Wilson v. Key Tronic Corp.

• Citation: 701 P.2d 518,40 Wn.App. 802
• Decision Date: 30 May 1985
• Docket Number: No. 5755-III-1,5755-III-1
• Parties: Gary WILSON and Jackie Wilson, husband and wife; Allen King and Rita King, husband and wife; Michael Brueggeman and Gayle Brueggeman, husband and wife; Fred Rhodes, a single man; Kenneth Santora and Diane Santora, husband and wife, Respondents and Cross Appellants, v. KEY TRONIC CORPORATION, a Washington corporation; and Spokane County, Appellants.
• Court: Court of Appeals of Washington

Page 802

40 Wn.App. 802

701 P.2d 518

Gary WILSON and Jackie Wilson, husband and wife; Allen King and Rita King, husband and wife; Michael Brueggeman and Gayle Brueggeman, husband and wife; Fred Rhodes, a single man; Kenneth Santora and Diane Santora, husband and wife Respondents and Cross Appellants, v. KEY TRONIC CORPORATION, a Washington corporation; and Spokane County, Appellants.

No. 5755-III-1.

Court of Appeals of Washington,

Division 3, Panel Four.

May 30, 1985.

As Amended June 13, 1985.

Jerry

R. Neal, Eugene I. Annis, Lukins & Annis, Michael C. Ormsby, Terence R. Whitten, Lukins & Annis, Spokane, for appellants.

Hugh O. Evans, Constance D. Gould, Evans, Craven & Lackie, P.S., Spokane, for respondents and cross appellants.

THOMPSON, Judge.

Spokane County and Key Tronic Corporation appeal a judgment entered upon a jury verdict awarding five plaintiffs $308,950 ¹ damages, $73,805 attorney fees, and $2,022.99 costs based on an action arising from disposal of chemicals at the Spokane County landfill. We affirm.

From 1973 until 1976 Key Tronic Corporation, a manufacturer of computer keyboards, disposed of a cleaning byproduct containing 1-1-1 trichloroethane (1-1-1) at the Mica landfill in Spokane County. In 1975, at the request of the County, Key Tronic began disposing of the substance at the County landfill at Colbert and continued the practice until the fall of 1980. The Colbert site was operated by an independent contractor pursuant to a contract with the County.

In the fall of 1980, the State Department of Ecology (DOE) tested wells in the Colbert area and, after studying a federal Environmental Protection Agency (EPA) document referred to as the Suggested No Adverse Response Level document (SNARL), determined that 1-1-1 was present in higher than acceptable quantities.

The Wilsons, Kings, Rhodes and Brueggemans, who were property owners near the landfill, were notified by the DOE in November of 1980 that they should not use their well water for drinking or cooking. In May of 1982, the Santoras drilled a replacement well on their property and were similarly advised by the DOE about a month later to discontinue drinking the water.

The five property owners commenced this action against Key Tronic and Spokane County based on claims of negligence, nuisance, and trespass, and against the County for inverse condemnation. Following a 3-week trial, the jury returned a verdict for the plaintiffs and judgment was entered March 11, 1983. The court awarded attorney fees and costs against the County, based on inverse condemnation. Key Tronic and the County appeal and the landowners cross-appeal the trial court's failure to give certain proposed instructions relevant to a claim under RCW 90.48, Water Pollution Control.

First, the County and Key Tronic contend the court misinterpreted RCW 70.105.010(6) and WAC 173-302-100, and erroneously instructed the jury as a matter of law 1-1-1 was an "extremely hazardous waste" (EHW). ²

RCW 70.105.010(5) and (6) provide:

(5) "Dangerous wastes" means any discarded, useless, unwanted, or abandoned nonradioactive substances, including but not limited to certain pesticides, or any residues or containers of such substances which are disposed of in such quantity or concentration as to pose a substantial present or potential hazard to human health, wildlife, or the environment because such wastes or constituents or combinations of such wastes:

(a) Have short-lived, toxic properties that may cause death, injury, or illness or have mutagenic, teratogenic, or carcinogenic properties; or

(b) Are corrosive, explosive, flammable, or may generate pressure through decomposition or other means.

(6) "Extremely hazardous waste" means any dangerous waste which

(a) will persist in a hazardous form for several years or more at a disposal site and which in its persistent form

(i) presents a significant environmental hazard and may be concentrated by living organisms through a food chain or may affect the genetic make-up of man or wildlife, and

(ii) is highly toxic to man or wildlife

(b) if disposed of at a disposal site in such quantities as would present an extreme hazard to man or the environment.

Former WAC 173-302-100 ³ provided:

Criteria for extremely hazardous waste (EHW). In the Hazardous Waste Disposal Act of 1976, chapter 70.105 RCW, dangerous wastes are designated extremely hazardous because they:

(1) Are highly toxic to man and wildlife (WAC 173-302-110);

(2) Exist in such quantities as to present an extreme hazard to man or wildlife (WAC 173-302-120);

(3) Persist and affect genetic make-up or may be concentrated by living organisms (WAC 173-302-130).

