State ex rel. Smith v. Kermit Lumber & Pressure Treating Co.

• Decision Date: 24 June 1997
• Docket Number: No. 23831,23831
• Citation: 200 W.Va. 221,488 S.E.2d 901
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia ex rel. B.F. SMITH, Chief, Office of Waste Management, West Virginia Division of Environmental Protection, Plaintiff Below, Appellant, v. KERMIT LUMBER & PRESSURE TREATING CO., Duly Authorized Corporation, and Harrison Jude, an Individual, Jointly and Severally, Defendants Below, Appellees.

Page 901

488 S.E.2d 901

200 W.Va. 221

STATE of West Virginia ex rel. B.F. SMITH, Chief, Office of Waste Management, West Virginia Division of Environmental Protection, Plaintiff Below, Appellant, v. KERMIT LUMBER & PRESSURE TREATING CO., Duly Authorized Corporation, and Harrison Jude, an Individual Jointly and Severally, Defendants Below Appellees.

No. 23831.

Supreme Court of Appeals of West Virginia.

Submitted April 23, 1997.

Decided June 24, 1997.

Syllabus by the Court

1. "Appellate review of a circuit court's order granting a motion to dismiss a complaint is de novo." Syl. pt. 2, State ex rel. McGraw v. Scott Runyan Pontiac-Buick, Inc., 194 W.Va. 770, 461 S.E.2d 516 (1995).

2. " W.Va.Code, 55-2-19 [1923] abrogates the common law doctrine of nullum tempus occurrit regi thereby making statutes of limitations applicable to the State." Syl. pt. 5, In re State Public Building Asbestos Litigation, 193 W.Va. 119, 454 S.E.2d 413 (1994), cert. denied, W.R. Grace & Co. v. West Virginia, 515 U.S. 1160, 115 S.Ct. 2614, 132 L.Ed.2d 857 (1995).

3. " ' "When a statute is clear and unambiguous and the legislative intent is plain the statute should not be interpreted by the courts, and in such case it is the duty of the courts not to construe but to apply the statute. Point 1, syllabus, State ex rel. Fox v. Board of Trustees of the Policemen's Pension or Relief Fund of the City of Bluefield, et al., 148 W.Va. 369 [135 S.E.2d 262 (1964) ]." Syllabus Point 1, State ex rel. Board of Trustees v. City of Bluefield, 153 W.Va. 210, 168 S.E.2d 525 (1969).' Syl. pt. 3, Central West Virginia Refuse, Inc. v. Public Service Com'n of West Virginia, 190 W.Va. 416, 438 S.E.2d 596 (1993)." Syl. pt. 2, Keen v. Maxey, 193 W.Va. 423, 456 S.E.2d 550 (1995).

4. Because the language in W.Va.Code, 55-2-19 [1923] is unambiguous in stating that "[e]very statute of limitation, unless otherwise expressly provided, shall apply to the State[,]" the language in Ralston v. Town of Weston, 46 W.Va. 544, 33 S.E. 326 (1899) and Foley v. Doddridge County Court, 54 W.Va. 16, 46 S.E. 246 (1903) which suggests that statutes of limitation apply only when the State is acting in its private or proprietary capacity, is misleading. Thus, to the extent that Ralston and Foley imply that W.Va.Code, 55-2-19 [1923] only applies when the State is acting in its private or proprietary capacity, they are hereby modified.

5. W.Va.Code, 55-2-12(c) [1959], which clearly and unambiguously states that "[e]very personal action for which no limitation is otherwise prescribed shall be brought ... within one year next after the right to bring the same shall have accrued if it be for any other matter of such nature that, in case a party die, it could not have been brought at common law by or against his personal representative[,]" applies to civil actions brought under the Hazardous Waste Management Act found in W.Va.Code, 22-18-1 et seq.

6. " 'The primary object in construing a statute is to ascertain and give effect to the intent of the Legislature.' Syl. Pt. 1, Smith v. State Workmen's Compensation Commissioner, 159 W.Va. 108, 219 S.E.2d 361 (1975)." Syl. pt. 2, State ex rel. Fetters v. Hott, 173 W.Va. 502, 318 S.E.2d 446 (1984).

7. " 'In ascertaining legislative intent, effect must be given to each part of the statute and to the statute as a whole so as to accomplish the general purpose of the legislation.' Syl. Pt. 2, Smith v. State Workmen's Compensation Commissioner, 159 W.Va. 108, 219 S.E.2d 361 (1975)." Syl. pt. 3, State ex rel. Fetters v. Hott, 173 W.Va. 502, 318 S.E.2d 446 (1984).

8. The general one-year statute of limitations found in W.Va.Code, 55-2-12(c) [1959] "accrues" when any person "violates" or is "in violation" of "any provisions of [the Hazardous Waste Management Act found in W.Va.Code, 22-18-1 et seq.] or any permit, rule or order issued pursuant to [the Act]." W.Va.Code, 22-18-17(a)(1), 17(b) and 17(c) [1994]. Hazardous wastes which remain in the environment in amounts above the regulatory limits set pursuant to the Hazardous Waste Management Act constitute a continuing violation of the Act.

