Petition for Writ of Certiorari — American Waste & Pollution Control Co. v. Ouachita Parish Police Jury

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92-1495 eee

FILED

No. | MAR 47 1993

OFFICE OF THE CLERK

In The

Supreme Court of the United States

"October Term, 1992

AMERICAN WASTE AND POLLUTION

CONTROL COMPANY,

Petitioner,

versus

OUACHITA PARISH POLICE JURY,

Respondent.

On Petition For A Writ Of Certiorari

To The Louisiana Court Of Appeal

For The Second Circuit

PETITION FOR WRIT OF CERTIORARI

GERALD L. WALTER, JR.

Counsel of Record

James C. Percy

ScHWAB & WALTER

10636 Linkwood Court

Baton Rouge, Louisiana 70810

Telephone: (504) 767-1460

BEN R. HANCHEY

Hupson, Potts & BERNSTEIN

P.O. Box 3008

Monroe, Louisiana 71210

Telephone: (318) 388-4400

Attorneys for Petitioner

COCKLE LAW BRIEF PRINTING CO, (800) 225-6964

OR CALL COLLECT (402) 342-2831

II.

ITT.

QUESTIONS PRESENTED FOR REVIEW

May a state court which is entertaining a breach of

contract claim based on multiple theories, including

an alleged violation of Section 9621(d)(3) of

CERCLA, render a decision based on that federal

theory alone, or does the breach of contract claim

based upon that theory constitute a “controversy

arising under CERCLA” which lies within the exclu-

Sive jurisdiction of the federal district courts pur-

suant to 42 USC §9613(b)?

Has the state court, in interpreting Section

9621(d)(3) of CERCLA failed to follow the intent of

Congress as clearly expressed in that provision?

Has the state court, in interpreting Section

9621(d)(3) of CERCLA failed te accord the proper

deference to the construction given that statute by

the Environmental Protection Agency, the agency

charged with the administration of that provision?

LIST OF ALL PARTIES

American Waste and Pollution Control

MUERTE ee Tere Te ts Petitioner

Waste Management of North

Po ee ree rs Parent Corporation of

Petitioner, American Waste and

Pollution Control Company

Waste Management, Inc........... Parent Corporation of

Petitioner’s Parent Corporation

Ouachita Parish Police Jury................. Respondent

* Petitioner has recently effected a Corporate name

change. Petitioner’s new corporate name is Waste Management

of Louisiana, Inc. However, to eliminate possible confusion

and promote consistency, petitioner will continue to use its

former name, American Waste and Pollution Control Company

for purposes of this litigation.

iii

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW ...........

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SUE TE OPTU ss ces sie seve ee seaes iat eres

Pere ee ee ee eee ee eee eee eee

CONSTITUTIONAL PROVISIONS AND STATUTES

a keh sacs br een esta es enya

Srmemmeerest Or THE CASE..............0eeeeeee

CC CLG hha ska KR sd ness chew easavensses

II. Facts and Procedural History........ aa

REASONS TO GRANT THE WRIT.................

I. This Court should grant the writ to determine

whether a state court entertaining a breach of

contract claim which is based upon multiple

theories, including an alleged violation of Sec-

tion 9621(d)(3) of CERCLA, may render a deci-

sion based upon that federal theory alone or

does the breach of contract claim based upon

that theory constitute a “controversy arising

under CERCLA” which lies within the exclu-

sive jurisdiction of federal district courts pur-

a) en nn

II. This Court should grant the writ to determine

whether the state court in interpreting 42 USC

§9621(d)(3) failed to follow the intent of Con-

gress as clearly expressed in the language of

that statute and moreover, whether the state

court failed to accord the proper deference to

the interpretation given that statute by the

agency charged with its administration, both

actions being in direct contravention to the

jurisprudence of this Court..................

TABLE OF CONTENTS - Continued

Page

A. In rendering its decision, the state court

has failed to give effect to the unam-

biguously expressed intent of Congress.

(That RCRA non-hazardous wastes result-

ing from the clean-up of a superfund site

may be disposed of in non-hazardous

"Gee: GP TCU Pokies exe esac nnne 21

B. In affirming the lower court’s interpreta-

tion of 42 USC §9621(d)(3) the state court

failed to accord proper deference to the

EPA’s construction of that provision ..... 27

LPP EE Wa nl giee os rar an Caen e eee ee ake 29

PAC as eae eee ae EUR ERAS REET ER EE

1. Ouachita Parish Police Jury v. American Waste

and Pollution Control Company, 606 So.2d 1341

CE Ge VI 5 ok os nace cc tscnceenvss A.1

2. Judgment and Order of Preliminary Injunction

of the Fourth Judicial District Court of the

Er Ser ee A.28

3. Reasons for Judgment of the Fourth Judicial

District Court of the State of Louisiana, grant-

ing preliminary injunction.................. A.31

4. Ruling and Order of the United States District

Court for the Western District of Louisiana,

remanding suit to the Fourth Judicial District

Court of the State of Louisiana............. A.41

5. Order of the Supreme Court of the State of

Louisiana, denying application for Writ of

Oe eg ee eee eer nce A.42

Oy SI soa cnc eekne ee onde ues esc eeea nes A.43

Testimony of Warren Zehner................ A.67

TABLE OF CONTENTS - Continued

Page

Oe, es os ca bce kueenseecusscy saan e en A.97

42 USC §9613(a), (b) and (h).............. A.111

42 UA. GeGCM a). .... 2.2.55. ET ee ee es A.113

Oe Cis PEED 6 65. os ws dees Meanie A.116

Ce Uae Se RE enna ve eee teceg sent nas A.117

Decision of the United States District Court

for the Northern District of Texas in the mat-

ter entitled, “United States of America v. City

of Ennis, Texas, et al.; City of Ennis, Texas, et

al. v. Allwaste Environmental Services of

Fa on eee ck Oe ee ee A.135

TABLE OF AUTHORITIES

Page

CAsEs:

B. F. Goodrich Co. v. Murtha, 958 F.2d 1192 (2nd Cir.

i) eee eer rr rt ey errr nee 24, 25

Chevron, U.S.A., Inc. v. Natural Resources Defense,

467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed. 2d 694

PWG 6.6 0:65 4000004 600 tae eRe eee eoees 20, 27, 29

Consumer Product Safety Commission v. GTE Syl-

vania, Inc., 447 U.S. 102, 100 S.Ct. 2051, 64 L.Ed.

OG FOR CUR 5 56558 65 nk 50 a5 ec dsA a eee se 21

Cox Broadcasting Corporation v. Cohn, 420 US. 469,

9S SAX. TGR, SS Le. BS Fae CTO IOes sve een civas 2

Eagle-Picher Industries v. United States E.P.A., 759

Fe Fe. GOOD «a cei a kad casas eee came bees 28

Franchise Tax Board v. Construction Laborers Vaca-

tion Trust, 463 U.S.1, 103 S.Ct. 2841, 77 L.Ed.2d

COD CIDUEE san 50-0s Pees Caen eee ee eke 17

Organization For a Better Austin v. Keefe, 402 U.S.

415, 91 S.Ct. 1575, 2D UL. Se t CSF EP... ns 2

U.S. v. Ron Pair Enterprises, Inc., 489 U.S. 235, 109

S.Ct. 1026, 103 L.Ed. 2d 290 (1969)................ 21

U.S. v. Alaska, __ US. __, 112 S.Ct. 1606, 118

me! er sh, Serre perenne er ee 27

vii

TABLE OF AUTHORITIES - Continued

Page

FEDERAL STATUTES:

42 USC §6941 -— §6948 (West 1983 and Supp. 1992) . 10, 22

42 USC §6944(a) (West 1983 and Supp. 1992)........ 29

42 USC §9601 et seq. (West 1983 and Supp. 1992).... 10

42 USC §9613(b) (West 1983 and Supp. 1992).... passim

go) | errr sr ere rer re re rere 28

42 USC §9621 (West 1983 and Supp. 1992)...... passim

OTHER AUTHORITIES:

H.R. Rep. No. 99-962, 99th Congress, 2nd Sess. 248

(1985), reprinted in 1986 U.S.C.A.N. 2835, 3341..... 25

Cong. Rec. - House at H 9582 (October 9, 1986) .... 18

Cong. Rec. - Senate at S 14929 (October 9, 1986).... 19

Corpus Juris Secundum, “Contracts”, §343 .........-. 7

In The

Supreme Court of the United States

October Term, 1992

AMERICAN WASTE AND POLLUTION

CONTROL COMPANY,

Petitioner,

versus

* OUACHITA PARISH POLICE JURY,

Respondent.

On Petition For A Writ Of Certiorari

Yo The Louisiana Court Of Appeal

For The Second Circuit

PETITION FOR WRIT OF CERTIORARI

DECISIONS BELOW

On December 11, 1992, the Supreme Court of the

State of Louisiana denied the Petition for Writ of Cer-

tiorari and/or Review to the Louisiana Court of Appeal,

Second Circuit. The decision is reproduced in the Appen-

dix at A.42. The opinion of the Louisiana Court of

Appeal, Second Circuit is reported as Ouachita Parish

Police Jury v. American Waste and Pollution Control Com-

pany, 606 So.2d 1341 (La. App. 2 Cir. 1992), and is repro-

duced in the Appendix at A.1.

The Ruling and Order of the United States District

Court, Western District of Louisiana, remanding the case

to the Fourth Judicial District Court of the State of Louisi-

ana, is reproduced in the Appendix at A.41.

The opinion of the Fourth Judicial District Court of

the State of Louisiana is reproduced in the Appendix at

A.31.

JURISDICTION

The Second Circuit Court of Appeal of the State of

Louisiana entered judgment on October 14, 1992. The

Louisiana Supreme Court denied petitioner’s request for

Writ of Certiorari and/or Review on December 11, 1992.

This court has jurisdiction to review the Court of

Appeal judgment under 28 USC §1257. This provision

requires that a state court judgment be “final” before it

may be reviewed by this Court. The state court judgment

from which this writ is sought is the State Court of

Appeal’s affirmance of the issuance of a preliminary

injunction. Judgments regarding preliminary injunctions

are generally interlocutory and therefore not “final judg-

ments”. However, in determining the breadth of its juris-

diction under 28 USC §1257, this court has concluded that

when the review of an interlocutory judgment is sought

and further state court proceedings may be had, such

judgment is nevertheless “final” for purposes of §1257

where the outcome of further proceedings is preordained

and, therefore, for all practical purposes, the state litiga-

tion is concluded. Cox Broadcasting Corporation v. Cohn,

420 U.S. 469, 479, 95 S.Ct. 1029, 1038, 43 L.Ed. 2d 328

(1975); see also, Organization For a Better Austin v. Keefe,

402 U.S. 415, 418, 91 S.Ct. 1575, 1577, 29 L.Ed. 2d 1 (1971).

Such is the posture of this state litigation.

Petitioner, American Waste and Pollution Control

Company (“American Waste”), entered into a contract

with respondent, the Ouachita Parish Police Jury (the

“Police Jury”), wherein petitioner agreed to accept for

disposal at petitioner’s landfill waste generated in

Ouachita Parish, Louisiana. This landfill facility is

licensed and permitted by the State of Louisiana to

receive non-hazardous solid waste as classified by the

Resource Conservation and Recovery Act (RCRA). Peti-

tioner also contracted to accept for disposal soil originat-

ing from a clean-up in West Dallas, Texas, initiated by the

Environmental Protection Agency (EPA) pursuant to the

Comprehensive Environmental Response, Compensation

and Liability Act (CERCLA). The soil was classified by

the EPA as non-hazardous waste pursuant to RCRA.

Respondent filed suit in state court to enjoin petitioner’s

acceptance of this waste, alleging that the disposal of such

waste would violate sections 2.01, 2.02, 2.04, and 2.14 of the

contract entered into between those parties. The resolution of

one of these claims, specifically the alleged violation of

Section 2.14 necessarily raises a substantial federal question.

Section 2.14 of the contract generally provides that petitioner

must comply with all federal laws in the performance of its

contractual obligations. The federal question raised is

whether 42 USC §9621(d)(3) of CERCLA prohibits the dis-

posal of waste originating from a CERCLA clean-up where

such waste is considered non-hazardous waste pursuant to

RCRA. The other alleged contractual violations raised purely

state law claims.

American Waste removed this action to federal court,

suggesting that the matter turned on a substantial ques-

tion of federal law (i.e., CERCLA) over which the federal

district court has exclusive original jurisdiction, and that

the two state law claims were clearly frivolous on their

face. The respondent moved for remand and argued that

the federal question need not be determined by the state

court and that the claim could be decided on either or

both of the state law theories. The federal court, without

written reasons, remanded the case to the state court.

After a hearing in which evidence was introduced,

the lower court rejected respondent's state law claims

and issued the preliminary injunction solely on the basis

of petitioner’s alleged violation of Section 2.14 (an inter-

pretation of CERCLA, the federal law).

Thus, as petitioner had suggested to the federal dis-

trict court on removal, the state law claims were deter-

mined to be meritless on their face, and the state court

resolved the claim solely on the federal issue. On appeal,

the Louisiana Second Circuit, whose decision petitioner

now requests this court review, affirmed the lower court’s

findings. Petitioner’s request for writ of certiorari from

the Louisiana Supreme Court was subsequently denied.

Because the preliminary injunction rests on no disputed

questions of fact that might be resolved differently upon

further hearing, the issuance of @ permanent injunction

will be little more than a formality. Further, as will be

discussed, the decision of the state court directly conflicts

with a decision of the federal district court for the North-

ern District of Texas in a matter involving this same non-

hazardous soil from the EPA clean-up in West Dallas,

Texas.

a. Resolution of petitioner’s alleged violation of

Section 2.14 involved only questions of law and

therefore, this claim will not be resolved differ-

ently at hearings for a permanent injunction.

The preliminary injunction was granted solely on

petitioner’s alleged violation of Section 2.14 of the con-

tract. Such a violation allegedly resulted from petitioner

having undertaken certain activity which respondent

asserted was prohibited by 42 USC §9621(d)(3) of

CERCLA. Petitioner admitted to undertaking the activity,

but asserted that such activity was not prohibited by 42

USC §9621(d)(3). Therefore, the question of whether peti-

tioner had violated Section 2.14 of the contract turned

solely on a question of law, i.e., the interpretation of 42

USC §9621(d)(3). Since this claim upon which the prelimi-

nary injunction solely rests, concerned only a question of

law, there exists no disputed questions of fact as to this

issue which might be resolved differently upon further

hearings. This has now become the law of this case.

b. Respondent's other claims are clearly frivolous

and therefore will not be resolved differently

upon hearing for permanent injunction.

Respondent’s claim for injunction based upon peti-

tioner’s alleged violation of Section 2.01, 2.02 and 2.04 of

the contract (the state law claims) is clearly frivolous.

First, respondent alleged that Section 2.01 prohibits

the taking of waste from outside Ouachita Parish and by

doing so,' petitioner has violated the contract. The con-

tract plainly states otherwise. Section 2.01 provides in

part, as follows:

“2.01 American Waste agrees, that subject to

the issuance to American Waste of all final and

non-appealable licenses and permits to design,

construct, and operate the sanitary landfill, it

will accept and landfill all garbage and bulky

waste, rubbish and other refuse delivered by the

Parish, residents of the Parish, and public or

private agencies domiciled in or operating in

Ouachita Parish at the landfill site. Once duly

licensed and permitted, American Waste will

maintain and operate the landfill site in compli-

ance with the conditions set forth in length in

the American Waste Application for a sanitary

landfill permit to the Louisiana Department of

Natural Resources.”

The only contractual obligations assumed by American

Waste are to accept waste from the Parish and to operate

the site in compliance with the permit application which

is made a part of the contract. Section 2.01 clearly

' It is not disputed that petitioner did accept waste from

outside Ouachita Parish.

contains no prohibition against accepting waste from out-

side Ouachita Parish. Further, the permit mentioned in

that section contains no such prohibition. The only lan-

guage referring to a service area is found at §6.4.3.A of

the permit application. That section reads:

“Even though the proposed site will have the

Capacity to serve as a multi-parish regional!

landfill, the initial service area is Ouachita Par-

ish.”

This section serves as no limitation on the territorial scope of

the landfill, but, rather, reflects the intention to serve areas

beyond Ouachita. Indeed, as Dr. James Brent of the Louisi-

ana Department of Environmental Quality (DEQ) testified at

trial, the section was later clarified and the permit modified

to state that there would be no limitation on the geographical

source of waste at the facility.2 The trial court ruled in favor

of petitioner on this issue.

Second, respondent alleged that petitioner has vio-

lated Section 2.02 of the contract and for this reason an

injunction is warranted. Section 2.02 provides that the

Parish of Ouachita shall be kept fully informed of all

permit modifications of petitioner. The Police Jury was

notified in May of 1988 of the permit modification

referred to above.? No dispute exists as to this issue.

Notice of the modification was not only sent to the Police

Jury, but notice was also published in the Monroe “News

Star” (the official journal of the Parish), and a copy of the

modification was available for public review at the public

library.* The trial court found that the permit had been

modified and ruled in favor of petitioner on this issue.

Finally, respondent alleged that American Waste

accepted “hazardous waste” in violation of Section 2.04 of

2 Transcript 312-314; Exhibit, American Waste #2-a-h.

3 Transcript 311; Exhibit, American Waste #2-a-h.

4 Transcript 313.

the contract, which respondent suggested prohibits the

acceptance of such waste. It was not even necessary for

the trial court to reach the issue of whether the material

accepted falls within the contract’s definition of hazard-

ous waste to resolve this claim.

