ELR Citation: ELR 20345
No(s). 88-1764 (M.D. Pa. Oct 5, 1989)

The court holds that citizen suits under the Resource Conservation and Recovery Act (RCRA) could be based on provisions of the authorized state hazardous waste program, Pennsylvania's Solid Waste Management Act. In denying defendant's motion to dismiss a complaint for failure to state a claim in a citizen suit, the court first defers to the Environmental Protection Agency's (EPA's) interpretation of the statute and holds that when EPA authorizes a state hazardous waste program under §3006 that lacks a citizen suit provision, a citizen suit pursuant to RCRA is proper. While suggesting that plaintiffs cannot allege violation of "open dumping" and hazardous waste disposal regulations simultaneously, the court declines to rule on the issue. The court holds that RCRA's exclusion for discharges that are subject to permits under the Federal Water Pollution Control Act (FWPCA) does not apply, since defendants have not established that any discharges were authorized by an FWPCA permit. The court holds that plaintiff's second amended complaint asserts an "ongoing" violation. In granting plaintiff's motion seeking leave to amend the complaint to assert a claim for response costs under Pennsylvania's Hazardous Sites Cleanup Act, the court declines to rule on whether a private cause of action to recover response costs exists but allows the motion because the claim is not clearly frivolous or legally insufficient.

[A previous decision in this litigation is published at 19 ELR 21368.]

Counsel for Plaintiffs
James R. Ronca
Schmidt & Ronca
209 State St., Harrisburg PA 17101
(717) 232-6300

Gerald J. Williams
Slap, Williams & Cuker
One Franklin Plaza, Ste. 960, Philadelphia PA 19102-1227
(215) 557-0099

Counsel for Defendants
John G. Whelley Jr.
Rosenn, Jenkins & Greenwald
15 South Franklin St., Wilkes-Barre PA 18711
(717) 826-5600