Sharon Steel Corp. v. City of Fairmont

• Decision Date: 10 July 1985
• Docket Number: No. 16349,16349
• Citation: 175 W.Va. 479,334 S.E.2d 616
• Court: West Virginia Supreme Court
• Parties: , 22 ERC 1983, 15 Envtl. L. Rep. 20,565 SHARON STEEL CORPORATION v. CITY OF FAIRMONT, et als.

Page 616

334 S.E.2d 616

175 W.Va. 479, 22 ERC 1983, 15 Envtl.

L. Rep. 20,565

SHARON STEEL CORPORATION v. CITY OF FAIRMONT, et als.

No. 16349.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 30, 1985.

Decided June 3, 1985.

Rehearing Denied July 10, 1985.

Syllabus by the Court

1. Since both the Resource Conservation and Recovery Act, 42 U.S.C. § 6972(f), and the West Virginia Hazardous Waste Management Act, W.Va.Code, 20-5E-18(d) and -18(h), have provisions preserving common law actions, including nuisance actions, an ordinance passed by a municipality declaring the permanent disposal of hazardous wastes as therein defined to be a public nuisance is not pre-empted by the federal or State acts.

2. " 'A municipal corporation has only the powers granted to it by the legislature, and any such power it possesses must be expressly granted or necessarily or fairly implied or essential and indispensable. If any reasonable doubt exists as to whether a municipal corporation has a power, the power must be denied.' Syllabus Point 2, State ex rel. Charleston v. Hutchinson, 154 W.Va. 585, 176 S.E.2d 691 (1970)." Syllabus Point 1, City of Fairmont v. Investors Syndicate of America, Inc., 172 W.Va. 431, 307 S.E.2d 467 (1983).

3. A municipality has the authority to declare the improper permanent disposal of hazardous wastes a public nuisance under W.Va.Code, 8-12-5(23), which empowers municipalities "[t]o provide for the elimination of hazards to public health and safety," where the term "hazardous waste" in the ordinance is defined, in part, as material which poses a substantial present or potential hazard to human health or the environment.

4. "Under the provision of the charter of the city of Fairmont, same as Code 1906, ch. 47, sec. 28 [now W.Va.Code, 8-12-5(23) ], that 'the council shall have power to abate or cause to be abated anything which, in the opinion of a majority of the whole council, shall be a nuisance,' the council may abate only that as a nuisance which is recognized as such per se, or branded as such by lawful statute or ordinance." Syllabus Point 1, Parker v. City of Fairmont, 72 W.Va. 688, 79 S.E. 660 (1913).

5. "As a general rule, a fair test as to whether a particular use of real property constitutes a nuisance is the reasonableness or unreasonableness of the use of the property in relation to the particular locality involved, and ordinarily such a test to determine the existence of a nuisance raises a question of fact." Syllabus Point 3, Sticklen v. Kittle, 168 W.Va. 147, 287 S.E.2d 148 (1981).

6. "The legislature is vested with a wide discretion in determining what the public interest requires, the wisdom of which may not be inquired into by the courts; however, to satisfy the requirements of due process of law, legislative acts must bear a reasonable relationship to a proper legislative purpose and be neither arbitrary nor discriminatory." Syllabus Point 1, State v. Wender, 149 W.Va. 413, 141 S.E.2d 359 (1965), overruled on other grounds, Hartsock-Flesher Candy Co. v. Wheeling Wholesale Grocery Co., 174 W.Va. 538, 328 S.E.2d 144 (1984).

Hays Webb & Alfred J. Lemley, Furbee, Amos, Webb & Critchfield, Fairmont, Blair S. McMillin, Robert W. Thomson, Edward A. Bittner, Jr., Reed, Smith, Shaw & McClay, Pittsburgh, Pa., for appellant.

George R. Higinbotham, Fairmont, Patrick C. McGinley, Morgantown, for appellees.

MILLER, Justice:

Sharon Steel Corporation brought a declaratory action against the City of Fairmont challenging the legality of its Ordinance No. 597, which prohibits the permanent disposal of hazardous wastes in the City as a public nuisance. The Circuit Court of Marion County upheld the ordinance. Sharon Steel argues that the ordinance should be invalidated for several reasons. First, because of the extensive federal and State regulation of hazardous wastes under the Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901-6987 (RCRA) ¹ and the West Virginia Hazardous Waste Management Act, W.Va.Code, 20-5E-1 through -23 (WVHWMA), the City is pre-empted from enacting local legislation on the subject. Second, the City lacks the authority to pass such an ordinance. Finally, the ordinance is in violation of substantive due process principles. We affirm the circuit court for the reasons hereinafter set out.

