Jurisdictional Statement — Sharon Steel Corp. v. City of Fairmont

No. ____— nil CLERK

IN THE

Supreme Court of the United States

October Term, 1985

SHARON STEEL CORPORATION,

v.

THE CITY OF FAIRMONT, WEST VIRGINIA, EDWIN

C. DALEY, City Manager of Fairmont, West Virginia,

and GEORGE R. HIGINBOTHAM, City Attorney of

Fairmont, West Virginia,

Appellant,

Appellees.

ON APPEAL FROM THE SUPREME COURT

OF APPEALS OF WEST VIRGINIA _

JURISDICTIONAL STATEMENT

BLAIR S. MCMILLIN

*ROBERT W. THOMSON

EDWARD A. BITTNER, JR.

Of Counsel: DEBRA M. COULSON

Hays WEBB REED SMITH SHAW & MCCLay

ALFRED J. LEMLEY 747 Two Mellon Bank Center

FURBEE, AMOS, WEBB & —. 15219

CRITCHFIELD

132 Adams Street Counsel for Appellant

P.O. Box 1189 Sharon Steel Corporation

— West Virginia “Counsel of Record

(304) 363-8800 por Apparent

HERBICK & HELD PRINTING COMPANY, PITTSBURGH, PA. 15233-2182

QUESTIONS PRESENTED

Does the Resource Conservation and Recovery Act

of 1976, as amended (RCRA), 42 U.S.C.A. § 6901 et

seq., preempt a municipal ordinance which prohibits

all disposal of hazardous waste pursuant to a federal

hazardous waste permit, declares establishment of a

federally permitted site to be a nuisance, and makes

such disposal a criminal offense?

Does Section 6929 or Section 6972(f) of RCRA allow

a political subdivision of a state to legislatively pro-

hibit all disposal of hazardous waste within its

borders?

ii Table of Contents.

TABLE OF CONTENTS

PAGE

QUESTIONS PHEOUEUEEE 5 on tccesscwecvusesseds i

TABLES OF CO ere ioe sno un chances eee ees ii

TABLE OF AU Rapee SNe oe chee wes wow sescss ee iv

OPINEIING We sds cee wa baw kes Se os 1

STATEMENT OF JURISDICTION ................ 1

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOEW EEE 6. ccc cece ccc eeceae 2

STATEMENT OF THE CABE ... 0c. ccccsssceeeses 6

SUBSTANTIALITY OF THE QUESTIONS

PRESENCE MD. 0 6s ke ee cease 7

I. The First Question Presented Is Important And

Substantial Because The Ordinance, If Allowed

To Stand, Will Thwart Congress’ Comprehensive

National Plan For Managing Hazardous Waste;

Will Directly Conflict With The National Permit

Program Under RCRA; And Will Promote The

Proliferation Of Local Vetoes Of Federal Haz-

ardous Waste Facility Permitting Decisions. ... 7

A. Congress’ purpose in enacting RCRA was to

promote comprehensive, nationally uniform,

regulation of hazardous waste as part of a

coordinated response to the problems of en-

vironmental DOEINGROR.. 5 62s hv eeeee as: 7

B. The Ordinance is in direct conflict with

RCRA because it prohibits and declares to

be a nuisance that, and precisely and only

that, which RCRA permits. ............... 10

C. The Ordinance is directly contrary to the

national policy on the role of local political

subdivisions within the RCRA regulatory

DYOSTOML. «04 occ SuNnde geese eens 11

D. Local prohibitions, such as this Ordinance,

pose a real and substantial threat to Con-

gress’ goals in RCRA and other federal pol-

lution control legislation. ................. 12

Il.

Table of Contents. iii

PAGE

The Second Question Presented Is Important

And Substantial Because The Provisions Of

RCRA Preserving Certain Rights For Citizens

And States Cannot Be Interpreted To Allow

Exceptions To Swallow The Rule By Sanctioning

Local Prohibitions Of Federally Permitted Haz-

SG PHU WCUNERUIG 5 oc ce vceccceevsvuaeet 15

A. Section 6972(f) of RCRA pertains to

citizens’ suits and has no relevance to a de-

termination of the legality of the Ordinance. 15

B. Section 6929 of RCRA cannot be read to

authorize local governments to prohibit ab-

solutely construction of hazardous waste fa-

cilities within their boundaries. ........... 18

i ice ie oi vos Gs ta whe accene eevee tes 20

ES Se ee ee eee re ee la

APPENDIX A —Opinion of the Supreme Court

of Appeals cf West Virginia .. la

APPENDIX B —Order of the Supreme Court of

Appeals of West Virginia with

Respect to Petition for Re-

| RRS eer ann, eee 24a

APPENDIX C —Opinion of the Circuit Court of

Marion County, West Virginia 26a

APPENDIX D —Order of the Circuit Court of

Marion County, West Virginia 29a

APPENDIX E —Notices of Appeal ........... 32a

APPENDIX F —List of Parents, Subsidiaries

and Affiliates Pursuant to Su-

preme Court Rule 28.1....... 36a

APPENDIX G —Fairmont Ordinance No. 597 . 37a

iv Table of Authorities.

TABLE OF AUTHORITIES

CASES

City of Chicago v. Atchison, T.&8.F.R.Co., 357 U.S.

PAGE

re eer Cm erry yey rere 2

City of New Orleans v. Dukes, 427 U.S. 297 (1976) 2

Doran v. Salem Inn, Inc., 422 U.S. 922 (1975) ..... 2

Hillsborough County, Florida v. Automated Medi-

cal Laboratories, Inc., 105 S. Ct. 2371 (1985) 2,7

Hines v. Davidowitz, 312 U.S. 52 (1941) .......... T

Jersey Central Power & Light Co. v. Township of

Lacey, Nos. 84-5652 and 84-5763 (3d Cir. Sep-

SE es I see eta oe ee. s 15

Ray v. Atlantic Richfield Co., 435 U.S. 151 (1978) 7

Rollins Environmental Services, Inc. v. Iberville

Parish Police Jury, 371 So.2d 1127 (La. 1979) 13

Warren County v. North Carolina, 528 F. Supp. 276

Ce Se. SEE SNS veer cat Ceeeree eee 13

STATUTES

Atomic Energy Act of 1954, as amended, 42 U.S.C.

er EY SEEN So 00 yo UGG s bac cea e eee 15

Clean Air Act, as amended, 42 U.S.C.A. § 7401 et

SE. ee A IE 65 no 8s Vigne 6 dowiein ns 05s 9

Clean Water Act, as amended, 33 U.S.C.A. § 1251 et

SOG, CHE I. BOD op eine v0 tare oemenenacs 9

Comprehensive Environmental Response, Compen- —

sation and Liability Act of 1980, as amended, 42

U.S.C.A. § 9601 et seq. (West Supp. 1985): ....9, i4

Re ee Is 4 vis do ies O58 so ce Os 14

ey Rs ED fo v.g s 66 bo be hemes views 14

eee Oe 0 re 14

Se TE aes FICE bon ccs ntcsepecssneces 14

ey Sa EE os oho we ee eked ads saws 14

Hazardous Materials Transportation Act, as

amended, 49 U.S.C. §§ 1801-1812 (1982) ...... 15

Table of Authorities. V

PAGE

Resource Conservation and Recovery Act of 1976,

as amended, 42 U.S.C.A. § 6901 et seq. (West

Supp. 1985):

ge fs OG i!) Per erer rere ers T

Se ars FD 950000 Kena sscaxduanewed 3, 11

OS Us BD os xe uw cdbhegesacsccevpios a il

4S Tae NU | hav en's eR GH ek eda 8

SF Tae oss ee annus kenieeeeees 8

R58 oe eS Rep enr rere mn e hr a 8

GS Ree a ow 8 knee Chica an ede 8

SS Ua Ss wos xc oeescseces eeewees 10

GD Utes ID, bin cc ek 4dvnc owacdesuaus 11

48 Ws BE 0b 6k sc heescde ieee 8

G2 Ui: pc vss vc cat yansdatseuns 10

GS DEE Se Sad wk vies coe ns eee oes 9

4S WA Pec FICE) 66 oo ceo ca eantetases 9

ete oe UU! eer res ee 9

ie ee re ree ree 9

Bae Pe 0 rrr ratee ar 2, 8, 18

Bik Ce | te ei 9, 16,17

Bas Sv VE | er ene 3, 15, 17

4S Ua ON - ka can meu anedeneneees 12

Toxic Substances Control Act, as amended, 15

oe temo FF Fe S| ere ee 12

ae USL. | hae ces Cae 6s ee ean aes veh an eee 2

OTHER AUTHORITIES

Fairmont Ordinance No. 597 ................05- 1, 4,9

SOR, és aveen sulenate Lee cet 4-5, 11, 16

SS Perr ere ror ere a 4,11

BOSE ok ge 0G 0 0054 0h wee ee eee 4,11, 16

NE, Bic ove ve bay eeeeecd eee 4,16

H.R. REP. No. 1491, 94th Cong., 2d Sess. 5, re-

rinted in 1976 U.S. CODE CONG. & AD.

EWS 6238-6354

vi Table of Authorities.

PAGE

PE 5 Us bo sc dO Oe eed eo eRe 8, 10

errr ra ornare heer 8

SE Sicccs 45's gee ob a ewe ee eee ee eee 8

EE onc 44-04 540 0k Cv ESET EON OR RE ee 8

ia 4:5 4 +0000 'k <0 et ag aig eed a os 8

I ee Pe re Mey re ne 9

LF Gees MA, Wis ee edve orb caswksesaver bar 2

GO CPR. PURGE FES k CIO O) occ vee dicdvnctens 8

44 Fed. Reg. 31528 (1979) ......... cece cece ee eee. 13

OPINIONS BELOW

The opinion of the Supreme Court of Appeals of

West Virginia, from which this appeal is taken, is re-

ported at 22 ENV’T REP. (BNA) 1983 (1985) and is set

out in Appendix A hereto. The opinion and order of the

Circuit Court of Marion County, West Virginia are not

reported but are set out in Appendices C and D hereto.

STATEMENT OF JURISDICTION

On July 5, 1983, appellant Sharon Steel Corporation

(Sharon) filed a declaratory judgment action against the

City of Fairmont, West Virginia (Fairmont or the City)

seeking a declaration that Fairmont Ordinance No. 597

(the Ordinance) is preempted by the federal Resource

Conservation and Recovery Act, as amended (RCRA), 42

U.S.C.A. § 6901 et seg. (West Supp. 1985). Bv opinion

dated February 22, 1984 and order dated April 13, 1984,

the Circuit Court of Marion County, West Virginia re-

jected Sharon’s challenge and ruled that the Ordinance is

valid. The Circuit Court held that “[bjoth case law and

the specific language of [RCRA] indicate that the [Ordi-

nance] and other similar state and local laws are not

meant to be preempted....” (App. C, 26a-27a; App. D,

30a.) By opinion dated June 3, 1985, the Supreme Court

of Appeals of West Virginia affirmed, holding that RCRA

“do[es] not conflict with and therefore dofes] not pre-

empt” the Ordinance. (App. A, 12a.) Appellant’s timely

petition for rehearing, dated June 27, 1985, was denied

on July 10, 1985. (App. B, 24a-25a.) Notice of appeal to

this Court was timely filed with the Supreme Court of

Appeals of West Virginia and with the Circuit Court of

Marion County, West Virginia on October 2, 1985. (App.

E, 32a-35a.)

2 Constitutional and Statutory Provisions Involved.

The jurisdiction of this Court is invoked pursuant to

28 U.S.C. § 1257(2). Local ordinances are treated in the

same manner as state statutes for jurisdictional pur-

poses. See, e.g., Hillsborough County, Florida v. Auto-

mated Medical Laboratories, Inc., 105 S. Ct. 2371, 2374

n.l (1985); City of New Orleans v. Dukes, 427 U.S. 297,

301 (1976); Doran v. Salem Inn, Inc., 422 U.S. 922, 927

n.2 (1975); City of Chicago v. Atchison, T.&S8.F.R.Co., 357

U.S. 77, 82 (1958).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Supremacy Clause, Article 6, clause 2 of the

United States Constitution, states:

This Constitution, and the Laws of the United

States which shall be made in Pursuance thereof; and

all Treaties made, or which shall be made, under the

Authority of the United States, shall be the supreme

Law of the Land; and the Judges in every State shall

be bound thereby, any Thing in the Constitution or

Laws of any State to the Contrary notwithstanding.

