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Hickle v. Whitney Farms3/13/2003
Oral Argument Date: 09/24/2002
Concurring: Charles Z. Smith, Charles W. Johnson, Faith E Ireland, Susan J. Owens.
Dissenting: Gerry L. Alexander, Bobbe J. Bridge, Richard B. Sanders, Barbara A. Madsen.
En Banc
Today we must determine if those who produce industrial quantities of organic wastes have a duty to comply with chapter 70.105 RCW, the Hazardous Waste Management Act (HWMA). We hold that they do. We, therefore, affirm the Court of Appeals and remand the case to the trial court for further proceedings consistent with this opinion.
FACTS
On October 24, 1996, 16-year-old Phillip Hickle went quail hunting on land owned by Whitney near Prosser, Washington. Local custom allowed hunting on private property unless it was posted with 'No Trespassing' or 'No Hunting' signs. Hickle had hunted on Whitney's unposted land before, as had many of his friends. They all believed Whitney permitted hunting on its land. Nothing on the path to the hidden dump site warned of danger. Hickle, unaware of any peril, stepped into a concealed pit of burning industrial organic wastes and was severely injured. More than half of his body was burned, and he lost both legs below the knee and lost partial use of one hand. Amazingly, he was able to pull himself to safety. Hickle spent nearly nine months at Harborview Medical Center and Children's Hospital & Regional Medical Center in Seattle, Washington.
For many years, the fruit juice producers Seneca Foods Corporation and Milne Fruit Products, Inc., contracted with Whitney to haul away and dispose of industrial quantities of organic wastes generated by their businesses. Whitney used its lands to dispose of these wastes in large pits covered with soil. The surface of these pits appeared normal, concealing masses of decomposing materials that reached temperatures as high as 507 degrees Fahrenheit.
The industrial organic wastes consisted of fruit pomace and spent diatomaceous earth (DE). Fruit pomace is a by-product of fruit juice production, and consists of the skin, seeds, and other portions of the fruit left over after juice is extracted. It can be used as mulch, animal feed, or a soil conditioner. DE is a filter material, mostly consisting of silica dioxide. By itself, it is biologically inert. Spent DE contains organic matter collected during the filtering process. Although we refer to the wastes as organic, there is unrebutted testimony that the wastes do not qualify for agricultural exceptions to disposal regulations because Seneca and Milne hold the wastes for long periods of time at the original disposal site, rather than applying them in agronomic quantities back to the soil. Neither Seneca nor Milne contest that by definition their industrial organic wastes are industrial solid wastes under the Solid Waste Management Act (SWMA), chapter 70.95 RCW. Nor do they contest that it is unlawful under RCW 70.95.240 to dispose of industrial solid wastes except in a validly permitted waste disposal site.
The industrial organic wastes which Whitney hauled for Seneca and Milne were mostly disposed of by being buried or piled onto Whitney's lands. Occasionally Seneca required landfill receipts as a condition of payment. There is evidence that Whitney was rarely required to haul Seneca's wastes to licensed landfills. Having its wastes disposed of in a licensed landfill was costly, and Seneca required Whitney to 'make every reasonable effort to protest any governmentally forced change to disposal location.' Clerk's Papers (CP) at 255. Seneca paid Whitney $15.00 per ton to pile the wastes on Whitney's land, in contrast to $84.00 plus costs per '16 yd load' to haul the industr
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