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United States v. Price

filed: September 14, 1982.

UNITED STATES OF AMERICA, APPELLANT,
v.
CHARLES PRICE, INDIVIDUALLY AND D/B/A PRICE'S TRUCKING COMPANY; VIRGINIA PRICE; CARL F. PRICE; BERNARD ABRAMOFF, LEE GARRELL, FRANK ABRAMOFF, INDIVIDUALLY AND D/B/A A.G.A. PARTNERSHIP; ASTROPAK CORP.; CHEMICAL CONTROL CORP.; WILLIAM CARRACINO; MICHAEL COLLETON; ROBERT DAY; SCIENTIFIC CHEMICAL PROCESSING, INC.; LEIF R. SIGMOND; DOMINICK PRESTO; PETROLEUM TANK CLEANING AND DISPOSAL, INC.; WAYNE D. HAMBY; CAROL M. HAMBY; MARVIN JONAS, INC.; SAMUEL H. JONES, INDIVIDUALLY AND D/B/A S-J TRANSPORTATION CO.; EVOR PHILLIPS LEASING CO.; EVOR R. PHILLIPS; KING OF PRUSSIA TECHNICAL CO.; ERNEST R. ROTH; HARRISON L. KALBACH; ROBERT A. HAUSLOHNER; HARRY T. DEVINE; GEORGE STRAWBRIDGE; CHEMQUID DISPOSAL INC.; HARVEY BROOKS; HENRY ENGELS; DANIEL F. JACKSON; UNION CARBIDE CORP.; HONEYWELL, INC.; PRINCETON CHEMICAL RESEARCH, INC.; ESSEX CHEMICAL CORP.; HOFFMAN-LA ROCHE, INC.; KRYLON CORP.; AMACO CHEMICALS CORP.; ROLLINS ENVIRONMENTAL SERVICES, INC.; TRIANGLE PWC, INC.; AND THE PROCTOR AND GAMBLE CO. ATLANTIC CITY MUNICIPAL UTILITIES AUTHORITY, INTERVENOR



Appeal from the United States District Court for the District of New Jersey. D.C. Civil No. 80-4104

Aldisert and Weis, Circuit Judges, and Re,*fn* Chief Judge.

Author: RE

Opinion OF THE COURT

RE, Chief Judge of the Court of International Trade.

In this action, brought under section 7003 of the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. § 6973, and section 1431 of the Safe Drinking Water Act (SDWA), 42 U.S.C. § 300i, plaintiff United States, on behalf of the Administrator of the Environmental Protection Agency (EPA), appeals from the denial of its application for a preliminary injunction. The requested injunction would have required defendants to (1) fund a diagnostic study of the threat to Atlantic City's public water supply posed by toxic substances emanating from Price's Landfill, a former commercial landfill, and (2) provide an alternate water supply to homeowners whose private wells have been contaminated by substances leaching from the landfill.

The question presented on this appeal, whether the district court abused its discretion in denying plaintiff's request for preliminary relief, is answered in the negative. Therefore, we affirm and direct the district court to proceed as expeditiously as possible with a trial on the merits of this action. In view of certain findings and conclusions of the district court, we deem it necessary to comment on the availability of equitable relief in actions brought under these provisions.

Background

Section 7003 of RCRA provides that whenever the United States receives evidence that the handling, storage, treatment, transportation or disposal of hazardous waste may present an "imminent and substantial endangerment to health or the environment," it may bring suit immediately to restrain any person contributing to such activity or "to take such other action as may be necessary." Section 1431 of SDWA authorizes the Federal Government to commence "a civil action for appropriate relief, including a restraining order or permanent or temporary injunction" whenever it receives information that "a contaminant which is present in or is likely to enter a public water system may present an imminent and substantial endangerment to the health of persons."

Pursuant to the authority conferred by these provisions, the United States, on December 22, 1980, filed this action against the present owners and the former owners and operators of Price's Landfill. A hearing, which was held on plaintiff's application for preliminary relief, resulted in extensive and detailed findings of fact by the district court. See United States v. Price, et al., 523 F. Supp. 1055 (D.N.J. 1981). These findings may be summarized as follows:

Price's Landfill is a twenty-two acre lot situated on the border of the City of Pleasantville and the Township of Egg Harbor in New Jersey. It was owned by Charles and Virginia Price from 1960 until 1979 when they sold it to the present owners, A.G.A. Partnership.