42 U.S.C.A. § 6929 provides:

Upon the effective date of regulations under this

[Hazardous Waste Management] subchapter no State

or political subdivision may impose any require-

ments less stringent than those authorized under

this subchapter respecting the same matter as gov-

erned by such regulations, except that if application

of a regulation with respect to any matter under this

subchapter is postponed or enjoined by the action of

any court, no State or political subdivision shall be

prohibited from acting with respect to the same as-

pect of such matter until such time as such regula-

tion takes effect. Nothing in this chapter shall be

Constitutional and Statutory Provisions Involved. 3

construed to prohibit any State or political subdivi-

sion thereof from imposing any requirements, in-

cluding those for site selecti- i, which are more strin-

gent than those imposed by such regulations.

42 U.S.C.A. § 6972(f) provides:

Nothing in this section shall restrict any right which

any person (or class of persons) may have under any

statute or common law to seek enforcement of any

standard or requirement relating to the management

of solid waste or hazardous waste, or to seek any

other relief (including relief against the Administra-

tor [of the Environmental Protection Agency] or a

State agency).

42 U.S.C.A. § 6903 provides in part:

(3) The term “disposal” means the discharge,

deposit, injection, dumping, spilling, leaking, or plac-

ing of any solid waste or hazardous waste into or on

any land or water so that such solid waste or hazard-

ous waste or any constituent thereof may enter the

environment or be emitted into the air or discharged

into any waters, including ground waters.

~ . .

(5) The term “hazardous waste” means a solid

waste, or combination of solid wastes, which because

of its quantity, concentration, or physical, chemical,

or infectious characteristics may—

(A) cause, or significantly contribute to an

increase in mortality or an increase in serious

irreversible, or incapacitating reversible, illness;

or

(B) pose a substantial present or potential

hazard to human health or the environment

when improperly treated, stored, transported, or

disposed of, or otherwise managed.

4 Constitutional and Statutory Provisions Involved.

Fairmont Ordinance No. 597 is set out in full in

Appendix G hereto. Sections 2, 3 and 4 of said Ordinance

provide:

Section 2. Prohibition: It shall be unlawful for any

person to permanently dispose or attempt to perma-

nently dispose of hazardous waste within the City.

Provided, however, that storage of hazardous wastes

by duly licensed and taxpaying enterprises shall not

be prohibited.

Section 3. Nuisance: In the event any person shall

dispose or establish a site for the permanent disposal

of hazardous waste in violation of the provisions of

this Ordinance, the City Attorney is authorized,

upon instructions from the City Manager, in addition

to other penalties set forth herein, to institute any

appropriate civil action or proceedings to prevent

such disposal of hazardous waste, the same being

deemed a public nuisance.

Section 4. Penalties: Any person who shall violate a

provision of this Ordinance or fail to comply with

any of the requirements hereof shall be guilty of a

misdemeanor, punishable by a fine of not more than

Five Hundred Dollars, or by imprisonment not ex-

ceeding thirty days, or both fine and imprisonment.

Each day that a violation continues or has not been

totally abated shall be deemed a separate offense.

Section 1 of the Ordinance provides in part:

Section 1. Definitions: ‘Permanent Disposal’ or

‘Permanently Dispose’ means the discharge, deposit,

injection, dumping, spilling, leaking or placement of

any hazardous waste into, on, above, or below any

land or water which waste is to remain or which has

remained at a disposal site within the City for a

continuous period of five years and which is not in-

tended to be removed from such site.

Constitutional and Statutory Provisions Involved. 5

‘Hazardous Waste’ means a waste or combina-

tion of wastes, which because of its quantity, concen-

tration or physical, chemical or infectious character-

istics, may cause, or significantly contribute to an

increase in mortality, or an increase in serious irre-

versible, or incapacitating reversible illness, or pose

a substantial present or potential hazard to human

health or the environment when stored. Provided,

however, that hazardous wastes shall include only

those whose disposal would require a state or federal

hazardous waste permit.

6 Statement of The Case.

STATEMENT OF THE CASE

From 1948 until 1979, Sharon operated a coke plant

in Fairmont. During its operation, the plant generated

and retained on-site waste which was later designated

“hazardous waste” by regulations promulgated by the

federal Environmental Protection Agency (EPA) pursu-

ant to RCRA. In 1979, Sharon ceased operations at its

Fairmont plant and, in accordance with the RCRA regu-

lations, applied for permits to dispose of the previously

retained wastes in a permanent hazardous waste contain-

ment facility to be constructed on-site. In 1983, while

proceedings on Sharon’s permit applications were contin-

uing, the City enacted the Ordinance here challenged,

making any permanent disposal of hazardous waste

within the City unlawful and declaring the establishment

of any site for such disposal to be a nuisance. The Ordi-

nance was intended to prohibit Sharon’s construction of

its proposed facility when its federal hazardous waste

disposal permit is issued.! Accordingly, Sharon brought

its declaratory judgment action.

1. In its complaint in the trial court, Sharon alleged

as follows:

20. Sharon is informed and believes, and based

upon such information and belief alleges, that the

City intends that its planned construction of a per-

manent waste disposal facility on [its former plant

site] is prohibited by the Ordinance.

* * *

22. Sharon is informed and believes, and based

upon such information and belief alleges, that the

City intends to prosecute it for constructing or at-

tempting to construct a permanent waste disposal

facility on [its former plant site].

In its answer to Sharon’s complaint, the City pleaded

that:

1. The allegations of paragraphs... 20 [and] 22

{of Sharon’s complaint] are admitted.

Substantiality of The Questions Presented. 7

SUBSTANTIALITY OF THE

QUESTIONS PRESENTED

I. The First Question Presented Is Important And Sub-

stantial Because The Ordinance, If Allowed To

Stand, Will Thwart Congress’ Comprehensive Na-

tional Plan For Managing Hazardous Waste; Will

Directly Conflict With The National Permit Program

Under RCRA; And Will Promote The Proliferation

Of Local Vetoes Of Federal Hazardous Waste Facil-

ity Permitting Decisions.

Can the political subdivisions of the states, consist-

ent with RCRA, absolutely prohibit the construction and

operation of federally-permitted hazardous waste dis-

posal facilities within their borders? It is Sharon’s con-

tention that they cannot—that such prohibitions “stand

...aS an obstacle to the accomplishment and execution

of the full purposes and objectives of Congress” embod-

ied in RCRA and are therefore preempted. See Hines v.

Davidowitz, 312 U.S. 52, 67 (1941); see also Ray v. Atlan-

tic Richfield Co., 435 U.S. 151, 160-68 (1978).

A. CONGRESS’ PURPOSE IN ENACTING RCRA was TO

PROMOTE COMPREHENSIVE, NATIONALLY UNIFORM,

REGULATION OF HAZARDOUS WASTE AS PART OF A

COORDINATED RESPONSE TO THE PROBLEMS OF EN-

VIRONMENTAL POLLUTION.

In enacting RCRA, Congress found that the prob-

lems of hazardous waste disposal “have become a matter

national in scope and in concern... necessitat{ing] Fed-

eral action.” 42 U.S.C.A. § 6901(a)(4). In order “to pro-

vide nationwide protection against the dangers of im-

proper hazardous waste disposal,” H.R. REP. No. 1491,

2. For purposes of preemption analysis, the consti-

tutionality of a local ordinance is analyzed in the same

way as a state law. Hillsborough County, Florida v. Auto-

mated Medical Laboratories, Inc., 105 S. Ct. 2371, 2375

(1985).

8 Substantiality of The Questions Presented.

94th Cong., 2d Sess. 5, reprinted in 1976 U.S. CODE

CONG. & AD. NEWS 6238, 6249, Congress established in.

RCRA a national framework for the comprehensive reg-

ulation of every aspect of hazardous waste from “cradle

to grave’. See 1976 U.S. CODE CONG. & AD. NEWS at

6242, 6254, 6261.

In pursuit of its goals, Congress directed that the

administrator of the EPA (the Administrator), after con-

sultation with appropriate federal and state agencies,

develop and promulgate criteria identifying the charac-

teristics of hazardous wastes and listing specific hazard-

ous wastes, 42 U.S.C.A. § 6921(a), and then promulgate

minimum standards applicable to persons generating, 42

U.S.C.A. § 6922, transporting, 42 U.S.C.A. § 6923, or

owning or operating facilities for the treatment, storage

or disposal, 42 U.S.C.A. § 6924, of such wastes.

The Administrator has promulgated extensive regu-

lations to implement the RCRA program. See 40 C.F.R.

Parts 260-271 (1984).

Congress provided that the states, at their option,

could develop, implement and enforce their own hazard-

ous waste programs in lieu of the federal program, pro-

vided such state programs contained regulations at least

as stringent as those imposed by the federal program. 42

U.S.C.A. §§ 6926(b), 6929. The guiding principle was that

such programs must be “equivalent to” and “consistent

with” the federal program and state programs applicable

in other states and provide for “adequate enforcement of

compliance with the requirements” of RCRA respecting

hazardous waste disposal. 42 U.S.C.A. § 6926(b).

The legislative history recites the following with

respect to this structure of RCRA:

The general purpose of having federal minimum

standards for hazardous waste disposal, with the op-

Substantiality of The Questions Presented. 9

tion of state implementation of state programs

equivalent tc the federal program, is (1) it provides

uniformity among the states as to how hazardous

wastes are regulated, (2) it provides industry and

commercial establishments that generate such

wastes uniformity among states, (3) by providing

such uniformity a state with environmentally sound

laws does not drive business out of the state to a

state which, for economic reasons, decides to be a

dumping ground for hazardous wastes, and (4) by

permitting states to develop and implement hazard-

ous waste programs equivalent to the federal pro-

gram, the police power of the states are utilized

rather than the creation of another federal bureauc-

racy to implement this act.

1976 U.S. CODE CONG. & AD. NEWS at 6268.

Congress provided that RCRA would be enforced in

a variety of ways: through inspections by authorized in-

spectors, 42 U.S.C.A. § 6927(a), through compliance or-

ders issued by the Administrator and enforced in court,

42 US.C.A. § 6928(a)(1), and/or through imposition of

civil, 42 U.S.C.A. § 6928(a)(3), or criminal, 42 U.S.C.A. §

6928(d), penalties. In addition, Congress provided that

RCRA standards and requirements could be enforced in

citizens’ suits. 42 U.S.C.A. § 6972(a).

Above all, Congress intended that RCRA be an inte-

gral part of a coordinated national response to the na-

tional problem of environmental pollution. See, e.g., the

Clean Air Act, as amended, 42 U.S.C.A. § 7401 et seq.

(West Supp. 1985); the Clean Water Act, as amended, 33

U.S.C.A. § 1251 et seq. (West Supp. 1985); and the Com-

prehensive Environmental Response, Compensation and

Liability Act of 1980, as amended, 42 U.S.C.A. § 9601 et

seq. (West Supp. 1985). As the report of the House of

Representatives Committee which favorably recom-

mended RCRA for passage states:

10 Substantiality of The Questions Presented.

The Committee believes that the approach taken

by this legislation eliminates the last remaining

loophole in environmental law, that of unregulated

land disposal of discarded materials and hazardous

wastes. Further, the Committee believes that this

legislation is necessary if other environmental laws

are to be both cost and environmentally effective. At

present the federal government is spending billions

of dollars to remove polluta[{nt]s from the air and

water, only to dispose of such pollutants on the land

in an environmentally unsound manner. The existing

methods of land disposal often result in air pollution,

subsurface leachate and surface run-off, which affect

air and water quality. This legislation will eliminate

this problem and permit the environmental laws to

function in a coordinated and effective way.

