Summary of a Recent
Judicial Development in
Landowner Liability

Producers Must Comply with State
Hazardous Waste Act

John D. Mead
National AgLaw Center Research Fellow

In an action alleging negligence and violations of the Washington Hazardous Waste Management Act ("HWMA") brought by a hunter who was severely injured when he fell into a concealed pit of burning industrial organic wastes, the Supreme Court for the State of Washington has held that the wastes constituted "dangerous wastes" as defined by the HWMA and that the producers of the wastes were required to comply with the HWMA. Hickle v. Whitney Farms, Inc., 64 P.3d 1244 (Wash. 2003). The court also ruled that genuine issues of material fact precluded summary judgment with respect to the hunter's negligence claim. See id. at 1251.

Plaintiff Phillip Hickle brought an action against defendants Phillip Whitney, Seneca Foods Corporation ("Seneca"), and Milne Fruit Products, Incorporated ("Milne") after sustaining injuries while hunting on Whitney's property. See id. at 1245-46. Hickle was badly burned, lost both of his legs below the knee, and lost partial use of one of his hands after falling into a concealed pit of burning industrial organic wastes that allegedly originated from Seneca and Milne. See id. at 1245.

Seneca and Milne were fruit juice producers that, for many years prior to Hickle's accident, contracted with Whitney for the hauling away and disposal of the industrial quantities of organic wastes generated by their operations. See id. at 1246. Whitney hauled away and disposed of fruit pomace, a by-product of fruit juice production, in large pits on his property, along with spent diatomaceous earth ("DE") that he covered with soil. See id. The surface of the pits appeared normal, but masses of the decomposing materials reaching temperatures of up to 507 degrees Fahrenheit were concealed. See id.

Hickle sued Milne and Seneca for negligent entrustment and for failure to comply with the HWMA. See id. at 1245. The trial court entered summary judgment in favor of the defendants. See id. The court of appeals and Milne and Seneca appealed to the Washington Supreme Court. See id. at 1247. Having settled with Hickle, Whitney was not a party to the appeal. See id.

The industrial organic wastes that Whitney hauled for Seneca and Milne were buried or piled on Whitney's lands. See id. at 1246. Wash. Rev. Code § 70.95.240 prohibited the disposal of industrial solid wastes except in validly permitted disposal sites. See id. It was uncontested that defendants' industrial organic wastes were industrial solid wastes under the HWMA; however, the court expressly noted the unrebutted testimony that the wastes did not qualify for agricultural exceptions under the HWMA because Seneca and Milne possessed the wastes for long periods of time at the original disposal site rather than applying those wastes in agronomic quantities back to the soil. See id.

Although Seneca occasionally required Whitney to submit landfill receipts as a condition of payment, it rarely required Whitney to haul the wastes to licensed landfills. See id. Seneca also required Whitney to "make every reasonable effort to protest any governmentally forced change to disposal location." Id. Hauling Seneca's waste to Whitney's property cost Seneca significantly less than it would have to dispose of the wastes at a licensed landfill, as it was required to do. See id.

The court noted that the purpose of disposing of wastes at licensed landfills was to prevent soil, water, and air pollution, as well as to minimize the negative effects of wastes from pests, fires, and other pollutants that could affect human health. See id. The court also noted that large quantities of decomposing organic material could spontaneously ignite if it were not carefully regulated. See id. Spontaneous ignition and continuously burning industrial organic waste was a constant problem on Whitney's property. See id.

In 1982, in response to complaints filed by Whitney's neighbors, the Washington Department of Energy ("DOE") notified Seneca and Milne in 1982 that Whitney had been improperly disposing the wastes on his property. See id. DOE repeatedly asked Seneca and Milne to dispose in a licensed landfill. See id. In 1984, Seneca was issued a waste discharge permit that required it to properly dispose of its organic wastes. See id. In 1985, the Benton-Franklin-Walla Walla Counties Air Pollution Control Authority informed Seneca that any "illegally dumped material still belong[ed] to the originator or source until accepted by an approved landfill or disposal site"that it would be held responsible if Whitney failed to remediate the problem. See id. at 1246-47.

In 1986, the Benton-Franklin District Health Department contacted Whitney, Seneca, and Milne, notifying them that it was the Health Department's position that Whitney had illegally dumped waste without a permit and that the material was contaminating surface and ground waters in the area. See id. at 1247. The Health Department then directed Whitney to remove immediately all deposits of fruit pomace and dispose of it by incorporating it into the soil. See id. Three years later, the Benton Fire District Number 3 decided that it would not be responsible for "Whitney's illegal dumpground and eternal burning pulp." Id. In 1992, an employee of the Health Department surveyed Whitney's waste dump and continued to advise the defendants that the solid wastes had to be deposited in a licensed landfill. See id.

By November of 1994, Seneca entered into a contract with Whitney that specifically required Whitney to comply with all applicable laws and regulations. See id. Whitney was occasionally required to show receipts from a landfill as a condition of being paid by Seneca. See id. The Health Department, however, continued to receive complaints about smoldering wastes on Whitney's property, and the pits remained a hazard into 1996 when Hickle was injured. See id.