Sharon Steel operated a coking plant in the City of Fairmont from 1948 until 1979. During that time, the plant generated hazardous wastes as a by-product of its operations. After closing the coking plant, Sharon Steel sought to construct a permanent hazardous waste containment facility at the same location to dispose of the hazardous waste by-products that had accumulated. Sharon Steel has applied for the necessary federal and State permits for the construction of such a facility, but as of the time of this appeal, these permits have not yet been acquired or approved.

In June of 1983, Fairmont passed its Ordinance No. 597, which is the focal point of the controversy in this case. ² The key portion of the ordinance is Section 2, which states the type of activity that Fairmont seeks to prohibit: "It shall be unlawful for any person to permanently dispose or attempt to permanently dispose of hazardous waste within the City. Provided, however, that storage of hazardous wastes by duly licensed and taxpaying enterprises shall not be prohibited." The term "storage" is defined in Section 1 to mean "local containment of hazardous wastes which wastes are not intended to be permanently disposed of at any site within the City." Thus, Section 2 indicates that the ordinance allows the temporary storage of hazardous wastes by "duly licensed and taxpaying enterprises." It is only the permanent disposal of hazardous wastes that the ordinance seeks to prohibit.

The term "waste" is defined in Section 1 to be "garbage, refuse, sludge, and other discarded material including solid, liquid, semisolid, or contained gaseous material resulting from industrial, commercial mining and agricultural operations." The term "hazardous waste" parallels the definition of hazardous waste found in both the federal and State acts. ³ The only difference is that the ordinance definition does not adopt the ending phrase "when improperly treated, stored, transported" used in the federal and State acts, but simply concludes with the words "when stored."

The thrust of the ordinance is directed at prohibiting the permanent storage of hazardous wastes which are improperly stored in the sense that the wastes may "cause, or significantly contribute to an increase in mortality, or [serious] illness ... or pose a substantial present or potential hazard to human health or the environment when stored." Ordinance No. 597, Sections 1 and 2.

The RCRA and the WVHWMA are primarily regulatory in nature and are designed to prevent improper treatment, storage, transportation, and disposal of hazardous wastes. They proceed on the theory that the technology exists to properly treat hazardous wastes so that they will not cause substantial harm to human health or the environment.

The City's ordinance is not regulatory. It is a penal ordinance directed at persons who improperly permanently store hazardous wastes which endanger human health or the environment. This conclusion is evident from the definitions in Section 1, the prohibition in Section 2, the nuisance provision in Section 3, and the penalty provision in Section 4. The net effect of the ordinance is to define a public nuisance condition involving hazardous wastes.

Through the enactment of this ordinance, the City is attempting to abate what it considers to be a public nuisance. In Hark v. Mountain Fork Lumber Co., 127 W.Va. 586, 595-96, 34 S.E.2d 348, 354 (1945), we gave the following general definition of public nuisance:

"A public nuisance is an act or condition that unlawfully operates to hurt or inconvenience an indefinite number of persons. The distinction between a public nuisance and a private nuisance is that the former affects the general public, and the latter injures one person or a limited number of persons only. Ordinarily, a suit to abate a public nuisance cannot be maintained by an individual in his private capacity, as it is the duty of the proper public officials to vindicate the rights of the public."

See also W. Prosser and W. Keeton, The Law of Torts § 90 (5th ed. 1984); W. Rodgers, Jr., Handbook on Environmental Law § 2.2 (1977); Restatement (Second) of Torts § 821B (1979); 58 Am.Jur.2d Nuisances § 7 (1971).

In Martin v. Williams, 141 W.Va. 595, 610-11, 93 S.E.2d 835, 844, 56 A.L.R.2d 756, 768 (1956), we generally described what may constitute a nuisance:

"A nuisance is anything which annoys or disturbs the free use of one's property, or which renders its ordinary use or physical occupation uncomfortable.... A nuisance is anything which interferes with the rights of a citizen, either in person, property, the enjoyment of his property, or his comfort.... A condition is a nuisance when it clearly appears that enjoyment of property is materially lessened, and physical comfort of persons in their homes is materially interfered with thereby.... When the prosecution of a business, of itself lawful, in a strictly residential district, impairs the enjoyment of homes in the neighborhood, and infringes upon the well-being, comfort, repose, and enjoyment of the ordinary normal individual residing therein, the carrying on of such business in such locality becomes a nuisance, and may be enjoined." (Citations omitted).

As suggested by this broad definition, nuisance is a flexible area of the law that is adaptable to a wide variety of factual situations. We have decided nuisance cases involving land being used for rock concerts, Berkeley County Comm'n v. Shiley, 170 W.Va. 684, 295 S.E.2d 924 (1982), a school site near an airport, Sticklen v. Kittle, 168 W.Va. 147, 287 S.E.2d 148 (1981), dust created by coal trucks, West v. National Mines Corp., 168...