1976 U.S. CODE CONG. & AD. NEWS at 6241-6242.

B. THE ORDINANCE IS IN DIRECT CONFLICT WITH

RCRA BECAUSE IT PROHIBITS AND DECLARES TO BE

A NUISANCE THAT, AND PRECISELY AND ONLY THAT,

WHICH RCRA PERMITs.

Congress provided in RCRA that each person who.

would own or operate a facility for the treatment, storage

or disposal of hazardous wastes must first obtain a per-

mit from the Administrator to conduct such activities.

The disposal of any hazardous waste, except in accord-

ance with the provi.:ons of such a federal hazardous

waste disposal permit, is prohibited. 42 U-S.C.A.

§ 6925(a).*

3. A permit issued by a state agency pursuant to a

fully — state hazardous waste program has the

same effect as a federal permit issued pursuant to 42

U.S.C.A. § 6925(a). 42 U.S.C.A. § 6926(d). West Virginia

does not yet have a fully approved state hazardous waste

program.

=,

_

_

Substantiality of The Questions Presented. 11

The Ordinance prohibits the permanent disnosal of,

and declares to be a nuisance the establishment of any

site for the permanent disposal of, hazardous waste

within the City’s boundaries. Ordinance §§ 2, 3. The Ordi-

nance defines the terms “permanent disposal” and “haz-

ardous waste” in virtually the same words as RCRA. Cf.

Ordinance § 1 and 42 U.S.C.A. §§ 6903(3), 6903(5). Signif-

icantly, the Ordinance adds a proviso to the definition of

“hazardous waste” which provides that the term as used

in the Ordinance “shall include only those [wastes the

permanent disposal of which] would require a state or

federal hazardous waste permit.”

hus, the Ordinance prohibits and declares to be a

nuisance that—and precisely and only that—which the

federal government permits under RCRA. It is difficult to

imagine a more direct conflict between a local enactment

and federal law.

C. THE ORDINANCE IS DIRECTLY CONTRARY TO THE

NATIONAL POLICY ON THE ROLE OF LOCAL POLITI-

CAL SUBDIVISIONS WITHIN THE RCRA REGULA-

TORY PROGRAM.

In order to obtain a hazardous waste disposal permit,

Congress provided that an applicant must make a de-

tailed showing that his proposed facility will comply in

all respects with the Administrator’s standards promul-

gated under RCRA. 42 U.S.C.A. § 6925(c). If a proposed

facility does so comply, the Administrator is obligated to

issue the required permit. 42 U.S.C.A. § 6925(c).

Congress recognized, however, that, since a hazard-

ous waste disposal permit is site-specific, local govern-

mental units would have legitimate interests in any deci-

sion the Administrator would make. It required,

therefore, that, prior to the time the Administrator may

issue any permit, he must provide notice to “each unit of

local government having jurisdiction over the area in

which such facility is proposed to be located and to each

12 Substantiality of The Questions Presented.

State agency having any authority under State law with

respect to the construction or operation of such facility”

of his intent to issue such permit. 42 U.S.C.A. § 6974(b).

If he receives notice of opposition to his intent, he is

required to hold a public hearing at which oral and

written testimony must be received. Id. Only after the

hearing contemplated by this Section can the Adminis-

trator issue any permit. Jd. There is no question, how-

ever, that Congress intended the ultimate permitting

decision to be the Administrator’s.

Fairmont’s Ordinance is directiy contrary to the con-

gressional policy embodied in these provisions of RCRA.

Where Congress provided the‘ iocal governments would

be participants in a decision-making process, Fairmont

would short-circuit the process through the imposition of

a blanket local siting ban. Where Congress provided that

the Administrator would be the ultimate decision-maker,

Fairmont would unilaterally veto any decision he might

make. Fairmont would turn Congress’ plan upside down.

The tail would wag the dog. It is difficult to imagine an

enactment more contrary to a congressional scheme.

D. LOCAL PROHIBITIONS, SUCH AS THIS ORDINANCE,

POSE A REAL AND SUBSTANTIAL THREAT TO CON-

GRESS’ GOALS IN RCRA AND OTHER FEDERAL POL-

LUTION CONTROL LEGISLATION.

The issue presented in this case is not new. In 1979,

EPA considered local disposal bans in the context of

attempts by local governments to prohibit the disposal

within their borders of polychlorinated biphenyls

(PCBs), a hazardous substance disposal of which is regu-

lated under the federal Toxic Substances Control Act, 15

U.S.C. § 2601 et seg. (TSCA). In words equally applicable

to RCRA, EPA responded to these attempts as follows:

... EPA has become concerned that actions by local

and State governments to prohibit disposal of PCBs

and other substances in their jurisdictions could

Substantiality of The Questions Presented. 13

frustrate the national goal of properly disposing of

hazardous chemical substances. While EPA has al-

ways believed that States should have the right to

set pollution control standards more restrictive than

the Federal standards, it would be a matter of na-

tional concern if this principle were to become the

basis for refusal by States to share in the national

responsibility for finding safe means for the proper

disposal of hazardous substances.

44 Fed. Reg. 31528 (1979).

State and federal courts have also considered the

issue presented in this case. Until now, each has recog-

nized the real and substantial threat presented by local

enactments such as Fairmont’s to federal pollution con-

trol efforts.

In Rollins Environmental Services, Inc. v. Iberville

Parish Police Jury, 371 So.2d 1127, 1132 (La. 1979), a

RCRA case, the Supreme Court of Louisiana struck down

an ordinance prohibiting the disposal of hazardous waste

within the boundaries of a political subdivision of that

state on the grounds that it was “not difficult to conclude

that if [the subdivision] is permitted to prohibit the dis-

posal of industrial hazardous waste within its borders,

there will be, in short order, similar ordinances in every

[subdivision] of the State.”

Similarly, in Warren County v. North Carolina, 528

F. Supp. 276, 289-90 (E.D. N.C. 1981), a TSCA case, a

federal district court struck down a local ordinance pro-

hibiting the disposal of PCBs within the local govern-

ment’s boundaries, reasoning:

Were the Court to approve this ordinance, no

doubt the other ninety-nine counties in North Caro-

lina would quickly enact identical bans. What, then,

would North Carolina do with the PCB laced soil?

Surely our neighbors in Virginia and Tennessee,

14 Substantiality of The Questions Presented.

South Carolina and Georgia would also object to our

carrying such wastes into their states. The [chal-

lenged] ordinance clearly stands as an obstacle to the

accomplishment and execution of the full purposes

and objectives of Congress under the Toxic

Substances Control Act and, therefore, is void.

The decision of the Supreme Court of Appeals of

West Virginia in the instant case thus stands in stark

contrast to previous decisional law in the area of hazard-

ous waste disposal. Moreover, the decision, if allowed to

stand, legitimizes local resistance to Congress’ carefully-

crafted anti-pollution control efforts. If Fairmont’s Ordi-

nance is valid, other political subdivisions in West Vir-

ginia, and in other states, will inevitably follow suit with

devastating effects on Congress’ attempts to address the

serious problems of environmental pollution in a coordi-

nated, uniform manner.

The dangers inherent in this decision extend beyond

RCRA. For example, in December 1980 Congress passed

the Comprehensive Environmental Response, Compen-

sation and Liability Act of 1980, as amended (CERCLA),

42 U.S.C.A. § 9601 et seg. (West Supp. 1985), to address

the problems caused by releases into the environment of

hazardous substances from waste sites that were closed

or abandoned prior to the effective date of the RCRA

regulations. CERCLA gives the Administrator a variety

of tools to prevent and remedy such releases: he may

clean up a site and recover the cost cf so doing from the

persons responsible, 42 U.S.C.A. § 9607(c)(3); he may use

the Hazardous Substance Response Fund (Superfund) to

finance the cleanup, 42 U.S.C.A. §§ 9604(c), 9611; or he

may compel those responsible for the release to clean up

the site, 42 U.S.C.A. §§ 9604, 9606(a). Where are these

hazardous substances to be taken once they are cap-

tured? Some may be detoxified, but, until now, most have

been taken to. sites with federal hazardous

Substantiality of The Questions Presented. 15

waste disposal permits or having the status of sites with

such permits. Thus, the CERCLA program, too, is

threatened by the decision of the Court below in the

instant case: Congress’ efforts embodied in CERCLA di-

rected at remedying past environmental pollution can be

brought to a halt if localities in which hazardous waste

disposal sites are located can follow Fairmont’s lead of

prohibiting such disposal and making such disposal a

crime.*

It is difficult to imagine a more obvious obstacle to

the accomplishment and execution of the full purposes

and objectives of Congress.

II. The Second Question Presented Is Important And

Substantial Because The Provisions Of RCRA Pre-

serving Certain Rights For Citizens And States Can-

not Be Interpreted To Allow Exceptions To Swallow

The Rule By Sanctioning Local Prohibitions Of Fed-

erally Permitted Hazardous Waste Facilities.

A. SECTION 6972(f) oF RCRA PERTAINS TO CITIZENS’

SUITS AND HAS NO RELEVANCE TO A DETERMINA-

TION OF THE LEGALITY OF THE ORDINANCE.

The Court below held that, since RCRA contains a

provision, 42 U.S.C.A. § 6972 (f), “preserving common

law actions, including nuisance actions, an ordinance

4. The decision in the instant case might also have

implications in the area of nuclear waste disposal. See,

e.g., Jersey Central Power & Light Co. v. Township of

Lacey, Nos. 84-5652 and 84-5763 (3d Cir. September 6,

1985), where a local ordinance prohibited the importa-

tion and storage of nuclear wastes. The Third Circuit

held such an ordinance to be preempted by the Atomic

Energy Act of 1954, as amended, 42 U.S.C. §§ 2011-2296

(1982), and the Hazardous Materials Transportation Act,

49 U.S.C. §§ 1801-1812 (1982) (HMTA). With respect to

the latter, the court held that the ordinance was not

“consistent” with federal pollution control efforts as em-

bodied in the HMTA.

16 Substantiality of The Questions Presented.

passed by a municipality declaring the permanent dis-

posal of hazardous wastes as therein defined to be a

public nuisance is not pre-empted....” (App. A, 1a, syl-

labus point 1.)

Section 6972 of RCRA is captioned “Citizens suits”.

Subsection (a) of the Section provides that, subject to

certain requirements set forth therein, any person may

commence a civil action on his own behalf—

(1) against any person (including (a) the United

States, and (b) any other governmental instrumen-

tality or agency, to the extent permitted by the elev-

enth amendment to the Constitution) who is alleged

to be in violation of any permit, standard, regulation,

condition, requirement, prohibition, or order which

has become effective pursuant to this chapter; or

* * *

5. As described elsewhere herein ( see, e.g., pp. 6,

10), the Ordinance here challenged declares the estab-

lishment of any site for the permanent disposal of haz-

ardous waste to be a nuisance. Ordinance § 3. Indepen-

dent of this Section, the Ordinance also prohibits all

disposal of hazardous waste within the City without ref-

erence to principles of nuisance law. Ordinance § 2. The

Ordinance also provides for criminal penalties for

violations of either Section 2 or 3. Ordinance § 4. The

Court below never addressed these latter two Sections of

the Ordinance. More basically, although four of six sylla-

bus points in the lower Court’s opinion mention the word

“nuisance”, the issue before this Court in fact has noth-

ing to do with nuisance. The issue presented here is the

yan power of a municipality to pass an ordinance pro-

hibiting that and only that which federal! iaw specifically

authorizes pursuant to permits. It is of no moment

whatsoever whether that ordinance is styled a prohibi-

tion, a regulation or a nuisance abatement. Our federal

system would be fragile indeed if national policies could

be thwarted merely by denominating offending local

enactments as “nuisance abatement” enactments.

Assuming arguendo that Fairmont’s Ordinance is merely

a nuisance ordinance, it still should be subjected to the

same preemption analysis as applied to any other local

enactment.

Substantiality of The Questions Presented. 17

(2) against the Administrator where there is alleged

a failure of the Administrator to perform any act or

duty under this chapter which is not discretionary

with the Administrator.

