ELR Citation: ELR 20103
No(s). 93-3216 (6th Cir. Nov 19, 1993)

The court holds that the Resource Conservation and Recovery Act (RCRA) does not confer to a district court jurisdiction over a citizen suit seeking to enjoin the initial operation of a hazardous waste treatment facility operating under a valid RCRA permit. The suit alleges that dioxin emissions from the facility's trial burn and post-trial burn period would violate RCRA §7002(a)(1)(B) by presenting a risk of imminent and substantial endangerment to health or the environment. The court holds that a hazardous waste facility operator's compliance with the terms of its RCRA permit precludes district court jurisdiction, under §7002(a)(1)(B), over a challenge to a properly permitted activity. Viewed in the context of the text and legislative history of §§7006(b) and 7002(b)(2), which explicitly limit judicial review of RCRA permits, the authority given citizens under §7002(a)(1)(B) to sue "any person" does not extend to persons complying with valid RCRA permits. By specifying that courts of appeals are to review permit decisions in accordance with the judicial review provisions of the Administrative Procedure Act, Congress intended these courts to defer to the Environmental Protection Agency's (EPA's) expertise in permit matters. Furthermore, by including a 90-day limit on review of permit decisions, Congress gave the courts of appeals exclusive jurisdiction to review permit decisions and render judgments that cannot be relitigated or otherwise collaterally attacked in the district courts. Any review of permitting decisions must be sought in the appropriate U.S. Circuit Court of Appeals. The court also holds that even if Congress intended to allow such suits, the district court still lacks jurisdiction, because the complaint amounts to an improper collateral attack on EPA's prior permitting decisions that allow the facility's initial operation. The citizen group failed to appeal EPA's decision to amend the facility's permit within the 90-day period required under §7006(b), and the record does not indicate that the dioxin risk alleged became known only after the 90 days had elapsed.

Counsel for Plaintiffs
Mick Harrison
Government Accountability Project
810 First St. NE, Ste. 630, Washington, DC 20002
(202) 408-0034

Counsel for Defendants
Randolph Wiseman
Bricker & Eckler
100 S. Third St., Columbus OH 43215
(614) 227-2300

Before: KENNEDY and NORRIS, Circuit Judges; and ENGEL, Senior Circuit Judge.