ELR Citation: ELR 20439
No(s). C-2-91-980 (S.D. Ohio Jul 19, 1993)

The court holds that a city may not bring an action under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) for response costs as a "state," or a Resource Conservation and Recovery Act (RCRA) citizen suit in a state authorized to enforce its own hazardous waste program for alleged violation of a federal regulatory provision superseded by state law pursuant to RCRA. The court holds that the city is not a "state" for purposes of seeking response costs under CERCLA §107(a)(4)(A), because "municipality" is specifically included in CERCLA §101(21)'s definition of "person" and is not found in CERCLA §101(27)'s definition of "state." Moreover, although the definition of state uses the word "include," none of the entities named are local government units. Accordingly, the court dismisses the city's response cost claim.

The court holds that the city cannot maintain its RCRA citizen suit. RCRA citizen suits alleging a violation of a federal provision that was superseded by state law pursuant to RCRA §3006(b) are not available in a state with a U.S. Environmental Protection Agency-authorized hazardous waste program. A RCRA citizen suit alleging a federal violation may only be brought in such states when the claim is based on a federal regulation that has not been superseded. Because the city failed to allege a violation of any specific federal regulation, which is still in effect, the court is without federal question jurisdiction. The court also holds that allegations of past harm cannot create federal jurisdiction under RCRA, because a RCRA citizen suit requires a claim of present or future harm. The court holds that the city's RCRA claim for civil penalties and injunctive relief for operation of a hazardous waste facility in violation of the standards applicable to generators of hazardous waste and for creating an imminent and substantial endangerment to the city's citizens and the environment is barred pursuant to RCRA §7002(b)(1)(B) by a consent order entered into in state litigation that addressed identical issues. Although the state is not in the process of prosecuting an action, its prior diligence in prosecution and the fact that defendants have entered into a detailed and legally binding consent order furthers RCRA's goal of giving the state primary responsibility for remedying environmental hazards and avoiding conflicting litigation and obligations. The court also holds that pursuant to RCRA §7002(b)(2)(C), the state's diligence in proceeding with the agreed-upon remedial action, as established by the detailed consent order, bars the city's claims for injunctive relief. The city's injunctive relief claims are also barred by its failure to allege sufficient prelitigation notice, as required by RCRA §7002(b)(2)(A).

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

Counsel for Defendants
David W. Alexander
Squire, Sanders & Dempsey
1300 Huntington Ctr.
41 S. High St., Columbus OH 43215
(614) 365-2700