42 U.S.C.A. § 6972 (a). Thus, Congress intended that

Section 6972 provide another enforcement weapon (i.e.,

citizens’ suits) to aid in achieving compliance with the

requirements of RCRA. Congress then added subsection

(f) to make it clear that any person could also seek en-

forcement of solid or hazardous waste requirements un-

der other statutes or common law:

Nothing in this section shall restrict any right which

any person (or class of persons) may have under any

statute or common law to seek enforcement of any

standard or requirement relating to the management

of solid waste or hazardous waste, or to seek any

other relief (including relief against the Administra-

tor or a State agency.)

42 U.S.C.A. § 6972(f).

Plainly, Fairmont’s Ordinance is not a “citizens

suit’. Moreover, Section 6972(f) simply has no relevance

to this case since the Ordinance is not directed at enforc-

ing “any standard or requirement relating to the man-

agement of solid waste or hazardous waste”.

In brief, rather than giving Section 6972 the role in

the RCRA scheme Congress intended for it (i.e., as an

additional enforcement provision), the Court below held

that it was intended to permit local governmental bodies

to avoid involvement in RCRA. Its misreading of Section

6972 then caused the Court below to examine inapposite

case law to determine the preemption issue. It cited cases

for the proposition that nuisance actions may be brought

despite the enactment of RCRA (App. A, lla-15a), a

proposition that at no time has been contested

18 Substantiality of The Questions Presented.

by Sharon. The Court below apparently read Section

6972(f) to exempt “from the ambit of the federal act” any

municipal enactment that could be construed to have

nuisance abatement as its subject matter. (App. A, 15a).

As set forth above, however, the context makes clear that

the correct reading of that Section restricts its applica-

tion tc those municipal enactments that would further,

and not frustrate, the standards and requirements of

RCRA.

B. SECTION 6929 oF RCRA CANNOT BE READ TO

AUTHORIZE LOCAL GOVERNMENTS TO PROHIBIT AB-

SOLUTELY CONSTRUCTION OF HAZARDOUS WASTE

FACILITIES WITHIN THEIR BOUNDARIES.

Significantly, in presenting its case below, the City of

Fairmont never even cited Section 6972(f) relied on by

the Court below to uphold the Ordinance. The City relied

on Section 6929 of the Act—which the Court below never

referred to in its opinion.

RCRA Section 6929 provides in pertinent part as

follows:

Upon the effective date of regulations under this

{Hazardous Waste Management] subchapter no State

or political subdivision may impose any require-

ments less stringent than those authorized under

this subchapter respecting the same matter as gov-

erned by such regulations. ... Nothing in this chap-

ter shall be construed to prohibit any State or politi-

cal subdivision thereof from imposing any

requirements, including those for site selection,

which are more stringent than those imposed by

such regulations.

The Ordinance here challenged has nothing at all to

do with “imposing requirements” respecting hazardous

waste disposal. It is, instead, a blanket ban on all such

disposal within a particular geographic area. Moreover,

itis os "

Substantiality of The Questions Presented. 19

as set forth above, Congress’ scheme in RCRA was to

provide for the promulgation by the federa! government

cf minimum standards applicable to hazardous waste

management practices, with an option in the states and

their subdivisions to impose more stringent require-

ments which were “equivalent to” and “consistent with”

the scheme of RCRA. A blanket local facilities siting ban

is neither.

Congress could not possibly have intended to permit

a local governmental body to exempt itself completely

from RCRA through the insertion of this single Section.

Yet a decision upholding the Fairmont Ordinance—on

whatever ground—has precisely this effect.

20 Conclusion.

CONCLUSION

For the reasons stated above, the questions pre-

sented in this matter are so substantial as to require

plenary consideration by this Court, with briefs on the

merits and oral argument, for their resolution. It is abso-

lutely imperative that this Court assert its jurisdiction in

this case and unequivocally assert that no local govern-

mental unit can do what Fairmont has done, i.e., abso-

lutely prohibit the disposal of hazardous wastes pursuant

to a federal hazardous waste disposal permit. Failure to

do so is to invite disaster on federal pollution control

efforts such as those embodied in RCRA.

Respectfully submitted,

Buair S. MCMILLIN

*ROBERT W. THOMSON

EDWARD A. BITTNER, JR.

Of Counsel: DEBRA M. COULSON

Hays WEBB REED SMITH SHAW & MCCLAy

ALFRED J. LEMLEY 747 Two Mellon Bank Center

Pittsburgh, Pennsylvania 15219

FURBEE, AMOS, WEBB & (412) 288-3118

CRITCHFIELD

132 Adams Street Counsel for Appellant

P.O. Box 1189 Sharon Steel Corporation

a a, Wort Virginia “Counsel of Record

(304) 363-8800 for Appellant

la

APPENDIX A

OPINION OF THE SUPREME COURT OF APPEALS

OF WEST VIRGINIA

NO. 16349

SHARON STEEL CORPORATION

v.

CITY OF FAIRMONT, ET AL.

Marion County Affirmed

MILLER, Justice

1. Since both the Resource Conservation and Re-

covery Act, 42 U.S.C. § 6972(f), and the West Virginia

Hazardous Waste Management Act, W. Va. Code, 20-5E-

18(d) and -18(h), have provisions preserving common law

actions, including nuisance actions, an ordinance passed

by a municipality declaring the permanent disposal of

hazardous wastes as therein defined to be a public nui-

sance is not pre-empted by the federal or State acts.

2. ““‘A municipal corporation has only the powers

granted to it by the legislature, and any such power it

possesses must be expressly granted or necessarily or

fairly implied or essential and indispensable. If any rea-

sonable doubt exists as to whether a municipal corpora-

tion has a power, the power must be denied.’ Syllabus

Point 2, State ex rel. Charleston v. Hutchinson, 154

W. Va. 585, 176 S.E.2d 691 (1970).” Syllabus Point 1, City

of Fairmont v. Investors Syndicate of America, Inc., —

W. Va. _, 307 S.E.2d 467 (1983).

3. A municipality has the authority to declare the

improper permanent disposal of hazardous wastes a pub-

lic nuisance under W. Va. Code, 8-12-5(23), which em-

powers municipalities “[t]o provide for the elimination of

hazards to public health and safety,” where the term

2a Appendix A.

“hazardous waste”’ in the ordinance is defined, in part, as

material which poses a substantial present or potential

hazard to human health or the environment.

4. “Under the provision of the charter of the city of

Fairmont, same as Code 1906, ch. 47, sec. 28 [now W. Va.

Code, 8-12-5(23)], that ‘the council shall have power to

abate or cause to be abated anything which, in the opin-

ion of a majority of the whole council, shall be a nui-

sance,’ the council may abate only that as a nuisance

which is recognized as such per se, or branded as such by

lawful statute or ordinance.” Syllabus Point 1, Parker v.

City of Fairmont, 72 W. Va. 688, 79 S.E. 660 (1913).

oO. “As a general rule, a fair test as to whether a

particular use of real property constitutes a nuisance is

the reasonableness or unreasonableness of the use of the

property in relation to the particular locality involved,

and ordinarily such a test to determine the existence of a

nuisance raises a question of fact.” Syllabus Point 3,

Sticklen v. Kittle, _. W. Va. _, 287 S.E.2d 148 (1981).

6. “The legislature is vested with a wide discretion

in determining what the public interest requires, the

wisdom of which may not be inquired into by the courts;

however, to satisfy the requirements of due process of

law, legislative acts must bear a reasonable relationship

to a proper legislative purpose and be neither arbitrary

nor discriminatory.” Syllabus Point 1, State » Wender,

149 W. Va. 413, 141 S.E.2d 359 (1965), overruled on other

grounds, Hartsock-Flesher Candy Co. v. Wheeling Whole-

sale Grocery Co., __ W. Va. _, 328 S.E.2d 144 (1984).

MILLER, Justice:

Sharon Steel Corporation brought a declaratory ac-

tion against the City of Fairmont challenging the legality

of its Ordinance No. 597, which prohibits the permanent

Appendix A. 3a

disposal of hazardous wastes in the City as a public nui-

sance. The Circuit Court of Marion County upheld the

ordinance. Sharon Steel argues that the ordinance should

be invalidated for several reasons. First, because of the

extensive federal and State regulation of hazardous

wastes under the Resource Conservation and Recovery

Act, 42 U.S.C. §§ 6901-6987 (RCRA)?! and the West Vir-

ginia Hazardous Waste Management Act, W. Va. Code,

20-5E-1 through -23 (WVHWMA), the City is pre-empted

from enacting local legislation on the subject. Second,

the City lacks the authority to pass such an ordinance.

Finally, the ordinance is in violation of substantive due

process principles. We affirm the circuit court for the

reasons hereinafter set out.

Sharon Steel operated a coking plant in the City of

Fairmont from 1948 until 1979. During that time, the

plant generated hazardous wastes as a by-product of its

operations. After closing the coking plant, Sharon Steel

sought to construct a permanent hazardous waste con-

tainment facility at the same location to dispose of the

hazardous waste by-products that had accumulated.

Sharon Steel has applied for the necessary federal and

State permits for the construction of such a facility, but

as of the time of this appeal, these permits have not yet

been acquired or approved.

In June of i983, Fairmont passed its Ordinance No.

597, which is the focal point of the controversy in this

case.2 The key portion of the ordinance is Section 2,

1. The Solid Waste Disposal Act was amended in

1976 by the RCRA, which, among other changes, pro-

vided for hazardous waste management.

2. The full text of Ordinance No. 597 is:

“WHEREAS, West Virginia Code § 8-12-5 given

plenary power and authority for municipalities to

control and administer waterfronts and waterways;

4a Appendix A.

which states the type of activity that Fairmont seeks to

prohibit: “It shall be unlawful for any person to perma-

nently dispose or attempt to permanently dispose of

hazardous waste within the City. Provided, however, that

storage of hazardous wastes by duly licensed and tax-

paying enterprises shall not be prohibited.” The term

“storage” is defined in Section 1 to mean “local contain-

ment of hazardous wastes which wastes are not intended

to prohibit the accumulation and require the disposal

of garbage, refuse, waste, ashes, trash and other sim-

ilar matters; to prevent injury or annoyance to the

public or individuals from anything dangerous, of-

fensive or unwholesome; to project and promote the

public morals, safety, health, welfare and good order;

to provide for the elimination of hazards to public

health and safety and to abate or cause to be abated

anything which in the opinion of a majority of the

governing body is a public nuisance; and

“WHEREAS, The City Council finds that perma-

nent disposal of hazardous wastes within the City is

a nuisance in that it may depreciate property values;

have an adverse impact on the City’s ability to at-

tract new business and industry and encourage ex-

pansion of existing business and industry; create a

continuing serious anxiety and concern among city

residents and visitors concerning the existence of a

permanent hazardous waste disposal site within the

city, all of which are offensive and constitute injury

and annoyance to the public and individuals; and

“WHEREAS, the City Council finds that prohibi-

tion of the permanent disposal of hazardous waste

will protect and promote the public morals, safety,

health, welfare and good order in the City;

“Now THEREFORE THE CITY OF FAIRMONT

HEREBY ORDAINS THAT:

“SECTION 1. Definitions: ‘Permanent Disposal’ or

‘Permanently Dispose’ means the discharge, deposit,

injection, dumping, spilling, leaking or placement of

any hazardous waste into, on, above, or below any

Appendix A. 5a

to be permanently disposed of at any site within the

City.” Thus, Section 2 indicates that the ordinance allows

the temporary storage of hazardous wastes by “duly li-

censed and taxpaying enterprises.” It is only the perma-

nent disposal of hazardous wastes that the ordinance

seeks to prohibit.

land or water which waste is to remain or which has

remained at a disposal site within the City for a

continuous period of five years and which is not in-

tended to be removed from such site.

““Hazardous Waste’ means a waste or combina-

tion of wastes, which because of its quantity, concen-

tration or physical, chemical or infectious character-

istics, may cause, or significantly contribute to an

increase in mortality, or an increase in serious irre-

versible, or incapacitating reversible illness, or pose

a substantial present or potential hazard to human

health or the environment when stored. Provided,

however, that hazardous wastes shall include only

those whose disposal would require a state or federal

hazardous waste permit.

