United States v. Waste Industries

• Decision Date: 30 December 1982
• Docket Number: No. 80-04-CIV-7.,80-04-CIV-7.
• Court: U.S. District Court — Eastern District of North Carolina
• Parties: UNITED STATES of America, Plaintiff, v. WASTE INDUSTRIES, et al., Defendants.

556 F. Supp. 1301

UNITED STATES of America, Plaintiff, v. WASTE INDUSTRIES, et al., Defendants.

No. 80-04-CIV-7.

United States District Court, E.D. North Carolina, Wilmington Division.

December 30, 1982.

Abraham Penn Jones, Asst. U.S. Atty., E.D.N.C., Raleigh, N.C., for plaintiff, United States of America.

A. Dumay Gorham, Jr., Marshall, Williams, Gorham & Brawley, Wilmington, N.C., for defendants, Waste Industries, Inc., Waste Industries of New Hanover, Inc.

Robert R. Reilly, Dept. of Justice, Human Resources Section, Raleigh, N.C., for third-party defendants, North Carolina Dept. of Human Resources and North Carolina Dept. of Natural Resources and Community Development.

David J. Noonan, Legal Services of the Lower Cape Fear, Wilmington, N.C., for third-party defendant, Flemington Residents Ass'n.

Henry G. Foy, Frink, Foy & Gainey, Southport, N.C., for third-party defendants, Daniel A. Malpass, et al.

Davey L. Stanley, Stanley & Gore, Shallotte, N.C., for third-party defendants, Daniel A. Malpass, et al.

Fred B. Davenport, Jr., Murchison, Fox & Newton, Wilmington, N.C., for defendant, New Hanover County.

Laura E. Crumpler, Asst. City Atty., Wilmington, N.C., for third-party defendant, City of Wilmington.

Virginia G. Mahoney, James L. Nelson, Nelson, Smith & Hall, Wilmington, N.C., for third-party defendants, A-1 Sanitation Services, Inc. and Rural Enterprises.

Auley M. Crouch, III, Burney, Burney, Barefoot & Bain, Wilmington, N.C., for third-party defendant, Trash Removal Service, Inc.

Alton Y. Lennon, Stevens, McGhee, Morgan & Lennon, Wilmington, N.C., for third-party defendant, A & M Sanitation.

David O. Ledbetter, U.S. Dept. of Justice, Land & Natural Resources Division, Hazardous Waste Section, Washington, D.C., for plaintiff, United States of America.

William L. Hill, II, Hogue, Hill, Jones, Nash & Lynch, Wilmington, N.C., for defendants, A.D. Royal, et al.

Gywn P. Newsom, EPA, Atlanta, Ga., Ann Strickland, Attorney, O.H.W.E., EPA, Washington, D.C.

MEMORANDUM OPINION

BRITT, District Judge.

I PROCEDURAL BACKGROUND

This action was instituted in the name of the United States by the Administrator of the Environmental Protection Agency seeking injunctive relief to correct a ground water contamination problem in New Hanover County allegedly caused by the leaching of toxic wastes from the Flemington landfill. Named as defendants were Waste Industries, Inc., and Waste Industries of New Hanover County, Inc., operators of the landfill, New Hanover County and its Board of Commissioners and the owners of the property. By cross-actions, various additional parties — two North Carolina agencies, surrounding area residents, the City of Wilmington, and several haulers — have been brought into the suit. Various motions were referred to Magistrate Charles K. McCotter, Jr., for his determination and recommendation. From his recommendation on the dispositive motions, all affected parties filed objections. The matter is now before the court for ruling.

II FACTS

The facts¹ necessary to a basic understanding of this controversy are:

1. In 1972, New Hanover County hereinafter County, through its Board of Commissioners, granted to Waste Industries, Inc., (later changed to Waste Industries of New Hanover County, Inc.) hereinafter Waste an exclusive franchise for the operation of sanitary landfills within the County. Subsequent agreements, with similar provisions, were entered into between the same parties in 1975, 1977 and 1978.² 2. Waste leased from defendants, A.D. Royal et al., a 70-acre tract of land, formerly used as a borrow pit, as the landfill site.

3. In order to permit the landfill in an otherwise prohibited area under the County's zoning ordinance, a "Special Use Permit" was granted to Waste on 2 April 1973. The permit was issued "subject to approval of the site by the State Board of Health and their review of ground water characteristics."

4. The North Carolina State Board of Health approved the site on 18 May 1973, subject to several conditions, including:

(a) "That the operations meet the requirement of the State Board of Health's Rules and Regulations Providing Standards for Solid Waste Disposal."

(b) "That no hazardous waste be accepted ... except as may be permitted by applicable federal and state regulations."³

5. The landfill was operated until 30 June 1979.⁴

6. Waste material in the landfill has leached into the ground water of the area, contaminating the wells of nearby residents and threatening to contaminate nearby rivers.

