NCD980602163_19820629_Warren County PCB Landfill_SERB C_Summons in Civil Action - NAACP et al v. Anne Gorsuch-OCR

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(Formerly D.C. Form N o . 45a Rev. (6·49))
SUMMON,S IN IA CIVIL ACTION
• llntteh §tutcs 1-Bintrid Qlourt
FOR THE
('"'
CIVIL ACTION FILE NO '· -, i V ·,
t:/'.A CP, et al
Plaintiff
V.
At~l'~ GOi'.?t:C::-5.r: :>~r ccr~cit·:/ ;::r:, tl :c· .\t~:,ini.~tr<t0:r
of the l::~vi :::c: :~ cr::t ci : r:::ote:: ct i.011 Ar:c1~c~· o~ t1:e
'Cnited St2tc.s; !i~'.~\:; CI J,T:2: in his C.J'"'c:citv :1s t~.H~
Secreta:r-·· cf :}-,c f1c:-:-2rr.:1.c:.t o~ Cri:c C0ntrc-} ,,..,;, 7
Public S.::ft.:t:: c-f t:·.e St.: tc ot . crt:-: C2rolL,~0 ; .:1<
the STA,. ... ~~.~· C,? >;,::·:'"_:-;~ c·)~.:-:.r1.r~· i\,
Defendant
SU~fMO~S
To the above named Defendant : ;](,,, r:r, Clc-r1:, Sccre:tc·'!··,· ,-,f f cT'nrt r ent 0-f Crii e. Control
;,r.d _ :'1.1blic SRfr:tY of : o::rt::: C;:;rolir,.:: You are hereby summoned and required to serve upon
plaintiffs attorney , whose address
7 2 2 ·.:est J o'h ·,,s c:. St:-cE:t
?.C. i3o:.-: 12.(!13
Raleifh , ~c ~7605
an answer to the complaint which is herewith served upon you, witliin f.=-0 -2--3 days after service of this
summons upon you, exclusive of the day of service. If you fail to do so, judgment by default will be
taken afainst you for the relief demanded in the complaint.
J. RICH l £ON A.Rn
Clerk of Coun. ~ ,'~ I £ /·· .. , ~ ( ( /::'
Deputy Clerk.
[Seal of Court]
l -
NOTE:-This summons is i$Sued pursuant to Rule 4 of the Federal Rules of Civil Pro~edure.
..
This cc::.ion seeks rrelirdnary anc per.7anent injunctive
relief t o pr-event the construction of a PCB dump in 1-:arren County,
:-:ort h C2:colina. The inci v idual plaintiffs al l res ice in t he
ir.J:1ediate vicinity of the proposed PCB durrp. Plaintiffs allege
that Defendants' actions violate a duly enacted county ordinance
pro~ibiting PCB du~ps; such ordinance being ~uthorizec and proper
under-the Clean Hater Act, 33 U.S.C. Section$ 1311 et sea .. ---At
a Dini~um, Plaintiffs m2intain that Defendants can only pre-empt
a local ordinance through the procedures set forth in the Resource
Conserva tion and Recovery Act (RCRA), 42 U.S .C. Sections 6901 et~-,
and N.C.G.S . Section 130-177 .17B ; procedures which Defendants have
not followed. Plaintiffs also claim that the Environmental Impact
Statement (EIS) prepared with regard to constructing a PCB dump
in Warren County is inadequate under the National Environmental
Policy Act, 42 U.S.C. Sections 4321 et sea., and the North Carolina
Environmental Policy Act, N.C.G.S. Sections 113A-l et seq ..
The individual minority Plaintiffs, renresenting a sub-class
of all minority residents of Warren County, further allege that
the fact that Warren County has the highest percentage (at least
63.7%) Qf minority residents of any county in North Carolina was
at least one factor in deciding to place the PCB dump there.