In 1970, on his initial application for a license to conduct a sanitary landfill operation, Charles Price listed the materials he intended to accept for disposal at Price's Landfill. He specifically excluded "Chemicals (Liquid or Solid)." In his proposed landfill design, submitted on September 29, 1971, he made no provision for the disposal of chemical wastes, despite the fact that earlier that year he had begun accepting chemical wastes for disposal at the landfill.

When Charles Price applied to renew his permit in February 1972, for the first time he sought permission to accept and dispose of chemical wastes. His permit was renewed, however, only on the condition that no soluble or liquid industrial wastes, petrochemicals, waste oils, sewage sludge or septic tank wastes be disposed at the site. Nevertheless, Price's Landfill continued to accept chemical and industrial wastes for disposal in direct contravention of the conditions of the license.

During 1971 and 1972, Price's Landfill accepted for disposal approximately 9 million gallons of assorted industrial and chemical wastes. These wastes were disposed of with minimal precautions. Frequently, they would be poured into the refuse from an open spigot on a tank truck; at other times, drums of chemicals would simply be buried under the refuse. The dumping of chemical wastes at Price's Landfill ended in November of 1972, and, in 1976, the operation of the site as a commercial landfill ceased.

Upon purchasing the property in 1979, A.G.A. Partnership acknowledged in writing that the site had been used as a landfill. Although two of the three members of the A.G.A. Partnership, including the member who negotiated the purchase, were licensed real estate brokers, no one inquired whether hazardous wastes had been deposited there. Neither did anyone from or on behalf of A.G.A. inspect the property or take steps to determine if the landfill had been properly closed.

As a result of the chemical dumping which occurred during 1971 and 1972, water samples drawn from the area in and around Price's Landfill during the years 1979-81 were found to contain numerous contaminants in quantities likely to create grave hazards to human health. Among the contaminants were: arsenic, a highly toxic metal and an established human carcinogen; lead, a toxic metal and a suspected human carcinogen and teratogen; benzene, a highly toxic petroleum derivative and a potent carcinogen and teratogen; vinyl chloride, a toxic halogenated hydrocarbon and a suspected carcinogen and mutagen; and 1, 2 dichloroethane, a toxic chlorinated hydrocarbon, and a suspected carcinogen and teratogen.

Geohydrological evidence presented to the district court revealed that contaminants leaching down through the groundwater and away from Price's Landfill are forming a plume or region of contamination emanating into the Cohansey Aquifer, a saturated geologic deposit supplying water to approximately 35 private wells, and to 10 of the Atlantic City Municipal Utility Authority's 12 operating public wells. Many of the private wells are already contaminated beyond use, and 4 of the municipal wells are in imminent danger of serious contamination. Atlantic City has no readily accessible alternative source of water should these wells become contaminated.

These facts led the district court to conclude that Atlantic City's public water supply is in imminent and substantial danger of serious contamination by substances leaching from Price's Landfill. The court found that an extensive geohydrological study of the area around the landfill was "essential in devising a strategy to contain and mitigate the pollution and to protect Atlantic City's water supply," and that it was "imperative that such a study be done immediately." In ruling on various motions for summary judgment, the district court expressed its belief that the defendants could ultimately be held liable for the cost of abating this toxic hazard.

Despite these findings, stating that the remedies requested by plaintiff were inappropriate forms of preliminary relief, the district court denied plaintiff's application for a preliminary injunction. The court indicated that the issue of who should bear the costs of studying the toxic hazard, and obtaining an alternate water supply, should not be resolved on an application for a preliminary injunction.

Post-Hearing Action

Several months after the government made its initial application for a preliminary injunction, but only two days before the district court issued its decision, plaintiff filed a second amended complaint adding as defendants 35 corporations and individuals who generated or transported hazardous wastes which were deposited at Price's Landfill. The new complaint also added two claims under the Comprehensive Environmental Response Compensation and Liability Act (CERCLA or "Superfund"), 42 U.S.C. § 9601 et seq. The district court did not consider the effect of this amended complaint on plaintiff's request for preliminary relief, nor are the newly added defendants parties to this appeal.

After the district court issued its decision, the A.G.A. defendants, on October 6, 1981, moved for an order amending the district court's findings of fact and conclusions of law. Before the district court ruled on this motion, plaintiff, on November 17, 1981, filed its notice of appeal of the order denying its application for a preliminary injunction. On December 18, 1981, over plaintiff's objection, ...


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