ELR Citation: ELR 20519
No(s). 2:96-CV-425C (D. Utah Apr 14, 2000)

The court holds that the U.S. Army, the U.S. Department of Defense (DOD), and a private company did not violate the Resource Conservation and Recovery Act (RCRA), the Toxic Substances and Control Act (TSCA), and the National Environmental Policy Act (NEPA) in their past operation and continued present operation of a chemical agent stockpile facility. The court first holds that the Gwaltney Doctrine bars environmental groups' RCRA §7002(a)(1)(A) claims against the Army, DOD, and the company. Under Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, 484 U.S. 49, 23 ELR 20375 (1987), courts do not have subject matter jurisdiction over citizen suits for wholly past violations. The groups failed to establish that several alleged violations were ongoing or likely to reoccur. Further, the evidence presented at trial was not sufficient to establish several other claimed violations. The court then holds that the groups' RCRA §7002(a)(1)(B) claims must fail because the groups failed to demonstrate that the Army's, DOD's, and the company's actions present an imminent and substantial endangerment to health or the environment. Although there have been problems at the facility, there has been no evidence that facility personnel, the public, or the environment have been harmed by the facility's operation.

The court next holds that the groups have not prevailed on their TSCA claim that the Army, DOD, and the company failed to meet the destruction removal efficiency required for the destruction of polychlorinated biphenyls (PCBs). The evidence at trial demonstrated that the facility has and continues to meet the required destruction removal efficiencies for PCBs. The court also holds that the groups' NEPA claims are time barred. The groups' NEPA claims do not fall within the applicable six-year statute of limitations. Moreover, the facility's concealment of information does not rise to the necessary level of active deception that would equitably toll the statute of limitations.

Counsel for Plaintiffs
Randall M. Weiner
Ecological Consultants for the Public Interest
1942 Broadway, Ste. 206, Boulder CO 80302
(303) 444-4785

Counsel for Defendants
Peter A. Appel
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000