“*Person’ means any individual, trust, firm, joint

stock company, public or private or governmental

corporation, partnership, association, state or fed-

eral agency.

“‘Storage’ means the otherwise local contain-

ment of hazardous wastes which wastes are not in-

tended to be permanently disposed of at any site

within the City.

““*‘Waste’ means any garbage, refuse, sludge, and

other discarded material including solid, liquid, sem-

isolid, or contained gaseous material resulting from

industrial, commercial mining and agricultural oper-

ations, but does not include solid or dissolved mate-

rial in domestic sewage.

“SECTION 2. Prohibition: It shall be unlawful for

any person to permanently dispose or attempt to

permanently dispose of hazardous waste within the

City. Provided, however, that storage of hazardous

wastes by duly licensed and taxpaying enterprises

shall not be prohibited.

6a Appendix A.

The term “waste” is defined in Section 1 to be “gar-

bage, refuse, sludge, and other discarded material includ-

ing solid, liquid, semisolid, or contained gaseous material

resulting from industrial, commercial mining and agri-

cultural operations.” The term “hazardous waste”

parallels the definition of hazardous waste found in both

the federal and State acts.* The only difference is that

the ordinance definition does not adopt the ending

phrase “when improperly treated, stored, transported”’

used in the federal and State acts, but simply concludes

with the words “when stored.”

The thrust of the ordinance is directed at prohibiting

the permanent storage of hazarcous wastes which are

improperly stored in the sense that the wastes may

“cause, or significantly contribute to an increase in mor-

“SECTION 3. Nuisance: In the event any person

shall dispose or establish a site for the permanent

disposal of hazardous waste in violation of the provi-

sions of this Ordinance, the City Attorney is autho-

rized, upon instructions from the City Manager, in

addition to other penalties set forth herein, to insti-

tute any appropriate civil action or proceedings to

prevent such disposal of hazardous waste, the same

being deemed a public nuisance.

“SECTION 4. Penalties: Any person who shall vio-

late a provision of this Ordinance or fail to comply

with any of the requirements hereof shall be guilty

of a misdemeanor, punishable by a fine of not more

than Five Hundred Dollars, or by imprisonment not

exceeding thirty days, or both fine and imprison-

ment. Each day that a violation continues or has not

re totally abated shall be deemed a separate of-

ense.

“This Ordinance shail become effective not

sooner tnan thirty (30) days after adoption.”

3. The definition of “hazardous waste” found in

W. Va. Code, 20-5E-3(6), is identical to that found in the

RCRA, 42 U.S.C. 6903(5), and is as follows:

Appendix A. Ta

tality, or [serious] illness... or pose a substantial present

or potential hazard to human health or the environment

when stored.” Ordinance No. 597, Sections 1 and 2.

The RCRA and the WVHWMA are primarily regula-

tory in nature and are designed to prevent improper

treatment, storage, transportation, and disposal of haz-

ardous wastes. They proceed on the theory that the tech-

nology exists to properly treat hazardous wastes so that

they will not cause substantial harm to human health or

the environment.

The City’s ordinance is not regulatory. It is a penal

ordinance directed at persons who improperly perma-

nently store hazardous wastes which endanger human

health or the environment. This conclusion is evident

from the definitions in Section 1, the prohibition in Sec-

tion 2, the nuisance provision in Section 3, and the pen-

alty provision in Section 4. The net effect of the ordi-

nance is to define a public nuisance condition involving

hazardous wastes.

Through the enactment of this ordinance, the City is

attempting to abate what it considers to be a public nui-

sance. In Hark v. Mountain Fork Lumber Co., 127 W. Va.

586, 595-96, 34 S.E.2d 348, 354 (1945), we gave the fol-

lowing general definition of public nuisance:

““Hazardous waste’ means a waste or combina-

tion of wastes, which because of its quantity, concen-

tration or physical, chemical or infectious character-

istics, may (A) cause, or significantly contribute to,

an increase in mortality or an increase in serious

irreversible, or incapacitating reversible, illness; or

(B) pose a substantial present or pctential hazard to

human health or the environment when improperly

treated, stored, transported, disposed of or otherwise

managed.”

8a Appendix A.

“A public nuisance is an act or condition that unlaw-

fully operates to hurt or inconvenience an indefinite

number of persons. The distinction between a public

nuisance and a private nuisance is that the former

affects the general public, and the latter injures one

person or a limited number of persons only. Ordinar-

ily, a suit to abate a public nuisance cannot be main-

tained by an individual in his private capacity, as it is

the duty of the proper public officials to vindicate the

rights of the public.”

See also W. Prosser and W. Keeton, The Law of Torts § 90

(Sth ed. 1984); W. Rodgers, Jr., Handbook on Environ-

mental Law § 2.2 (1977); Restatement (Second) of Torts

§ 821B (1979); 58 Am. Jur. 2d Nwisances § 7 (1971).

In Martin v. Williams, 141 W. Va. 595, 610-11, 93

S.E.2d 835, 844, 56 A.L.R.2d 756, 768 (1956), we generally

described what may constitute a nuisance:

“A nuisance is anything which annoys or disturbs

the free use of one’s property, or wiiich renders its

ordinary use or physical occupation uncomfortable

.... A nuisance is anything which interferes with the

rights of a citizen, either in person, property, the

enjoyment of his property, or his comfort .... A con-

dition is a nuisance when it clearly appears that

enjoyment of property is materially lessened, and

physical comfort of persons in their homes is materi-

ally interfered with thereby.... When the prosecu-

tion of a business, of itself lawful, in a strictly resi-

dential district, impairs the enjoyment of homes in

the neighborhood, and infringes upon the well-being,

comfort, repose, and enjoyment of the ordinary nor-

mal individual residing therein, the carrying on of

such business in such locality becomes a nuisance,

and may be enjoined.” (Citations omitted).

ome

Appendix A. 9a

As suggested by this broad definition, nuisance is a

flexible area of the law that is adaptable to a wide variety

of factual situations. We have decided nuisance cases

involving land being used for rock concerts, Berkeley

County Comm’n v. Shiley, —_ W. Va. __, 295 S.E.2d 924

(1982), a school site near an airport, Sticklen v. Kittle,

_W. Va. _, 287 S.E.2d 148 (1981), dust created by coal

trucks, West v. National Mines Corp., — W. Va. —, 285

S.E.2d 670, 25 A.L.R.4th 1179 (1981), an automobile junk

yard, Mahoney v. Walter, 157 W. Va. 882, 205 S.E.2d 692

(1974), a used car lot, Martin v. Williams, supra, a rail

tramroad built on a public road, Hark v. Mountain Fork

Lumber Co., supra, a house of prostitution, State v.

Navy, 123 W. Va. 722, 17 S.E.2d 626 (1941), an automobile

garage built out of inflammable materials, Harris v.

Poulton, 99 W. Va. 20, 127 S.E. 647, 40 A.L.R. 334 (1925),

fences, Donohoe v. Fredlock, 72 W. Va. 712, 79 S.E. 736

(1913), coal smoke and soot emitted by a dye works plant,

Parker v. City of Fairmont, 72 W. Va. 688, 79 S.E. 660

(1913), a carpenter shop with a steam engine, Wood v.

City of Hinton, 47 W. Va. 645, 35 S.E. 824 (1900), damage

to property adjacent to a railroad track, Guinn v. Ohio

River R.R. Co., 46 W. Va. 151, 33 S.E. 87 (1899), a merry-

go-round, Town of Davis v. Davis, 40 W. Va. 464, 21 S.E.

906 (1895), an explosives factory, Wilson v. Phoenix

Powder Mfg. Co., 40 W. Va. 413, 21 S.E. 1035 (1895), a

house built partially on:city property, Teass v. City of St.

Albans, 38 W. Va. 1, 17 S.E. 400 (1893), noise from a

factory, Powell v. Bentley & Gerwig Furniture Co., 34

W. Va. 804, 12 S.E. 1085 (1891), and an obstruction of a

public road Keystone Bridge Co. v. Summers, 13 W. Va.

476 (1878).

Nuisance law has been particularly effective in ad-

dressing environmental problems. In W. Rodgers, Jr.,

10a Appendix A.

Handbook on Environmental Law § 2.1 at 100 (1977), the

following statement is made:

“There is simply no common law doctrine that ap-

proaches nuisance in comprehensiveness or detail as

a regulator of land use and of technological abuse.

Nuisance actions have involved pollution of all

physical media—air, water, land—by a wide variety

of means.... Nuisance actions have challenged vir-

tually every major industrial and municipal activity

which is today the subject of comprehensive environ-

mental regulation—the operation of land fills,

incinerators, sewage treatment facilities, activities

at chemical plants, aluminum, lead and copper

smelters, oil refineries, pulp mills, rendering plants,

quarries and mines, textile mills and a host of other

manufacturing activities.... Nuisance theory and

case law is the common law backbone of modern

environmental and energy law.’’*

4. A number of articles discuss the possible applica-

tion of nuisance law to hazardous wastes and the prob-

lem of selecting appropriate sites for hazardous waste

disposal facilities. See, e.g., Duffy, State Hazardous

Waste Facility Siting: Easing the Process Through Local

Cooperation and Preemption, 11 B.C. Envtl. Aff. L. Rev.

755 (1984); Harrington, The Right to a Decent Burial:

Hazardous Waste and its Regulation in Wisconsin, 66

Marq. L. Rev. 223 (1983); Tarlock. Anywhere But Here:

An Introduction to State Control of Hazardous-Waste

Facility Location, 14 Land Use & Env’t L. Rev. 533

(1983); Trauberman, Common Law Nuisance in Hazard-

ous Waste Litigation: Has it Survived Milwaukee II?, 13

Envtl. L. Rep. 10043 (1983); Comment, Hazardous Waste

Liability and Compensation: Old Solutions, New

Solutions, No Solutions, 14 Conn. L. Rev. 307 (1982);

Comment, Hazardous Waste Cleanup in ig pray ¢ Legal

Tools Available to the Private Citizen, 19 Land & Water

L. Rev. 395 (1984); Comment, Changes in the Ownership

of Hazardous Waste Disposal Sites: Original and Suc-

Appendix A. lla

Having determined that the ordinance is directed at

abating a public nuisance condition, rather than a regula-

tory ordinance designed to deal with the management

and control over the disposal of hazardous wastes, we

will now address the specific objections made by Sharon

Steel against the ordinance’s validity.

‘

An assertion of federal pre-emption is a claim easily

made but difficult to apply in a given case because of the

enormous variety of legislative overlap that occurs be-

tween federal, state, and local enactments.® In this case,

cessor Liability, 67 Marq. L. Rev. 691 (1984); Comment,

Remedies for Hazardous Waste Injuries, 11 N. Ky. L.

Rev. 435 (1984); Utah’s Hazardous Waste Facility Siting

Act: Burying Private and Local Interests to Facilitate

Siting?, 1983 Utah L. Rev. 327. For an example of a case

where an action based on nuisance was successfully

prosecuted against an operator of a hazardous waste

facility, see Village of Wilsonville v. SCA Services, Inc.,

86 Ill. 2d 1, 55 Ill. Der. 499, 426 N.E.2d 824 (1981).

5. In Michigan Canners & Freezers Ass’n, Inc. v.

Agricultural Marketing & Bargaining Bd., __ U.S. _, —_,

81 L. Ed. 2d 399, 406, 104 S. Ct. 2518, 2523 (1984), this

summary of federal pre-emption principles is made:

“Federal law may pre-empt state law in any of

three ways. First, in enacting the federal law, Con-

gress may explicitly define the extent to which it

intends to pre-empt state law....Second, even in

the absence of express pre-emptive language, Con-

gress may indicate an intent to occupy an entire field

of regulation, in which case the States must leave all

regulatory activity in that area to the Federal Gov-

ernment .... Finally, if Congress has not displaced

state regulation entirely, it may nonetheless pre-

empt state law to the extent that the state law actu-

ally conflicts with federal law. Such a conflict arises

12a Appendix A.