Plaintiffs primarily base this contention on the existence of other
sites with properties equal or superior to t~ose of the proposed
I~ THE lJNITED STATES DISTPICT COURT
EASTERf DISTRICT OF NORTH CAROL I NA
RP.LEIGH DIVIS I Ot(
~ATIO~AL ASSOCIATION FOR THE
AD\';,.;,:CPiEKT OF COLOP.ED PEOPLE
O? 1.-JA?,R[(; coriffY) COLEY SPRirGS
:3,':.PTl ST CH?-CCH, }':ASSENB l7G K::Ai,:EY,
E!~1:'., J. ALSTOK , i-?ILBUR D. ALSTm~,
JA':ES R. DAVIS, JEW--:I E 1}ILLIA.i""fS,
L t.l1RP. H..4 YES , ROBERT L . WILLIAf!S,
JA}'.ES L . KEAR:·;EY, FLORE NCE
SO::ElILLE, LARR Y GRED:, LETHA
J.
JAN SOLl-~N, LfGEN IA KEARNEY, on
behalf of themselves and all
others si~ilarly situated; and
EARL F . Lli'"ER' ARTHUR r,oocH,
ETHEL THARRIN GTO N, nuru~O OD G.
PATTERSO N, HELEN B. PATTERSON,
L.\1.-JRENCE LUBBERS, JOH N LIVER,
BPJ:I'7DA LIM1:P., R. E. LI~!ER, JR . ,
ALVH; H . KIMBALL, LUmA B.
KIMBALL , THOV.P.S HAP~ON, LUCY
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CO}?LAH:T AND noTIOK FOR
PRELH'U;ARY U;Jl1NCTI0l';
C. BRA1\TlE:·, NATHAlUEL BRA.NTLEY,
Plaintiffs,
V
ANNE GORSU CH in her capacity as )
the Administrator of the )
En vironmental Protection Agency )
of the lJnited States; HEMAN CLARK )
in his capacity as the Secretary of)
the Department of Crime Control )
and Pu8lic Safety of the State )
of No rth Carolina; and the STATE )
OF NORTH CAROLINA, )
Defendants.
)
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site. T~~s Plainti ffs contend that the v have been denied eoual
protection and suffered discrimination in violation of t h~
T.riirteenth ano Fourteen th Ar.1end rr,ents to the Un ited States
Cons tituti on; Arti cle I, Section 19 of t he f0 rth Carolina Constitution;
and 42 C.S.C. Sec tions 1981, 19 82, 19 83, and 2000d.
JuRISDICTION
1. P:ai~ti~fs i nvoke jurisdiction pursuant to 28 U.S.C.
Se c ti o :-: s l .3 31 , 13 6 l , 1 3 l 3 and L: 2 U . S . C . Se ct i on s 6 9 7 2 . The
Court has authority t o hear t h e state claims through pendant
jurisdiction.
PUI NTIFFS
2. Plaintiff Na tional Association for t he Advancement
of Co lored People of Warren County , a chapter of the Na tional
Association for t h e Advancement of Colored People (NJ.ACF) is
concerned with t h e plight of all minority citizens in Wa rren
Count y .
3 . Plaintiff Coley Springs Baptist Chu~ch whose pastor is
the Reverand Luther G. Brow"'TI, is a church v,hich Black residents
of Warren County attend which is located les~ them 2 miles from
the site of the dump .
4. Plaintiff Massenbug Keaney is a 52 year old Black male
who resides with a 44 and a 90 year old woman in a home within
3/lOth of a mile of the proposed PCB dump. Plaintiff Keaney is
a life long resident of Warren County.
5. Plaintiff Emma J. Alston is a 69 year old Black woman
who resides alone within 3/lOth of a mile of the proposed PCB dump.
Plaintiff is a life long resident of Warren County.
6 . Plaintiff 1•:ilbur D. Als ton is a 56 year old Black rnale
who lives alone wi thin l /4th mile of the proposed PCB dump.
Plainti ff Alston is a li fe l ong resident of Wa rren Countv.
7. Plaintiff JaDes R. Davis is a Black person, 56 years of
a ge wh o resides v:i th t\·:O other e lderly persoms \•Ji t hin l ess then
3 Y.1iles o:f the PCB dur.ip site. Plaintiff Davis is a li f e long
resident of ~arren County .
8. Plain tiff J en~ie Williarns is a 34 vear old Black feDale •'
~ho resi~es ~ith three oth er Blacks within 1 si le o f the PCB cump.
Plaintiff L'illiams is a llfe long resident o f "\Jarren County .
0 .,,, . Plainti ff Laura Hayes is a 47 year old Black fer.-:ale wh o
resides with her husband ~nd 4 children wi thin 1 mile of the PCB
dur:1p . Plaintiff Hayes has been a resident o f Warren County for
3 years.
