Warren County v. State of NC
| Decision Date | 25 November 1981 |
| Docket Number | No. 79-560-CIV-5.,79-560-CIV-5. |
| Citation | 528 F. Supp. 276 |
| Court | U.S. District Court — Eastern District of North Carolina |
| Parties | WARREN COUNTY, Plaintiff, v. STATE OF NORTH CAROLINA, et al., Defendants. |
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Norman B. Smith, Smith, Patterson, Follin, Curtis, James & Harkavy, Greensboro, N. C., Charles T. Johnson, Jr., Warrenton, N. C., for plaintiff.
W. A. Raney, Jr., Sp. Deputy Atty. Gen., James L. Blackburn, U. S. Atty., N. C. Dept. of Justice, Raleigh, N. C., for defendants.
This action was instituted in the Superior Court of Warren County, North Carolina, on 16 August 1979 by Warren County against the State of North Carolina; Herbert Hyde, Secretary of the North Carolina Department of Crime Control and Public Safety; Harlan Boyles, Treasurer of the State of North Carolina; and Carter C. Pope and wife, Linda W. Pope.1 The action would prevent a tract of land in Warren County from being used as a landfill for the disposal of soil contaminated with polychlorinated biphenyls (hereinafter PCBs). In the original complaint, four causes of action are alleged:
An amendment to complaint, filed 23 August 1979, added as a fifth cause of action that the proposed landfill violates a Warren County ordinance prohibiting the disposal of PCBs anywhere in the county.2
On 17 September 1979 plaintiff filed a supplement to amendment to complaint adding as a party defendant John C. White,3 Regional Administrator of Region IV of the EPA, and alleging, as a part of its third cause of action, failure to prepare and publish an EIS as required by federal statute (42 U.S.C. § 4332).
On 12 March 1981 a supplemental complaint was filed seeking, as a sixth cause of action, court review of the adequacy of the EIS filed by the State of North Carolina.
Plaintiff seeks injunctive relief permanently enjoining the use of the proposed landfill as a PCB disposal site. A preliminary injunction issued by Honorable Charles Lamm, North Carolina Superior Court Judge, now enjoins any use of the site for PCB disposal, although it does permit testing of the soil.4
After the federal defendant was added, the action was removed to this Court pursuant to 28 U.S.C. § 1441.
Answers and motions for summary judgment have been filed by both the State5 and federal defendants.6 The answers set forth various defenses, including a challenge to plaintiff's standing, some of which will be referred to in the course of this opinion.
In its answer to the sixth cause of action, the State admitted that in the final EIS it had failed to specifically address plaintiff's comments to the draft EIS and to attach a copy thereof as required by state regulations.7 Subsequently an addendum was filed to the final EIS in which the State contends it has cured those defects. Time for filing affidavits for consideration by the Court on the motions for summary judgment has now expired and the matter is ripe for disposition.
In June 1978 liquid materials containing PCBs were discharged onto roadsides on the military reservation at Fort Bragg, in Cumberland County, near Fayetteville, North Carolina. Shortly thereafter, complaints were received from various areas of Eastern and Piedmont North Carolina of like occurrences. From Warren, Johnston and Harnett Counties in the East and from Lee, Chatham and Person Counties in the Piedmont reports came into Raleigh of areas of roadsides saturated with an oily substance, later identified as containing PCBs. In all, fifty-one separate sites in fourteen counties8 were sprayed with the contaminant. A thorough investigation by state and federal officials determined that the substance was used oil removed from transformers at Ward Transformer Company in Raleigh and disposed of by a private contractor. Federal indictments arising out of the incidents resulted in guilty pleas or verdicts of guilty against all of those allegedly involved.