The sections described here provide the methods of using known properties to designate EHW because of these three criteria.

The County and Key Tronic argue the statute requires a showing of three distinct criteria to establish an EHW--persistency, toxicity and quantity. They contend the WAC regulation improperly amends the statute by requiring a showing of only one of the three elements and that here, no proof was offered at trial as to the toxicity of 1-1-1.

We find the regulation, rather than modifying the statute, merely sets out independently the three measurable criteria determining whether a dangerous waste should be considered an EHW. These criteria are contained in the statute: toxicity at RCW 70.105.010(6)(a)(ii); quantity at (6)(b); and persistency at (6)(a). The question is whether one or all of the standards must be met, given the absence of a conjunction between (6)(a) and (b) of the statute. Assuming ambiguity exists, the court's primary objective in interpreting a statute is to ascertain and give effect to the intent of the Legislature as expressed in the act and the legislative purpose behind it. Condit v. Lewis Refrigeration Co., 101 Wash.2d 106, 676 P.2d 466 (1984); Nucleonics Alliance, Local 1-369 v. Washington Public Power Supply Sys., 101 Wash.2d 24, 677 P.2d 108 (1984).

Legislative history may be considered in ascertaining intent, Bellevue Firefighters Local 1604 v. Bellevue, 100 Wash.2d 748, 675 P.2d 592 (1984), cert. denied, --- U.S. ----, 105 S.Ct. 2017, 85 L.Ed.2d 299 (1985), and may be evidenced by statements from the bill's sponsor. Marine Power & Equip. Co. v. Human Rights Comm'n, 39 Wash.App. 609, 619-20, 694 P.2d 697 (1985). In outlining the purpose behind Substitute Senate Bill 2038, which later became RCW 70.105, the bill's original sponsor, Senator Rasmussen, explained:

[L]et me say the reason for the bill is at the present time nobody has any great knowledge of what type of hazardous wastes are going into the local disposal site and you well could be sitting on top of a bomb alongside of a city or alongside your pig farm and not know it, with the materials they are disposing....

... the purpose of the bill as it was originally introduced was so that there would be some control. There are companies now that pick up this hazardous waste from hospitals, from pesticide companies that want to dispose of it. They are in agreement that they are very hazardous and should be in the one location, not disposed of in the local dump.

Senate Journal, 44th Legislature (1976), at 318.

RCW 70.105A.010, enacted in 1983 to supplement and provide funds necessary for full implementation of hazardous waste regulation, provides:

(1) It is the policy of the state of Washington to protect the public health and welfare of all its citizens against the dangers arising from the generation, transport, treatment, storage, and disposal of hazardous wastes and from releases of hazardous substances. In order to reach that policy objective, it is not only necessary to provide state government with broad powers of regulation, control, and removal of these hazardous wastes and substances, including the power to fashion and effectuate remedial directives, but it is imperative that adequate funds are also provided to carry out these powers in a vigorous manner.

The County and Key Tronic argue subsections (6)(a) and (b) should be read in the conjunctive, requiring a finding of persistency and toxicity, even where quantities of dangerous wastes as defined by RCW 70.105.010(5) are sufficient in themselves to present an extreme hazard. This we decline to do. The absence of a conjunctive "and" or disjunctive "or" connecting the two provisions is not cause to reach a strained result contrary to the broadly stated legislative purpose of protection from hazardous wastes. ⁴ Consequently, we find the statute satisfied upon a showing of either subsection (6)(a), persistency and toxicity, or (6)(b), quantity of dangerous wastes as defined in subsection (5). The testimony describing the dangerous qualities of 1-1-1 and the quantities in which it was dumped at Colbert was sufficient to support the trial court's conclusion based solely on RCW 70.105.010(6)(b) that 1-1-1 was an EHW. The instruction was proper.

Second, we are asked to decide whether it was error to allow an action against the County based on RCW 70.105, Hazardous Waste Disposal. Instruction 15 outlined the provisions of RCW 70.105.050 that prohibits a person, counties included, from disposing of EHW at any disposal site in the state (other than that established by chapter 70.105 at Hanford). The County argues it operated the landfill, but did not "dispose" of the EHW as contemplated by the statute. We are not persuaded. Testimony indicated that a former County employee and landfill supervisor, going beyond merely accepting the wastes, actually directed and developed the method for dumping the 1-1-1 at Colbert. This active participation will support the conclusion the County disposed of EHW in violation of the provisions of RCW 70.105.050.

Third, the County and Key Tronic contend since no proof of objective symptoms was offered at trial, the jury was improperly instructed on the issue of emotional distress. The court's instructions concerning...