Hickel v Whitney Farms :: 148 Wn2d 911
Category: Environmental Regulation
In 1996, 16 year old Phillip Hickle went hunting on the unposted property of Whitney Farms, and accidentally stepped into a concealed pit of burning organic waste composed of fruit residue generated from fruit juice producers Seneca Foods and Milne Fruit Products. The decomposing organic material can reach temperatures of over five hundred degrees Fahrenheit and Hickle was severely burned. Whitney Farms allowed Seneca to bury the fruit pumace material on their property at $15/ton instead of having to pay licensed landfill costs of $84/ton.
Whitney, Seneca and Milne had been warned in 1986 by the Health Department that they were illegally dumping solid waste without a permit and directed they rectify the situation. However, in 1994, Whitney was acquitted by a jury of illegal waste dumping. Subsequently, the contract between Whitney and Seneca was changed to make Whitney liable for complying with health regulations.
Hinkle sued Whitney, Seneca, and Milne with Whitney settling out of court, but Hinkle proceeded against Seneca and Milne for violation of the Solid Waste Management Act (SWMA); and the Hazardous Waste Management Act (HWMA). The trial court found in favor of Seneca and this decision was reversed on appeal on HWMA and common law claims.
Seneca contended that fruit pumace was not specifically designated as dangerous waste under HWMA, and that they were not responsible under common law negligence, since Whitney was responsible by contract for safety.
The Supreme Court found that Seneca had a duty to comply with HWMA, since fruit pumace was hazardous due to temperature, although not specifically addressed in HWMA.
The dissenting judges disagreed with the majority in that HWMA did not apply, because the material obviously did not fit the confines of what the act designated as dangerous wastes. It was not meant to take in a broad spectrum of materials that could potentially create a hazard but was confined to pesticides and herbicides and not meant “to be construed in their widest extent.” They did agree with the majority that Hickle could seek damages under common law negligence, but not the HWMA.
In the majority decision, the judges effectively wrote new law by taking a statute that was designed to regulate radioactive and chemical waste and declaring that it now applied to food waste and any other waste the lawyers may deem “hazardous.”
Rating the Usual Suspects:
| pass | Alexander, Gerry | |
| pass | Bridge, Bobbe | |
| pass | Daly, Jeffrey W | |
| pass | Jacobi, David M | |
| pass | Madsen, Barbara | |
| pass | Preg, Theodore L | |
| pass | Sanders, Richard | |
| pass | VanderSchoor, Vic L | |
| fail | Brown, Stephen | |
| fail | Chambers, Tom | |
| fail | Ireland, Faith | |
| fail | Johnson, Charles | |
| fail | Kato, Kenneth | |
| fail | Kimbrough, Rickey C | |
| fail | Owens, Susan | |
| fail | Smith, Charles | |
| fail | Sweeney, Dennis | |
| fail | Wilner, Don S |