ELR Citation: ELR 20400
No(s). CIV-81-573-GLO-RMB (D. Ariz. Feb 25, 1983)

The court dismisses Clean Air Act, Resource Conservation and Recovery Act (RCRA), and Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) claims against the Environmental Protection Agency (EPA) pressed by residents of a community developed on top of an asbestos dump. The court first holds that the citizen suit provisions of the Clean Air Act and RCRA give it jurisdiction only if EPA has failed to perform mandated duties. The court then considers plaintiff's Clean Air Act enforcement claims, but holds that each claim either involves an action under EPA's discretion or involves facts that plaintiffs failed to allege. The court holds enforcement under Clean Air Act §113(a)(1) to be almost wholly discretionary. Plaintiffs failed to allege facts under §113(a)(2) that would require EPA to take over the state's enforcement role. And the plaintiffs failed to allege facts that would require EPA to regulate the source in question as a major stationary source under §113(b). The court next considers plaintiffs' claims thaty EPA has failed to promulgate valid asbestos emission standards under Clean Air Act §112. The court holds that while a district court may rule on whether EPA in fact has promulgated an emission standard, it may not otherwise rule on the standard. The regulation in question is an emission standard, and plaintiffs' challenge to the appropriateness of that standard is a claim that under §307 must be brought in the D.C. Circuit within 60 days of promulgation.

Turning to plaintiffs' RCRA claims, the court holds that all the acts plaintiffs claim EPA failed to do are discretionary. The court refuses to order EPA to do a progress report on the study called for by RCRA §8002(f). The court rules that RCRA §3001(b)(3)(A)(ii) allows EPA temporarily to delay promulgation of hazardous mining waste regulations. And the court holds that enforcement of RCRA is generally discretionary.

Turning to plaintiffs' CERCLA claims, the court holds that CERCLA does not authorize citizen suits or suits for injunctive relief against EPA. Alternatively, the court holds that implementation of specific remedial programs under CERCLA is within EPA's discretion. The court concludes that since all plaintiffs' federal claims are groundless, the court lacks jurisdiction. However, the court grants plaintiffs leave to amend their complaint to allege additional facts that could establish a cause of action under the Clean Air Act.

Counsel for Plaintiffs
Joe Sparks, Kevin T. Hahn
Sparks & Silver
7503 1st St., Scottsdale AR 85251
(601) 949-1339

Counsel for Defendants
David D. Dearing
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-5777

Don Overall, Ass't U.S. Attorney
P.O. Box 1951, Tucson AR 85702
(602) 629-6511

Todd Gulick
Office of the General Counsel
Environmental Protection Agency, Washington DC 20460
(202) 382-7709