Sharon Steel does not argue that the federal RCRA pre-

empts our WVHWMA.®

We decline to make any detailed discussion of the

federal pre-emption doctrine in this case because we find

that both the RCRA and our WVHWMA do not conflict

with and therefore do not pre-empt the City’s ordinance.

Both acts have similarly worded savings clauses, 42

U.S.C. 6972(f),7 and W. Va. Code, 20-5E-18(d), which

state that nothing in the acts shall restrict any right any

person may have under any statute or common law to

seek enforcement of any standard or requirement relat-

ing to hazardous wastes or to seek any other relief. Fur-

when compliance with both state and federal law is

impossible ...or when the state law ‘stands as an

obstacle to the accomplishment and execution of the

full purposes and objectives of Congress.’”

(Citations omitted).

6. Under 42 U.S.C. § 6926, states are permitted to

adopt a hazardous waste program which, when it meets

the federal standards, operates in lieu of the RCRA. In

Stablex Corp. v. Town of Hooksett, 122 N.H. 1091, 1096-

97, 456 A.2d 94, 97 (1982), the court recognized this fact

and quoted from House committee reports indicating

that the congressional intent was to permit a state to

take over the hazardous waste program:

“For example, a House committee report on the RCRA

states:

‘It is the Committee’s intention that the States

are to have primary enforcement authority and if at

anytime a State wishes to take over the hazardous

waste program it is permitted to do so, provided that

the State laws meet the Federal minimum require-

ments for both administering and enforcing the law.’

H.R. mee; No. 94-1491, 94th v% * 2d Sess. 24, reprinted

in 1976 U.S. Code Cong. & Ad. News 6238, 6262.’

7. 42 U.S.C. § 6972(f) provides:

“Nothing in this section shall restrict any right

which any person (or class of persons) may have

owes he ee ee

ee

Appendix A. 13a

thermore, W. Va. Code, 20-5E-18(h),® preserves the right

of any person to bring an action based on nuisance.

These provisions indicate that Congress and our

State legislature intended to preserve the rights of any

person to file an action relating to hazardous wastes

based on either statutory or common law grounds. The

United States Supreme Court, in interpreting similar

savings clauses in other federal environmental acts, has

held that such provisions do not preserve the right to

bring an action based upon federal common law, but has

indicated that actions based upon other statutes or state

common law would be preserved. See Middlesex County

Sewerage Auth. v. National Sea Clammers Ass’n, 453

U.S. 1, 20 n.31, 69 L. Ed. 2d 435, 451 n.31, 101 S. Ct. 2615,

2626-27 n.31 (1981); City of Milwaukee v. Illinois, 451

U.S. 304, 327-29, 68 L. Ed. 2d 114, 132-34, 101 S. Ct. 1784,

1797-99 (1981).

under any statute or common law to seek enforce-

ment of any standard or requirement relating to the

management of solid waste or hazardous waste, or to

seek any other relief (including relief against the

Administrator or a State agency).”

8. W. Va. Code, 20-5E-18(h), provides:

“Notwithstanding any provision of this article to

the contrary, any person may maintain an action to

enjoin a nuisance against any permit holder or other

person subject to the provisions of this article and

may seek damages in said action, all to the same

extent and for all intents and purposes as if this

article were not enacted if such person maintaining

such action and seeking such damages would other-

wise have standing to maintain such action and be

entitled to damages by any other rule of law.”

See also W. Va. Code, 20-5E-10 (Facilities in existence at

the time WVHWMaA became effective that would now be

required to have a permit shall operate “in such a man-

ner as will not cause or create a substantial risk of a

health hazard or a public nuisance or a significant ad-

verse effect upon the environment.”’).

l4a Appendix A.

We have found only a few cases addressing the issue

of whether an action based upon a state’s common law of

nuisance can be maintained without being pre-empted by

the RCRA. In Environmental Defense Fund, Inc. v.

Lamphier, 714 F.2d 331, 337 (4th Cir. 1983), where State

agencies and citizens sought to enjoin the continued op-

eration of an industrial waste disposal facility on a nui-

sance theory, the Fourth Circuit held:

“Under the citizen suit provision of RCRA, 42 U.S.C.

§ 6972, the district court is authorized to enforce

RCRA regulations or orders, presumably to the full

extent of its legal and equitable powers. 42 U.S.C.

§ 6972(a). Provided plaintiffs are genuinely acting as

private attorneys general rather than pursuing a pri-

vate remedy, nothing in RCRA...bars injunctive

relief. See 42 U.S.C. § 6928.” (Footnote omitted).°

The court also rejected the contention that the state’s

hazardous waste act had pre-empted an action based

upon the state’s common law of nuisance.

In Neal v. Darby, 282 S.C. 277, 318 S.E.2d 18 (S.C.

App. 1984), the challenged chemical company conceded

that neither the RCRA nor the state’s hazardous waste

management act pre-empted an action based on nuisance.

See also State v. Schenectady Chemicals, Inc., 103 A.D.2d

33, 479 N.Y.S.2d 1010 (1984) (State common law nuisance

action against chemical company responsible for dispos-

ing of chemical wastes held not pre-empted by federal

environmental legislation); State v. Monarch Chemicals,

Inc., 90 A.D.2d 907, 456 N.Y.S.2d 867 (1982) (State com-

mon law nuisance action to abate soil and water contami-

9. It should be noted that 42 U.S.C. § 6972(a) —

cally enables citizens to seek enforcement of the RCRA

after giving the government notice to first proceed to

correct the condition.

WAN Bh Se ee er ie 7

Se es

~ - AE eh OE Oe Et eal CS lee te re

ee el AO Al ee a ao

Appendix A. 15a

nation held not pre-empted by federal legislation, includ-

ing RCRA); cf. Krueger v. Mitchell, 112 Wis. 2d 88, 332

N.W.2d 733 (1983) (State common law nuisance action

against noise created by airport held preserved by sav-

ings clause in federal legislation).

The present situation is somewhat analogous to

Exxon Corp. v. Eagerton, 462 U.S. 176, 76 L. Ed. 2d 497,

103 S. Ct. 2296 (1983), where the United States Supreme

Court addressed the question of whether the Natural Gas

Pricing Act (NGPA) pre-empted an Alabama statute

which prohibited oil and gas producers from passing on

severance tax increases to their customers. The United

States Supreme Court ccncluded that the NGPA pre-

empted the pass-through provision on sales of gas in

interstate commerce. However, after analyzing the

NGPA and particularly Section 602(a), 15 U.S.C.

§ 3432(a), which allows states to set lower prices on

intrastate sales below that set by the NGPA for inter-

state sales, the Supreme Court concluded:

“We reach a different conclusion with respect to

the application of the pass-through prohibition to

sales of gas in intrastate commerce. Although

§ 105(a) of the NGPA extended federal authority to

control prices to the intrastate market, 15 U.S.C.

§ 3315(a) (1976 ed., Supp. V), Congress also provided

that this extension of federal authority did not de-

prive the States of the power to establish a price

ceiling for intrastate producer sales of gas at a level

lower than the federal ceilings.” 462 U.S. at 186, 76

L. Ed. 2d at 507, 103 S. Ct. at 2303. (Footnote omit-

ted).

See Pennzoil Co. v. Public Service Comm’n,

___., 327 S.E.2d 444 (1985).

W. Va.

16a Appendix A.

The lesson of Exxon is that a federal statute will not

be deemed to pre-empt a state or municipal enactment

where the federal statute clearly exempts the subject

matter of the state or municipal enactment from the

ambit of the federal act. Here, the provisions in 42 U.S.C.

§ 6972(f) of the RCRA and W. Va. Code, 20-5E-18(d), of

the WVHWMA preserve other statutory and State com-

mon law rights with regard to the management of haz-

ardous wastes.

We are not persuaded by Sharon Steel’s argument

that we should follow the holdings of Stablex Corp. v.

Town of Hooksett, 122 N.H. 1091, 456 A.2d 94 (1982), and

Rollins Environmental Services of Louisiana, Inc. v.

Iberville Parish Police Jury, 371 So.2d 1127 (La. 1979). In

Stablex, the challenged ordinance required approval of

the voters in the town before a hazardous waste facility

could be established therein. The court found the ordi-

nance to be pre-emptec oy the comprehensive statewide

regulation of hazardous wastes. The ordinance in Rollins

completely banned any hazardous waste facility within

the parish and was held to be void because of the exten-

sive federal and state regulation in the area of hazardous

wastes.

These two cases are inapplicable because neither

dealt with the authority of a municipality or parish to

abate public nuisances, which is the focus of the present

case. Furthermore, as the City points out, the Louisiana

legislature amended its Hazardous Waste Management

Act, La. Rev. Stat. Ann. § 30:1144(B}, to, in effect, reverse

the Rollins decision and allow parishes to pass

ordinances banning or zoning out hazardous waste facili-

ties. Here, the ordinance does not completely ban hazard-

ous waste disposal facilities, but is directed at those that

Appendix A. 17a

pose a substantial danger to human health or the envi-

roument.

We, therefore, conclude that because both the RCRA

and the WVHWMA have provisions preserving common

law actions, including nuisance actions, an ordinance

passed by a municipality declaring the permanent dis-

posal of hazardous wastes as therein defined to be a

public nuisance is not pre-empted by either the federal or

State acts.

IT.

Sharon Steel’s argument that the City lacks the

power to enact a hazardous waste ordinance rests upon

our familiar law regarding the limited powers of munici-

palities recently set out in Syllabus Point 1 of City of

Fairmont v. Investors Syndicate of America, Inc., ___—

W. Va. , 307 S.E.2d 467 (1983):

‘““*4 municipal corporation has only the powers

granted to it by the legislature, and any such power

it possesses must be expressly granted or necessarily

or fairly implied or essential and indispensable. If

any reasonable doubt exists as to whether a munici-

pal corporation has a power, the power must be de-

nied.’ Syllabus Point 2, State ex rel. Charleston v.

Hutchinson, 154 W. Va. 585, 176 S.E.2d 691 (1970).”

See also Syllabus Point 2, Hyre v. Brown, 102 W. Va. 505,

135 S.E. 656, 49 A.L.R. 1230 (1926).

We again stress that the ordinance is not a regula-

tory enactment, but is instead a penal ordinance de-

signed to codify the common law of nuisance. We agree

with the City’s assertion that a municipality has the

authority to declare the improper permanent disposal of

hazardous wastes a public nuisance under W. Va. Code,

8-12-5(23), which empowers municipalities “[t]o provide

18a Appendix A.

for the elimination of hazards to public health and

safety,’ where the term “hazardous waste”’ in the ordi-

nance is defined, in part, as material which poses a sub-

stantial present cr potential hazard to human health or

the environment.!° Additional powers which further sup-

port the City’s authority to pass the ordinance can be

found in the following subsections of W. Va. Code, 8-12-

15: (10) (authorizing regulation of garbage, trash, wastes,

and other similar matters); (13) (authorizing the preven-

tion of anything that is dangerous, offensive, or unwhole-

some to the public); and (44) (authorizing the protection

and promotion of public morals, safety, health, welfare,

and good order).

Admittedly, none of these subsections specifically

refer to hazardous wastes, but there is no question from

our cases that we have always considered these provi-

sions to be a sufficient grant of authority enabling mu-

nicipalities to abate public nuisances. In Parker v. City of

Fairmont, 72 W. Va. 688, 79 S.E. 660 (1913), we discussed

an earlier counterpart to W. Va. Code, 8-12-5(23), and

concluded in Syllabus Point 1:

“Under the provision of the charter of the city of

Fairmont, same as Code, ch. 47, sec. 28, that ‘the

council shall have power to abate or cause to be

abated anything which, in the opinion of a majority

of the whole council, shail be a nuisance,’ the council

may abate only that as a nuisance which is recog-

nized as such per se, or branded as such by lawful

statute or ordinance.”

10. W. Va. Code, 8-12-5(23), states that a municipal-

ity is empowered “[t]o provide for the elimination of

hazards to public health and safety and to abate or cause

to be abated anything which in the opinion of a majority

of the governing body is a public nuisance.”

na —

Appendix A. 19a

See also Syllabus Point 1, Donohoe v. Fredlock, 72 W. Va.

