FINAL EXAMINATION

DIRECTIONS: Write the letter of the single best answer in your Blue Books.

Multiple Choice

     (25%)

                                                                          Essay

                                                                        (75%)

            The County of Ultimate in the State of Grace contracted with Environmental Enterprises, Inc. (EEI), a private corporation engaged in the business of transporting, storing, treating, and disposing of chemical waste.  The contract provided that EEI would pick up and haul both liquid and solid waste from county facilities to Disposal Sites One and Two on 200 acres of county property that were used as landfills for the wastes. (The County could have located the dump at several places, but found the place with the cheapest land values.) The contract between Ultimate County and EEI also specified that EEI would be responsible for complying with all state and federal regulations regarding waste disposal and would exercise reasonable care in all hauling and disposal activities. 

At times, some of the county agencies would give EEI large junk items and EEI would deposit these in Disposal Sites One and Two on the edge of the property. That edge of the property is separated from residential areas by a large field. In the area on the edge of the disposal sites, a dump has unofficially developed, with people dumping debris such as rusted old cars, tires, broken down furniture, trash, and concrete blocks.  At times, county crews have also deposited waste at Disposal Sites One and Two. The County has erected a four foot wooden fence around the entire dump site and posted “no trespassing” and “danger” signs.  One characteristic of the sludge disposed at One and Two is that it promotes the growth of beautiful yellow flowers. The yellow flowers are growing in patches at Disposal Sites One and Two.

One afternoon, Vicky Grigson joined a couple of her eighth grade classmates and they rode their bikes a few blocks from their almost exclusively minority race neighborhood toward the Disposal Site.  Intrigued by the sea of yellow flowers, they walked toward Disposal Sites One and Two.  When they came to the dump site, they saw items far more interesting than yellow flowers, so they climbed over the fence and prowled on the edges of the dump site. They found a few treasures: a hat box, some marbles, and an old brick with the date etched in it.  When they returned home that evening, Vicky and her friends began to suffer a variety of ailments ranging from conjunctivitis (eye irritations) to skin rashes as well as persistent coughs.  

Concerned that Vicky might suffer long term respiratory effects from her day at the dump, Vicky’s parents immediately took her to her pediatrician, who prescribed several medicines and told her parents to bring her back in a month for a follow up visit. The Grigsons complained about the dump to the County and to Grace’s Department of Environmental Quality (DEQ). Marie Lindville, an administrator at DEQ, gave the Grigsons a form to fill out to request that the state conduct an environmental assessment of the hazards of the dump site and Disposal Site.  When the Grigsons turned that form in, Lindville placed it in a folder marked “Environmental Assessment Requests.”  As she inserted the Grigsons’ form in the folder, it became hooked by a paper clip to the back of another form. She placed that folder in a rack of folders that held matters she would present to the DEQ’s Quality Control Board for their attention.  When Lindville reviewed the Environmental Assessment Requests that month, she overlooked the Grigsons’ form, since it was attached to the back of a different form.

            The Grigsons made several phone calls to Lindville to find out the status of their complaint, but she did not return their calls until the third call, five weeks after the complaint was filed.  She then searched for their form, discovered it, called and apologized to the Grigsons for inadvertently paper clipping it to another form, and the following week presented it to the Quality Control Board.  The Quality Control Board of the DEQ determined that an environmental assessment, which could cost upwards of $100,000, was not required based on the complaints of a few children.  The Board was much more interested in expending its resources to do an environmental quality assessment that would permit an upscale shopping mall to locate near a wealthy suburban neighborhood.

The Grigsons were outraged at the DEQ determination—and they decided to fight back.  The Grigsons conducted surveillance of activities of EEI employees and the DEQ administrator, Lindville.  They noticed the EEI practice of dumping large refuse items in the dump on the edges of Sites One and Two and made a careful log and took photographs of these activities. They took pictures of EEI employees on break, took other photos of Lindville shaking hands with an unidentified EEI employee, and took a photograph of an EEI employee, Jay Fotiades, while he was urinating in some bushes at the dump. The Grigsons have taken soil samples from the dump site in small plastic bags to be sent to a private lab. They have also captured small animals skittering off the premises—rats, mice, and lizards—and they have taken pictures of these animals.   They have drawn a scale diagram that shows the proximity of the dump to their neighborhoods.  The Grigsons have blown up the photographs they took and put them, along with their diagram, on a protest poster. Now the Grigsons spend several hours each Saturday morning walking on the public streets around their neighborhoods with the posters, trying to engage their neighbors in conversation to tell them about the dump and their concerns about possible contamination.  

            The Grigsons passed the information and pictures they collected to a newspaper columnist, Eleanor Watson, who had a reputation as an opinionated writer. Before writing her column, Watson scoured the paper’s files for prior articles about DEQ or Lindville.  In the two previous years, several articles had been published mentioning DEQ in the context of environmental concerns, but only in one had Lindville been interviewed.  Watson called Lindville and left two messages that she was writing an article for the paper about the Grigsons’ situation, but Lindville did not return her call. Watson wrote a column that appeared in the “Forum” section of the Grace News-Herald newspaper, bearing her byline and the caption “Commentary: Environmental Racism—Dumping on Public Health?”  In the column, Watson noted that the county located the dump near minority race neighborhoods, and  that administrators refused to investigate residents’ complaints and “turned a blind eye to the dump that developed on the landfill only because it encroached on minority race neighborhoods.  This is thinly disguised racism at its very worst.” The column did not mention Lindville by name, but it did include a passage regarding the County’s contract with EEI and DEQ’s refusal to protect racial minorities living near the site, stating that  “It appears the County and the State DEQ are hiring out their dirty work. Locating a ‘waste management’ site near minority race neighborhoods is bad enough.  Allowing hirelings to turn that disposal area into a dump and doing nothing about it smack of official neglect.” The Grace-Herald  paper declined to publish any of the photographs collected by the Grigsons with Watson’s column.

DIRECTIONS: Analyze the above fact situation under tort principles we have covered this semester in class. Caption each tort. Do not evaluate under any state or federal environmental regulations or statutes or the Administrative Procedures Act (or any other state or federal statutes not covered in class) for their own sake.  You may assume that EEI and the County are in clear violation of federal standards designed to ensure the health and safety of surrounding residential neighborhoods and are open to civil and probably criminal penalties.  The federal statutes, however, do not provide for private damages causes of action. You may refer to this only as it affects your analysis of issues covered this semester.  Assume that the State of Grace allows all tort claims, subject to traditional common law theories of sovereign immunity. Sue (or sue on behalf of) only parties who have been named in the facts (e.g., not the neighbors or the unidentified EEI employee), and do not analyze claims against the State of Grace itself. Be sure to include possible defenses or responses that defendants might raise.