Section 2.04 reads as follows:

“2.04 American Waste agrees, subject to the issu-

ance to it of all final and non-appealable licenses

and permits to design, construct and operate the

sanitary landfill, and as soon as practicable

thereafter, to accept for disposal all garbage and

bulky waste, rubbish and other refuse generated

by residents of Ouachita Parish, whether deliv-

ered by automobile, trailer, or truck, and all

material whatsoever, except hazardous waste, col-

lected by any refuse hauler within the Parish of

Ouachita. Individual residents of Ouachita Par-

ish shall be permitted to dispose of personal,

household waste without charge.” (Emphasis

added).

The section spells out an obligation to do - i.e., to

accept the items listed for disposal. Hazardous waste is

listed as an exception to the obligation.

As Corpus Juris Secundum explains:

“An ‘exception’, as the term is used with refer-

ence to contracts, is the taking of some part of

the subject matter of the contract out of

it, ... The ordinary office of an exception... is

to take out of the contract that which otherwise

would have been included in it...

Exceptions . . . are construed .. . as a limitation

on the language which precedes them, and are

presumed to relate to matters which are relevant

to the contract and which would be embraced

by its terms if not expressly excepted there-

from.”

Corpus Juris Secundum, “Contracts”, §343. Thus, when this

contract uses the phrase “except hazardous waste”, it is

merely taking that subject matter out of the general oblig-

ation to accept material for disposal.

When reading the language of the document that

precedes the exception, it is clear that it creates a general

obligation to accept material for disposal. The subject mat-

ter of the exception otherwise would be included in that

obligation to accept had it not been excluded. The excep-

tion then takes its limited subject matter (hazardous

waste) out of the agreement or obligation to accept. It

certainly does not create a new and additional agreement

or obligation not to accept.

To suggest that removing hazardous waste from the

obligation to accept creates a new and additional obliga-

tion not to accept strains contractual interpretation to the

breaking point and defies the generally prevailing mean-

ing of the terms. Simply stated, American Waste did not

agree to accept hazardous waste as defined. Thus, Ameri-

can Waste is not obligated to accept hazardous waste as

defined by the contract. But American Waste is not pro-

hibited from doing so, as long as the acceptance is other-

wise permitted by its permit.

More importantly, the language of this section clearly

limits its application to materials “cotlected by any refuse

hauler within Ouachita Parish.” Thus, even if the excep-

tion was to be construed as an obligation not to accept

hazardous waste, which suggestion is clearly erroneous,

it still would only apply to that waste collected within

Ouachita Parish and would not apply to the material and

activity enjoined in this suit. The trial court agreed with

petitioner’s reading of this provision of the contract and

ruled in favor of petitioner on this issue also.

From the foregoing, it is obvious that the state court’s

rulings on respondent’s claims will not change on the

hearing for a permanent injunction, as these claims are

clearly frivolous. Furthermore, the ruling as to the inter-

pretation of federal law will be the final ruling of this

case. It has been decided by the district court, the Court

EEE ew

of Appeal, and writs have been denied by the Louisiana

Supreme Court. The state court judgment is thus “final”

for purposes of review by this Court.

c. The decision of the state court conflicts with the

decision of a federal district court regarding the

same non-hazardous waste from the West

Dallas, Texas clean-up.

Finally, and most importantly, the decision of the

state court in this action is in direct conflict with the

decision of the United States District Court for the North-

ern District of Texas in the matter entitled, “United States

of America v. City of Ennis, Texas, et al.; City of Ennis,

Texas, et al. v. Allwaste Environmental Services of Texas,

Inc.” Appendix at A.135. In that case, the federal court in

Texas determined that the very same non-hazardous soil

from the EPA clean-up in West Dallas may be transported

to and disposed of in a non-hazardous Subtitle D facility

in Ellis County, Texas. The EPA on-scene coordinator

overseeing the West Dallas, Texas clean-up activity testi-

fied at trial in the instant matter that the petitioner was

the low bidder for disposal of the non-hazardous soil.

Therefore, the end result of this litigation is that the EPA

is prohibited from disposing of the soil at a Subtitle D

(non-hazardous) facility in Louisiana, but may dispose of

the soil in a Subtitle D (non-hazardous) facility in Texas at

a higher price. The conflict in the decisions by the Louisi-

ana state court and the federal district court in Texas has

only resulted in driving up the cost of disposal of this

non-hazardous soil in a non-hazardous facility.

This court has jurisdiction to resolve this conflict.

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

42 USC §6941 - §6948 (West 1983 and Supp i992)

42 USC §9613(b) (West 1983 and Supp 1992)

42 USC §9621 (West 1983 and Supp 1992)

STATEMENT OF THE CASE

I. INTRODUCTION

This application for a writ of certiorari is filed by

American Waste and Pollution Control Company (“Amer-

ican Waste” or “petitioner”) seeking review of a judgment

upholding a preliminary injunction issued in favor of the

Ouachita Parish Police Jury (“Police Jury” or “respon-

dent”). This injunction prohibits American Waste from

accepting non-hazardous soil for disposal at the Magnolia

Sanitary Landfill (“Magnolia”). This soil originated from

a clean-up initiated by the Environmental Protection

Agency (“EPA”) pursuant to the Comprehensive Environ-

mental Response, Compensation, and Liability Act

(“CERCLA”) 42 USC §9601 et seq.> The soil in question

was Classified by EPA as non-hazardous pursuant to the

Resource Conservation and Recovery Act (“RCRA”)® and

the Magnolia Landfill, a “Subtitle D” or non-hazardous

facility under RCRA was deemed by EPA and the Louisi-

ana Department of Environmental Quality (DEQ) as an

5 CERCLA, often referred to as the “Superfund” is a Con-

gressional mandate for the clean-up of certain “sites” which due

to various factors, including location, type of substance

involved, etc., potentially pose some threat to human health or

to the environment.

6 RCRA is a term used to refer to the Resource Conserva-

tion and Recovery Act of 1976 which act provides a “cradle to

grave” regulatory framework for the disposal of hazardous and

non-hazardous wastes.

appropriate facility, duly licensed and permitted, to

receive this soil for disposal.

II. FACTS AND PROCEDURAL HISTORY

American Waste and Ouachita Parish entered into a

contract? wherein American Waste agreed to accept for

disposal waste generated in Ouachita Parish at a landfill

to be known as the Magnolia facility, owned and operated

by American Waste in Ouachita Parish. This facility is

licensed and permitted to receive both municipal solid

waste and non-hazardous industrial waste. The facility is

classified as a RCRA “Subtitle D facility”.§

Subsequently, American Waste contracted to accept

for disposal the RCRA non-hazardous soil generated by

an EPA clean-up in a Dallas neighborhood. Both EPA and

the Louisiana Department of Environmental Quality

determined that this facility could lawfully receive this

waste. On February 12, 1992 the Police Jury filed this civil

action in the Fourth Judicial District Court for the Parish

of Ouachita, State of Louisiana, against American Waste

seeking to enjoin the receipt of the Dallas soil. The civil

action, as amended and supplemented, was premised

upon three alleged breach of contract claims, two of

which can be characterized as purely state law claims.

However, the third claim necessarily turned on a substan-

tial question of Federal law —- CERCLA.

As noted previously, since this latter argument

involved a substantial question of federal law regarding

7 A.A3

8 A RCRA Subtitle D facility is a facility which is licensed to

receive wastes which are non-hazardous according to the RCRA

definition of that term. It is uncontroverted that the soil at issue

in this matter is RCRA non-hazardous waste material. Subtitle C

facilities under the RCRA scheme are facilities authorized to

receive hazardous waste.

an alleged violation of CERCLA, American Waste

removed this action to federal court. On March 9, 1992,

the Police Jury filed a Motion to Remand the matter to

state court. In its memorandum in support of remand, the

respondent argued that since this petition included two

purely state law claims, the federal question involving

CERCLA need not necessarily be determined by the state

court in order for the plaintiff to prevail. Apparently

agreeing with the Police Jury’s argument, (since the fed-

eral court did not give written reasons for remand), the

federal court remanded the case to the state court.

A trial on the preliminary injunction was held April

8-10, 1992, and both parties presented substantial evi-

dence, including expert testimony. On April 21, 1992,

judgment was rendered by the trial court enjoining the

receipt of the soil. Relative to the two state law claims

based upon Sections 2.01 and 2.04 of the contract between

American Waste and the Police Jury, the trial court agreed

with the position of American Waste and ruled in favor of

the petitioner. In rejecting the Police Jury’s request for a

preliminary injunction on these two grounds, the trial

court held as to Section 2.01 that “American Waste was

not prohibited from modifying its permits to increase the

territorial scope of its landfill.”? This American Waste had

done with due notice provided to the Police Jury. Having

the requisite permits and licenses to receive waste from

other sources outside the Parish, the agreement between

American Waste and the Police Jury did not present any

territorial limitation and American Waste was free to

contract to receive waste from any source. With regard to

the Police Jury’s claim relative to Section 2.04 of the

contract, the trial court held that the contractual language

only provided that “American Waste was not obligated to

9 A.40

————————

accept this material from Ouachita Parish”! and that this

provision of the contract did not constitute a barrier to

the receipt of this material. Further, the trial court found

that no irreparable injury would occur by the acceptance

and placement of this soil in the Magnolia facility.

Although the trial court rejected both state law argu-

ments advanced by the Police Jury, the trial court granted

the injunction based upon the alleged violation of Section

2.14 of the agreement premised upon an alleged violation

of CERCLA by American Waste. The trial court deter-

mined that American Waste had violated 42 USC

§9621(d)(3) of CERCLA by accepting this soil and that

this violation of CERCLA constituted a violation of the

“shall comply with all laws” provision contained in Sec-

tion 2.14 of the contract. The court stated:

“The Court finds that American Waste is dispos-

ing of the removed hazardous substance in vio-

lation of CERCLA.”"!

Both American Waste and the Police Jury appealed to

the Louisiana Court of Appeals for the Second Circuit. In

its Specifications of Error, American Waste suggested to

the Appellate Court that:

I. The trial court erred in asserting subject

matter jurisdiction over the alleged

CERCLA violation; and

Il. The trial court erred in finding that

CERCLA was violated.

On appeal, the trial court’s ruling on each of the three

contractual claims was affirmed. While the Appellate

Court addressed American Waste’s first assignment of

error in its opinion, it sidestepped the issue raised by

American Waste. The court found:

“For jurisdictional purposes, however, we need

not determine whether the Police Jury’s 2.14

10 A.40

1 A.37

claim raises a substantial question of federal law

because the right to relief does not necessarily

depend on its resolution. Either of the other two

contractual claims, if resolved favorably to the

Police Jury, would be sufficient to provide it

with the relief sought. Neither of those claims

raises an issue of federal law. For this reason, we

find that federal jurisdiction does not lie in this

case, and the trial court was correct to assert

jurisdiction.” 12

Noting that the federal district court had remanded the

case to state court, the Appellate Court perceived no

error in the state district court’s decision to “assert”

jurisdiction over the purely federal issue. In deciding

American Waste’s second assignment of error, the Appel-

late Court concluded that the phrase “other applicable

Federal law” contained in §9621(d)(3) referred to other

comprehensive federal schemes and further that the

EPA’s construction of 42 USC §9621(d)(3) was apparently

unreasonable.

The Police Jury had appealed the rejection of its first

two claims by the trial court. The Appellate Court

deferred to the trial court’s finding on both of these

claims.19

American Waste raised a similar assignment of errors

in its application to the Louisiana Supreme Court (See

Application for Writ of Certiorari from the Court of

Appeal, Second Circuit, State of Louisiana; Assignment of

Errors). The Louisiana Supreme Court denied American |

Waste’s application on December 11, 1992. Because the

Second Circuit’s opinion regarding a res nova issue under

CERCLA has far-reaching implications, petitioner now

seeks review from this Court.

12 Ad

13, A.26-A.27

a eneennennenneell

REASONS TO GRANT THE WRIT

I. This Court should grant the writ to determine

whether a state court entertaining a breach of con-

tract claim which is based upon multiple theories,

including an alleged violation of Section 9621(d)(3)

of CERCLA, may render a decision based upon that

federal theory alone or does the breach of contract

claim based upon that theory constitute a “contro-

versy arising under CERCLA” which lies within the

exclusive jurisdiction of federal district courts pur-

suant to 42 USC §9613(b).

In the lower state court, the Police Jury alleged that

petitioner had breached the contract between the Police

Jury and petitioner, wherein petitioner agreed to accept

solid waste generated within the Police Jury's jurisdiction

(the parish) for disposal at petitioner’s facility, by violat-

ing three separate provisions of that contract, Sections

2.14, 2.01 and 2.04. The lower court determined that

petitioner had violated Section 9621(d)(3) of CERCLA,

thereby violating Section 2.14 of the contract which pro-

vided that petitioner was required to conduct operations

in compliance with all applicable federal law. The lower

court entered a preliminary injunction against petitioner

based solely upon that one ground, finding that the other

two contractual provisions had not been violated. (Unlike

Section 2.14 of the contract, these two provisions raised

no federal issues).

The Louisiana Second Circuit Court of Appeal

affirmed the lower court’s decision. Petitioner asserts,

however, that the state courts had no jurisdiction to ren-

der a decision on petitioner’s alleged violation of

CERCLA §9621(d)(3) (i.e., §2.14 of the contract) as this

dispute constituted a “controversy arising under

CERCLA,” and therefore was within the exclusive juris-

diction of federal district courts.

42 USC §9613(b), which vests exclusive jurisdiction in

federal courts, states in part that:

“Except as provided in Subsection (a) and (h) of

this section, the United States district courts

shall have exclusive original jurisdiction over all

controversies arising under this Act... ”

(emphasis added). This “Act” being CERCLA.'4

This general exclusive grant of jurisdiction found in sub-

section (b) is determinative of two issues. First, federal

courts have exclusive original subject matter jurisdiction

over all controversies arising under CERCLA. Second, state

courts are precluded from asserting jurisdiction over any

controversies which arise under CERCLA. The fact that

the Police Jury alleged two other theories which did not

‘4 The sole exceptions to the exclusive jurisdiction over

controversies arising under CERCLA are Subsections (a) which

deals solely with review of regulations promulgated under the

Act and is therefore inapplicable to this litigation, and (h) which

provides: “No Federal Court shall have jurisdiction under fed-

eral law other than under [diversity claims], or under state law

which is applicable or relevant and appropriate under Section

121... to review any challenges to removal or remedial actions

selected under Section 104.11, or to review any order issued

under Section 106(G) .. . “ [Then the statute gives five excep-

tions to the court’s lack of jurisdiction in the above situations].

As with Subsection (a), subsection (h) is also not applicable to

the present matter. The present matter does not involve diver-

sity, it is not a review of an order issued under Section 106(h)

(this is a contract), nor is the claim raised under state law to

review any challenges to removal or remedial actions of EPA. It

is vital to observe and note that it is EPA, not American Waste,

who formulates and implements CERCLA clean-up actions. A

challenge to such an action involves a controversy with EPA, not

American Waste! This action allegedly is one solely for an

alleged breach of contract. The only activity attributable to

American Waste is confined to an agreement to accept for dis-

posal soil which has been the subject of a removal action by the

EPA. To contest the clean-up action itself would require a suit

against the EPA because it is the EPA, not American Waste, who

has selected the clean-up action over which this matter arises.

involve federal issues as a support of its claim that peti-

tioner breached the contract, does not prevent the dispute

concerning the violation of Section 2.14 of the contract

from being a controversy which arises under CERCLA.

The fact that petitioner sought the removal of this case to

federal court and that the federal district court remanded

the case in no way detracts from this assertion.

Although state law provides the cause of action, (i.e.,

breach of contract), the controversy [violation of

§9621(d)(3)] still arises under CERCLA. It is well settled

that a “civil action” arises under Federal Law where

either: 1) federal law creates the cause of action; or 2)

plaintiff’s right to relief necessarily depends on resolu-

tion of a substantial question of federal law. Franchise Tax

Board v. Construction Laborers Vacation Trust, 463 U.S.1, 103

S.Ct. 2841, 77 L.Ed.2d 420 (1983). Clearly, the injunctive

relief sought by the Police Jury necessarily depends upon

the resolution of a substantial question of Federal law.

Section 2.14 of the contract provides that, “American

Waste shall conduct operations under this contract in

compliance with all applicable Federal and State law.”

The Police Jury requested a preliminary injunction con-

tending that American Waste breached this obligation by

violating §9621(d)(3) of CERCLA. §9621(d)(3) provides in

part:

“(d) degree of cleanup... (3) In the case of any

removal or remedial action involving the trans-

fer of any hazardous substance or pollutant or

contaminant offsite, such hazardous sub-

stance .. . shall only be transferred to a facility

which is operating in compliance with Section

3004 and 3005 of the Solid Waste Disposal Act

[42 U.S.C. §6924 and §6925], (or, where applica-

ble, in compliance with the Toxic Substances

Control Act [15 U.S.C. §2601 et seq.] or other

applicable Federal Law) and all applicable state

requirements. (emphasis added)

As is discussed more fully in the second assignment of

error, American Waste may or may not have violated this

section of CERCLA, depending upon the meaning of the

phrase “other applicable Federal Law”.

Because injunctive relief for a breach of Section 2.14

of the contract necessarily depends upon the construction

of §9621(d)(3) of CERCLA, the “controversy” arises under

CERCLA for purposes of 42 USC §9613(b) and the exclu-

sive forum for such a controversy is Federal District

Court.

Further, Congress intended that state causes of action

involving CERCLA be exclusively subject to federal court

jurisdiction. The exclusivity of the federal courts’ juris-

diction was discussed during both the House of Repre-

sentatives and Senate committee discussions concerning

CERCLA §9613(b). Explaining the jurisdictional question

to the House Committee, Representative Glickman from

Kansas stated:

“Therefore, any controversy over a response

action selected by the President, whether it

arises under Federal law or State law, may be

heard only in Federal court, and only under

circumstances provided in this section.” (Con-

gressional Record — House at H 9582 October 9,

1986). (emphasis added).