712, 79 S.E. 736 (1913); Wood v. City of Hinton, 47 W. Va.

645, 35 S.E. 824 (1900); Town of Davis v. Davis, 40 W. Va.

464, 21 S.E. 906 (1895).

It is generally recognized that even though a munici-

pality has the power to enact an ordinance declaring

some activity or thing to be a nuisance, such a declara-

tion does not mean that the municipality is relieved of its

burden to show that the activity or thing is in fact a

nuisance when it seeks to enforce its ordinance. See

Yates v. City of Milwaukee, T7 U.S. (10 Wall.) 497, 19 L.

Ed. 984 (1870); City of Russellville v. Vulcan Materials

Co., 382 So.2d 525 (Ala. 1980); City of Denver v. Mullen,

T Colo. 345, 3 P. 693 (1884); Jewel Tea Co. v. Town of Bel

Air, 172 Md. 536, 192 A. 417 (1937); Potashnick Truck

Service, Inc. v. City of Sikeston, 351 Mo. 505, 173 S.W.2d

96 (1943); Painter v. Town of Forest Acres, 231 S.C. 56, 97

S.E.2d 71 (1957); City of Houston v. Lurie, 148 Tex. 391,

224 S.W.2d 871, 14 A.L.R.2d 61 (1949); Eno v. City of

Burlington, 125 Vt. 8, 209 A.2d 499 (1965); 6 E.

McQuillin, The Law of Municipal Corporations § 24.83

(3d ed. 1980); 58 Am. Jur. 2d Nuisances § 172 (1971).

We have adopted a rather similar approach in the

cases we have decided under the antecedent of W. Va.

Code, 8-12-5(23). In Teass v. City of St. Albans, 38 W. Va.

1, 17 S.E. 400 (1893), we held that even though a munici-

pality declares in an ordinance that something is a public

nuisance, this does not give the municipality the author-

ity to abate the nuisance without first prosecuting the

matter in a court. In Parker, 72 W. Va. at 690-91, 79 S.E.

at 661-62, we acknowledged that a municipality has the

power to enact an ordinance declaring a matter a nui-

sance, but noted:

20a Appendix A.

“That provision can not rightly be construed to mean

that the council may determine that to be a nuisance

which is not such by the common law, by statute, or

by ordinance. It gives power to abate nuisances, not

to determine what shall be considered nuisances. It

plainly relates to nuisances per se, those primarily

branded as such by the law... . The charter provi-

sion grants a police power of abatement; not an arbi-

trary power of determining that something is a nui-

sance which by no law is known to be such. It is not

reasonable to presume that the Legislature meant to

grant such arbitrary power to the municipal authori-

ties. True, the opinion of the majority of the whole

council is called for by the provision. But that opin-

ion is to be applied in discerning that the thing com-

plained of comes within the category of nuisances

pronounced to be such by law. Clearly the power

granted is to abate what the law holds to be a nui-

sance, not to enact that any particular thing is a

nuisance.”

We have more recently held that whether some ac-

tivity or thing is a nuisance is generally a question of

fact, as stated in Syllabus Point 3 of Sticklen v. Kittle,

aa, a , 287 S.E.2d 148 (1981):

“As a general rule, a fair test as to whether a

particular use of real property constitutes a nuisance

is the reasonableness or unreasonableness of the use

of the property in relation to the particular locality

involved, and ordinarily such a test to determine the

existence of a nuisance raises a question of fact.”

See also Mahoney v. Walter, 157 W. Va. 882, 205 S.E.2d

692 (1974).

Therefore, we conclude that while the ordinance de-

clares the permanent disposal of hazardous wastes, as

Appendix A. 21a

therein defined, within the City of Fairmont to be a pub-

lic nuisance, the issue of whether a given site is a public

nuisance is a question of fact dependent upon the circum-

stances existing at such site. We, however, affirm the

power of the City to enact such an ordinance as we be-

lieve by its terms, under the definition of “hazardous

waste,”’ a common law nuisance is defined.

ITI.

The final argument presented is that the ordinance is

so arbitrary and unreasonable that it violates substantive

due process standards. The substantive due process stan-

dard that we apply to legislative enactments is summa-

rized in Syllabus Point 1 of State v. Wender, 149 W. Va.

413, 141 S.E.2d 359 (1965), overruled on other grounds,

Hartsock-Flesher Candy Co. v. Wheeling Wholesale Gro-

cery Co., ___. W. Va. , 328 S.E.2d 144 (1984):

“The legislature is vested with a wide discretion

in deterinining what the public interest requires, the

wisdom of which may not be inquired into by the

courts; however, to satisfy the requirements of due

process of law, legislative acts must bear a reason-

able relationship to a proper legislative purpose and

be neither arbitrary nor discriminatory.”

See also DeCoals, Inc. v. Board of Zoning Appeals, ___

W. Va. , 284 S.E.2d 856 (1981); Thorne v. Roush, —___

W. Va. , 261 S.E.2d 72 (1979); O’Neil v. City of Par-

kersburg, 160 W. Va. 694, 237 S.E.2d 504 (1977); State ex

rel. Harris v. Calendine, 160 W. Va. 172, 233 S.E.2d 318

(1977). We noted in Hartsock-Flesher Candy Co. that

substantive due process chalienges to legislative

enactments are not now generally favored.

22a Appendix A.

Fairmont’s City Council stated several reasons in the

preamble of its ordinance for addressing the issue of

hazardous waste disposal:

“The City Councii finds that permanent disposal

of hazardous wastes within the City is a nuisance in

that it may depreciate property values; have an ad-

verse impact on the City’s ability to attract new

business and industry and encourage expansion of

existing business and industry; create a continuing

serious anxiety and concern among city residents

and visitors concerning the existence of a permanent

hazardous waste disposal site within the city, all of

which are offensive and constitute injury and an-

noyance to the public and individuals.”

As previously noted, the City has the authority under its

police powers to protect the health and safety of its

citizens as well as to ensure the economic integrity of the

City. We find the City’s exercise of its authority to abate

public nuisances to be a responsible and reasonable ap-

proach to the problems potentially presented by perma-

nent hazardous waste facilities which are substantially

hazardous to the human health or the environment.

Sharon Steel argues that Section 2 of the ordinance

makes an arbitrary and discriminatory distinction be-

tween permanent hazardous waste disposal and tempo-

rary hazardous waste storage. Additionally, Sharon Steel

argues that the ordinance does not address the probiems

of hazardous waste transportation and generation within

the City. We are not presented with a sufficiently devel-

oped record to determine if the distinction between

permanent disposal and temporary storage of hazardous

wastes is indeed arbitrary and discriminatory. We doubt

whether this would raise a substantive due process issue

because an action based on the common law of public

Appendix A. 23a

nuisance could also be brought against a person tempo-

rarily storing hazardous wastes. W. Va. Code, 20-5E-

18(h). Consequently, we hold that the ordinance does not

violate substantive due process.

For the foregoing reasons, we conclude that Fair-

mont’s Ordinance No. 597 is valid and affirm the decision

of the Circuit Court of Marion County.

Affirmed.

24a Appendix B.

APPENDIX B

ORDER OF THE SUPREME COURT OF

APPEALS OF WEST VIRGINIA WITH

RESPECT TO PETITION FOR REHEARING

STATE OF WEST VIRGINIA

At a Regular Term of the Supreme Court of Appeals

continued and held at Charleston, Kanawha County on

the 3rd day of June, 1985, the following order was made

and entered, to-wit:

Sharon Steel Corporation, Plaintiff Below, Appellant

Vs.

City of Fairmont, West Virginia, Edwin C. Daley, City

Manager of Fairmont, West Virginia, and George R.

Higinbotham, City Attorney of Fairmont, West Virginia,

Defendants Below, Appellees

Upon an appeal from a judgment of the Circuit Court

of Marion County rendered on the i3th day of April,

1984.

The Court having maturely considered the transcript

of the record herein, and the argument and briefs of

counsel thereon, is of opinion for reasons stated in writ-

ing and filed with the record that there is no errcr in said

judgment. It is therefore considered and ordered by the

Court that the judgment of the Circuit Court of Marion

County rendered on the 13th day of April, 1984, be, and

the same is hereby, affirmed, and that the appellees do

recover of and from the appellant their costs about their

defense in this Court in this behalf expended, and Thirty

Dollars damages; all of which is ordered to be certified to

the Circuit Court of Marion County.

Appendix B. 25a

The syllabus of pcints adjudicated, prefixed to the

written opinion prepared by Jusiice Miller, was con-

curred in by Chief Justice Neely and Justices McGraw,

McHugh and Brotherton. A True Copy

Attest:/s/ GEORGE W. SINGLETON

Clerk Supreme Court of Appeals

26a Appendix C.

APPENDIX C

OPINION OF THE CIRCUIT COURT OF

MARION COUNTY, WEST VIRGINIA

February 22, 1984

Blair S. McMillan, Esq. Patrick C. McGinley, Esq.

Reed Smith Shaw & West Virginia University

McClay Law Center

747 Union Trust Building Morgantown, WV 26506

Pittsburgh, PA 15230

B. Hays Webb, Esq. George R. Higinbotham, Esq.

Alfred J. Lemley, Esq. Higinbotham & Higinbotham

P. O. Box 1189 P. O. Box 567

Fairmont, WV 26555-1189 Fairmont, WV 26554

Re: Sharon Steel Corporation v.

City of Fairmont, et al.

Civil Action No. 83-C-392

Gentlemen:

Regarding the motions pending in the above cap-

tioned civil action, I have reviewed the memoranda

submitted by both parties, as well as my notes of the

legal arguments advanced at the hearing on February

10, 1984.

It is my opinion that Fairmont City Ordinance 597

withstands the test of validity, and that the temporury

injunctive relief against its enforcement, granted by

the Supreme Court of Appeals of West Virginia,

should be dissolved.

Specifically, my findings and rulings are as follows:

(1) Both case law and the specific language of

the Federal Resource, Conservation, and Recovery

Appendix C. 27a

Act (“RCRA”), 42 U.S.C. §6901 et seq.,~ indicate

that the Fairmont ordinance and other similar

state and local laws are not meant to be pre-

empted by the federal legislation.

(2) Ordinance 597 is not designed to regulate

the disposal of hazardous waste. Rather, it was

adopted to deal with a nuisance, and is within the

purview of the plenary power granted municipali-

ties by West Virginia Code §8-12-5.

(3) West Virginia Code §20-5E-1, et seq.,

(“HWMA”) does not restrict the rights of munici-

palities to deal with what they deem to be

“nuisances.”

(4) Ordinance 597 is neither arbitrary nor un-

reasonable, under the circumstances; indeed, it

bears a real and substantial relation to the public

health, safety and general welfare.

I am somewhat troubled by the holdings in the

cases of Environmental Services v. Iberville, 371 So.2d

1127 (La. 1979) and Stablex Corp. v. Town of Hooksett,

122 N.H. 1091, 456 A.2d 94 (1982), which are state

court cases pretty much in point with the instant case.

They are, however, distinguishable. The Environmen-

tal Services case involved a “parish” (the equivalent of

our “‘county’”’) ordinance, and holds that the end result

might be similar actions by all parishes which would

severely stifle the affected industry throughout the

state. I believe the instant situation to be somewhat

unique within this State, and thus the effect of Ordi-

nance 597 will not be far-reaching. Further, I do not

believe the ultimate effect of Ordinance 597 would be

to frustrate West Virginia’s comprehensive statewide

regulatory scheme, as happened in the Stablex Corpo-

ration case.

28a Appendix C.

Finally, there can be no question but that the right

of a landowner to use his land as he sees fit is a right

which must be strenuously protected. However, what

plaintiff seeks to do with this land (and what is pro-

hibited by Ordinance 597) contravenes and, in my

opinion, threatens the public welfare. Surely in a state

as rural as West Virginia, a better site for disposal of

hazardous waste can be found than one which is

within the city limits, and virtually in the middle of,

this State’s seventh largest city (U.S. Census, 1980).

