ELR Citation: ELR 20406
No(s). CIV-81-573-GLO-RMB (D. Ariz. Feb 25, 1983)

Upon four motions to reconsider, the court dismisses federal claims against a state administrator arising out of allegedly improper handling of an asbestos dump. The court first rules that a state with an approved Resource Conservation and Recovery Act (RCRA) implementation plan operates under state, not federal, law and thus is not subject to a RCRA §7002 citizen suit for failure to perform a non-discretionary duty. The court then holds that it lacks federal question jurisdiction, since any damage to plaintiffs' property caused by state action was in the nature of a nuisance governed by state tort law, not inverse condemnation governed by federal constitutional law. The court holds that plaintiffs have no federal cause of action against defendant under the Clean Air Act because once a state has an approved implementation plan, the Act is enforced through state, not federal, law. Also, the plaintiffs have no cause of action under the Comprehensive Environmental Response, Compensation, and Liability Act because it allows neither citizen suits nor injunctions against state officials. Finally, the court declines to certify its decision for interlocutory appeal.

Counsel are listed at 13 ELR 20400.