Similarly in the Senate, in a dialogue between Senators

Thurmond and Simpson, Senator Thurmond explains the

jurisdictional mandate of Section 9613(b):

“Similarly, the reference to ‘Federal court’ is

simply to recognize existing section 113(b) of

CERCLA, which provides that except for review

of regulations, Federal district courts have

exclusive jurisdiction over all controversies

under CERCLA. Therefore, any controversy

Over a response action selected by the President,

whether it arises under Federal law or State law,

may be heard only in Federal court, and only

ooo

under the circumstances provided in this sec-

tion.” (Congressional Record-Senate at S 14929

October 9, 1986). (emphasis added).

These discussions conclusively declare the Congres-

sional intent behind the jurisdictional provisions of

CERCLA. Due to the comprehensive nature of the statute

and its relative importance to environmental issues, Con-

gress decided upon a forum for any controversy arising

under that act, and that forum is exclusively the federal

district court. Therefore, by granting to federal courts

exclusive jurisdiction, Congress has selected a method to

avoid contradictory interpretations concerning CERCLA

by the various State Courts.

Because the dispute concerning petitioner’s alleged

breach of Section 2.14 of the contract constitutes a contro-

versy arising under CERCLA, and as such is subject to

the exclusive jurisdiction of federal district court, the

state court erred in asserting jurisdiction over and decid-

ing that issue.

The federal district court may have properly

remanded this matter to the state court. The “claim” of

the Police Jury, although raising a federal issue, could

conceivably have been decided on the two purely state

law theories (although both were ultimately determined

to be meritless). Thus, as the federal district court found

that it did not have jurisdiction over the matter as a

whole, it could not dismiss the purely federal claim

before remanding the matter to the state court. But this

certainly does not constitute a determination that the

state court has jurisdiction over the purely federal issue.

II. This Court should grant the writ to determine

whether the state court in interpreting 42 USC

§9621(d)(3) failed to follow the intent of Congress

as clearly expressed in the language of that statute,

and moreover, whether the state court failed to

accord the proper deference to the interpretation

given that statute by the agency charged with its

administration, both actions being in direct contra-

vention to the jurisprudence of this Court.

Where Congress has directly spoken to the precise

question at issue and the intent of Congress is clear, the

Court must give effect to such unambiguously expressed

intent of Congress. Chevron, U.S.A., Inc. v. Natural

Resources Defense, 467 U.S. 837, 842, 843, 104 S.Ct. 2778,

2781, 81 L.Ed. 2d 694 (1984). Congress has, in 42 USC

§9621(d)(3) directly addressed the issue of whether RCRA

non-hazardous wastes which originate from a superfund

clean-up may be disposed of in “Subtitle D facilities” and

Congress clearly intended to allow such disposal.

Because the state court failed to follow the clearly

expressed intent of Congress in affirming the injunction

against petitioner, its interpretation of 42 USC §9621(d)(3)

is erroneous.

Further, where a court finds that Congress has not

clearly expressed its intent on the precise issue in ques-

tion, the court should defer to the reasonable/permissible

interpretation given that statute by the agency charged

with its administration. (Id. at 2782 and 2783). Therefore,

even if the state court determines that 42 USC §9621(d)(3)

is ambiguous or silent concerning the precise issue at

question, (whether non-hazardous waste from a super-

fund clean-up must go to a “Subtitle C facility”), the

court is required to defer to the reasonable interpretation

given that statute by the EPA, which is the federal agency

charged with that statute’s administration. The EPA has

reasonably construed §9621(d)(3) as allowing the disposal

of RCRA non-hazardous wastes resulting from the clean-

——————

up of superfund sites in non-hazardous “Subtitle D facili-

ties.” The Louisiana State Court, in direct contravention

to the jurisprudence of this Court, refused to defer to the

EPA’s reasonable construction of §9621(d)(3) in rendering

its decision, and therefore erred in affirming the lower

court’s grant of the preliminary injunction.

A. In rendering its decision, the state court has

failed to give effect to the unambiguously

expressed intent of Congress. (That RCRA non-

hazardous wastes resulting from the clean-up

of a superfund site may be disposed of in non-

hazardous “Subtitle D facilities.”)

In viewing the plain language of 42 USC §9621(d)(3)

in light of the rules of statutory construction and the

legislative history surrounding that provision, it is clear

that Congress intended to allow the disposal in “Subtitle

D facilities” of RCRA non-hazardous wastes resulting

from the clean-up of superfund sites.

The plain meaning of statutory language should be

conclusive, except in the rare case in which the literal

application of a statute would produce a result demon-

strably at odds with the intention of its drafters. U.S. v.

Ron Pair Enterprises, Inc., 489 U.S. 235, 252, 109 S.Ct. 1026,

1031, 103 L.Ed. 2d 290 (1989). (See also: Consumer Product

Safety Commission v. GTE Sylvania, 447 U.S. 102, 108, 100

S.Ct. 2051, 2056, 64 L.Ed. 2d 766 (1980)). Under a literal

interpretation of the language used in 49 USC

§9621(d)(3), hazardous substances from a superfund site

may be disposed of in RCRA Subtitle D facilities if the

wastes containing such substances constitute non-hazard-

ous wastes pursuant to RCRA.

42 USC §9621(d)(3) provides that:

“In the case of any removal or remedial! action

involving the transfer of any hazardous sub-

stance or pollutant or contaminant offsite, such

hazardous substance or pollutant or contami-

nant shall only be transferred to a facility which

is operating in compliance with section 3004 and

3005 of the Solid Waste Disposal Act [42

U.S.C.A. §6924 and 6925] (or where applicable,

in compliance with Toxic Substances Control

Act [15 U.S.C.A. §2601 et seq.] or other applica-

ble Federal law) and all applicabie State require-

ments. Such substance or pollutant or

contaminant may be transferred to a land dis-

posal facility only if the President determines

that both of the following requirements are met:

(A) The unit to which the hazardous sub-

stance or pollutant or contaminant is trans-

ferred is not releasing any hazardous waste,

or constituent thereof, into the groundwater

or surface water or soil.

(B) All such releases from other units at

the facility are being controlled by a correc-

tive action program approved by the

Administrator under subtitle C of the Solid

Waste Disposal Act [42 U.S.C.A. §6921 et

seq.}.

The President shall notify the owner or operator

of such facility of determinations under this

paragraph.”

Clearly, this provision provides that waste from a

CERCLA clean-up may be transferred to a facility which

complies with sections 3004 and 3005 of the Solid Waste

Disposal Act or to facilities in compliance with the Toxic

Substances Control Act or facilities in compliance with

other applicable federal law. Because Subtitle D of RCRA (42

USC §6941 through §6948) which sets out the require-

ments for the operation of RCRA non-hazardous solid

waste landfills, does authorize the disposal of CERCLA

azardous substances in Subtitle D facilities, disposal of

CERCLA (also referred to herein as “superfund”) hazard-

ous substances at such facilities is permissible under the

plain language of §9621(d)(3).

——————————

RCRA is a comprehensive federal statute designed

for the management of wastes from the point of generator

to the point of disposal. The act distinguishes between

what (under its criteria) constitutes a hazardous waste

and what constitutes a solid (non-hazardous) waste.

RCRA provides that waste qualifying as non-hazardous

may be disposed of in Subtitle D facilities such as the

Magnolia Solid Waste Facility selected by EPA as the

disposal site for this material.

A material may constitute a hazardous substance

under CERCLA while qualifying as a non-hazardous

waste under RCRA. CERCLA is a congressional mandate

for the clean-up of certain “sites” which due to various

factors, including location, type of substance involved,

etc., pose some threat to human health or to the environ-

ment. These “sites” and the type of material which is the

subject of the CERCLA clean-up of these sites may be both

RCRA hazardous and RCRA non-hazardous waste, for

even non-hazardous waste under the RCRA definition

may contain some concentrations of hazardous sub-

stances by CERCLA standards. In other words, the RCRA

standards relative to disposal (which provide a distinc-

tion between non-hazardous and hazardous waste) have

nothing to do with the determination that a particular

substance should be subject to a CERCLA clean-up. There

are different considerations embodied in each Act. In the

present situation, for example, the soil from Texas des-

tined for the Magnolia facility contains very low levels of

lead. Due to its location and potential for human exposure

in some West Dallas, Texas neighborhoods, this solid

waste was determined to pose a potential threat to

human health and, thus, subject to a CERCLA removal

action.'> This same soil, however, is a RCRA non-hazard-

ous waste as defined in the RCRA statute. This soil may,

1S Transcript 17-18.

therefore, be disposed of according to its RCRA non-

hazardous classification in a permitted, secure disposal

facility where no human exposure will occur. It is RCRA

which provides the “cradle to grave” law concerning the

disposal of substances, not CERCLA. Therefore, the deter-

mination that a substance is a hazardous substance inso-

far as CERCLA (removal) is concerned has nothing to do

with the RCRA classification insofar as disposal is con-

cerned.

The United States Court of Appeals, Second Circuit,

reached such a conclusion in B.F. Goodrich Co. v. Murtha,

958 F.2d 1192 (2nd Cir. 1992). In that case, local munici-

palities which had arranged for the disposal of municipal

solid waste (non-hazardous waste under RCRA) at Subti-

tle D facilities asserted that such waste was not included

within CERCLA’s definition of hazardous substances and

therefore the municipalities could not be held liable

under CERCLA. The court, in firmly rejecting this asser-

tion, concluded that such waste, even though properly

classified under RCRA as non-hazardous, was not exempt

from the definition of hazardous substances under

CERCLA. The court noted that, “Congress and the EPA

have carefully distinguished between wastes, to which the

Resource and Recovery Act applies, and substances, to

which CERCLA applies” and, further, “[nJor does includ-

ing wastes that are not subject to the stringent Subpart C

regulations under the Resource and Recovery Act within

the definition of hazardous substances under CERCLA

create a conflict of interest between the two statutes.” Id.

at 1202. It is clear from the court’s decision in B.F. Good-

rich, supra, that the designation of a constituent of waste

as a hazardous substance under CERCLA does not pre-

clude the disposal of such waste in a RCRA Subtitle D

facility.

Finally, the results of this interpretation of

§9621(d)(3) are not demonstrably at odds with the inten-

tion of the drafters. Congress intended that the clean-up

———

of one superfund site would not result in another.'© How-

ever, disposal of RCRA non-hazardous material resulting

from a CERCLA clean-up at a Subtitle D facility selected

by EPA as meeting all the criteria for safe disposal would

not increase the chances of this occurring. This was recog-

nized by the federal court in B.F. Goodrich Co. v. Murtha,

958 F.2d 1192, 1202-1203 (2nd Cir. 1992) which noted that:

“Even total compliance with Subpart C regula-

tions will not prevent releases or avoid CERCLA

liability. Similarly, the increased likelihood of a

release occurring pursuant to Subpart D regula-

tions does not necessarily suggest a propor-

tional increased likelihood that a response will

be warranted under CERCLA, because of the

small concentrations of hazardous substances found

in wastes regulated under that Subpart.” (emphasis

added).

Therefore, the literal interpretation of §9621(d)(3) of

CERCLA would not be at odds with the intention of the

drafters.

Since Subtitle D of RCRA is a federal law which

provides for the disposal of CERCLA hazardous sub-

stances (which may also constitute RCRA non-hazardous

‘© This may be gleaned from a portion of a conference

committee report which states, “The response and remedial

actions taken by EPA under this program must be designed and

carefully monitored to ensure that the proposed solutions to

today’s problems do not create new, perhaps more serious prob-

lems tomorrow. This is an especially important responsibility

when the waste material is removed to a land disposal facility

that, if improperly operated in violation of RCRA requirements,

could contaminate groundwater or surface water and thereby

present threats to human health and the environment.” H. R.

Rep. No. 99-962, 99th Congress, 2nd Sess. 248 (1985) reprinted in

1986 U.S.C.C.A.N. 2835, 3341.

waste) in Subtitle D facilities, under a literal interpreta-

tion of 42 USC §9621(d)(3), CERCLA hazardous sub-

stances may be disposed of in Subtitle D facilities.

Under another basic maxim of statutory construction,

laws upon the same subject matter should be construed in

reference to one another and construed so that possible

conflicts between them are avoided. (Jn Pari Materia). As

noted above, both §9621(d)(3) and RCRA may apply to

the same “material”, RCRA regulating its disposal and

§9621(d)(3) regulating its removal from a superfund site.

To construe §9621(d)(3) as somehow mandating that land

disposal of RCRA non-hazardous waste from a superfund

clean-up must take place in a “Subtitle C facility” would

bring that provision into direct conflict with RCRA,

which would allow that same material, if not from a

superfund clean-up and not a RCRA hazardous waste, to

be disposed of in a “Subtitle D facility.” There is no

rationale which could support such a result. To avoid this

unnecessary conflict, the phrase “other applicable Federal

law” contained in §9621(d)(3) must be construed as

including other applicable provisions of RCRA in addi-

tion to Subtitle C.

Furthermore, to construe §9621(d)(3) as prohibiting

the disposal of RCRA non-hazardous wastes in Subtitle D

facilities when such waste originates from a superfund

clean-up would lead to unreasonable consequences. For

example, RCRA (which governs the disposal of solid and

hazardous waste) provides a testing procedure to deter-

mine which substances are to be received by a particular

class of disposal facility. Industrial waste generators,

needing disposal facilities for various wastes, test their

substances to determine to which class of facility their

particular wastes can lawfully be transferred for disposal,

i.e., to Subtitle C facilities if the waste is hazardous, or

Subtitle D facilities if the waste is non-hazardous. But

here, where both the EPA and the LDEQ state unequivo-

cally that the waste is RCRA non-hazardous waste, the

————eaEEeEEeEeEeEeEeEeEeEeEeEeEeEeEeE>=—==—E>EEOEOEOee

trial court found that the EPA may only dispose of this

non-hazardous material at a Subtitle C facility because it

resulted from a CERCLA clean-up and removal action.

Industry, municipalities, and the public are not so

restricted and are allowed to dispose of their waste

according to the waste’s RCRA classification. But, under

the trial court’s interpretation, the EPA when responding

under CERCLA is so restricted. Logically this cannot be

the intent of Congress in promulgating §9621(d)(3).

From the foregoing, it is clear that Congress directly

addressed the issue of whether RCRA non-hazardous

waste resulting from a superfund clean-up may be dis-

posed of in a Subtitle D facility such as Magnolia. Con-

gress clearly intended to allow such disposal under 42

USC §9621(d)(3). By affirming the lower court’s decision

that 42 USC §9621(d)(3) prohibits such disposal, the Loui-

siana Second Circuit Court of Appeal failed to follow the

clear intent of Congress and was in error for doing so.

B. In affirming the lower court’s interpretation of

42 USC §9621(d)(3) the state court failed to

accord proper deference to the EPA’s construc-

tion of that provision.

Where a statute is ambiguous concerning a specific

issue, courts must defer to the reasonable interpretation

given that statute by an agency charged with its adminis-

tration. Chevron, U.S.A., Inc. v. Natural Resources Defense,

467 U.S. 837, 843, 104 S.Ct. 2778, 2781-2782 (1984); see

also: U.S. v. Alaska, __ U.S. __, 112 S.Ct. 1606, 1610, 118

L.Ed.2d 222 (1992). The EPA has construed 42 USC

§9621(d)(3) as allowing the disposal of RCRA nen-haz-

ardous wastes from superfund sites in Subtitle D facili-

ties. Therefore, while petitioner strongly asserts that

Congress, through 42 USC §9621(d)(3) has clearly

expressed its intention to permit the disposal of RCRA

non-hazardous wastes from superfund sites in Subtitle D

facilities, even if §9621(d)(3) were ambiguous on that

issue, the state court would be bound to follow EPA’s

reasonable interpretation of that provision.

If indeed §9621(d)(3) is determined to be ambiguous

on this issue, then the state court’s refusal to defer to the

interpretation given that statute by the EPA is in conflict

with previous decisions of this Court.

The EPA is the agency charged with the administra-

tion of CERCLA including §9621(d)(3). CERCLA §9621

vests the President with the authority to select and exe-

cute an appropriate remedial action plan for the clean-up

of a superfund site. However, 42 USC §9615 authorizes

the President to delegate such authority to others. Pur-

suant to this provision, the President has delegated and

assigned his duties and power under CERCLA §9621 to

the Administrator of the EPA.!7

The EPA has interpreted §9621(d)(3) as allowing

waste from a superfund clean-up to be disposed of in

“Subtitle D facilities” such as Magnolia, as long as such

waste is classified as “non-hazardous waste” under

RCRA.18

The EPA’s construction of §9621(d)(3) constitutes a

permissible construction of that statute. EPA’s interpreta-

tion conforms to the literal meaning of the language used

by Congress in drafting §9621(d)(3) and is therefore per-

missible under the rules of statutory construction.

17 Ex. or No. 12580 of Jan. 23, 1987, 52 Fed. Reg. 2923

Section 2.(g); see also: Eagle-Picher Industries v. United States

E.P.A., 759 F.2d 905, 920 (1985) where the court stated, “... we

see that the EPA has been entrusted with the administration of

CERCLA.”

18 EPA’s long-standing interpretation of CERCLA

§9621(d)(3) is reflected in its “off-site policy”, OSWER Directive

9355.4-02 (November 13, 1987); see also: Testimony of Mr. War-

ren Zehner, on scene coordinator of EPA, concerning this

“off-site policy.” (A.76, A.94)

a ——E——————————————

Further, the EPA, in construing §9621(d)(3), has made

a reasonable policy choice within the framework of

CERCLA. In selecting a remedial action, the EPA must

choose one that is protective of human health and the

environment, and that is cost effective.!9

By allowing RCRA non-hazardous wastes from a

superfund site clean-up to be disposed of in “Subtitle D

facilities,” the EPA is acting in a manner that is protective

of both human health and the environment, for, after all,

Congress has mandated that sanitary landfills (“Subtitle

D facilities”) pose no reasonable probability of adverse

effects on health or the environment when solid wastes

(RCRA non-hazardous wastes) are disposed of at such

facilities.2° Further, since the disposal of such materials in

Subtitle D facilities is less costly than their disposal in

Subtitle C facilities, the EPA’s interpretation of

§9621(d)(3) complies with Congress’ concern over the

cost effectiveness of remedial action programs.

