ELR Citation: ELR 20565
No(s). 16349 (W. Va. Jun 3, 1985)

The court holds that a county ordinance declaring the permanent disposal of hazardous wastes in Fairmont, West Virginia, to be a public nuisance is not preempted by the Resource Conservation and Recovery Act (RCRA) or by the West Virginia Hazardous Waste Management Act (WVHWMA) and does not ban safe permanent disposal. The ordinance, prohibiting permanent disposal, but not temporary storage, of hazardous wastes by licensed enterprises, was challenged by Sharon Steel, which sought to construct a permanent hazardous waste containment facility to dispose of hazardous waste byproducts which had accumulated after the closing of a coking plant. Since RCRA and WVHWMA contain savings clauses preserving the right to bring hazardous waste actions based on other statutory or state common-law grounds, including nuisance actions, the court holds that those Acts did not conflict with, and therefore did not preempt the city's ordinance.

Next, the court rejects plaintiff's argument that the city lacked power to pass the ordinance, since provisions of the West Virginia Code granted municipalities the authority to abate public nuisances that pose hazards to public health and safety. The court rules, however, that a municipality may only abate nuisances. It may not legilatively determine that an activity always constitutes a nuisance. Whether a nuisance exists is in part a question of fact to be determined by the reasonableness or unreasonableness of the use of property in relation to the particular locality involved.

Finally, the court holds that the ordinance did not violate substantive due process. Concluding that the city properly invoked its police powers to protect citizens' health and safety, the court rules that the city's exercise of its authority to abate a public nuisance through issuance of the ordinance was a responsible and reasonable approach to the problems potentially presented by permanent hazardous waste facilities.

Counsel for Plaintiff
Blair McMillin
Reed, Smith, Shaw & McClay
Two Mellon Bank Center, P.O. Box 2009, Pittsburgh PA 15230
(412) 288-3228

Benjamin Hays Webb, Alfred J. Lemley
Furbee, Amos, Webb & Critchfield
P.O. Box 1189, 132 Adams St., Fairmont WV 26555
(304) 363-8800

Counsel for Defendant
George R. Higinbotham
Higinbotham & Higinbotham
P.O. Box 567, 201 Adams St., Fairmont WV 26554
(304) 366-2900