9. W.Va.Code, 55-2-12(c) [1959], which clearly and unambiguously states that "[e]very personal action for which no limitation is otherwise prescribed shall be brought ... within one year next after the right to bring the same shall have accrued if it be for any other matter of such nature that, in case a party die, it could not have been brought at common law by or against his personal representative[,]" applies to civil actions brought under the Water Pollution Control Act found in W.Va.Code, 22-11-1 et seq.

10. The general one-year statute of limitations found in W.Va.Code, 55-2-12(c) [1959] "accrues" when any person "violates any provision of [the Water Pollution Control Act, found in W.Va.Code, 22-11-1 et seq.] or of any rule or who violates any standard or order promulgated or made and entered under the provisions of [the Act]" or when a "violation occurred or is occurring" under the Act. W.Va.Code, 22-11-22 [1994]. Thus, any "sewage, industrial wastes or other wastes, or the effluent therefrom, produced by or emanating from any point source [and currently] flow[ing] into the waters of this state[,]" W.Va.Code, 22-11-8(b)(1) [1994], in violation of any provision of the Water Pollution Control Act constitutes a continuing violation of the Act.

11. When a public nuisance action is brought in order to remediate a business site containing hazardous waste found in the soil and flowing into the waters of this State, the one-year statute of limitations found in W.Va.Code, 55-2-12(c) [1959] does not accrue until the harm or endangerment to the public health, safety and the environment is abated.

Mark J. Rudolph, Deputy Chief, Office of Legal Services, Charleston, for Appellant.

Cecil C. Varney, Varney Law Offices, L.C., Williamson, for Appellees.

McHUGH, Justice:

The appellant, B.F. Smith for and on behalf of the State of West Virginia as the Chief of the Office of Waste Management of the West Virginia Division of Environmental Protection (hereinafter the "DEP"), appeals the April 4, 1996 order of the Circuit Court of Mingo County which dismissed the DEP's action against the appellees, Kermit Lumber & Pressure Treating Company and Harrison Jude, stating that the matter was barred by the statute of limitations. The DEP filed a civil suit against the appellees on September 15, 1995, seeking to compel the appellees to clean up the hazardous waste at their business site and seeking civil penalties and damages from the appellees for "their dilatory and non-responsive acts." For reasons explained below, we reverse the circuit court's April 4, 1996 order and remand the case to the circuit court for further proceedings consistent with this opinion.

I.

On April 1, 1977, Harrison Jude opened a lumber pressure treating business known as Kermit Lumber & Pressure Treating Company (hereinafter "Kermit Lumber") in Mingo County. Kermit Lumber leased the 6.7 acre business site from Norfolk and Western Corporation.

During a compliance evaluation inspection of Kermit Lumber in July of 1987 the DEP ¹ first became aware that the Kermit Lumber business site was contaminated by chromium and arsenic. The DEP inspectors noted green staining, which is a sign of chromium and arsenic contamination, on the ground at the business site and down a steep embankment leading to the Tug Fork River. The site was tested revealing that the arsenic and chromium contamination was in excess of the regulatory limits set by the DEP. The DEP asserts that chromium and arsenic are considered hazardous wastes which are dangerous to human health and the environment if released into the environment in an amount above the regulatory limits.

After further investigation, the inspectors concluded that the contamination was a result of the pressure treatment process used by Kermit Lumber to treat the lumber. ² The inspectors also concluded that multiple spills had occurred at the business site over a period of time.

Thus, on October 26, 1987, the DEP sent a proposed consent order to the appellees asking them to immediately remediate ³ the contamination and pay a modest civil penalty. In response, the appellees agreed to submit a plan which would more fully assess the degree of contamination at the business site, and with the DEP's approval to clean-up the contaminated area.

Upon performing a follow-up inspection on April 25, 1988, the DEP discovered that the appellees had not done anything to remediate the contamination at the business site. Instead, the appellees had dismantled the business site by removing the buildings and pressure treating unit. The inspectors also discovered that the soil on the business site had been regraded to hide the contaminated soil and that potentially dangerous materials had been dumped into the river. ⁴

Therefore, on July 8, 1988, the DEP issued a unilateral order requiring the appellees to submit a plan to monitor and test the soil and groundwater of the Kermit Lumber business site for chromium and arsenic. On September 24, 1988, Mr. Jude was indicted by the federal authorities for illegal storage, disposal and transportation of hazardous waste at and from the Kermit Lumber business site. On June 1, 1989, the DEP instituted a civil action against the appellees in the Circuit Court of Kanawha County alleging that the appellees had failed to rectify the contamination at the business site.

In the 1989 civil action, because of the pending federal criminal case and because the appellees insisted that the site was clean, the appellees and the DEP entered into a consent order dated July 26, 1989, in which the appellees agreed to hire an environmental consultant to perform a site assessment. The environmental consultant found that the business site was contaminated. The DEP states that it believed that the federal authorities in the pending criminal case would...