Even if §9621(d)(3) is ambiguous on the issue of

whether RCRA non-hazardous wastes from a superfund

clean-up could be disposed of in “Subtitle D facilities,”

the state court should have deferred to the EPA’s reason-

able interpretation of that statute. In failing to do so, the

state court clearly disregarded the law as set forth by this

court in Chevron, U.S.A., Inc. v. Natural Resources Defense,

supra.

CONCLUSION

Congress has vested federal courts with Original

exclusive jurisdiction over controversies arising under

CERCLA. Yet, the Louisiana state courts have taken cog-

nizance of such a controversy and in the process have

rendered a construction of §9621(d)(3) of CERCLA which

19 42 USC §9621(b)(1).

20 42 USC §6944(a).

is not only at odds with the clearly expressed intent of

Congress, but also with the construction given that stat-

ute by the EPA. This has led to the hampering of a

CERCLA clean-up initiated by the EPA under CERCLA.

We urge that this Honorable Court act now in order to lift

this unlawful injunction.

Respectfully submitted,

GerRALD L. Water, JR.

Counsel of Record

James C. Percy

Scuwas & WALTER

10636 Linkwood Court

Baton Rouge, Louisiana 70810

Phone: (504) 767-1460

Ben R. HANCHEY

Hupson, Potts, & BERNSTEIN

P. O. Box 3008

Monroe, LA 71210

Phone: (318) 322-4194

A.1

OUACHITA PARISH POLICE JURY,

Plaintiff-Appellee,

Vv.

AMERICAN WASTE AND POLLUTION CONTROL

COMPANY, Defendant-Appellant.

No. 24,415-CA.

Court of Appeal of Louisiana,

Second Circuit.

Oct. 14, 1992.

C. Lynn Tubb, Parish Atty., for plaintiff-appellee/

appellant, Ouachita Parish Police Jury.

Phelps Dunbar by H. Alston Johnson, III, Steven J.

Levine, J. Randall Trahan, Schwab & Walter by Gerald L.

Walter, Jr., James C. Percy, Brent B. Boxill, Baton Rouge,

Hudson, Potts & Bernstein by Ben R. Hanchey, William

McNew, Monroe, for defendant-appellant/appellee,

American Waste & Pollution Control Co.

Before NORRIS, LINDSAY and STEWART, JJ.

NORRIS, Judge.

The Quachita Parish Police Jury sued American

Waste and Pollution Control Co., d/b/a Waste Manage-

ment (“American Waste”), seeking to enjoin American

Waste from depositing lead-tainted dirt from a Dallas

Superfund site into Magnolia Landfill, a solid waste facil-

ity operated by American Waste in Ouachita Parish. The

police jury urged that the proposed dumping was a viola-

tion of American Waste’s contract with the police jury to

provide sanitary landfill services to the parish. The trial

court entered a temporary restraining order and, after a

four-day hearing, granted a preliminary injunction as

A.2

prayed for. American Waste now appeals the grant of

preliminary injunction on several grounds. The police

jury also appeals certain findings of fact in the trial

court’s opinion. For the reasons expressed, we affirm.

Factual background

In 1983 Ouachita Parish Police Jury solicited bids to

build a large, modern sanitary landfill for the parish.

American Waste submitted the low bid and entered a

contract with the Police Jury on May 1, 1984. The relevant

provisions of the contract are set forth below, but it

generally obligated American Waste to accept all forms of

waste generated by residents of Ouachita Parish, and to

comply with all policies and regulations of federal and

state agencies having jurisdiction over sanitary landfills.

American Waste obtained the state permits to build a

landfill for nonhazardous sanitary and industrial waste.

Under federal law, Magnolia is considered a Subchapter

“D” facility, which may receive solid (nonhazardous)

waste. 42 U.S.C. § 6941 et seq., Resource Conservation

and Recovery Act (“RCRA”). Facilities for the receipt of

hazardous waste (called Subchapter “C” facilities) are

subject to stricter regulation. 42 U.S.C. § 6921 et seq. (also

in “RCRA”).

American Waste began construction of Magnolia

Landfill on the “Sullivan Tract,” south of I-20 near La.

Hwy. 594. The location is adjacent to the Russell Sage

Wildlife Area and three miles west of Bayou Lafourche.

Magnolia began receiving waste in early 1986. The land-

fill is divided into “cells,” large excavations into which

waste is dumped. Each day the waste is spread and

cana eaeeeemen aie

A.3

covered with dirt or foam. Even with daily covering,

rainwater seeps through the waste, creating a fluid called

“leachate” that contains a high concentration of the sub-

stances in the waste. When the cell is full, it is sealed.

In June 1988, American Waste obtained a permit

modification from the Louisiana Department of Environ-

mental Quality (“DEQ”) to allow Magnolia Landfill to

accept waste from all areas regardless of point of origin.

By late 1991, American Waste was building Cells 8 and 9

(the “as built” map of Cell 8 is dated March 1992). The

bottom of these cells is a liner made of at least three feet

of recompacted clay topped with at least one foot of sand.

There is no synthetic material in the liner.

Meanwhile the U.S. Environmental Protection

Agency (“EPA”) was cleaning up a superfund site in West

Dallas. The site is near an old battery smelting plant and

required the removal of 40,000 cubic yards of soil contam-

inated with lead, arsenic and other toxic metals. Under

the Superfund statute, this soil is considered ic contain

hazardous substances. 42 U.S.C. § 9601 et seq., Compre-

hensive Environmental Response, Compensation and Lia-

bility Act (“CERCLA”). The lead concentration in the

Dallas dirt is 1,407 ppm, yielding a total of 180,000 Ibs. of

lead in the soil to be removed. EPA’s removal contractor,

Reidel-Peterson Environmental Services, let out bids for

disposal of the soil and ultimately American Waste’s bid

was accepted.

In early February 1992 Reidel began shipping the soil

by convoy of covered trucks to Magnolia Landfill. On

A.4

February 10 the Police Jury formally requested that deliv-

eries be stopped, citing provisions of the contract. Ameri-

can Waste refused, and this suit was filed on February 12.

The American Waste/Police Jury Contract

The general purpose of the contract is set out in

{ 2.01, which provides that American Waste will

accept and landfill all garbage and bulky waste,

rubbish and other refuse delivered by the Par-

ish, residents of the Parish, and public or private

agencies domiciled in or operating in Ouachita

Parish at the landfill site. Once duly licensed

and permitted, American Waste will maintain

and operate the landfill in compliance with the

conditions set forth in length in the American

Waste application for a sanitary landfill permit

to the Louisiana Department of Natural

Resources [now DEQ]. * * *

With respect to permits, { 2.02 states, “In the event

that American Waste determines that permit modifica-

tions are needed, American Waste shall on its own and at

its costs, secure such modification. The Parish of

Quachita shall be kept fully informed of all such permit

modifications.”

A reference to hazardous waste appears in ¥ 2.94:

American Waste agrees * * * to accept for

disposal all garbage and bulky waste, rubbish

and other refuse generated by the residents of

Ouachita Parish, whether delivered by auto-

mobile, trailer, or truck, and all material what-

soever, except hazardous waste, collected by any

refuse hauler within the Parish of Ouachita.

(emphasis added)

A.5

The contract defines hazardous waste in ¥ 1.05 by

reference to designations by the EPA and Louisiana

Department of Natural Resources (now DEQ). A hazard-

ous waste is “any chemical, compound, mixture, sub-

stance, or article” designated by EPA or DEQ “to be a

hazardous or a toxic substance as terms defined by or

pursuant to Federal, State or Parish rules, laws, or regula-

tions.”

American Waste is further obligated. in { 2.14, to

“conduct operations under this contract in compliance

with all applicable Federal and State Law.”

Under { 15.01, the failure to perform any part of the

contract by American Waste shall be considered a breach

of contract. Should American Waste fail to perform or

cure any defaults within 10 days of written notice, then

the parties have the option to terminate the contract.

Under { 15.02, “The remedy of the contracting parties in

the event of default is the termination of the contract, an

action on the bond and an action against the company.”

Procedural history

The Police Jury’s verified petition to enjoin violation

of contract, filed February 12, 1992, asserts two claims of

breach. The first is the territorial claim: ] 2.01 specifies

Ouachita Parish as the initial service area and { 2.02

requires American Waste to notify the Police Jury of any

permit modifications; however, American Waste never

notified the Police Jury of a modification and has

accepted material from the state of Texas. The second is

the hazardous waste claim: { 2.04 prohibits American

Waste from accepting hazardous waste, but the Dallas

A.6

dirt is a hazardous substance under CERCLA, and thus a

hazardous waste under J 1.05’s definition. The Police

Jury alleged that mere termination of the contract would

not prevent irreparable harm in the form of contaminated

water supply and a threat to public health; thus it prayed

for injunctive relief to restrain American Waste from

accepting, placing or allowing to be placed lead-tainted

soil in Magnolia Landfill. On the basis of this petition, the

trial court issued a TRO.

By its first amending petition, the Police Jury added a

third claim of breach of contract. Under § 2.14, American

Waste must comply with all applicable Federal and State

law; however, a provision of CERCLA, 42 U.S.C.

§ 9621(d)(3), states that in the case of any Superfund

removal or remedial action involving the transfer of any

hazardous substance offsite, such hazardous substance

shall only be transferred to a facility which is operating in

compliance with special provisions of RCRA, 42 U.S.C.

§§ 6924 and 6925; and before the transfer may occur, the

President (acting through the EPA) must determine that

the unit to which the hazardous substance is transferred

is not releasing any hazardous waste, and all such

releases from other units at the facility are being con-

trolled by a corrective action approved by the EPA

administrator under Subchapter C. In short, American

Waste does not have a hazardous waste disposal (Sub-

chapter C) permit for Magnolia Landfill, so accepting the

Dallas dirt there is a violation of CERCLA and a breach of

the contract.

On March 2, American Waste filed a notice of removal of

the action to United States District Court. Construing the

amended petition as one “arising under” CERCLA,

A.7

American Waste asserted the federal court had exclusive

original jurisdiction under a special provision of

CERCLA, 42 U.S.C. § 9613(b). The Police Jury filed a

motion to remand the case to state court, and supplied an

extensive brief. Ultimately the federal court remanded

the case to state court for lack of subject matter jurisdic-

tion. Fed.R.Civ.Pro. 12(b)(1).

Back in state court the matter proceeded to a hearing

for preliminary injunction on April 2, 3, 8'and 9, 1992;

post trial briefs were filed. The court issued reasons for

judgment on April 21.

Briefly stated, the court cited American Waste’s duty

to comply with all applicable federal and state laws

under { 2.14. The court carefully analyzed the provision

of CERCLA dealing with the removal of hazardous sub-

stances from Superfund sites, 42 U.S.C. § 9621(d)(3), and

found that it mandates that the substances be transferred

to Subchapter “C” landfills. Since Magnolia Landfill is

admittedly a Subchapter “D” facility, CERCLA does not

permit it to receive such substances. The court considered

and rejected American Waste’s arguments to the contrary,

including the contention that an EPA official, Mr. Warren

Zehner, had approved the procedure; Mr. Zehner’s

approval notwithstanding, the disposal plan was contrary

to CERCLA. The court then found, by referring to { 15.01,

that American Waste’s conduct was a breach of contract,

thus permitting the Police Jury to bring “an action against

the company.” The claim for injunction was proper, and

no showing of irreparable injury was needed, as the

Police Jury was seeking to enjoin American Waste from a

course of action forbidden by law. Miller v. Knorr, 553

So.2d 1043 (La.App. 4th Cir. 1989), and citations therein.

A.8

The court therefore granted the preliminary injunction.

The court further commented that on the showing thus

far made, the Police Jury had not prevailed on its other

contractual claims.

Judgment granting the preliminary injunction was

signed on April 29, 1992. Both sides have appealed. The

matter was expedited by order of this court on July 9,

1992.

Discussion: Subject matter jurisdiction

By its first assignment American Waste urges the trial

court erred in asserting jurisdiction over this action. The

argument is based on a provision of CERCLA, 42 U.S.C.

§ 9613(b), which grants to federal district courts the

“exclusive original jurisdiction over all controversies aris-

ing under” CERCLA, without regard to the citizenship of

the parties or the amount in controversy. Without juris-

diction, American Waste contends, the state district court

cannot grant relief of any kind over a CERCLA claim.

Whether a case “arises under” federal law is deter-

mined by reference to the plaintiff’s well-pleaded com-

plaint. A federal court does not have jurisdictian over a

case in which the complaint asserts only a state law cause

of action. The Police Jury’s petition, as amended, sets

forth three separate claims on which injunctive relief

could be granted, each stemming from the alleged viola-

tion of a specific contractual provision. As an initial prop-

osition, the claim is surely based on state law and

properly within the trial court’s jurisdiction.

A.9

In some instances, however, even though state law

creates the plaintiff’s cause of action, the federal court

may have jurisdiction, if the plaintiff’s right to relief

under state law is necessarily dependent upon the resolu-

tion of a “substantial question of federal law.” Franchise

Tax Bd. v. Construction Laborers Vacation Trust, 463 U.S. 1,

103 S.Ct. 2841, 77 L.Ed.2d 420 (1983), and citations

therein; see also Christianson v. Colt Indus. Operating Corp.,

486 U.S. 800, 108 S.Ct. 2166, 100 L.Ed.2d 811 (1988). In the

instant case the only claim that might arguably raise a

substantial question of federal law is the third claim,

alleging a breach of { 2.14 of the contract. This provision

obligated American Waste to comply with all applicable

federal laws, including CERCLA.

For jurisdictional purposes, however, we need not

determine whether the Police Jury’s { 2.14 claim raises a

substantial question of federal law because the right to

relief does not necessarily depend on its resolution.

Either of the other two contractual claims, if resolved

favorably to the Police Jury, would be sufficient to pro-

vide it with the relief sought. Neither of those claims

raises an issue of federal law. For this reason we find that

federal jurisdiction does not lie in this case, and the trial

court was correct to assert jurisdiction.

We note parenthetically that American Waste

removed this case to federal district court, but that court

declined to accept jurisdiction. We are no more inclined

to second-guess the federal judge’s reasoning than we are

empowered to reverse his decision. We perceive no error

in our state court’s decision to accept jurisdiction.

A.10

American Waste further asserts that after the federal

court’s remand and the state district court’s ruling on the

preliminary injunction, the Police Jury’s only remaining

claim for relief is the one based on { 2.14 of the contract

and on CERCLA. With the genuine state claims win-

nowed out, the argument goes, jurisdiction in the state

court is now improper.

We disagree. A preliminary injunction is a procedural

device interlocutory in nature and designed to preserve

the existing status pending a trial of the issues on the

merits of the case. La.C.C.P. art. 3601; GMAC v. Daniels,

377 So.2d 346 (La.1979); Equitable Petroleum v. Central

Transmission Inc., 431 So.2d 1084 (La.App.2d Cir.1983).

The principal demand is determined on its merits only

after a full trial under ordinary process, even though the

summary proceedings for the preliminary injunction may

touch upon or tentatively decide issues on the merits.

Smith v. West Virginia Oil & Gas Co., 373 So.2d 488

(La.1979). The trial court’s comment that it “disagreed”

with the Police Jury’s other contract claims is, strictly

speaking, a holding that the Police Jury failed to make a

prima facie case on those claims at the preliminary

injunction hearing. It is not a dismissal of those claims,

and certainly not grounds to transform the case from one

of state to federal jurisdiction.

American Waste’s first assignment lacks merit.

CERCLA violation

By its second assignment American Waste urges the

trial court erred in finding a CERCLA violation. It argues

that the trial court’s interpretation of the applicable

A.11

CERCLA provision, 42 U.S.C. § 9621(d)(3), is plainly

wrong, and that provisions of RCRA actually govern the

disposal of substances, 42 U.S.C. §§ 6924, 6925. Under the

proper analysis, American Waste argues, the Dallas dirt

may be properly deposited in Magnolia Landfill. Ameri-

can Waste adds that the EPA, through the testimony of

Mr. Zehner, has construed the statutes in a manner favor-

able to American Waste’s plan, and the agency construc-

tion is entitled to great deference.

Broadly stated, CERCLA is a statutory scheme that

provides a comprehensive response to the problem of

hazardous substance release. Wickland Oil Terminals v.

Asarco Inc., 792 F.2d 887 (9th Cir.1986). It provides for

cleanup, compensation and liability where there is a

threat from hazardous substances. L. Barr, “CERCLA

Made Simple,” 45 Bus.Law. 923, 925 (1990). The final

disposition of hazardous substances which have been

removed from cleanup sites is addressed in 42 U.S.C.

§ 9621(d)(3), which provides as follows:

(d) Degree of cleanup.

* * *

(3) In the case of any removal or remedial

action involving the transfer of any hazardous

substance or pollutant or contaminant offsite,

such hazardous substance * * * shall only be

transferred to a facility which is operating in

compliance with section 3004 and 3005 of the Solid

Waste Disposal Act [42 U.S.C. §§ 6924 and 6925]

(or, where applicable, in compliance with the

Toxic Substances Control Act [15 U.S.C. § 2601

et seq.] or other applicable Federal law) and all

A.12

applicable State requirements. Such substance

* * * may be transferred to a land disposal

facility only if the President determines that

both of the following requirements are met:

(A) The unit to which the hazardous sub-

stance *** is transferred is not releasing any

hazardous waste, or constituent thereof, into the

ground-water or surface water or soil.

