ELR Citation: ELR 20870
No(s). CIV S-86-475-RAR (E.D. Cal. Aug 30, 1989)

On cross-motions for summary judgment in an environmental group's ongoing suit against the federal government and its California Air Force base concerning alleged environmental law violations, the court denies the environmental group's motions and both grants and denies in part the government's motions. The court first holds that a Resource Conservation and Recovery Act (RCRA) permit is not required for waste pits at the Air Force base in which hazardous wastes have been permanently disposed of since 1980. "Storage," as defined in the Environmental Protection Agency's (EPA's) RCRA regulations, only applies to the temporary holding of hazardous wastes and the evidence establishes that the government intended permanent disposal when it placed the waste into the pits. Moreover, no activity has occurred at any of the inactive waste pits since 1980 and the Air Force base has been listed by EPA on the National Priorities List under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The court finds that the only activity at the waste pits is in the context of remedial action taken under CERCLA, and §121(e) expressly provides that that activity does not have to be separately permitted. The court next holds that it must defer to EPA's interpretation of RCRA that no permit is necessary for leaking associated with a disposal unit where no treatment, storage, or disposal has occurred since 1980, unless the leaked material is itself actively handled.

The court finds that factual issues remain concerning whether the base is violating the Federal Water Pollution Control Act by discharging pollutants from the waste pits into groundwater without a National Pollution Discharge Elimination System permit. The environmental group should have the opportunity to demonstrate through expert testimony that any seepage into groundwater from the waste pits into groundwater has a reasonably foreseeable and temporally imminent effect on surface waters of the United States. The court next holds that the environmental group's Administrative Procedure Act (APA) counts must be dismissed, since the environmental group has failed to allege a proper cause of action under the APA. While the court holds that it has jurisdiction and the group has standing, the group has failed to state a cause of action under the APA by claiming that the government has failed to act. The activities at the Air Force Base that the group challenges here do not constitute agency action as defined in the APA, since no reasonable basis exists to think Congress intended that omissions to act, which do not involve administrative matters, would be subject to review. The court next holds that declaratory relief is not appropriate for the environmental group's claims for which injunctive relief has already been denied. Finally, the court dismisses the environmental group's claims relating to the effluent limitation for chemical oxygen demand, since the group conceded that no limitation was in effect during that period. However, the court grants the environmental group's summary judgment motions concerning six exceedences that were inadvertently omitted from the government's admissions.

[Previous opinions in this litigation are published at 17 ELR 20344 and 19 ELR 20124. A subsequent decision appears at 20 ELR 20877].

Counsel for Plaintiffs
Michael Axline, John B. Bonine, Professors of Law
University of Oregon School of Law, Eugene OR 97403
(503) 346-3852

Victor M. Sher
Sierra Club Legal Defense Fund, Inc.
216 First Ave. S., Ste. 330, Seattle WA 98104
(206) 343-7340

Counsel for Defendant
Stephen L. Samuels
Land and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-3179