10 . Plaintiff Robert L. Williams is a 6l y ear old Black male
who r esides with his 58 year old wife within 2 miles of the PCB
du17lo. Plaintiff Wi lliams is a life lonp, resident of Warren Countv.
11. Plai ntiff James L. Kearnev is a 38 year o ld Black rr:ale
who resides wi th his 36 year old wife within 1/2 mile of the PCB
dump. Plaintiff Kearney is a life long resi dent of Warren County.
12. Plaintiff Florence Sornewille is a 53 year old Black female
who resides with her 54 ye ar old husband within 1 /2 mile of the
PCB dlL-np. Plaintiff Somewille is a life long resident of ·warren
County.
13. · Plaintiff Larry C-reen is a 28 year qld Black male who
resides with his wife and 5 children within 1/2 mile of the PCB
dump. Plaintiff Green is a life long resident of Warren County.
14. Plaintiff Letha Jan Solman is a 58 year old Black female
who resides with Lergo Sol~an, ape 19, with~n 1/2 nile of the PCB
dump. Plaintiff Solman is a life long resident of Warren County.
15. Plaintiff Lu genia Kearney is an 87 vear old Blaci~ female
i,':10 resides alone within 3/lOth of a rd.le of the PCB dump. Plaintiff
re.:.rnev is a life long resident of Warren Coiunty.
16 . ? 1 a in ti f f Ea r 1 R . Lime r i s a 4 5 ye air o l d rr. an w h c, re s i de s
in his ~ore with his wife and two children w~thin 800 yards of the
proposed PCB du~p. Plaintiff Limer has resided in Warren County
for 45 vears.
17 . Plaintiff Arthur Gooch is a 51 year old man who resides
v:i th his spouse within 1 1 / 4th rr.i les of the proposed PCB dun:T).
Plaintiff Gooch has resided in µarren Countv for 51 years.
18. Plaintiff Ethel Tharrington is a 73 year old woman who
resides by herself within 4 /lOth of a ~ile or the proposed PCB
dump. Plaintiff Tharrinrton is a life lonp. resident of Warren
Countv.
19. Plaintiffs Durwood G. Patterson and 1 Helen B. Patterson,
of 41 and 40 years respectivelly, reside ~ithin 1/2 mile of
the proposed PCB dump with 4 children ranging from ages of 2 months
to 18 years. I Plaintiff Durwood Patterson is a life long resident
of Warren County.
20. Plaintiff Lawrence Lubbers is a 60 year old man who
resides with his wife within 1/2 mile of the proposed PCB durr.p .
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Plaintiff Lubbers has resided in Warren County for 13 years.
21. Plaintiffs John Limer and Brenda Limer reside within 1/2
of a mile of the proposed PCB dump in Warren County. Plaintiff
John Limer is a life long resident of Warren County.
22. Plaintiff R. E. Limer , Jr. ~esides in Warren County
with his spouse and a 16 year old person . Plaintiff Limer is a
life long resident of Warren County and in tact now resides on
part of the land where he was bcrn within 1 mile of t:-ie PCB dump.
23. Plaintiffs Alvin H. Kimball and Linda B. Ki~ball are
respecLively 26 and 30 v ears old and reside within l rr.ile of the
pro,osed PCB du~p. Fla~ntiffs have resided in Warren County their
,;.; ho 1 e l i v es .
24. ?la~ntiff Thomas Harmon is a 32 year old man who resides
in llarren Countv with his spouse and a 13 year old daufhter.
Plaintiff Harr-:on lives within 1 mile of the proposed PCB dump
and is a life long resident of Warren Count~.
25. Plaintiff Lucy C. Brantley and Nathaniel _Brantley are 63
vear old residents of Warren Countv who reside within 1/2 mile of ,; . .
the prorosed PCB dumr. Plaintiffs are life lonf. residents of Harren
County.
26 . All Plaintiffs are property owners and obtain their drinking
water from wells.
CLASS ACTION
27. The claims for a preliminary and p~rmanent injunction
are brought by minority plaintiffs described' in para~raphs 2
through 15, suDra. on behalf of themselves ahd all those similarily
situated minorities, pursuant to rule 23(a) and 23(b)(2) of the
Federal Rules of Civil Procedure.