(B) All such releases from other units at

the facility are being controlled by a corrective

action program approved by the Administrator

under subtitle C of the Solid Waste Disposal Act

[42 U.S.C. § 6921 et seq.].

The President shall notify the owner or

operator of such facility of determinations

under this paragraph. (emphasis added)

This section refers explicitly to two provisions of

RCRA, 42 U.S.C. §§ 6924 and 6925, which are part of

RCRA’s Subchapter “C” for the disposal of hazardous

wastes. In other words, CERCLA plainly states that if

hazardous substances removed from Superfund sites are

to be stored offsite, the offsite storage facility must qual-

ify under RCRA Subchapter “C” for hazardous wastes.

Magnolia Landfill is, by every witness’s admission, only a

Subchapter “D” facility for solid waste. Thus the provi-

sions of CERCLA (and of RCRA, read in pari materia), do

not permit the storage of the lead-contaminated Dallas

dirt at Magnolia Landfill.

American Waste advances several arguments

intended to show that this conclusion is wrong. First it

cites the reference in 42 U.S.C. § 9621(d)(3) to “other

applicable Federal law.” By this argument, hazardous

A.13

substances extracted from a Superfund site are speci-

fically directed to landfills governed by Subchapter “C,”

but they may be directed to landfills governed by the less

Stringent Subchapter “D,” which is another applicable

Federal law. We disagree. When Congress enunciated the

offsite disposition of hazardous substances, it specified

RCRA Subchapter “C” facilities. To read the statute as

allowing Subchapter “D” facilities as well would subvert

Congress’s clearly stated intent. The example given in the

Statute is the Toxic Substances Control Act, a completely

different comprehensive federal scheme located else-

where in the code. We think “other applicable Federal

law” refers to other comprehensive federal schemes, not

to other sections of RCRA. If Congress had intended that

CERCLA hazardous substances could go to RCRA solid

waste facilities, it would have so stated. It did not, and

we reject American Waste’s argument.

Next American Waste asserts that the uncontroverted

testimony of Mr. Warren Zehner, the EPA’s on-scene coor-

dinator, expresses the agency construction of these stat-

utes and is entitled to great deference. Indeed, courts

must defer to the EPA’s reasonable construction of

CERCLA, absent a clearly expressed contrary Congres-

sional purpose. B.F.Goodrich Co. v. Murtha, 958 F.2d 1192

(2d Cir.1992), citing Chevron USA Inc. v. Natural Resources

Defense Council Inc., 467 U.S. 837, 104 S.Ct. 2778, 81

L.Ed.2d 694 (1984). However, this deference is granted

only when the EPA’s interpretation is reasonable under the

statute and there are not “compelling indications that it is

wrong.” B.F. Goodrich Co. v. Murtha, supra at 1205; Weeks

v. Quinlan, 838 F.2d 41 (2dCir.1988). For the reasons

already outlined, we find that the applicable statutes do

A.14

not permit the conclusion that the Dallas dirt may be

stored in Magnolia Landfill, a Subchapter “D” facility.

Thus the trial court was not wrong to reject Mr. Zehner’s

interpretation to that effect.

American Waste finally urges that even though the

Dallas dirt is considered a “hazardous substance” for

purposes of CERCLA, it is not considered “hazardous

waste” for purposes of RCRA, and may therefore be

stored in a RCRA Subchapter “D” facility. We do not

cispute that under the statutory definitions, this is true;

the concept of “hazardous substance” under CERCLA, 42

U.S.C. §§ 9601(14), 9602, and of “hazardous waste” under

RCRA, 42 U.S.C. § 6903(5), are not equivalent.' Several

witnesses at the hearing on the preliminary injunction

acknowledged this, including the Police Jury’s witness,

Dr. Richard Parent. Under the circumstances of this case,

however, the classification is not the only factor. The

applicable provision of CERCLA, 42 U.S.C. § 9621(d)(3),

directs that hazardous substances removed from Super-

fund cleanup sites must be disposed of in Subchapter “C”

facilities if they are taken off-site. This is so regardless of

whether the substance qualifies as RCRA “hazardous

waste.”

The trial court’s analysis of the contract and the

federal statutes, and its dismissal of American Waste’s

1 We accept the admonition of counsel for the Police Jury to

avoid making a word mean just what we choose it to mean,

“neither more nor less.” The attribution, however, is to Humpty

Dumpty (not the Red Queen) in Lewis Carroll’s Through the

Looking Glass (not Alice in Wonderland). See M. Gardner, The

Annotated Alice (New York; New American Library, c1960), 269.

A.15

objections, is not plainly wrong. This assignment lacks

merit.

The liable party

By its third assignment American Waste urges that if

there was a CERCLA violation, the trial court erred in

finding that American Waste was the violator. The argu-

ment is divided into two headings.

First, American Waste claims that 42 U S.C.

§ 9621(d)(3) prohibits only the transfer of hazardous sub-

stances to a Subchapter “D” facility; American Waste is

without fault because it is only receiving, not transfer-

ring, the Dallas dirt. This facile argument is premised on

an incorrect reading of § 9621(d)(3). True, the statute uses

the word transfer to describe the proscription, but

CERCLA does not define transfer. Perhaps American

Waste wishes Congress had said “transport,” which is

defined in CERCLA, 42 U.S.C. § 9601(26), as the “move-

ment of a hazardous substance by any mode, including

pipeline[.]” A plain reading of the entirety of § 9621(d)(3)

shows that it addresses not just the “transport” or move-

ment of hazardous substances but their transfer “in the

case of any removal or remedial action{.]” “Remedial

action” expressly includes storage and disposition of the

substances. 42 U.S.C. § 9601(24). Transfer, as used in this

Statute, obviously encompasses American Waste’s con-

duct in agreeing to accept and dispose of the transported

material.

Second, American Waste claims that the statute

imposes obligations on the EPA, and not upon receiving

facilities such as American Waste. If the Police Jury’s suit

A.16

were based solely on CERCLA, this argument might have

merit. However, the claim arises from ¥ 2.14 of the con-

tract, which obligates American Waste to “conduct opera-

tions under this contract in compliance with all

applicable Federal and State Law.” The purpose of this

provision is apparently to make American Waste adhere

to CERCLA’s scheme, which the EPA by statute is bound

to enforce. The contract thus binds American Waste to

§ 9621's order that hazardous waste “shall only be trans-

ferred to a facility which is operating in compliance with

section 3004 and 3005 [Subchapter C] ** * .” To find that

§ 9621 does not so obligate American Waste would render

{ 2.14 meaningless. La.C.C. art. 2049. The trial court

found that American Waste’s part in the overall scheme

to dispose of a hazardous substance, lead-tainted dirt, in

this solid waste facility, Magnolia Landfill, is contrary to

the letter and spirit of CERCLA. By engaging in this

conduct, American Waste breached its obligation to com-

ply with CERCLA, an applicable Federal Law. In effect,

CERCLA is a gauge of American Waste’s performance,

and the trial court was not plainly wrong in finding that

American Waste breached the contract.

This assignment lacks merit.

Exclusive contractual remedy

By its fourth assignment American Waste urges the

trial court erred in granting a remedy not contemplated

by the parties to the contract. In the event of a breach of

contract the Police Jury has, under { 15.01, the option to

terminate the contract; and J 15.02 states, more exten-

sively, “The remedy of the contracting parties in the event

——<—

A.17

of a default is the termination of the contract, an action

on the bond and an action against the company.” This

limitation, American Waste argues, excludes the option of

injunctive relief against it.

Contracts have the effect of law for the parties.

La.C.C. art, 1983; Leenerts Farms Inc. v. Rogers, 421 So.2d

216 (La. 1982). The words of a contract are given their

generally prevailing meaning. La.C.C. art. 2047: Franks

Petroleum Inc. v. Mayo, 438 So.2d 696 (La.App. 2d Cir.),

writ denied 443 So.2d 595 (1983).

Injunctive relief is not available to enjoin the breach

of an agreement where the parties have agreed to liqui-

dated damages in case of a breach. Beneficial Fin. Co. of

Monroe v. Aldridge, 200 So.2d 681 (La.App. 2d Cir.), writ

ref’d 251 La. 220, 203 So.2d 556 (1967), and citations

therein; Deer Slayers v. Louisiana Motel & Inv. Corp., 434

So.2d 1183 (La.App. Ist Cir), writ denied 440 So.2d 151

(1983). In the absence of a contract, Louisiana law

acknowledges injunctive relief as a remedy to stop the

dumping of chemical wastes into a landfill. La.C.C.P. art.

3601; Salter v. B.W.S. Corp., 290 So.2d 821 (La.1974).

The instant contract does not specifically include or

exclude injunction as a remedy for breach. Rather, J 15.01

lists termination as an option, and ] 15.02 authorizes “an

action against the company,” The initial answer to Ameri-

can Waste’s argument, therefore, is that the instant claim

for injunctive relief is indeed an action against the com-

pany and is not expressly prohibited by the contract.

American Waste further argues that the passages

must be read together and interpreted as granting the

Police Jury the authority to (1) dissolve the contract or (2)

A.18

sue on the bond with an action against American Waste

for damages. The trial court aptly noted that the contract

does not contain a liquidated damages clause. If Ameri-

can Waste can interpret from these provisions a right to

sue for damages, then the Police Jury and the trial court

can surely construe them to authorize a suit for injunc-

tion. As noted, this remedy is not prohibited.

Moreover, if the contract had contained a liquidated

damages clause, this would have implicitly eliminated

the option of injunctive relief. Beneficial Fin. v. Aldridge,

supra. Given the provisions of { 15.01 and 15.02, and the

possibility of injunction in this type of case, Salter v.

B.W.S. Corp., supra, the trial court was not plainly wrong

to find that injunction is an available remedy on this

contract.

This assignment lacks merit.

Requisite showing for preliminary injunction

By its fifth assignment American Waste urges that

even if the contract allows a suit for injunctive relief, the

trial court erred in granting the preliminary injunction

without a showing of irreparable injury or that the plain-

tiff has no other remedy at law. American Waste cites the

trial court’s remark, in the written opinion, that the Police

Jury did not meet its burden of proving irreparable

injury. R.p. 474.

An injunction “shall issue in cases where irreparable

injury, loss, or damage may otherwise result to the appli-

cant, or in other cases specifically provided by law[.]”

La.C.C.P. art. 3601. Irreparable injury usually means loss

A.19

which cannot be adequately compensated in money dam-

ages or measured by pecuniary standard. Terrebonne Par-

ish Police Jury v. Matherne, 405 So.2d 314 (La.1981), cert.

denied 456 U.S. 972, 102 S.Ct. 2234, 72 L.Ed.2d 845 (1982).

However, irreparable injury is a requisite only when the

conduct sought to be enjoined is lawful. The jurispru-

dence firmly establishes that when the conduct is illegal,

a showing of irreparable injury is not required. Miller v.

Knorr, supra; Hays v. City of Baton Rouge, 421 So.2d 347

(La.App. Ist Cir.), writ denied 423 So.2d 1166 (1982);

Smith v. West Virginia Oil & Gas Co., 365 So.2d 269

(La.App. 2d Cir.1978), rev’d. on other grounds 373 So.2d

488 (1979); McElveen v. Calcasieu Parish Police Jury, 443

So.2d 666 (La.App. 3d Cir.1983), writ denied 444 So.2d

1222 (1984); Louisiana Associated Gen’l Contractors v. Cal-

casieu Parish Police Jury, 572 So.2d 623 (La.App. 3d

Cir.1990), aff’d. 586 So.2d 1354 (1991).

American Waste correctly argues that the trial court

did not find the Police Jury made a Prima Facie showing

of irreparable injury. However, the court also found that

the Police Jury was seeking to enjoin American Waste

from engaging in conduct prohibited by law. In this situa-

tion the plaintiff is not required to show irreparable

harm. Miller v. Knorr, supra; Smith v. West Virginia Oil &

Gas Co., supra, and citations therein. On appeal American

Waste does not dispute this principle; instead it argues

that this exception to the irreparable harm requirement

applies only when there is a “clear” (as opposed to an

“arguable”) violation of law. In support it cites New

Orleans Public Serv. Inc. v. City Council, 539 So.2d 891

(La.App. 4th Cir.1989), Hobbs v. Gorman, 595 So.2d 1264

(La.App. 4th Cir. 1992), and Galle v. Coile, 556 So.2d 957

A.20

(La.App. 3d Cir.1990). Thus American Waste argues that

storing hazardous waste at Magnolia Landfill is at best an

arguable violation of CERCLA and does not exempt the

Police Jury from proving irreparable injury.

We recognize that the Third and Fourth Circuits, in

the cases mentioned, have discussed a distinction

between “clear” and “arguable” violations of law. This

distinction, however, when drawn within the context of a

preliminary injunction, is not appropriate. At a hearing

for preliminary injunction, the trial court must determine

whether the plaintiff has made a prima facie showing that

he will prevail on the merits, and has shown either that

he will suffer irreparable injury or that he is entitled to an

exception from the requirement of showing irreparable

injury. If the plaintiff fails to make his prima facie show-

ing, he cannot obtain an injunction and the issue of

irreparable injury or an exception is not reached. This is

what happened in the NOPSI and Hobbs cases, supra; the

trial court found the plaintiffs had failed to make a prima

facie case and declined to grant preliminary injunctions.

In both cases the Fourth Circuit affirmed, in effect reserv-

ing the question of a violation of law for trial on the

merits. Until final resolution, the unproved claim of vio-

lation of law may be termed “arguable.”

If, however, the trial court finds that the plaintiff has

succeeded in making his prima facie case, and an element

of that case is the defendant’s violation of the law, the

court should not then deny the injunction on grounds

that the plaintiff has proved only an arguable violation of

law. In these circumstances the showing of a violation of

law is part of the plaintiff's prima facie case. If the

plaintiff makes his prima facie case, then the distinction

A.21

between “clear” and “arguable” violations is artificial at

best. The question should be couched in terms of the

plaintiff’s success or failure to make a prima facie show-

ing of violation of law. For this reason we do not agree

with the rationale of Galle v. Coile, supra, and decline to

follow it.

In the instant case the trial court properly found that

the Police Jury made its prima facie case. Since a large

portion of its case is American Waste’s violation of

CERCLA, we cannot say that the Police Jury has not

proved this violation clearly enough. On the contrary, it

has proved the violation sufficiently to establish a prima

facie case against American Waste. That American Waste

feels its violation is only “arguable” is of no import,

especially since all issues remain open after a hearing for

preliminary injunction; this is, after all, interlocutory only

and does not decide the merits of the case once and for

all. GMAC v. Daniels, supra. The trial court was not

plainly wrong to hold that the Police Jury need not show

irreparable injury.

American Waste further argues that even if the Police

Jury is relieved of showing irreparable injury, in order to

support the preliminary injunction it must further show

that it is without an adequate remedy at law. The viola-

tion of law exception, American Waste asserts, extends

only to the requirement of showing irreparable injury and

not to the suggested requirement that there be no ade-

quate remedy at law. To this end, American Waste urges

that CERCLA provides the Police Jury with an adequate

remedy sufficient to obviate the issuance of an injunction,

the citizen suits provisions of 42 U.S.C. § 9659.

A.22

In further support of this argument, American Waste

cites numerous cases which treat “no adequate remedy at

law” conjunctively with the statutory requirement of

irreparable injury. See, e.g., Prakasam v. Popowski, 566

So.2d 189 (La.App.2d Cir.), writ denied 569 So.2d 986

(1990); Hairford v. Perkins, 520 So.2d 1053 (La.App. 3d Cir.

1987). We would note that the jurisprudence on this score

is less than settled. Other cases discuss the standards

disjunctively, as though they were alternative expressions

of the same concept. West v. Winnsboro, 252 La. 605, 211

So.2d 665 (1968) (on rehearing); Greenberg v. DeSalvo, 254

La. 1019, 229 So.2d 83 (1969), cert. denied 397 U.S. 1075,

90 S.Ct. 1521, 25 L.Ed. 2d 809 (1970); Caffery v. Powell, 320

So. 2d 223 (La.App. 3d Cir. 1975); Danzie v. Rutland, 232

So.2d 303 (La.App. 2d Cir. 1970); Amacker v. Amacker, 146

So.2d 672 (La.App. 1st Cir. 1962) (en banc). Still other

cases cite only the requirement of irreparable harm, con-

sistent with a plain reading of art. 3601. Daigre Engineers

Inc. v. City of Winnfield, 385 So.2d 866 (La.App. 2d Cir.

1980); Melancon v. Assumption Parish Police Jury, 231 So.2d

690 (La.App. 1st Cir.1970); SREF Bon Marché Co. v. D.H.

Holmes, 572 So.2d 284 (La.App. 1st Cir. 1990), writ denied

576 So.2d 45 (1991); Exquisito Food Serv. Inc. v. New

Orleans Council of Aging, 502 So.2d 1147 (La.App. 4th Cir.

1987). Finally, one case has held that “the lack of an

adequate remedy at law is synonymous with irreparable

harm and entitles one to injunctive relief.” J. Weingarten

Inc. v. Northgate Mall Inc., 390 So.2d 527 (La.App. 3d Cir.

1980), rev’d on other grounds 404 So.2d 896 (1981), citing

Caffery v. Powell, supra.

We recognize that some of these cases interpret “no

adequate remedy at law” as distinct from, and additional

A.23

to, the statutory requirement of irreparable injury needed

to obtain injunctive reiief. These cases, however, do not

address the “illegal action” exception that absolves the

plaintiff from having to show irreparable injury. Article

3601, moreover, does not specify “no adequate remedy at

law” as a requirement.

On the other hand, the lead cases for the illegal

action exception do not require the plaintiff to make an

additional showing of no adequate remedy at law. Miller

v. Knorr, supra; Hays v. City of Baton Rouge, supra; Smith v.

