ELR Citation: 41 ELR 20231
No(s). JFM-10-1861 (D. Md. Jul 5, 2011)

A district court held that environmental groups may pursue a RCRA claim against the current and former owners of a steel mill for disposing of hazardous waste without a permit, but dismissed the groups' remaining RCRA and CWA claims. The groups' claims that the mill has released and continues to release hazardous wastes into the environment in violation of RCRA are precluded by EPA's and the state agency's diligent prosecution of the same violations. These claims are almost identical to those in the state agency's 1997 complaint, were addressed by a consent decree, and are now the subject of a dispute resolution petition. However, claims that the mill improperly disposed of and continues to dispose of hazardous waste without RCRA permits are not clearly precluded. While the state agency's 1997 complaint alleges violations of the mill's interim status under RCRA and, thus, alleges a violation of RCRA’s permitting requirement, the resulting consent decree does not appear responsive to these claims. It lists requirements for two on-site landfills at the mill, but it does not require the owner and operator of the mill to obtain a RCRA permit. Accordingly, there is insufficient evidence that the agencies are diligently prosecuting this claim. But the court dismissed the groups' CWA claims. The group filed suit under §311, but a citizen-plaintiff is not authorized to bring a claim for such violation. Only the government can issue fines and penalties under §311 for oil and hazardous waste spills. The groups also alleged that the mill violated CWA §§301(a) and 402(a) by discharging pollutants into navigable waters without a permit. But a permit cannot be required under the CWA for a nonpoint source discharge, and the groups' allegations relate to nonpoint source discharges. Similarly, the groups failed to provide sufficient notice in their claim that the mill violated their NPDES permit. And while the court dismissed two of the groups' state-law claims, the group may go forward with their claim that the mill violated state sediment control regulations.