III DISCUSSION

The environment faces a constant barrage of potentially devastating elements produced by man in his unending quest for a more desirable quality of life. Faced with the realization that man's survival depends upon his ability to maintain acceptable conditions within the environment, Congress began the process of legislating protective measures by the enactment of the National Environmental Policy Act of 1969. 42 U.S.C. §§ 4321-4347 (1976). Since that time, laws have been passed designed to curb discharges into the air and water, control the level of noise, and regulate the disposal of solid waste. See, e.g., the Clean Air Act, 42 U.S.C. §§ 7401-7642; the Federal Water Pollution Control Act, 33 U.S.C. §§ 1251-1376; the Noise Pollution and Abatement Act, 42 U.S.C. §§ 7641-7642; the Solid Waste Disposal Act, 42 U.S.C. §§ 6901-6987 (amended by the Resource Conservation and Recovery Act of 1976). In keeping with this policy of protecting the environment, Congress sought to close "the last remaining loophole in environmental law, that of unregulated land disposal of discarded materials and hazardous wastes." H.R.Rep. No. 1491, 94th Cong., 2d Sess. 4, reprinted in U.S. 1976 Code Cong. & Ad. News 6238, 6241 hereinafter cited as H.R. Rep. 1491. This was accomplished by the enactment of the Resource Conservation and Recovery Act of 1976 RCRA, 42 U.S. C.A. §§ 6901-6987 (West 1977 & 1981 Supp.), which disclosed a strong federal interest in regulating the disposal of hazardous waste.

RCRA employed a regulatory approach designed to manage the problem of hazardous waste disposal. By providing penalties against generators, transporters, and disposers of hazardous waste who violate standards or permit requirements, the statute oversees waste from "cradle to grave." 45 Fed.Reg. 33,066 (1980). See 42 U.S.C. §§ 6921-6949; 40 C.F.R. §§ 262-267 (1982). One particular area of concern, abandoned or inactive hazardous waste sites,⁵ received no specific consideration in the RCRA. Congress failed to anticipate the magnitude of the problem created by orphan dump sites, and threats to the environment engendered by existing disposal sites remained. See Comment, Hazardous Waste Liability and Compensation: Old Solutions, New Solutions, No Solutions, 14 Conn.L. Rev. 307, 316 (1982); Superfund: Conscripting Industry's Support for Environmental Cleanup, 9 Ecology L.Q. 524, 538 (1981).

IV THE RESOURCE CONSERVATION AND RECOVERY ACT

Plaintiff seeks relief under section 7003 of the RCRA. 42 U.S.C.A. § 6973. Since the Flemington landfill constitutes an abandoned waste disposal site, the imminent hazard provision affords the only such relief available under the RCRA.⁶ See United States v. Solvents Recovery Service of New England, 496 F.Supp. 1127, 1133 (D.Conn. 1980). That section provides that

upon receipt of evidence that the handling, storage, treatment, transportation or disposal of any solid waste or hazardous waste may present an imminent and substantial endangerment to health or the environment, the Administrator may bring suit on behalf of the United States in the appropriate district court to immediately restrain any person contributing to such handling, storage, treatment, transportation or disposal to stop such handling, storage, treatment, transportation, or disposal or to take such other action as may be necessary.

42 U.S.C.A. § 6973(a). Quite obviously, the issue of inactive waste sites is not addressed explicitly. That being true, the court must determine the applicability of the imminent hazard provision to the Flemington disposal site. In so doing, the court considers both intrinsic and extrinsic indications of the appropriate construction of section 7003. Among these considerations which the court considers seriatim are the language, construction and nature of the statute itself, the legislative history of the statute, and subsequent interpretations of it. In addition to these elements of statutory construction, the court also examines several policy considerations surrounding the statute.

A. Generally

The analysis begins with the language of the statute itself. Axiomatically, courts seek the meaning of a legislative provision first from the language in which the statute is framed. See Caminetti v. United States, 242 U.S. 470, 37 S.Ct. 192, 61 L.Ed. 442 (1917). Statutory interpretation begins with ascertaining, if possible, the plain meaning of the statute. Touche Ross v. Redington, 442 U.S. 560, 568, 99 S.Ct. 2479, 2485, 61 L.Ed.2d 82 (1979). Although engaging in this canon of construction risks both oversimplification and belaboring the obvious, it nevertheless undergirds a more comprehensive focus on the legislation under consideration. When the language of the statute is sufficiently clear in its context, it controls. Ernst & Ernst v. Hochfelder, 425 U.S. 185, 201, 96 S.Ct. 1375, 1384-85, 47 L.Ed.2d 668 (1976) (and cases cited therein).

The imminent hazard provision highlights five activities for which the EPA may seek restraint: handling, storage, treatment, transportation, and disposal. It is under the "disposal" provision that the government contends the Flemington landfill presents an imminent danger. Complaint, ¶ 48 at 14. The government seeks no relief from any defendant's handling, storage, treatment, or transportation of any solid waste, hazardous or otherwise. Other courts have used allegations of improper disposal to cover inactive sites....