28 .. ·The class consists of all the persohs in Warren County
who have the following characteristics:
') 0
(a) Are a rne~ber of a non-white (minority) rrou~.
(b) Are a resident of ~arren Cou~ty.
(c) Are a person who will be injured if recre-
ational facilities, drinkinf water and air
become contaminated with PC~.
(d) Are a person who will be injured because the
value of their property may be diminished by
the location of the PCB dumn in Harren Countv . . -
The members of the class are so nwl)e rous th ot joinder
is impractical; accorcing to the 1980 census there are 10,336
rincri:y persons within Warren County.
30. There are questions of law and fact comTT1on to the class
in t~at all members of the class are seeking a preliminary and
permanent injunction restrainin,e and en_ioini1ng the construction
of a PCB dur.p in Warren County, pursuant to environmental and civil
rip,hts claims.
31. The clains of the named Plaintiffs are typical of those
of the class.
32. The representative Plaintiffs will fairly and adequately
represent and protect the interest of the class. They have an
active, legally recognized interest in the vigorous and successful
pursuit of this action.
33. Defendants, in instituting and carrying out the policies
and practices complained of herein, have acted or refused to act
on grounds p.,enerally applicable to the class !. Thus both permanent
and preliminary injunctive relief with respect to the class as
a while is appropriate.
DEFENDANTS
43. Defendant Anne Gorsuch is being sue0 in her official
capacity as Administrator of the Environmental Protection Agency
of the united States .
35. Defend2nt Heman Clark is being sue
1
d in his official
capacity as Secretary of the Department of Cri~e Control and
Public Safety of the State of Korth Carolina.
36 . Defendant State of North Carolina is one of the fifty
sovereign states cc~prising the United States of America.
F J..CTS
37 . D~ring 197 8 approxirrately 40,00 0 cubic yards of PCB
con~~~inate d soil were l ocated along the shoul~er of 211 miles
cf roadwav in 14 central and eastern piedmont counties .
38. Defend2nt State of North Carolina proposes to remove and
disnose of the PCB contaminated soil in a s~ecially constructed
dump that is located on approximately 145 a l res of land in Warren
County .
39. Defendant Hernan Clark in his official capacity as Secretary
of t~e Department 0£ Crime Control and Public Safety is the public
official in charge of the efforts of the State of North Caorlina to
locate the ?CB durr:p in Warren County.
40. Defend2nt Clark is proceeding with actions to locate the
PCB dump in Warren County.
41. Upon information and belief, Defendant Gorsuch or her
agents approved a grant from the United Sta~es to the State of
North Carolina for the purpose of cleaning up the PCB spill and depos-
iting the soil in a dump in Warren County, North Carolina.
42. Defendant Gorsuch, acting through her agents and employees,
gave final approval for the PCB dump in Warrlen County on or about
December 14, 1981, without ordering the application of RCRA to
the decision-making process.
43. On or about August 21, 1978 the Couhty of Warren duly
p2ssed an ordinance which reads as follows:
W~E REAS, polv chlorinated biphenvl~.
(hereinaf~er.referred as PCB's)-are hi ghlv
t oxic sub stances, which are imminently -·da;ger-
ous to human health and life and are widelv
distribu ted in the e nvironment; and -
lrn EREAS , efforts a r e ma de from time t o
time to s tore , dump, an d otherwise dis pose
of PCB 's in various places ; and
WHE REAS , 1-Iarren County is r,e quli arly un-
suited for t he disposition of PCB's b e cause
t h ere is a ge nerally hi g h ground water tab le
i n t he c ounty an d mo st of the soils of the
countv are high ly permeab le , s o t h at there
is a sub stantial° likelihood tha t if stored
or c::'..soosed of in the county, PCB '1s would
even tu~lly seep into the gr~und wa ter supply ,
~her e they wou1d constitute an extreme danger
t o human health and life; ...
BE IT NO~·! THEP.EF'ORE enacted and ordained
by the County ~f Warren that
No PCB's, or substances or m~terials
containi ng a measurab le amo unt (other than
a trace) of PCB's shall be stored, dumped,
or othen;ise disposed of within thle boundaries
of Warren County.
44. De f endants Clark and the Stat e of North Carolina have
f ailed t o utilize the procedures set forth ih N.C.G.S . Section
130-166 .17B for preempting a local ordinance.