West Virginia Oil & Gas Co., supra, and citations therein.

In our view this approach is reasonable. It is supported

by a plain reading of art. 3601. Besides, there is always

the prospect of legal redress against defendants who

violate the law; can this redress be considered an “ade-

quate remedy at law”? If so, no petition for injunction

urging violation of law would ever be successful, but this

is Clearly not the case. See West v. Winnsboro, supra; Guz-

zardo v. Town of Greensburg, 563 So.2d 424 (La. App. 1st

Cir. 1990). Thus, once a plaintiff has made a prima facie

showing that he will prevail on the merits and that the

conduct he seeks to enjoin is reprobated by law, he is

entitled to injunctive relief without any further require-

ment to show that no adequate remedy at law exists.

In sum, after finding that the Police Jury had made a

prima facie showing that it will prevail on the merits and

that it was not required to proved irreparable injury, the

trial court was not plainly wrong to grant the preliminary

injunction without proof that the Police Jury had no other

adequate remedy at law.

A.24

Finally, American Waste urges the preliminary

injunction was erroneously issued because it enjoins the

actions of the Executive Branch of the United States gov-

ernment. In response, it suffices to say that the prelimi-

nary injunction herein is directed to American Waste, and

no injunction or order of any kind has been issued

against the EPA or the federal government; they are not

even parties to the suit.

American Waste’s fifth assignment lacks merit.

The Police Jury’s appeal

The Police Jury filed a motion and order for appeal

on May 12, 1992. In brief it contests the trial court’s

conclusion that the first two causes of action did not

entitle the Police Jury to a preliminary injunction.

In the first cause of action, the Police Jury urged that

11 2.01 and 2.02 restricted the territorial scope of Ameri-

can Waste’s operations to Ouachita Parish, thus prohibit-

ing the company from importing waste such as the Dallas

dirt from outside the parish; and that in obtaining a

permit modification from DEQ, the company neither

showed the “need” for modification nor kept the parish

“fully informed” of the necessary modification. In the

second cause of action, the Police Jury urged that { 2.04

banned the company from receiving and disposing of

“hazardous waste,” and the Dallas dirt fits the contract’s

definition of “hazardous waste.” In essence, the Police

Jury now argues that the trial court was plainly wrong in

finding that the Police Jury would not prevail on these

contractual claims.

A.25

At the outset we would observe that the trial court’s

factual findings are vested with great discretion, and

cannot be disturbed absent a showing of manifest error.

Rossell v. Esco, 549 So.2d 840 (La.1989), and citations

therein. The trial court’s great discretion extends to find-

ings based on purely documentary evidence. Virgil v.

American Guarantee & Liab. Ins. Co., 507 So.2d 825

(La.1987).

One of the contested portions of the contract, { 2.04,

is not a model of clarity. It obligates American Waste to

accept for disposal “all material whatsoever, except haz-

ardous waste, collected by any refuse hauler within the

Parish of Ouachita.” Does this mean that American Waste

is prohibited from ever accepting, or has the option not to

accept, any hazardous waste? And does this option

extend only to hazardous waste delivered by a hauler, but

not to that carried by parish residents in their personal

automobiles, trailers and trucks? Given the ambiguity of

this provision, we would be inclined simply to defer to

the trial court’s finding.

We are more guided, however, by the fact that the

preliminary injunction is only an interlocutory decree.

La.C.C.P. art. 3601; GMAC v. Daniels, supra. Unless the

parties expressly agree to submit the case for final deci-

sion at the hearing on the rule for preliminary injunction,

the principal demand for a permanent injunction is deter-

mined on its merits only after a full trial under ordinary

process, even though the summary hearing on the rule

for preliminary injunction may tentatively decide merit

issues. Equitable Petroleum v. Central Transmission Inc.,

supra, and citations therein. In the instant case the parties

A.26

have not submitted the issue of permanent injunction on

the evidence adduced for the preliminary injunction.

Moreover, the evidence thus far adduced on the issue

of territoriality is tentative at best. Don Clark, Waste

Management’s president in 1984, testified that the con-

tract was not intended to limit the company; however,

Arlan Rawls of the Police Jury testified his understanding

was “it was going to be Ouachita Parish only.” R.pp. 983,

552. Dr. Brent, of DEQ, admitted that the initial permits

generated some confusion about the service area. R.p.

828. The evidence as to hazardous waste is equally incon-

clusive. Dr. Parent, a Police Jury witness, along with

several of American Waste’s witnesses, testified that the

Dallas dirt was a CERCLA hazardous substance but not a

RCRA hazardous waste. R.pp. 688-689 (Dr. Parent); 782

(Dr. Pier); 827 (Dr. Brent). The trial court did not address

which definition activated ¥ 1.05’s definition of a “haz-

ardous substance.” These are the kinds of questions that

should be more carefully explored at the trial for the

permanent injunction.

In light of the procedural posture and the evidence

adduced below, we are constrained to hold that when the

trial court stated that it “rejects these arguments of the

Police Jury and agrees with the position of American

Waste,” the court only meant that the Police Jury did not

make a prima facie case for injunction on those causes of

action. These issues are still alive and may be litigated at

the trial on the merits. For purposes of the preliminary

2 The petition of intervention filed by Verdiacee Ham-

pton-Goston has also not been formally disposed of.

A.27

injunction, however, we will defer to the trial court’s

discretion and not disturb these interlocutory findings.

The Police Jury’s assignments or error lack merit.

Conclusion

For the reasons expressed, the trial court’s judgment

granting the preliminary injunction on the third cause of

action but denying it on the first two is in all respects

affirmed. Appellate costs are to be assessed one-half to

American Waste and Pollution Control Company; the

remaining costs are not assessed. La.R.S. 13:4521.

AFFIRMED.

A.28

/s/ Illegible

DEPUTY CLERK

OUACHITA PARISH * NO. 92-0471 DIV.

conem sNews "FOURTH JUDICIAL

VERSUS "DISTRICT COURT

AMERICAN WASTE & * PARISH OF

POLLUTION CONTROL ~— * OUACHITA

FILED: Apeil 29, 1992 » STATE OF

(ope _ LOUISIANA

SESSA A ELSES ESAS SAREE ESSE SEES SE EEE EES

JUDGMENT AND ORDER OF

PRELIMINARY INJUNCTION

After full and careful consideration of the pleadings,

the briefs, the testimony taken and evidence submitted

during the preliminary injunction hearing, and applicable

law, IT IS ORDERED:

That a preliminary injunction issue herein, without bond,

directed to American Waste and Pollution Control Com-

pany restraining, enjoining, and prohibiting it, its agents,

employees, and all persons, firms, or corporations acting

or claiming to act on its behalf, or in concert with it, from

accepting, placing, or allowing to be placed lead contami-

nated soil received directly or indirectly from the West

Dallas lead site in the Magnolia Sanitary Landfill;

acim maa

A.29

This preliminary injunction shall remain in force

throughout the pendency of this proceeding.

Dated this 29th day of April, 1992.

/s/ John Harrison

JUDGE, 4TH JUDICIAL

DISTRICT COURT

Counsel for American Waste and

Pollution Control Company agree

only that the foregoing Judgment

and Order correctly reflects the

ruling of the Court.

/s/ Ben R. Hanchey

Ben R. Hanchey

Hudson, Potts & Bernstein

10th Floor, Premier Bank Building

Post Office Box 3008

Monroe, Louisiana 71210-3008

and

Gerald L. Walter, Jr.

James C. Percy

Schwab & Walter

10636 Linkwood Court

Baton Rouge, Louisiana 70810-2854

COUNSEL FOR AMERICAN WASTE AND

POLLUTION CONTROL COMPANY

/s/ C. Lynn Tubb

C. Lynn Tubb

Post Office Box 3007

Monroe, LA 71210-3007

and

John P. Manard, Jr. (No. 9075)

Steven J. Levine (No. 14139)

J. Randall Trahan (No. 20395)

PHELPS DUNBAR

445 North Boulevard, Suite 701

Post Office Box 4412

Baton Rouge, LA 70821-4412

COUNSEL FOR OUACHITA PARISH

POLICE JURY

A.31

STATE OF LOUISIANA

PARISH OF OUACHITA

FOURTH DISTRICT COURT

OUACHITA PARISH (Filed Apr. 21, 1992)

POLICE JURY NOEL CULPEPPER

VS. NO. 92-0471 DEPUTY CLERK

OF COURT

AMERICAN WASTE AND

POLLUTION CONTROL

COMPANY

REASONS FOR JUDGMENT

In this suit, the Ouachita Parish Police Jury (Police

Jury) seeks a preliminary injunction to prohibit what it

contends are violations of its contract with defendant,

American Waste and Pollution Control Company (Ameri-

can Waste).

The facts are as follows: In 1983 the Police Jury

solicited bids for the furnishing of a landfill site and

landfill services for waste matter generated in Ouachita

Parish. American Waste presented the successful bid. The

agreement between the parties was reduced to writing in

a contract and addenda executed in April and May of

1984. American Waste acquired a site in eastern Ouachita

Parish and constructed a landfill, which it called Magno-

lia Landfill, and obtained the permits and licenses neces-

sary for operation. It contracted with several other North

Louisiana governmental bodies for landfill disposal ser-

vices. Through the present, American Waste has provided

the contracted services for all parties and has maintained

the required State and Federal permits.

A.32

The U.S. Environmental Protection Agency (EPA) has

undertaken to remove contaminated soil from an area in

West Dallas, Texas. The site is approximately one square

mile and is generally downwind from the location of an

old smelter. Approximately 40,000 square yards of dirt

containing lead, zinc, chromium, and other heavy metals

will be removed. EPA, through its removal contractor,

solicited bids for disposal of the contaminated soil from

facilities in Texas, Oklahoma, Arkansas and Louisiana. A

facility in Oklahoma City submitted the low bid. How-

ever, the State of Oklahoma, through its landfill regula-

tory agency, issued a moratorium on all lead disposal in

that state to review the sufficiency of its regulations.

American Waste submitted the next lowest bid. The Loui-

siana Depariment of Environmental Quality (DEQ) has

ruled that the material meets state criteria for disposal

here.

Section 2.14 of the contract between the Police Jury

and American Waste provides:

“American Waste shall conduct operations

under this contract in compliance with all appli-

cable Federal and State law.”

The Police Jury contends that American Waste has

breached this obligation, is violating Federal law, and

may be enjoined without the necessity of showing irrepa-

rable injury. It argues that EPA and American Waste are

in violation of § 121(d)(3) of the Comprehensive Environ-

mental Response, Compensation, and Liability Act

(CERCLA). 42 U.S.C.A. § 9601 et seq.

A.33

That statute addresses cleanup standards as follows:

“In the case of any removal or remedial action

involving the transfer of any hazardous sub-

stance or pollutant or contaminant offsite, such

hazardous substance or pollutant or contami-

nant shall only be transferred to a facility which

is operating in compliance with section 3004 and

3005 of the Solid Waste Disposal Act [42

U.S.C.A. § 6924 and 6925] (or, where applicable,

in compliance with Toxic Substances Control

Act [15 U.S.C.A. § 2601 et seq.] or other applica-

ble Federal law) and all applicable State require-

ments. Such substance or pollutant or

contaminant may be transferred to a land dis-

posal facility only if the President determines

that both of the following requirements are met:

(A) The unit to which the hazardous sub-

Stance or pollutant or contaminant is trans-

ferred is not releasing any hazardous waste,

or constituent thereof, into the groundwater

or surface water or soil.

(B) All such releases from other units at

the facility are being controlled by a correc-

tive action program approved by the

Administrator under subtitle C of the Solid

Waste Disposal Act [42 U.S.C.A. § 9621 et

seq.].

“The president shall notify the owner or opera-

tor of such facility of determinations under this

paragraph.”

42 US.C.A. § 9621(d)(3).

Sections 3004 and 3005 of the Solid Waste Disposal

Act (42 U.S.C.A. § 6924 and 6925) are contained in Sub-

chapter III (usually referred to as Subchapter C) which is

A.34

entitled “Hazardous Waste Management”. The Magnolia

Landfill is not a Subchapter C (42 U.S.C.A. § 6921 through

6939) facility. It is a non-hazardous waste facility licensed

under Subchapter IV (usually referred to as Subchapter

D). 42 U.S.C.A. § 6941 through 6948. Subchapter D. facili-

ties are for “the disposal of solid waste which are envi-

ronmentally sound...” 42 U.S.C.A. § 6941.

There is no evidence that the two requirements for

land disposal under § 121(d)(3) are met at the Magnolia

Landfill, and no Presidential notification to American

Waste has occurred.

American Waste’s position includes these arguments:

1. §121 (d)(3) of CERCLA outlines obligations

and responsibilities of EPA and not of

“receiving” facilities. CERCLA allegedly

prohibits the transfer but not the receipt of

the material.

2. § 121 (d)(3) authorizes transfer to a facility

“(where applicable, in compliance with-

. . Other applicable Federal law) and all appli-

cable State requirements.”

3. The regulations and policy of the EPA inter-

pret § 121 (d)(3) to require simply that the

facility to which such material is transferred

be in compliance with the law “applicable”

to the type of material that such facility is

permitted to receive.

In regard to the first contention, the CERCLA prohi-

bition provides that the removal or remedial action involv-

ing the transfer of a hazardous substance offsite shall only

be as-specifically set forth. CERCLA defines “removal” as

aaa

A.35

“the cleanup or removal of released hazardous sub-

Stances from the environment, . . . the disposal of removed

material, ... ” 42 U.S.C.A. § 9601 (23).

“Remedial action” is defined as “those actions consis-

tent with permanent remedy taken instead of or in addi-

tion to removal actions ...” It includes “offsite transport

and offsite storage, treatment, destruction, or secure dispo-

sition of hazardous substances and associated contami-

nated materials.” 42 U.S.C.A. § 9601(24).

As noted above, CERCLA defines “removal” to

include the disposal of removed material, and “remedial

action” to include the offsite storage. The wording of

§ 121 (d)(3), and the scope of the actions which will

trigger removal of the hazardous substance, reflect Con-

gressional intent that its prohibition was not to end when

the contaminated soil was removed from the ground. The

Statute is also directed toward landfill facilities which

will provide safe and permanent storage of the hazardous

substances. Thus, the prohibition extends to offsite dis-

posal and storage facilities such as, in this case, American

Waste’s Magnolia Landfill.

American Waste also argues that the transfer is in

accordance with “other applicable Federal law” and pur-

suant to the regulations and policy of EPA.

This Court has not found, or been directed to, any

law which authorizes the disposal of CERCLA hazardous

substances in landfills licensed to receive only non-haz-

ardous wastes. The Resource Conservation and Recovery

Act (RCRA) does not authorize this cleanup method. 42

U.S.C.A. § 6901 et seq.

A.36

Mr. Warren Zehner, EPA Senior On-Scene Coordina-

tor for the West Dallas Project, testified that the removal

was pursuant to CERCLA. Pursuant thereto, the EPA

found “an imminent and substantial danger” because of a

release of a “hazardous substance” into the environment

of the West Dallas residential area. This soil is classified

as a CERCLA “hazardous substance” and CERCLA recog-

nized that “when released into the environment (it) may

present substantial danger to the public health or welfare

or the environment ... ” 42 U.S.C.A. § 9601(14) and

9602(a).

Despite the EPA’s finding under CERCLA, Mr.

Zehner testified that EPA re-classified the same soil as

non-hazardous for disposal purposes under the RCRA.

He testified that an EPA directive authorized disposal of

this CERCLA hazardous substance at a RCRA non-haz-

ardous waste site such as the Magnolia Landfill.

Congress passed the CERCLA, sometimes referred to

as the “Superfund”, legislation to clean up the Nation’s

worse abandoned hazardous waste sites in a permanent

and environmentally safe manner. Section 121 (d)(3) is

not ambiguous. It is clear that Congress intended the

CERCLA “cleanup” to encompass consistent treatment of

the contaminated material throughout the process. In

other words, the CERCLA mandate cannot be circum-

vented by EPA policies or directives which allow the

same contaminated material to be re-analyzed under dif-

ferent standards (Toxicity Characteristic Leaching Pro-

cedure), for the final step in the CERCLA cleanup.

The parties to such circumvention of CERCLA,

including the disposal landfill if not a Subtitle C facility,

iene

A.37

are violating Federal law. The court finds that American

Waste is disposing of the removed hazardous substance

in violation of CERCLA.

The next question is whether the Police Jury may

enjoin the violation of the law, or whether it is limited to

a termination of the contract and an action on the bond

for damages.

The contract between the parties provides:

“15.01 All terms, conditions and specifications

of the contract documents are considered mate-

rial and failure to perform any part of the con-

tract by American Waste shall be considered a

breach of contract. Should American Waste fail

to perform any of its contractual obligations, or

cure any defaults under the contract within ten

(10) days after written notification by the

Ouachita Parish Police Jury to American Waste,

then the contracting parties shall have the

option to terminate the contract... . ”

“15.02 The obligation of American Waste is to

provide the services agreed to herein. The rem-

edy of the contracting parties in the event of a

default is the termination of the contract, an

action on the bond and an action against the

a”

company... .

The following articles of our Civil Code are pertinent

to the effects of obligations, including the right to specific

performance:

Art. 1758

A. An obligation may give the obligee the right

to:

A.38

(1) Enforce the performance that the

obligor is bound to render;

(2) Enforce performance by causing it to

be rendered by another at the obligor’s

expense;

(3) Recover damages for the obligor’s fail-

ure to perform, or his defective or delayed

performance.

B. (Rights of obligor omitted.)

Art. 1986.

Upon an obligor’s failure to perform an obliga-

tion to deliver a thing, or not to do an act, or to

execute an instrument, the court shall grant

specific performance plus damages for delay if

the obligee so demands. If specific perform [sic]

once is impracticable, the court may allow dam-

ages to the obligee.

