ELR Citation: ELR 20395
No(s). TY-81-107-CA (E.D. Tex. Jan 17, 1983)

The court rules that §4005 of the Resource Conservation and Recovery Act (RCRA) does not ban open dumping of solid wastes. In the city's challenge to the county's construction of a dump site, both parties construed §4005(a) to be a direct, self-executing federal prohibition on open dumping. The court rules, sua sponte, that their interpretation stretches the solid waste provisions of RCRA far beyond the statutory objectives and implementation scheme. The court interprets §4005 only to obligate states with Environmental Protection Agency (EPA)-approved solid waste plans to eliminate open dumping under EPA supervision and in accord with agreed upon schedules. Section 4005 is a prohibition on open dumping that such states must agree to enforce to qualify for federal planning or implementation funds or to regain federal approval for a plan after such approval has been withdrawn. The court notes that this analysis is inconsistent with the only other court decision on the issue, which was based on deference to EPA's interpretation of the statute, but decides that the EPA statement relied upon by the other court is unreasonable dictum.

The court rules that under its interpretation of §4005 of RCRA, the city of Gallatin has failed to state a claim upon which relief can be granted. Since Texas is not required to prohibit open dumping unless it qualifies for federal funding and its application to EPA for such funding is still pending, the court lacks authority to block construction of the Cherokee County dump. Should such a plan be approved, the city would have a potential cause of action under the citizen suit provision of RCRA, but against EPA or the state, not against the county.

Counsel for Plaintiff
John O. Davis
P.O. Box 00, Palestine TX 75801
(214) 729-6975

A.D. Henderson
P.O. Drawer 280, Palestine TX 75801
(214) 729-7212

Michael A. Hatchell
Ramey, Flock, Hutchins, Jeffus, McClendon & Crawford
P.O. Box 629, Tyler TX 75710
(214) 597-3301

Counsel for Defendant
Larry R. Sinclair
Cox, Holcomb & Sinclair
P.O. Box 537, Rusk TX 75785
(214) 683-5427

John Robert Adamson
Adamson & Phifer
P.O. Box 1309, Jacksonville TX 75766
(214) 586-2544