45. The PCB dump to be constructed in Warren County could
leak into "navigable waters" endangering hurn1ans and wildlife.
As a result, the ordinance prohibiting a PCB dump in Warren County
is supported by the Clean Water Act.
46. Prior to the enactment of N.C.G.S . Section 130-177.17B
in 1981, 42 U.S.C . Section 6929 of RCRA rrovided a basis for up-
holding-the local ordinance.
47 . The State of North Carolina has assumed responsibility
for enforcing RCRA.
48. Defencant Clark in his official capacity and his
predecessors , and Defendant State of North Carolina prepared an
Environmental Impact Statement (EIS) coverin~ the construction of
a PCB duDp in Warren County.
49. The EI S wa s accep ted b y Defendant Gorsuch and her ag ents
as the functiona l eauivalent of a federal ElS .
50. The EIS is inadequate both under t h e Nati onal Evnironmental
Po iic:-,, :\c t , L.;2 U.S.C. Sections 4321 et~-, and the i\O rth Caroliiia
EnYironnent c l Po licy Act, ::,:.C.G.S. Sections 113A-l et~-, in that :
(a) It assume~ that the PCB dump ~ill hav e an overall
beneficial economic iITpact on Warren County without e v en addressing,
let alone analyzing, the substantial depreciation of property values
that will occur as a result of the placement of the durnD in Warren
County.
(b) It assumes that there wi 11 be no seepage from the
PCB dQ~p into the surrounding environment and ground water even though,
upon information and belief, every chemical dump that has been
constru cted h as leaked. A.s a result of thi s1 erroneous ass lli"Tlpti on,
the EIS f ails to discuss and address the serious health hazards
that are likely to occur from leakage from t:his dump.
(c) It failed to consider the ps1chological and
err.otional ir.:pact on individuals living in the immediate vicinity
of the .PCB dump .
51. The racial composition of Warren County is substantially
differe~t from the general racial composition of the State of
North Carolina as a whole. Upon information and belief at least
63. 7~~ of the population of the county is non1-whi te; whereas only
25.2% of the population of the State as a whple is non-white.
Warren Ccunty has the highest percentage of ~inority population
of any county in the State.
52. Upon information and belief, the predominance of minority
individuals in the population of Warren County was at least one
factor in deciding to place the PCB dump in that county, as
evidenced by the following:
(a) Soils containing "montmorillonite" or "bentonite"
clavs that are subs tantially more impermeable , and t hus mo re
suitable for cr-Jer.:i cal wc.s te dump s than the soi 1 s at the i!arren
County site , exist on so~e 790,000 acres of land in t h e piedcont.
These soils do not exist at the proposed PCB durr.p site in Warren
County but do exist in Alamance, Chatham, Durham, Granville, Lee,
Moore, Person and Wake Counties.
(b) Upon information and belief the St.ate decided not
to exercise the right of eminent domain in acquiring a site for
the PCB dump even though at least one site in Chatham county was
superior to the Warren County site.
(c) In order to get approval from the En vironmental
Protection Agency of the United States for t i e Warren County site,
Defendant Clark and his predecessors and Defendant State of North
Carolina sought a waiver of four specific re~uirements under
the Toxic Substance and Control Act regulatimns.
(d) Warren County is on the peripnery of the areas
that received the PCB spills, requiring substantial additional
transportation expense in bringing the contaminated materials to
the proposed PCB dump site.
53. Placing the PCB dump site in Warren County will adversely
affect property values and impair the holding and enjoyment of
property owned by the sub-class of plaintiffs consisting of all
mi~orities in ~arren Countv.
FinST CLAIM
54. Defendants' actions in placing a PCB durr.p 1n Wc.rren
Countv and ir.1pa~ring the right of the sub-ciass of Plaintiffs
consisti ng of all ~inorities to hold and enjoy property, violates
Plaintiffs' rights under 42 V.S.C. Sections 1981 ~~d 1982.
SECOi\~D CL/\IM
r:; c; ..,..) . Defendant Gorsuch has arproved a ptant of federal funds
for the construction of a PCB d1..1I'.1p in Warren County. Because the
dunp ,dll reduce prope:::-ty values and subjects the sub-class of
Plaintiffs consisting of minorities to harm~ul chemicals, the
action of Defendants violates the rights of the sub-class of
Plaintiffs under Title VI of the Civil Rights Act of 1964, 42 U.S.C.