Upon failure to perform an obligation that has

another object, such as an obligation to do, the

granting of specific performance is at the discre-

tion of the court.

Art. 1987.

The obliger may be restrained from doing any-

thing in violation of an obligation not to do.

The contract between the Police Jury and American

Waste does not contain a liquidated damage clause. It

provides that in the case of a breach by American Waste,

the Police Jury has the option to terminate the contract.

Additionally, in the event of default, it permits “an action

on the bond and an action against the company.” Emphasis

added.

—————Elle

A.39

American Waste has constructed a landfill, and

accepted and landfilled the waste material delivered from

Ouachita Parish. Thus, it has rendered a substantial part

of its performance and, apparently, the obligee does not

want dissolution of the contract. Instead, the Police Jury

wants to enforce the performance of Section 2.14. Specific

‘performance may be compelled in an action against the

company and the relief may include the preliminary relief

sought herein, pending trial on the merits for the perma-

nent injunction.

The Court finds that the Police Jury is not limited by

the provisions of the contract or by the law to only an

action to terminate the contract.

La. C.C.P. Art. 3601 provides: “An injunction shall

issue in cases where irreparable injury, loss, or damage

may otherwise result to the applicant, or in other cases

specifically provided by law.”

A plaintiff does not have to prove irreparable injury

when he seeks to enjoin the defendant from a course of

action forbidden by law. Smith v. West Virginia Oil & Gas

Co., 365 So.2d 269 (La. App. 2nd Cir. 1978) and Miller v.

Knorr, 553 So.2d 1043 (La. App. 4th Cir. 1989).

The preliminary injunction is issued in the form and

substance of the temporary restraining order, except it is

limited to contaminated soil received directly or indi-

rectly from the West Dallas hazardous waste site.

Since the decision in this matter will probably be

appealed, the Court rules upon the other issues as fol-

lows:

A.40

The Police Jury argues that American Waste violated

Section 2.01 by accepting waste for disposal which was

generated from outside Ouachita Parish. Also, a violation

of Section 2.04, as it argues, American Waste contracted

not to receive any hazardous waste from any source for

disposal at the landfill.

The Court rejects these arguments of the Police Jury

and agrees with the position of American Waste.

American Waste was not prohibited from modifying

its permits to increase the territorial scope of its landfill.

The problem of hazardous waste acceptance or non-

acceptance at the landfill was addressed only to the

extent that American Waste was not obligated to accept

this material from Ouachita Parish. In this regard, Ameri-

can Waste did not assume an obligation not to do, i.e. not

to accept hazardous waste from any source.

Additionally, in regard to all the alleged contractual

violations, the Police Jury did not meet its burden of

proving irreparable injury. The position of American

Waste is accepted in this regard.

In closing, the Court would like to commend the

attorneys for both the Police Jury and American Waste for

their diligent trial preparation, and their scholarly and

comprehensive legal briefs.

MONROE, LOUISIANA, this 21th day of April, 1992.

/s/ John R. Harrison

JOHN R. HARRISON -

JUDGE

ee |

A.41

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

MONROE DIVISION

OUACHITA PARISH POLICE JURY

VERSUS CIVIL NO. 92-0366

(Filed Mar. 23, 1992)

AMERICAN WASTE & POLLUTION COMPANY

RULING AND ORDER

This suit is REMANDED to State Court for lack of

subject matter jurisdiction. Fed. R. Civ. Proc. 12(b)(1). IT

IS SO ORDERED.

THUS DONE AND SIGNED IN Monroe, Louisiana

this 23 day of March, 1992.

/s/ Donald E. Walter

JUDGE DONALD E. WALTER

UNITED STATES DISTRICT

COURT

A.42

The Supreme Court of the State of Louisiana

QUACHITA PARISH POLICE JURY

VS. NO. 92-C-2953

AMERICAN WASTE AND POLLUTION CONTROL

COMPANY

IN RE: American Waste/Pol. Control; - Defendant(s);

Applying for Writ of Certiorari and/or Review; to the

Court of Appeal, Second Circuit, Number 24415-CA; Par-

ish of Ouachita Fourth Judicial District Court Div. “D”

Number 92-471

December 11, 1992

Denied.

WFM

PFC

JLD

JOw

HTL

Supreme Court of Louisiana

December 11, 1992

/s/ Illegible

Clerk of Court

For the Court

A.43

EXHIBIT A

STATE OF LOUISIANA

PARISH OF OUACHITA

BEFORE the undersigned Notaries Public, personally

came and appeared the Ouachita Parish Police Jury, a

political subdivision of the state of Louisiana, herein rep-

resented by its President, Billy J. Daniel, and American

Waste and Pollution Control Company (American Waste),

a corporation organized under the laws of the State of

Louisiana, a wholly owned subsidiary of Waste Manage-

ment, Inc., a Delaware Corporation, herein represented

by L. Michael Collier, its agént, duly authorized so to act

on behalf of the Corporation by resolution duly adopted

by its Board of Directors, a certified copy of which is

attached hereto as Exhibit A., and the City of Monroe,

Louisiana, represented by its duly authorized Mayor,

Robert E. Powell, per resolution attached, and the City of

West Monroe, Louisiana, represented by its, _, __,

per resolution attached, who stated and declared as fol-

lows:

WHEREAS the Ouachita Parish Police Jury did

receive competitive bids on October 10, 1983, regarding

the furnishing of a sanitary landfill site and solid waste

disposal services for the Parish of Ouachita; and

WHEREAS American Waste and Pollution Control

Company did submit the low bid therein;

NOW THEREFORE in consideration of the following

mutual agreements and covenants, it contracted and

agreed by and between the parties hereto as follows:

A.44

DEFINITIONS

1.01 Contract Documents - This contract, and the

addenda thereto and the contract performance bond.

1.02 Dead animals - animals or portions thereof

equal to or exceeding 10 lbs. in weight that expire from

any cause except those slaughtered or killed for human

use or consumption.

1.03 Disposal site — the sanitary landfill site proposed

to be developed by American Waste and permitted on the

site known as the Sullivan Tract and located in the North

one-half of Section 7 and in Section 12, TownShip 17

North, Range 5 East, Ouachita Parish, Louisiana, or such

other site as may be designated by American Waste,

approved by the Ouachita Parish Police Jury and permit-

ted by the State of Louisiana.

1.04 Garbage and bulky waste - any and all dead

animals less than 10 Ibs. in weight except those

slaughtered for human consumption, all accumulations of

waste (animal, vegatable [sic] and/or other matter) that

result from the preparation, processing, consumption,

dealing, handling, packaging, canning, storage, transpor-

tation, decay or composition of meats, fish, fowl, birds,

fruits, grains, or other animal or vegatable [sic] matter,

including but by no way of limitation, used tin cans and

other food containers and all putrescible or easily decom-

posable waste or vegetable matter which is likely to

attract flies or rodents and all stoves, refrigerators, water

heaters, automobile parts, washing machines, furniture or

other waste material and all waste building materials

- A.45

resulting from construction or remodeling or repair or

demolishing operations.

1.05 Hazardous waste — any chemical, compound, mix-

ture, substance, or article which is designated by U.S. Envi-

ronmental Protection Agency or the Department of Natural

Resources of the State of Louisiana, to be a hazardous or a

toxic substance as terms defined by or pursuant to Federal,

State or Parish rules, laws, or regulations.

1.06 Hauler - Any public or private hauler of garbage,

rubbish, or other refuse who receives compensation from the

producer of such garbage or other refuse or for the activities

which produces such garbage or other refuse which is pro-

duced by a residential or commercial unit.

1.07 Rubbish - all waste wood, wood products,

Christmas trees, tree trimmings, grass, cuttings, dead

plants, weeds, leaves, dead trees or branches thereof,

chips, shavings, sawdust, paper matter, pasteboard, rags,

straw, used and discarded mattresses, used and discarded

clothing, used and discarded shoes and boots, combusti-

ble waste pulp or other products such as used for packag-

ing or wrapping crockery or glass, ashes, cinders, floor.

sweepings, glass, mineral or metallic substances and any

and all other waste material not included in the definition

of garbage and bulky waste or hazardous waste.

II.

SCOPE OF WORK

2.01 American Waste agrees, that subject to the issu-

ance to American Waste of all final and non-appealable

A.46

licenses and permits to design, construct, and operate the

sanitary landfill, it will accept and landfill all garbage

and bulky waste, rubbish and other refuse delivered by

the Parish, residents of the Parish, and public or private

agencies domiciled in or operating in Ouachita Parish at

the landfill site. Once duly licensed and permitted, Amer-

ican Waste will maintain and operate the landfill site in

compliance with the conditions set forth in length in the

American Waste application for a sanitary landfill permit

to the Louisiana Department of Natural Resources. A

copy of that application shall be made a part of this

contract. Upon execution of this contract, American

Waste agrees to proceed as expeditiously as possible to

apply for all necessary licenses and permits. The objective

of the parties to this contract is that all necessary licenses

and permits shall have been obtained and that the landfill

shall have been opened by June 1, 1984. American Waste

shall not be deemed in default of its obligations under

this contract if for reasons beyond its control the licenses

and permits have not been obtained withith [sic] such

time as to permit the opening of landfill by June 1, 1984.

Until all final and non-appealable licenses and permits

are granted to American Waste, its only obligation under

this contract is to apply for and take such steps as it

deems reasonable and appropriate to obtain such licenses

and permits; it being recognized by the parties to this

Agreement that the granting of permits and licenses is

not a matter entirely within the hands of American Waste.

2.02 In the event that American Waste determines

that permit modifications are needed, American Waste

shall on its own and at its costs, secure such modification.

A.47

The Parish of Ouachita shall be kept fully informed of all

such permit modifications.

2.03 All costs that are incurred in preparing the

Sullivan Tract for sanitary landfill operations will be

borne by American Waste. Such costs include but are not

limited to the following:

A. Non-construction items such as soil bor-

ings, engineering drawings, surveys, and

salt and water analysis, and

B. Construction items such as site clearance,

road construction, ditch and levee construc-

tion, fence and building construction, util-

ities hook-up, environmental monitoring

controls, fuel installation and other items.

2.04 American Waste agrees, subject to the issuance

to it of all final and non-appealable licenses and permits

to design, construct and operate the sanitary landfill, and

as soon as practicable thereafter, to accept for disposal all

garbage and bulky waste, rubbish and other refuse gener-

ated by residents of Ouachita Parish, whether delivered

by automobile, trailer, or truck, and all material what-

soever, except hazardous waste, collected by any refuse

hauler within the Parish of Ouachita. Individual residents

of Ouachita Parish shall be permitted to dispose of per-

sonal, household waste without charge.

2.05 Rates for governmental refuse haulers who

enter this waste disposal contract with American Waste

shall be as follows:

From June 1, 1984, until December 31, 1985,

the rate shall be $8.95 per ton. On December 31,

1985, and on each December 31 thereafter dur-

ing the term of this Agreement, the rate shall be

A.48

adjusted and revised annually on January 1 of

each year in an amount equal to the percentage

change in the U.S. Dept. of Labor Consumer

Price Index (CPI) for all urban customers of the

Southern region of the United States, based

upon the period January 1, 1985, until December

31, 1985. As soon as practicable after January 1,

1986, American Waste shall notify all parties

utilizing sanitary landfill services provided in

this contract of the adjustment in price. Parties

of this contract designate the Ouachita Parish

Police Jury as the agency for the discussion of

price increases as provided in a written agree-

ment for cooperative endeavor. Should there be

any question with regard to the increase in price

as provided hereunder, American Waste shall be

obligated to document the basis for the increase

in price which it has transmitted to all parties.

2.06 If for any reason beyond the control of Ameri-

can Waste (eg. changes in governmental regulations or

the discontinuation of waste collection services by the

Cities without contracting out such services, but exclud-

ing general inflationary factors such as raises in salaries

and increases in costs of services), the cost of providing

services is increased substantially, American Waste shall

be entitled to an increase in the contract rate for disposal

services. The amount of the price increase shall be deter-

mined by American Waste, and it shall submit economic

data justifying the increase in contractual rate along with

a notice of the increase. The rate increase will be effective

thirty (30) days after notice is given, provided, however,

any price change pursuant to this provision causing a

need on the part of a governmental body to adjust budget

line items may be postponed by said body for a period

A.49

not exceeding 90 days. The contracting bodies shall have

the option, in the event of disagreement or disapproval of

the rate increase, to terminate this contract one year after

the effective date of the price increase, and they shall

notify American Waste of the exercise of this option to

terminate at least 90 days prior to termination.

2.07 If the volume of waste generated by residents

entitled to free disposal services under this contract

exceeds an average of 18 tons per day for a three month

period, the Police Jury will pay American Waste the con-

tract rate then in effect for each ton in excess of an

eighteen ton per day average. This provision shall not be

in effect during the first year of operation, however. Any

payments due under this provision shall be made quar-

terly, withing [sic] 30 days after a statement is issued by

American Waste to the Police Jury accompanied by rea-

sonable documentation of the volume of waste received

and disposed free of charge to Parish residents.

2.08 American Waste shall be responsible for secur-

ing all necessary permits and approvals from all Federal

and State governmental agencies having jurisdiction over

the operation of sanitary landfill operations. Further,

American Waste shall comply with all lawful policies and

all, health, sanitary and other regulations imposed by

such Federal and State regulatory agencies having juris-

diction over sanitary landfill operations. Representatives

of the contracting parties or their agents and representa-

tives of Federal and State regulatory agencies shall be

permitted to inspect the landfill site during working

hours, upon reasonable notice.

A.50

2.09 American Waste shall keep the landfill site

open and to accept garbage, rubbish and other refuse for

disposal Monday through Saturday of each week during

the hours of 7:00 a.m. through 6:00 p.m. Any reduction in

the hours of operation shall be effective only upon

approval by the contracting parties. In the event of emer-

gency conditions declared by the Mayors of Monroe and

West Monroe and the President of the Police Jury, Ameri-

can Waste will keep the landfill open for the disposal of

unusual amounts of waste generated or caused by the

emergency conditions.

2.10 The following holidays may be observed by

American Waste on which dates the sanitary landfill site

may, in the discretion of American Waste, be closed: New

Years day, Memorial Day, Independence Day, Labor Day,

Thanksgiving Day, and Christmas Day, provided, how-

ever, that the landfill will remain open on any day the

cities haul waste.

2.11 American Waste agrees to install, construct and

maintain in good working order and to have available at

all days ir which the sanitary landfill site is open a scale

to be used in weighing garbage, rubbish and other refuse

transported to the landfill site during normal working

hours.

2.12 The performance of this Agreement by Ameri-

can Waste may be suspended and the obligations there-

under excused in the event of and during the period that

such performance is prevented, or delayed, by a cause or

causes beyond the control of American Waste. Matters

beyond the control of American Waste include, without.

A.51

limitation, labor disturbances, acts of God, acts of govern-

mental authorities, war, nuclear holocaust, accidents,

riots, or damage or destruction of the premises and its

facilities. In the event of disruption of services under

such circumstances, American Waste shall take every rea-

sonable effort to reopen the site to accept waste as soon

as practicable after the cessation of the cause of suspen-

sion of services, and it shall take all reasonable steps to

overcome the cause of cessation of services.

2.13 All complaints made directly to American Waste

should be given prompt and courteous attention. Ameri-

can Waste agrees to notify the Ouachita Parish Police Jury

of any complaints which have not been satisfactorily

resolved within a reasonable period of time. American

Waste agrees to provide the contracting parties a list of

complaints which it receives on a quarterly basis.

2.14 American Waste shall conduct operations

under this contract in compliance with all applicable

Federal and State Law.

2.15 American Waste agrees to maintain the site in a

manner consistent with the safe operation of vehicles

owned by contracting and third persons and to provide

and maintain safe access to the site.

III.

TERM OF CONTRACT

3.01 This contract shall be effective upon execution of

the contract. The initial term of the agreement shall bé for

5 years commencing on the date that the landfill first

accepts non-hazardous solid waste for disposal, which

A.52

shall be as soon as practicable after all necessary permits

are issued by all governmental bodies. The Ouachita Par-

ish Police Jury acting pursuant to a written agreement for

cooperative endeavor shall have the option to renew this

contract with American Waste for one additional five year

period, commencing at the end of the initial term. The

option shall be deemed exercised unless the Parish noti-

fies American Waste to the contrary at least 180 days

prior to the end of the initial term.

3.02 This contract shall be automatically renewed

for two successive five year periods commencing at the

end of the first option period unless either party notifies

the other of its desire to terminate this Agreement not

less than 180 days prior to the termination of each succes-

sive option period.

3.03 If, after the first three years of any term of this

contract, the contracting governmental units receive a

bona fide (licensed, permitted and bonded offeror having

a permitted site within a radius of 15 miles from the

Ouachita Parish Courthouse) offer at least 20% less than

the contract rate then in effect for the disposal of waste,

American Waste will have a period of 90 days within

which to match the price quoted by the offeror, and, if it

does not agree to provide the services required under this

contract at the reduced rate within said 90-day period,

this contract shall terminate at the option of contracting

parties 90 days after notice of the exercise of this option.

3.04 In the event that both municipal parties do not

enter this contract, and in the further event that American

Waste elects not to terminate this contract as provided in

Section 15.07, the option provided in Section 3.03 shall

A.53

not be exercisable until the end of the fourth year of

operation.

IV.

4.01 American Waste shall not discriminate against

any person because of race, sex, age, creed, color, religion

or national origin.

5.01. American Waste shall indemnify, save harm-

less, and protect the contracting parties, their officers,

agents, and employees from any and all suits, actions,

legal proceedings, claims, demands, damages, costs of

expenses and attorney’s fees incident to any work done in

performance of this contract and rising out of a willful or

negligent act or omission of American Waste, its officers,

agents, servants or employees.