Seneca and Milne argued that they did not have a duty to dispose of their wastes in accordance with the HWMA because fruit pomace was not specifically designated as dangerous waste by DOE. See id. at 1248. Under the HWMA, the term "dangerous wastes" is defined as

any discarded, useless, unwanted, or abandoned substances . . . which are disposed of in such quantity or concentration as to pose a substantial present or potential hazard to human health, wildlife, or the environment because such wastes or constituents or combinations of such wastes: . . . (b) [a]re . . . flammable. . . .

Id. (citing Wash. Rev. Code § 70.105.010(5)).

DOE also had promulgated a four-step procedure that generators of solid wastes were required to follow to determine whether their solid waste was a designated dangerous waste. See id. This process was as follows:

(a) To determine whether or not a solid waste is designated as a dangerous waste a person must: (i) First, determine if the waste is a listed discarded chemical product, WAC 173-303-081; (ii) Second, determine if the waste is a listed dangerous waste source, WAC 173-303-081; (iii) Third, if the waste is not listed in WAC 173-303-081 or 173-303-082, or for the purposes of compliance with the federal land disposal restrictions as adopted by reference in WAC 173-303-140, determine if the waste exhibits any dangerous waste characteristics, WAC 173-303-090; and (iv) Fourth, if the waste is not listed in WAC 173-303-081 or 173-303-082, and does not exhibit a characteristic in WAC 173-303-090, determine if the waste meets any dangerous waste criteria, WAC 173-303-100.

Id. at 1248 n.8.

Noting that "ignitability" was a dangerous waste characteristic, the court stated that a solid waste was ignitable if it were "capable, under standard temperature and pressure, of causing fire through . . . spontaneous chemical changes and, when ignited, burn[ed] so vigorously and persistently that it create[d] a hazard." Id. The court found that such an ignitable solid waste a "designated dangerous waste." See id.

Unrebutted expert testimony established that the accumulation of industrial quantities of fruit pomace and spent DE could spontaneously combust under standard temperature and pressure caused by moisture content and internal chemical changes. See id. Indeed, the wastes that Whitney deposited on his land combusted and burned so persistently that the local fire department refused to be held responsible for the "eternally burning pulp." See id. The court noted that Hickle's injuries underscored the hazard created by the improper disposal of the organic wastes. See id.

The court stated that the defendants' industrial quantities of organic wastes satisfied both the legislative and regulatory definitions of dangerous wastes. See id. The court also found that Seneca's wastes were designated dangerous wastes according to the procedures set forth by the DOE and that due to the ignitability propensity of these wastes, the manner of its disposal created a potential hazard to human health. See id. at 1249-50.

Seneca argued that if the legislature and the DOE intended that industrial quantities of organic wastes be designated as dangerous wastes and if fruit pomace and spent DE were covered by HWMA, then a farmer would be prohibited from storing hay or corn in a barn. See id. at 1250. The court rejected this argument, stating that hay and corn would not fall under Wash. Rev. Code § 70.105.010(5) which covers "discarded, useless, unwanted, or abandoned substances . . . which are disposed of in such quantity or concentration as to pose a substantial present or potential hazard to human health." Id. The court summarized that the fruit pomace was discarded, whereas corn being stored by a farmer is not discarded or abandoned. See id.

The court concluded that Seneca and Milne were the producers of industrial quantities of organic wastes that posed a potential threat to human health when it was accumulated in a manner as to exhibit the dangerous characteristics of ignitability. See id. Therefore, it held that the producers had a duty to comply with the HWMA. See id. It added, however, that

nothing in this opinion implies that all wastes, organic or otherwise, are covered by the HWMA. For example, agricultural wastes that are not disposed of in such quantities as to pose a present or potential hazard to human health are not covered by the HWMA because they do not meet the statutory definition of dangerous waste. In addition, the HWMA regulations specifically exempt certain materials from the definition of solid wastes. Furthermore, the regulations specifically exclude certain categories of waste, including agricultural crops and animal manures which are returned to the soil as fertilizers.

Id. (citations omitted).

Addressing Hickle's common law negligence claim, the court stated that although Seneca and Milne were not liable for the tortious actions of Whitney as their independent contractor, they could be held negligent for negligent entrustment. See id. at 1251. Recognizing that negligent entrustment was "based on the foreseeability of harm when one knew or should have known that the person to whom materials were entrusted was unable to safely handle the materials," the court stated that the record indicated that there was a sufficient question of fact remaining on that issue. See id.

The court concluded that a trier of fact could reasonably find that the defendants were liable to Hickle under a negligent entrustment theory and that they failed to comply with the HWMA. See id. It affirmed the appeals court decision and remanded the matter to the trial court for further proceedings consistent with its opinion. See id.

The case was decided on Mar. 13, 2003; this summary was posted Dec. 10, 2003.