Section 2000d.
THIRD CLAIM
56. Defendants' actions in placing a PCB dump in Warren
County endangering the health and impairing the right to hold and
enjoy property of the sub-class of Plaintiff~ consisting of all
minorities, violates Plaintiffs' rights under the Thirteenth
Amend~ent to the United States Constitution.
FOURTH CLP.IP
57. At all times relevant Defendants Clark and the State
of North-Carolina have acted under color of State law.
58. The actions of Defendants Clark and the State of North
Carolina in placing a PCB dump in Warren County have denied the
sub-class of Plaintiffs consisting of all minorities equal protection
of t he l a~s 2s guaranteed by the Fourteenth Amendment to the
Unitec States Constitution, thus violating Plaintiffs' rights
under 42 U.S .C. Section 1983.
T-'I FTH CLAH~
S 9. The acti or:s of Defendants Clark an CJ the St ate of l~orth
C2rolin 2 in placing a PCS durep in War ren County have discriminated
O?ain st c~C denieC the sub-class of Plaintiffs consistinF cf all
minorities equa l protection of the laws in viola tion cf Article
I, Section 19 of the North Carolina Constitution .
SIXTH CLAH1
60. The local ordinance enacted by Warren County prohibiting
a PCB dump in Warren County is valid under the Clean Water Act
and the Resources Conservation and Recovery Act of the United
States. The local ordinance prohibits Defendant Clark, Defendant
State of No rth Carolina, and Defendant Gorsuch from acting to
place a PC E: dur::p in Warren County.
SEVE NTH CLAIM
61. Section 130-166.17B of the North Carolina General Statutes
sets forth the procedure for preempting a lbcal ordinance. Under
RCRA and a~p licable state law, Defendants Gorsuch, Clark, and the
State of No rth Carolina are prohibited from preempting the local
ordinance by any other means.
EIGHTH CLAIM
62 . The Evnironrnental Impact Stateiilent prepared with regard
to placir.g a PCB dump in Warren County does not meet the requirements
of the National Environmental Policy Act, 42 U.S.C. Sections 4321
et~-, and the North Carolina Environmental Policy Act, N.C.G.S.
Sections 113A-l et sea ..
IRREPARABLE HARl':
63. Plaintiffs wi ll suffer irreparable harm unless Defendants
are enjoine d fro!:: p~oceeding with the const'Jfuction of a PCB dump
iTi 1:<12:--:-en Countv an d the burial of PCB contaninated soil in that
EXl-U,USTION OF AmlH~ISTR.ATIVE RE!-':ED lES
64. Plaintiffs have given notice as re~uired under 42 U.S.C.
Section 6972(2)(2). A copy of the letter giving such notice is
attached hereto and incorporated by reference as Exhibit #1 .
65. Ko adequate administrative remedie~ exist as long as
Defend ants continue with their present cour$e of action.
PRAYER FOR RELIEF
W'nEREFORE PLAUaTFFS respectfully request that this court :
1. Assume jurisdiction over this case .
2. Certify the sub-class of Plaintiffs consisting
of all minority residents of Warren County pursuant to Rule 23(b)(2)
of the Federal Rules of Civil Procedure .
3. Grant at.the earliest opportunity, pursuant to
Rule 65 of the Federal Rules of Civil Procedure , a prelirr.inary
injunction enjoining Defendants from constructing a PCB dump in
Warren County, and from moving PCB contaminated soil to the proposed
dump site in Warren County.
4. Permanently enjoin Defendants from constructing a
PCB dump in Warren County.
5. In the alternative, enjoin Deflendants from construct-
ing a PCB dump in Warren County until such time as they have
co~plied with the provisions of N.C.G.S. Section 130-166.178.
6. In the further alternative, enjoin Defendants from
constructing a PCB du~p in Warren County until such time as they
have prepared an Environmental Impact State~ent that co~nlies
with the requirements of the National Envirbnrnental Policv Act
and the Korth Carolina Environmental Policy Act.
7 . Tax the co sts of this action against Defendants.
8. Award Plaintiffs their reasonable attorney's fees
pursuant to t h e Resource Conservation and Recovery Act and 42
U.S.C. Section 1988.