As soon as the substance was identified as PCB, studies and tests were begun to determine the safest, most feasible, and most economical way of ridding the 211 miles of roadside of the dangerous chemical.9 Knowledgeable experts in the field were either brought in or contacted in an effort to determine whether it would be best to treat the soil where it lay10 or remove it for burial or incineration.11
By eliminating all alternatives, it was determined that burial in an approved landfill must be carried out. Thus, the task began of selecting a suitable site. Utilizing some general criteria and technical requirements of EPA,12 ninety potential sites in twenty counties were considered before the Warren County site was chosen. To confirm its evaluation of the site, the State had additional tests performed by an independent consulting firm and then sought EPA approval. It is not clear from the record when the proposed disposal site in Warren County was selected. On 12 December 1978 defendant North Carolina submitted its application to defendant White for approval. A public hearing was held on 4 January 1979 in Warrenton, North Carolina, concerning the selection of a disposal site, at which oral and written comments from the public were accepted. As a result of information submitted by Dr. Charles Mulchi, review of defendant North Carolina's application was halted pending verification of that information. On 25 January 1979 defendant White directed defendant North Carolina to engage in further soil sampling and testing. Defendant North Carolina submitted the results of these tests to the EPA on 8 and 20 March 1979. Defendant White approved the conceptual design of the disposal site in Warren County on 4 June 1979 pursuant to the Toxic Substances Control Act, 15 U.S.C. § 2601 et seq.
The challenge to plaintiff's standing necessitates an analysis by this Court of a basic jurisdictional requirement. As a threshold question, a litigant satisfies the Article III requirement of a case or controversy only if the litigant alleges a personal stake sufficient "to assure that concrete adverseness which sharpens the presentation of issues ..." Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962). This constitutional minimum mandates a litigant to show a personal stake which warrants "his invocation of federal court jurisdiction and justifies exercise of the court's remedial powers on his behalf." Warth v. Seldin, 422 U.S. 490, 498-99, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975). A second, nonconstitutional, requisite involves the party's interest being "within the zone of interests to be protected or regulated" by the statute under which its claim arises. Association of Data Processing Service Organizations, Inc., v. Camp, 397 U.S. 150, 153, 90 S.Ct. 827, 830, 25 L.Ed.2d 184 (1978). Plaintiff must meet both requirements to have standing.
Plaintiff alleges that it owns land near the proposed disposal site. In addition, this Court takes notice that establishment of a disposal area for PCBs in the county could have potentially adverse effects on the tax base, population level and overall environmental quality of the county. Thus, plaintiff satisfies the initial threshold requirement imposed by the Constitution of an injury in fact.
The second requirement is not so easily resolved. Since this action involves the alleged violation of several statutes, the most efficient treatment of this issue flows from a separate analysis of each cause of action. A critical aspect underlying this entire inquiry is that since "statutory rights and obligations are established by Congress, ... it is entirely appropriate for Congress ... to determine in addition who may enforce them and in what manner." Davis v. Passman, 442 U.S. 228, 241, 99 S.Ct. 2264, 2274, 60 L.Ed.2d 846 (1979). Since plaintiff's standing depends upon the statutory basis upon which it proceeds, the Court will examine each cause of action separately.
In its initial cause of action, plaintiff seeks to abate a public nuisance. N.C. Gen.Stat. § 130-20 (1981). The statute authorizing judicial action to abate a public nuisance explicitly vests the power to initiate such action in the local health director alone. Id. When the legislature creates specific rights and obligations apart from those embodied in the Constitution, that body may determine who may enforce them and in what manner. Davis v. Passman, 442 U.S. at 241, 99 S.Ct. at 2274 (1979). Inasmuch as the North Carolina General Assembly clearly denominated the local health director as the proper plaintiff in an action to abate a public nuisance, Warren County lacks standing to proceed under the statute.13 See Dare County v. Mater, 235 N.C. 179, 69 S.E.2d 244 (1952) ().
The second cause of action alleges a violation of the Toxic Substances Control Act, 15 U.S.C. § 2601 et seq. (1976), which provides two avenues for judicial review. Id. §§ 2618, 2619. The provision applicable to this lawsuit, which vests jurisdiction in the federal district courts, provides for "citizens' civil actions" by "any person." Id. § 2619(a). For the purposes of ascertaining standing to sue, this Court must determine whether a county is a person in the context of this legislation. This issue is apparently a novel question, requiring detailed analysis.
If the county were permitted to file a citizens' suit under this provision, it would be...
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