstein by Ben R. Hanchey, William McNew, Monroe, for defendant-appellant/appellee, American Waste & Pollution Control Co.
Before NORRIS, LINDSAY and STEWART, JJ.
The Ouachita Parish Police Jury sued American Waste and Pollution Control Co., d/b/a Waste Management ("American Waste"), seeking to enjoin American Waste from depositing lead-tainted dirt from a Dallas Superfund site into Magnolia Landfill, a solid waste facility operated by American Waste in Ouachita Parish. The police jury urged that the proposed dumping was a violation of American Waste's contract with the police jury to provide sanitary landfill services to the parish. The trial court entered a temporary restraining order and, after a four-day hearing, granted a preliminary injunction as prayed for. American Waste now appeals the grant of preliminary injunction on several grounds. The police jury also appeals certain findings of fact in the trial court's opinion. For the reasons expressed, we affirm.
Factual background
In 1983 Ouachita Parish Police Jury solicited bids to build a large, modern sanitary landfill for the parish. American Waste submitted the low bid and entered a contract with the Police Jury on May 1, 1984. The relevant provisions of the contract are set forth below, but it generally obligated American Waste to accept all forms of waste generated by residents of Ouachita Parish, and to comply with all policies and regulations of federal and state agencies having jurisdiction over sanitary landfills.
American Waste obtained the state permits to build a landfill for nonhazardous sanitary and industrial waste. Under federal law, Magnolia is considered a Subchapter "D" facility, which may receive solid (nonhazardous) waste. 42 U.S.C. Sec. 6941 et seq., Resource Conservation and Recovery Act ("RCRA"). Facilities for the receipt of hazardous waste (called Subchapter "C" facilities) are subject to stricter regulation. 42 U.S.C. Sec. 6921 et seq. (also in "RCRA").
American Waste began construction of Magnolia Landfill on the "Sullivan Tract," south of I-20 near La. Hwy. 594. The location is adjacent to the Russell Sage Wildlife Area and three miles west of Bayou Lafourche. Magnolia began receiving waste in early 1986. The landfill is divided into "cells," large excavations into which waste is dumped. Each day the waste is spread and covered with dirt or foam. Even with daily covering, rainwater seeps through the waste, creating a fluid called "leachate" that contains a high concentration of the substances in the waste. When the cell is full, it is sealed.
In June 1988, American Waste obtained a permit modification from the Louisiana Department of Environmental Quality ("DEQ") to allow Magnolia Landfill to accept waste from all areas regardless of point of origin. By late 1991, American Waste was building Cells 8 and 9 (the "as built" map of Cell 8 is dated March 1992). The bottom of these cells is a liner made of at least three feet of recompacted clay topped with at least one foot of sand. There is no synthetic material in the liner.
Meanwhile the U.S. Environmental Protection Agency ("EPA") was cleaning up a Superfund site in West Dallas. The site is near an old battery smelting plant and required the removal of 40,000 cubic yards of soil contaminated with lead, arsenic and other toxic metals. Under the Superfund statute, this soil is considered to contain hazardous substances. 42 U.S.C. Sec. 9601 et seq., Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"). The lead concentration in the Dallas dirt is 1,407 ppm, yielding a total of 180,000 lbs. of lead in the soil to be removed. EPA's removal contractor, Reidel-Peterson Environmental Services, let out bids for disposal of the soil and ultimately American Waste's bid was accepted.
In early February 1992 Reidel began shipping the soil by convoy of covered trucks to Magnolia Landfill. On February 10 the Police Jury formally requested that deliveries be stopped, citing provisions of the contract. American Waste refused, and this suit was filed on February 12.