9. Grant such other and further relief as to the
Court seems just and proper.
Th . . / _:, f , f I / is tne -~---oay o J ,·,.,..,· '-i , i982. 7 .-t J , (
EDELSTEIN AKD PAYNE
Attorneys for Plaintiffs
·,
/ / /' /, .·;,---:·
Steven R. Edelstein
~-· --,--_
~, ;----._ .,~.;, /, i, ,· !°; I \,;
M. Tr a vis Payne /J
723 West Johnson Street
Post Office Box 12643
Raleigh, North Carolina 27605
[phone]
EDELSTEIN AND PAYNE
ATTORNEYS AT LAW
723 WEST JOHNSON STREET
POST OFFICE BOX 12643
RALEIGH, NORTH CAROLINA 27605
STEV E N R . EDELSTEIN
M. TR AVIS PAYNE
,~:T :~-1,
J une 29, 1982
~enan Clar k, Se ~r etary
Denar t~ent of Cr i rr:e Con trol
&. Pu't)lic Safety
512 K. Sa lisbur y Street
Ra 1 e i f. h , t~ . C .
Secretary of t h e Departm~nt of
1Iuma:1 r.es ources
Denar t r:.er.t of Hurran P.esources
32 5 n. Sa lisbury Street .
Ra l eigh , E.C.
Adrr:inistrc?.tor
Env ir on□ental Protection Agency
Wash inr t on, D.C. 20460
Re pi ona l Ad~inistrator
Vni ted Sta tes En vironmental Protection A?ency
34 5 Cortland Street, N.E .
Atl an ta, Georp.ia 30365
Re : Ifo t i ce under 42 DSC 6972(a)(2)
t o coTT:rr.ence an action immediately again st
t he adm inistrator for violations of 42 USC 6921 et. seq.
resp ecting the issue of not orderine th~ Resource
Con servc?tion Recovery Act and the refulf tion enacted
thereunder to be applicable to the PCB waste disposal
site in Warren County, North Carolina.
Dear Folks :
(919 ) 128-1456
(9 19) 828-1457
Our firm h as been retained by numerous individuals who object to
the p lacing of a PCB du.mp in Warren County, North Carolina. Attached
hereto as an exhibit is a list of the names of the individuals with
their addresses. All telephone cow~unicatioh should be directed
to our firm.
Plaintiffs specifically state that the provisions of 42 USC 6921
et. seq. and the federal regulations and sta~e enforcement program
enacted pursuant to these sections have been violated in that they
are not be i ng applied to the PCB dump in Warten County, North
Carolina. In fact, the regional administrator in Atlanta, Ceorgia
C~mplaint Exhibit ro . 1
J une 29 , l ?E 2
Pape 2
authorized f i na l appr ova l for t he PCB du2p 10n or 2bout Decerr:ber 14 ,
19S l . Upon in f or ma tion and belief the adrLnistra t or of the E.P.A .
has n o t mad e i t clear that 42 USC 692 1 et .~-app}i e s t o the
placeDen t of t he PCB waste disposal si t e . As a re sult, the state
o ffici als and re pional a d~inistrator have no t afp lied t h ese provisions .
'Tr.e s c p r ovi s i ons are popu l arly known as t he Resource Co :-i serv ation
c:.nd Fe ccvery Ac t , hereina fter cited as "ECAA ". Ti1 e f ederal regu-
1 ati ons pr o~ul ga ted pursuan t to RCPA list PC B's as a hazar do us
ccnsti r-...1 e,it co\;erec bv t he laK in 40 CFR 261.30 e t . sea . ,s ub p art
D, a:=,pe,.di:-: VII I . As· a listed sub stance no re2.son e xists f or
n ot E.P TJ <::ng RC?-....A. t o t h e situ s of a dur.,p f or PCB's i :1 1.-;arren
Ccuntv.
I n 15 USC 260 5 (e )(5 ~ Co ngress states :
This s ubs ection does not limit the auth6rity of t he Ad~inistrator,
urtcer any other prov ision of this act or any other fe deral
l aw , to take action r especting any polyq:hl orina ted bi pheny l.
In a dd iti on, 40 CF R 76 1 .l(e) state tha t the regul a tions regu lating
PCB' s "do n o t pre-€mpt other more strinpent f ederal statutes and
regulati ons".
