ELR Citation: ELR 20501
No(s). 80-4-CIV-7 (E.D.N.C. Jun 1, 1985)

The court rules that a state hazardous waste agency's failure to take reasonable and necessary steps to monitor groundwater near a solid waste landfill at Flemington, North Carolina, in which hazardous wastes were disposed might constitute "contribution to" the disposal of hazardous wastes under §7003 of the Resource Conservation and Recovery Act (RCRA). Ruling on sections of a 1981 magistrate's opinion not addressed in an earlier opinion that was reversed by the 4th Circuit, the court adopts the magistrate's opinion with numerous exceptions. The court first rejects the magistrate's conclusion that §7003 of RCRA is not the source of substantive principles of liability and that it makes available relief other than injunctive relief. The court rules that the restrictions in §7002(b) and (c) do not apply to a §7003 action by the government and rejects the magistrate's conclusion that they apply, but do not bar the instant action. Without discussing the effects of the 1984 amendments to RCRA, the court notes that §7003 preempts state law actions to preempt hazardous waste nuisances creating imminent and substantial endangerments to the environment. The court then rules that the magistrate erred in deciding that the Federal Tort Claims Act and citizen suit provision of RCRA waive the federal government's sovereign immunity as to a claim for contribution or indemnity concerning cleanup of a hazardous waste site. Moreover, the basis for plaintiff's contribution claim, the alleged failure of the federal government to properly regulate the site, collapses because plaintiff cited no regulatory obligation violated by EPA and no acts causally related to the hazardous waste pollution. After commenting on a number of minor points, the court rules that the state Department of Natural Resources (DNR) might be liable for contribution under §7003. Although the Department of Human Resources has jurisdiction over solid waste landfills, DNR has responsibility for hazardous waste and plaintiffs alleged that DNR knew at an early date that the landfill was contaminating groundwater with hazardous chemicals. Given the broad scope of the "contributing to" standard of liability under §7003, the court denies DNR's motion to dismiss.

Counsel for Plaintiff
Walker B. Smith
Environmental Enforcement Section
Department of Justice, Washington DC 20530
(202) 633-2000

Anne Strickland
Office of Enforcement and Compliance Monitoring
Environmental Protection Agency
401 M. St. SW, Washington DC 20044
(202) 475-8040

Counsel for Defendants
A. Dumay Gorham Jr.
Marshall, Williams, Gorham & Brawley
14 S. Fifth St., P.O. Drawer 2088
Wilmington NC 28402-2088
(919) 763-9891

William L. Hill II
Hogue, Hill, Jones, Nash & Lynch
101 S. Third St., P.O. Drawer 2178, Wilmington NC 28402
(919) 763-4565

Daniel C. Oakley, Special Deputy Attorney General
Department of Justice
Justice Bldg., Box 629, Raleigh NC 27602
(919) 733-3377

Henry G. Foy
Frink, Foy, Gainey & Yount
319 N. Howe St., Southport NC 28461
(919) 457-5284

J.A. Gardner III
Hedrick, Eatman, Gardner & Kinchloe
215 Executive Park, 831 Baxter St., Charlotte NC 28202
(704) 377-1511