ELR Citation: ELR 21280
No(s). 93-1720 (8th Cir. Jul 14, 1993)

The court holds that §113(h) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), and §7002(b)(2)(B)(ii) and (b)(2)(C)(ii) of the Resource Conservation and Recovery Act (RCRA), bar a RCRA citizen suit by environmental and citizen groups challenging incineration approved by the U.S. Environmental Protection Agency (EPA) of drummed waste containing dioxin. The court holds that although couched in terms of a RCRA violation, the plaintiffs' claims challenge a CERCLA removal action. EPA considered and approved the incineration as part of a §104 removal action, and EPA requested an exemption from the statutory $2,000,000 limit on spending at the site under §104. Further, EPA's assumption of responsibility and funding for the incineration answers the plaintiffs' argument that this is a state, not a federal, removal action. The court notes that if it were free to discuss the merits of the appeal, it would hold that the district court erred in reading EPA's regulation of hazardous waste incineration at 40 C.F.R. §264.343 as applying its 99.9999 percent destruction and removal efficiency (DRE) requirement to dioxin. EPA's regulation specifically states that its DRE requirement must be demonstrated on principal organic hazardous constituents that are more difficult to incinerate than dioxins.

[The district court's decision is published at 23 ELR 20807.]