The state of North Carolina has chosen to have its own enforcement
of the RCRP. re gulations and has been p,ranted interim authority to
be the en forcin f a pency by the ad□inistr a tor. If the adrr:inistrator
makes clear that the RCRA provisions apply t:o the PCB dump in
Warren County , then the state of North Caro1ina would be obligated
to re f er the matter to its waste man agement \board . Vost important,
the l oca l ordinance of ·warren County prohibi tine, the PCB dump
could no t b e p re-empted b y the Toxic Substan ce Control Act. The
more s t rinf ent requirements of the state of North Carolina incorpor-
ated into its ·waste management pro~rarr, under P.CP.A, would apply .
These requirements are set forth in NCGS 130-166.17B.
On beh alf of all the named individuals wear~ requesting that the
a dI:1i nistrator first make clear that RCRA applies to the placerr.ent of
a PC B dump in Warren County, North Carolina, and secondly, i r,r.ediately
state that f inal approval for the dump cannot be given until the
requirements of RCRA are complied with.
It is also the opinion of the named individuals that the Clean Water
Act justifies the specific local ordinance pr ohibiting PCB's in
Warren County, North Carolina. Because of t ~e need for immediate
judicial action, the named individuals are no t: giving notice of an
intent to sue pursuant to the Clean Water Act . The named individuals
intend to utilize jurisdiction granted oursu?nt to 28 USC 1332 (Fed-
eral question) and 28 USC 1361 (Mandamus) in order to bring those
issues before the proper judicial authority.
June ')'.) 1982
Page 3
The na~,ed indi ,;iduc.ls intend to file a lawsu,it ir..mediatelv under
42 USC 6972(c) which states that such acti on ma y be broufht
ir.~ediately c.f ter r:o tification in the case of an action res pecting
a violation of RCPA.
~o tification t o :he addressees shall be by reristered ~ail,
return receint rec uest e d . In addition coni es of this notice are
being sent to the .A ttorney General of the · Uni ted States , Office
of t he Attorney General, Washington, D.C.; Attorney General of
t:--,e St c:te of 1:orth Carolina, Office of the Attornev Gene:-al,
P.d;-::inistratio:-i-Ju8tice Building, Raleigh, t:.C. an·d the Solid
and Ec:zardous ~as te Chi ef AciITinistrator, Di vision of He alth
Services, '.225 t:. McDowell Street , Raleigh, ~:.c.
It is the intent of the named indiv iduals to initiate litigation
ir::mec::..a tcly. 1-.1e will cefer our litipation if the ad2inistrator
sta tes that the state of North Carolina has been notified t h at
the provis ions of RCRA apply in the case of lthe PCB dump in
Warren County , ~o rth Carolina and that the state will not locate
the PC3 du.i-;ip in Warren Countv, l;orth Carolina until the provisions
of RCRA are· applied. · ·
Dated at Raleigh, North Carolina this 29th day of June, 1982.
Su'tlrr.itted b y:
Edelstein & Payne
Attorn eys at Law
P.O. Box 12643
Ralei,£:h, N.C . 27605
(919). 828-1456
By:
l i I ,
Stev en R. Edelstein
• ATTACH?1E ~~T
COMPLAINANTS Ai'\D THEIR ADDRESSES
Nat ional Association for the Advancement
of Colored People
Warren County Chap ter
Rt. 3, Box 334
Warrenton , NC 27589
Coley SDrings Baptist Church
Route 2
Warre~ton , NC 27589
};ass enbug Keaney
Route 2, Box 57
Warrenton, NC 27589
Er:u-:ia J. Alston
Route 2, Box 56
Warrenton, NC 27589
Wilbur D. Alston
Route 2, Box 56
Warrenton, NC 27589
James R. Davis
Route 2, Box 163-K
tio r line, NC
Jennie 1-!illiams
Route 2, Box 10
Warrenton, NC 27589
Laura Hayes
Route 2, Box 10-C
Warrenton, NC 27589
Robert L. Williams
Route 2, Box 10
Warrenton, NC 27589
James L. Kearney
P.O. Box 513 .
Parrenton, NC 27589
Florence Somewille
P.oute 2, Box 59
Warrent~~. NC 27589
Larry Green
Route 2, Box 58
Warrenton, NC 27589