The general purpose of the contract is set out in p 2.01, which provides that American Waste will
accept and landfill all garbage and bulky waste, rubbish and other refuse delivered by the Parish, residents of the Parish, and public or private agencies domiciled in or operating in Ouachita Parish at the landfill site. Once duly licensed and permitted, American Waste will maintain and operate the landfill in compliance with the conditions set forth in length in the American Waste application for a sanitary landfill permit to the Louisiana Department of Natural Resources [now DEQ]. * * *
With respect to permits, p 2.02 states,
A reference to hazardous waste appears in p 2.04:
American Waste agrees * * * to accept for disposal all garbage and bulky waste, rubbish and other refuse generated by the residents of Ouachita Parish, whether delivered by automobile, trailer, or truck, and all material whatsoever, except hazardous waste, collected by any refuse hauler within the Parish of Ouachita. (emphasis added)
The contract defines hazardous waste in p 1.05 by reference to designations by the EPA and Louisiana Department of Natural Resources (now DEQ). A hazardous waste is "any chemical, compound, mixture, substance, or article" designated by EPA or DEQ "to be a hazardous or a toxic substance as terms defined by or pursuant to Federal, State or Parish rules, laws, or regulations."
American Waste is further obligated, in p 2.14, to "conduct operations under this contract in compliance with all applicable Federal and State Law."
Under p 15.01, the failure to perform any part of the contract by American Waste shall be considered a breach of contract. Should American Waste fail to perform or cure any defaults within 10 days of written notice, then the parties have the option to terminate the contract. Under p 15.02, "The remedy of the contracting parties in the event of default is the termination of the contract, an action on the bond and an action against the company."
Procedural history
The Police Jury's verified petition to enjoin violation of contract, filed February 12, 1992, asserts two claims of breach. The first is the territorial claim: p 2.01 specifies Ouachita Parish as the initial service area and p 2.02 requires American Waste to notify the Police Jury of any permit modifications; however, American Waste never notified the Police Jury of a modification and has accepted material from the state of Texas. The second is the hazardous waste claim: p 2.04 prohibits American Waste from accepting hazardous waste, but the Dallas dirt is a hazardous substance under CERCLA, and thus a hazardous waste under p 1.05's definition. The Police Jury alleged that mere termination of the contract would not prevent irreparable harm in the form of contaminated water supply and a threat to public health; thus it prayed for injunctive relief to restrain American Waste from accepting, placing or allowing to be placed lead-tainted soil in Magnolia Landfill. On the basis of this petition, the trial court issued a TRO.
By its first amending petition, the Police Jury added a third claim of breach of contract. Under p 2.14, American Waste must comply with all applicable Federal and State law; however, a provision of CERCLA, 42 U.S.C. Sec. 9621(d)(3), states that in the case of any Superfund removal or remedial action involving the transfer of any hazardous substance offsite, such hazardous substance shall only be transferred to a facility which is operating in compliance with special provisions of RCRA, 42 U.S.C. Secs. 6924 and 6925; and before the transfer may occur, the President (acting through the EPA) must determine that the unit to which the hazardous substance is transferred is not releasing any hazardous waste, and all such releases from other units at the facility are being controlled by a corrective action approved by the EPA administrator under Subchapter C. In short, American Waste does not have a hazardous waste disposal (Subchapter C) permit for Magnolia Landfill, so accepting the Dallas dirt there is a violation of CERCLA and a breach of the contract.
On March 2, American Waste filed a notice of removal of the action to United States District Court. Construing the amended petition as one "arising under" CERCLA, American Waste asserted the federal court had exclusive original jurisdiction under a special provision of CERCLA, 42 U.S.C. Sec. 9613(b). The Police Jury filed a motion to remand the case to state court, and supplied an extensive brief. Ultimately the federal court remanded the case to state court for lack of subject matter jurisdiction. Fed.R.Civ.Pro. 12(b)(1).
Back in state court the matter proceeded to a hearing for preliminary injunction on April 2, 3, 8 and 9, 1992; post trial briefs were filed. The court issued reasons for judgment on April 21.
Briefly stated, the court cited American Waste's duty to comply with all applicable federal and state laws under p 2.14. The court carefully analyzed the provision of CERCLA dealing with the removal of...
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