Counsel for the defendant is directed to prepare

an Order reflecting this ruling, attaching thereto a

copy of this letter opinion, and present same to op-

posing counsel for initialing and subsequent entry. The

Order should provide for a stay of thirty (30) days to

allow plaintiff an opportunity to appeal.

Very truly yours,

/s/_ FRED L. Fox, II

Fred L. Fox, II

FLF,IT:le

ce: Court file

Appendix D. 29a

APPENDIX D

ORDER OF THE CIRCUIT COURT OF

MARION COUNTY, WEST VIRGINIA

IN THE CIRCUIT COURT OF MARION COUNTY,

WEST VIRGINIA

DIVISION II

SHARON STEEL CORPORATION,

Plaintiff,

Ve

THE CITY OF FAIRMONT, WEST

VIRGINIA, EDWIN C. DALEY, CIVIL ACTION

City Manager of Fairmont, No. 83-C-392

West Virginia, and GEORGE R.

HIGINBOTHAM, City Attorney

of Fairmont, West Virginia,

Defendants.

ORDER

Came plaintiff, by counsel, and defendants, by coun-

sel, upon the parties’ cross-motions for summary judg-

ment as to the legal validity of City of Fairmont Ordi-

nance 597 and upon defendants’ motion to dissolve the

temporary injunction heretofore awarded plaintiff

against defendants on the 29th day of July, 1983. It ap-

pearing to the Court from the pleadings that there is no

genuine issue of fact concerning the cross-motions for

summary judgment as to the legal validity of Ordinance

597, and the parties having represented the same to the

Court; and after hearing the arguments of counsel, the

Court is of the opinion to and doth find the following

facts and make the following conclusions of law:

30a Appendix D.

1. Both case law and the specific language of the

federal Resource, Conservation, and Recovery Act,

42 U.S.C. §6901 et seq., indicate that the Fairmont

ordinance and other similar state and local laws are

not meant to be preempted by the federal legislation.

2. Ordinance 597 is not designed to regulate the

disposal of hazardous waste. Rather, it was adopted

to deal with a nuisance, and is within the purview of

the plenary power granted municipalities by West

Virginia Code §8-12-5.

3. West Virginia Code §2-5E-1 et seq., does not

restrict the rights of municipalities to deal with what

they deem to be “nuisances’”’.

4. Ordinance 597 is neither arbitrary nor unrea-

sonable, under the circumstances; indeed, it bears a

real and substantial relation to the public health,

safety and general welfare.

5. There is no just reason for delay in entering

judgment on the cross-motions as to the legal valid-

ity of Ordinance 597.

Accordingly, it is ORDERED that plaintiff’s motion

be and the same is hereby denied; that defendants’ mo-

tion for summary judgment on Count 4 of their Counter-

claim as to the legal validity of Ordinance 597 and mo-

tion to dissolve the temporary injunction be and the

same are hereby granted, and that judgment hereon be

entered, and the same is hereby entered, reserving unto

plaintiff its objections and exceptions, and further stay-

ing the execution of this judgment and the dissolution of

the injunction for a period of thirty (30) days from entry

of this order in which time plaintiff may appeal.

Appendix D. 3la

It is further ORDERED that the Court’s letter opin-

ion of February 22, 1984 be made a part hereof by refer-

ence.

ENTER:

eS £0 CA BSR OC OO OW AO 4 TS US © 6.818

32a Appendix E.

APPENDIX E

NOTICES OF APPEAL

IN THE SUPREME COURT OF APPEALS OF THE

STATE OF WEST VIRGINIA

SHARON STEEL CORPORATION,

Appellant,

v.

THE CITY OF FAIRMONT, WEST

VIRGINIA, EDWIN C. DALEY, No. 16349

City Manager of Fairmont,

West Virginia, and GEORGE R.

HIGINBOTHAM, City Attorney of

Fairmont, West Virginia,

Appellees.

NOTICE OF APPEAL TO THE SUPREME

COURT OF THE UNITED STATES

Notice is hereby given that Sharon Steel Corpora-

tion, the appellant above named, hereby appeals to the

Supreme Court of the United States from the final or-

der of the Supreme Court of Appeals of West Virginia

entered herein on June 3, 1985 (rehearing denied July

10, 1985).

~ This appeal

§ 1257(2).

Appendix E. 33a

is taken pursuant to 28 U-S.C.

/s/ ROBERT W. THOMSON

Hays WEBB

ALFRED J. LEMLEY

FURBEE, AMOS, WEBB & CRITCHFIELD

132 Adams Street, P.O. Box 1189

Fairmont, West Virginia 26555

(304) 363-8800

BLAIR S. MCMILLIN

ROBERT W. THOMSON

EDWARD A. BITTNER, JR.

DEBRA M. COULSON

REED SMITH SHAW & McC.ay

747 Two Mellon Bank Center

Pittsburgh, Pennsylvania 15219

(412) 288-3228

Counsel for Appellant

Sharon Steel Corporation

34a Appendix E.

IN THE CIRCUIT COURT OF MARION COUNTY,

WEST VIRGINIA

DIVISION II

SHARON STEEL CORPORATION,

Plaintiff,

A

THE CITY OF FAIRMONT, WEST

VIRGINIA, EDWIN C. DALEY, City CIVIL ACTION

Manager of Fairmont, West No. 83-C-392

Virginia, and GEORGE R.

HIGINBOTHAM, City Attorney of

Fairmont, West Virginia,

Defendants.

NOTICE OF APPEAL TO THE SUPREME

COURT OF THE UNITED STATES

Notice is hereby given that Sharon Steel Corpora-

tion, the plaintiff above named, hereby appeals to the

Supreme Court of the United States from the June 3,

1985 order of the Supreme Court of Appeals of West

Virginia (rehearing denied July 10, 1985) affirming the

order of the Circuit Court of Marion County, West Vir-

ginia, Division II, entered herein on April 13, 1984.

Appendix E. 35a

This appeal is taken pursuant to 28 U.S.C. § 1257(2).

/s/ ROBERT W. THOMSON

Hays WEBB

ALFRED J. LEMLEY

FURBEE, AMOS, WEBB & CRITCHFIELD

132 Adams Street, P.O. Box 1189

Fairmont, West Virginia 26555

(304) 363-8800

BLAIR S. MCMILLIN

ROBERT W. THOMSON

EDWARD A. BITTNER, JR.

DEBRA M. COULSON

REED SMITH SHAW & MCCLay

747 Two Mellon Bank Center

Pittsburgh, Pennsylvania 15219

(412) 288-3228

Counsel for Plaintiff

Sharon Steel Corporation

36a Appendix F.

APPENDIX F

LIST OF PARENTS, SUBSIDIARIES AND

AFFILIATES PURSUANT TO SUPREME COURT

RULE 28.1

Appellant Sharon Steel Corporation’s stock is 86%

owned by NVF Company.

Subsidiaries of Sharon Steel Corporation include

Carpentertown Coal & Coke Co., Macomber, Inc.,

Sharon Building & Land Corp., Sharonsteel Products

Co., Union Steel Corp., Summit Systems, Inc., Alaska

Gold Co., Arava Exploration Co., Kennet Company

Ltd., Mueller Brass Co., Itawamba Industrial Gas Co.,

Inc., Mueller Industrial Realty Co., Streamline Copper

& Brass Ltd., United States Fuel Co., King Coal Co.,

Ussram Exploration Co., U.S.S. Lead Refinery, Inc.,

United States Smelting Refining & Mining Co., Utah

Railway Co., Washington Mining Co. and White Knob

Mining Co.

Subsidiaries of NVF Company, in additicn to

Sharon Steel Corporation, include NVF Industries of

Canada, Ltd., NVF Europe, S.A., NVF Export Ltd.,

The Steel Corp. of Texas, APL Corp.

Affiliates of NVF Company include National Can

Corp., Burnup & Sims Inc., Howell Industries, City In-

vesting Co., Evans-Products Co., Johnson Controls,

Inc., Insurance and Risk Management, Inc.

Appendix G. 37a

APPENDIX G

FAIRMONT ORDINANCE NO. 597

ORDINANCE NO. 597

AN ORDINANCE PROHIBITING PERMANENT DISPOSAL OF

HAZARDOUS WASTE; PENALTIES; DECLARATION OF NUISANCE;

NOT APPLICABLE TO STORAGE OF WASTE PRODUCTS OF BUSI-

NESS OPERATIONS COMPLYING WITH STATE AND FEDERAL

STANDARDS.

WHEREAS, West Virginia Code 8-12-5 given [sic] ple-

nary power and authority for municipalities to control

and administer waterfronts and waterways; to prohibit

the accumulation and require the disposal of garbage,

refuse, waste, ashes, trash and other similar matters; to

prevent injury or annoyance to the public or individuals

from anything dangerous, offensive or unwholesome; to

project and promote the public morals, safety, health,

welfare and good order; to provide for the elimination of

hazards to public health and safety and to abate or cause

to be abated anything which in the opinion of a majority

of the governing body is a public nuisance; and

WHEREAS, the City Council finds that permanent

disposal of hazardous wastes within the City is a nui-

sance in that it may depreciate property values; have an

adverse impact on the City’s ability to attract new busi-

ness and industry and encourage expansion of existing

business and industry; create a continuing serious anxi-

ety and concern among city residents and visiters con-

cerning the existence of a permanent hazardous waste

disposal site within the city, all of which are offensive

and constitute injury and annoyance to the public and

individuals; and

38a Appendix G.

WHEREAS, the City Council finds that prohibition of

the permanent disposai of hazardous waste will protect

and promote the public morals, safety, health, welfare

and good order in the City;

NOW THEREFORE THE CITY OF FAIRMONT

HEREBY ORDAINS THAT:

SECTION 1. Definitions: “‘Permanent Disposal” or

“Permanently Dispose” means the discharge, deposit,

injection, dumping, spilling, leaking or placement of any

hazardous waste into, on, above, or beluw any land or

water which waste is to remain or which has remained at

a disposal site within the City for a continuous period of

five years and which is not intended to be removed from

such site.

“Hazardous Waste’”’ means a waste or combination of

wastes, which because of its quantity, concentration or

physical, chemical or infectious characteristics, may

cause, or significantly contribute to an increase in mor-

tality, or an increase in serious irreversible, or incapaci-

tating reversible illness, or pose a substantial present or

potential hazard to human health or the environment

when stored. Provided, however, that hazardous wastes

shall include only those whose disposal would require a

state or federal hazardous waste permit.

“Person” means any individual, trust, firm, joint

stock company, public or private or governmental corpo-

ration, partnership, association, state or federal agency.

“Storage” means the otherwise local containment of

hazardous wastes which wastes are not intended to be

permanently disposed of at any site within the City.

“Waste” means any garbage, refuse, sludge, and

other discarded material including solid, liquid, semi-

solid, or contained gaseous materia: resulting from in-

Appendix G. 39a

dustrial, commercial mining and agricultural operations,

but does not include solid or dissolved material in do-

mestic sewage.

SECTION 2. Prohibition: It shall be unlawful for any

person to permanently dispose or attempt to perma-

nently dispose of hazardous waste within the City. Pro-

vided, however, that storage of hazardous wastes by duly

licensed and taxpaying enterprises shall not be prohib-

ited.

SECTION 3. Nuisance: In the event any person shall

dispose or establish a site for the permanent disposal of

hazardous waste in violation of the provisions of this

Ordinance, the City Attorney is authorized, upon instruc-

tions from the City Manager, in addition to other penal-

ties set forth herein, to institute any appropriate civil

action or proceedings to prevent such disposal of hazard-

ous waste, the same being deemed a public nuis: nce.

SECTION 4. Penalties: Any peison who shall violate

a provision of this Gidinance or fail to comply with any

of the requirements hereof shall be guilty of a misde-

meanor, punishable by a fine of not more than Five Hun-

dred Dollars, or by imprisonment not exceeding thirty

days, or both fine and imprisonment. Each day that a

violation continues or has not been totally abated shall

be deemed a separate offense.