VI.

6.01 American Waste shall at all times, after the site

has been fully permitted as contemplated herein, main-

tain in full force and effect employers liability, workmen

compensation, public liability, and Property damage

insurance including contractual liability insurance cover-

ages provided under Section V. above. The contracting

parties shall be named as an additionally named insured.

All insurance shall be by insurers licensed and doing

business in Louisiana and for the policy limits as stated

hereafter. Before commencement of work hereunder,

American Waste agrees to furnish to the Ouachita Parish

A.54

Police Jury and municipalities certificates of insurance or

other evidence satisfactory to the contracting parties that

such insurance has been paid and is in full force. This

certificate shall contain the following express obligations.

“This is to certify that the policies of insurance described

herein have been issued to the insured for whom this

certificate is executed and are in force at this time. In the

event of cancellation or material change in the policy

affecting the certificate holder, 30 days written notice will

be given to the certificate holder.” For the purpose of this

contract, American Waste shall carry the following types

of insurance in at least the limits specified as follows:

Coverages Limits of liability

Workmans Compensation Statutory

Employers Liability $ 500,000.00

Bodily injury liability $ 500,000.00

except auto ea. occurrence

$1,000,000.00

aggregate

Property damage $ 500,000.00

liability except auto ea. occurrence

$1,000,000.00

aggregate

Automobile property $ 500,000.00

damage liability ea. occurrence

and Bodily $1,000,000.00

injury liability aggregate

Contractual liability $ 506,000.00

ea. occurrence

Excess Umbrella liability | $5,000,000.00

ea. occurrence

VII.

7.01 American Waste will be required to furnish a

corporate surety bond as security for its performance of this

contract. The surety bond shall be in favor of the contracting

parties in the amount of $1,000,000.00. A certificate from the

surety showing the premium having been paid in full shall

accompany the bond. The Surety on the bond shall be a duly

authorized corporate surety company doing business in the

State of Louisiana, and said surety company shall have a

Best’s rating of not less than “AAA”.

VIII.

8.01 Attorney’s-in-fact who sign performance bonds

or contract bonds must file with each bond or certificate,

a certified and effectively dated copy of their power of

attorney.

IX.

9.01 The contract rate for disposal services required

to be performed shall not exceed the rate fixed by and as

adjusted in accordance with the provisions hereof.

10.01 American Waste shall be responsible for the col-

lection of any amounts due by any private or public hauler.

XI.

11.01 American Waste may not discontinue sanitary

landfill disposal services to any public or private hauler

A.56

in Quachita Parish as to waste generated in Quachita

Parish who is delinquent in the payment of any amounts

due American Waste as a result of furnishing of landfill

disposal services to such hauler. However, American

Waste may require such public or private hauler who is

delinquent in payment of any amount due American

Waste to pay in cash or certified funds fecs incurred with

current deliveries of garbage, rubbish or other refuse to

the sanitary landfill site.

XII.

12.01 No assignment of the contract or any right

accruing under this contract shall be made wholly or in

part by American Waste except to an affiliate without the

express written consent by the contracting parties. In the

event of any assignment, the assignee shall assume the

liability of American Waste, but such assumption of lia-

bility shall not relieve American Waste of liability under

this contract. For purposes of this part, affiliate means

any company which is a wholly owned subsidiary of

Waste Management, Inc. or which Waste Management,

Inc. or a subsidiary thereof owns as least fifty-one (51%)

percent thereof.

Xill.

13.01 The Ouachita Parish Police Jury and the Cities

of Monroe and West Monroe agree that any garbage,

bulky waste and rubbish collected by the Parish or the

Cities or pursuant to a contract in which any of them is a

principal party shall be disposed at the American Waste

sanitary landfill site.

A.57

XIV.

14.01 American Waste shall continuously take such

reasonable measures as may be proper to control and

eliminate fires, smoke, odor, rodents, flies and all other

public health menaces and pests on and around the land-

fill site. The landfill should be continuously policed by

American Waste to prevent fires and blowing of paper or

trash, and shall be kept neat and sanitary at all times. The

landfill shall be covered at the end of each day’s opera-

tion and the size of the “active face” on which garbage or

other refuse is from time to time deposited shall be kept

to a minimum.

XV.

15.01 All terms, conditions and specifications of the

contract documents are considered material and failure to

perform any part of the contract by American Waste shall

be considered a breach of contract. Should American

Waste fail to perform any of its contractual obligations, or

cure any defaults under the contract within ten (10) days

after written notification by the Ouachita Parish Police

Jury to American Waste, then the contracting parties shall

have the option to terminate the contract. Further, in the

event American Waste shall be adjudged bankrupt either

by voluntary or involuntary proceedings, then this con-

tract shall immediately terminate and in no event shall

this contract be, or treated as, an asset of American Waste

after adjudication of bankruptcy. If American Waste shall

be proven to be insolvent or fail in business then this

contract may be terminated at the option of the contract-

ing parties.

A.58

15.02 The obligation of American Waste is to pro-

vide the services agreed to herein. The remedy of the

contracting parties in the event of default is the termiria-

tion of the contract, an action on the bond and an action

against the company. American Waste is not precluded

from any activity which does not unreasonably interfere

with its obligation to provide this service.

15.03 A minimum buffer zone of 200 feet shall be

maintained be American Waste from the property line of

property leased by American Waste for the purpose of

maintaining a sanitary landfill site at all times during the

term of this contract, unless less buffer zone is agreed to

in writing by the affected, adjoining property owner (s).

15.04 This contract shall have no binding force or

effect until it has been executed by the duly authorized

representative of each contracting party.

15.05 The Ouachita Parish Police Jury agrees that it

will accept no further waste at the existing Parish landfill

on June 1, 1984, or at such earlier or later date that the

American Waste landfill shall be fully operational and

opened for business.

15.06 The term “contracting parties” means the

Ouachita Parish Police Jury, The City of Monroe, and The

City of West Monroe, or, those who actually approve and

sign this agreement.

15.07 If this contract should not be signed by all the

parties identified herein above within 45 days from the

date of execution by American Waste, this contract shall

be automatically void and of no force or effect what-

soever. This provision and Section 15.04 are for the

A.59

benefit and protection of American Waste, and not with-

standing said provisions, American Waste shall have the

option to elect to proceed with and be bound by the terms

hereof. In such event, the governmental units which have

approved and executed this contract shall likewise be

bound by the terms hereof. American Waste shall give

notice in writing to the contracting parties if it elects to

exercise this option.

15.08 This is a contract for the performance of cer-

tain actions and the provisions for the services outlined

herein by American Waste. Under no circumstances or

conditions shall the operation of the landfill by American

Waste in accordance with this contract be deemed a pub-

lic function, nor have the contracting governmental units

acquired any interest in land or real property by virtue of

this contract. If the contract should be executed before the

execution or recording of a formal agreement of lease for

landfill use, the recording of this contract shall not be an

encumbrance or have any effect on any real estate

described generally herein.

15.09 Notwithstanding Section 13.01, nothing in this

contract requires that any of the contracting govern-

mental bodies haul refuse to the landfill for which it or its

residents have use.

15.10 In the event American Waste elects to proceed

with construction on the strength of a contract with less

than all of the contracting parties, the other(s) shall be

entitled to the benefits of this contract for a period of not

less than 120 days after the execution of the contract by

American Waste, or until such later date that would not

A.60

necessitate the hiring of additional personnel or the pur-

chase of additional equipment.

STATE OF Louisiana

Parish of Ouachita

Thus done and passed on this Ist day of May, 1984.

WITNESSES: AMERICAN WASTE AND

/s/ Illegible POLLUTION

/s/ Illegible CONTROL, CORP.

By; /s/ L. Michael Collier

/s/ Illegible

NOTARY PUBLIC

(Please type or print name)

My commission expires at death.

STATE OF LOUISIANA

PARISH OF OUACHITA

Thus done and passed on this Ist day of May, 1984.

WITNESSES: OUACHITA PARISH

/s/ \llegible POLICE JURY

/s/ \llegible

BY: /s/ Billy Daniel

PRESIDENT

/s/ \llegible

NOTARY PUBLIC

A.61

Thus done and passed on this 27th day of April, 1984.

WITNESSES: THE CITY OF MONROE

/s/ Illegible BY: /s/ Illegible

/s/ Illegible

/s/ Thomas Gardner, Jr.

NOTARY PUBLIC

Thus done and passed on this ___ day of ,

1984.

WITNESSES: THE CITY OF WEST

MONROE

BY:

NOTARY PUBLIC

A.62

ADDENDUM NO. I.

TO CONTRACT BETWEEN OUACHITA PARISH, THE

CITIES OF MONROE AND WEST MONROE, AND

AMERICAN WASTE

In addition to the provisions of Section 15.01 of the

Contract, if the default has not been cured, and if the

landfill has been ciosed for a period of ten (10) consecu-

tive days, without lawful cause, the contracting govern-

mental units shall enjoy a concurrent right with American

Waste to dispose of garbage, bulky waste and rubbish at

the Sullivan site and to use the facilities of American

Waste. This is a present assignment subject to the suspen-

sive condition of the preceding sentence. American Waste

agrees to make provisions for this assignment in all con-

tracts affecting its right to use the Sullivan tract.

The rights created hereunder shall terminate after a

reasonable period of time for the contracting govern-

mental units to locate and permit a site, and these rights

shall be further suspended if American Waste cures the

default prior to the landowner terminating its interest in

the land and the location of another site by the contract-

ing governmental units.

The contracting governmental units shall have com-

plete and total liability for any pollution or environmen-

tal problems caused by them during the operation of the

landfill pursuant to this clause, and they shall assume all

responsibility to third persons for damages arising out of

the operation of the site.

A.63

In the event of default and operations by the govern-

mental unit pursuant to this Addendum, the govern-

mental bodies agree to pay their proportionate share of

the rental or charges due the owner of the land on which

the site is located.

For as long as American Waste operates the site

concurrently with the governmental units, in event of

default, it will retain management and direction authority

with respect to the disposal of waste by the governmental

units, and it wili retain full responsibility for pollution

and environmental problems as long as it retains direc-

tion and control of the disposition of waste.

AMERICAN WASTE AND

POLLUTION

WITNESS: CONTROL CORP.

/s/ Illegible By /s/ L. Michael Collier

(5/1/84)

OUACHITA PARISH

POLICE JURY

WITNESS:

/s/ Mlegible By /s/ Billy Daniel

WITNESS: THE CITY OF MONROE

/s/ Thomas Gardner Jr. By /s/ Illegible

THE CITY OF WEST

WITNESS: MONROE

A.64

ADDENDUM NO. II.

TO CONTRACT BETWEEN OUACHITA PARISH,

THE CITIES OF MONROE AND WEST MONROE, AND

AMERICAN WASTE

Section 3.03 of this Contract is amended to eliminate

the requirement that the competing offer be at least

twenty percent (20%) less than the Contract rate in effect

at the time of the offer.

Further, it shall not be necessary that the offeror have

at the time of the offer a licensed, permitted and bonded

facility, but it must demonstrate sufficient financial

responsibility to complete the construction of the facility

by a date certain, guaranteed by a performance bond in

the amount of One Million ($1,000,000.00) Dollars.

If American Waste has not agreed to meet the lower

offer within ninety (90) days after the bond is posted (the

condition of the bond being that the offeror shall permit

and open a facility within six (6) months after the deci-

sion of American Waste and provide the service at the

offered price at least until the end of the term of the

American Waste Contract), the governing bodies shall

have the option to terminate the Contract on 180 days

notice. Section 3.03 is further clarified to explicitly

include an offer for any waste disposal system permitted

by law, not necessarily a landfill.

Any reduction in the rate charged by American

Waste pursuant to this provision shall go into effect 180

days after notification of its agreement to reduce the

price.

A.65

If any party elects to terminate based on this provi-

sion, the Contract rate shall be renegotiated with the

remaining parties if less than all governmental bodies

elect to terminate.

The Contract remains otherwise unchanged except as

amended.

AMERICAN WASTE AND

POLLUTION

WITNESS: CONTROL CORP.

/s/ Illegible By /s/ L. Michael Collier

(5/1/84)

OUACHITA PARISH

POLICE JURY

WITNESS:

/s/ legible By /s/ Billy Daniel

WITNESS: THE CITY OF MONROE

/s/ Thomas Gardner Jr. By /s/ Ilegible

-_ THE CITY OF WEST

WITNESS: MONROE

A.66

AMERICAN WASTE AND POLLUTION

CONTROL COMPANY

CERTIFICATE

I, John B. Furman, the duly qualified and Assistant Secre-

tary of AMERICAN WASTE AND POLLUTION CON-

TROL COMPANY, a Louisiana Corporation, hereby

certify that the following is a true and complete copy of a

resolution of the Board of Directors of said Corporation

duly adopted by unanimous written consent dated Janu-

ary 13, 1984.

RESOLVED: That the Corporation be and it

hereby is authorized, directed and empowered

to enter into a contract by and between the

Corporation and the Quachita [sic] Parish,

together with the Cities of Monroe and West

Monroe for the construction and operation and

subsequent receipt of refuse at the facilities to be

permitted and constructed and operated by

American Waste and Pollution Control Com-

pany.

BE IT FURTHER RESOLVED: That Donald C.

Clark, President, or Michael Collier be and each

of them hereby is authorized, directed and

empowered to execute and deliver for and on

behalf of the Corporation, any and all agree-

ments, contracts, documents, certificates, deeds

and memoranda deemed by him to be necessary

and appropriate to effect the herein authorized

resolution.

DATED: January 13, 1984

/s/ John B. Furman

John B. Furman, Assistant

Secretary

A.67

EXHIBIT B

[p. 218] WARREN ZEHNER, a witness, called on

behalf of the Defendant, first duly sworn, testified as

follows:

DIRECT EXAMINATION

By Mr. Percy:

Q. Mr. Zehner, would you state your name and

address for the record please?

A. My name is Warren Zehner, 5638 Duck Creek,

No. J, Garland, Texas.

Q. Mr. Zehner, by whom are you employed?

A. The United States Environmental Protection

Agency, Region 6, which is Dallas.

Q. And what is your job title at the present time?

A. I’m a senior on-scene coordinator.

Q. Does your employment carry any other designa-

tion other than senior on-scene coordinator?

A. No, it doesn’t.

Q. What is your educational background, Mr.

Zehner?

A. I have a bachelor of science in marine biology

and minor in chemistry and over forty hours towards a

graduate degree in systematic biology and a minor in

geology.

Q. How long have you been employed by the EPA?

A.68

A. A little over .. . since 1988, about four years.

Q. Having you been serving in the capacity of on-

scene coordinator throughout that period of employment

with the EPA?

A. That’s correct.

Q. Prior to your employment with the EPA by

whom were you employed?

A. Before going to EPA, I was employed with Ecol-

ogy and Environment, a consulting firm to EPA’s

Removal Program, and [p. 219] prior to that, after I left

graduate school, I was employed by Roy F. Weston, also

in a contracting capacity to the EPA Removal Program. So

I’m been in the EPA Removal Program .. . will be eight

years in August.

Q. Mr. Zehner, would you describe the duties and

responsibilities of an on-scene coordinator, a senior cn-

scene coordinator with the EPA?

A. Senior on-scene coordinators and on-scene coor-

dinators in general are responsible for all aspects of emer-

gency response as far as EPA is concerned, and also one

of our primary functions is to conduct site assessments,

extent of contamination surveys, evaluate the risks that

are present on a site, you know, as outlined in the

National Contingency Plan, and then make recommenda-

tions for removal actions under the Super-Fund Program

if conditions on the site warrant.

Q. So in summary you’re in charge of the on-site

activity for the EPA?

A. That’s correct.

A.69

Q. Specifically, Mr. Zehner, what is your present

duty assignment as on-scene coordinator?

A. My present duty assignment is the West Dallas

RSR site assessmentyand removal action, and I’ve been

working in that capacity since August the 8th of 1991.

Q. Is that the EPA action that has generated the

waste material that has been transported to the Magnolia

Landfill?

A. That’s correct.

Q. And how long have you actually*been employed

at that site?

A. I’ve been working at that site since August the

8th of ‘91.

Q. Can you describe for the Court, Mr. Zehner,

exactly what has transpired since August of 1988 in the

assessment of that site and the assessment of the activity

of the EPA at that site?

[p. 220] A. August of ‘88 or August of ‘91?

Q. I’m sorry, August of ‘91.

A. Okay. In August of ’91 I was brought into the site

basically because I’m the regional expert on smelters and

residential lead removals, and | have extensive experi-

ence in that over the last couple of years, but to trans-

gress a little bit, in July we were referred to the site by the

Texas Water Commission, who is the equivalent of

Department of Environmental Quality. They brought me

into it, like I say, August the 8th, and I began an extent of

contamination survey in approximately a one square mile

A.70

area down wind of the .. . of the old RSR Smelter. In the

pursuing months since then we've pulled in excess of a

thousand samples characterizing the area. We've pulled

both grid samples on large areas but also individual

residences, front and back yards, and this was done so |

could know what kind of lead concentration or metal

concentration I was dealing with at a particular place,

and then composite samples of those samples that |

already had taken from our archives were sent into the

lab for TCLP analysis to determine RCRA hazardous

waste versus RCRA non-hazardous waste, and based on

those analysis | instructed my contractor, my prime

removal contractor, Riedel Environmental Services, and

their AKA or DBA, doing business as, Riedel Peterson in

Region 6 to solicit bids from facilities that could take

RCRA non-hazardous waste based on TCLP analysis and

bids from facilities that can take RCRA hazardous waste

based on TCLP analysis.

Q. Did you actually perform any analytical tests

regarding the waste designated for disposal at the Mag-

nolia Sanitary Landfill?

A. Yes, we did.

[p. 221] Q. And what were the results of those tests,

Mr. Zehner?

A. All of the... th

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