ELR Citation: ELR 20115
No(s). 3:08-0229 (M.D. Tenn. Apr 1, 2010)

A district court denied defendants’ motion to dismiss an environmental group’s claims under the citizen suit provisions of RCRA to abate an alleged imminent and substantial endangerment to human health and the environment posed by trichloroethylene and perchloroethylene disposed at a landfill. Defendants asserted that the group’s claims should be dismissed because, among other things, Tennessee stepped into the shoes of the EPA Administrator for purposes of enforcing the federally mandated hazardous waste program based on a memorandum of understanding (MOU) between the state and EPA. Because the state issued an order that required certain actions be taken with regard to the landfill, the group’s action was therefore barred under RCRA §7002(b)(2)(B)(iv). The court disagreed, finding that the subchapter cited by the MOU did not authorize the state to step into the shoes of the EPA Administrator for purposes of bringing an action or issuing an order regarding an imminent hazard. That authority is retained by the EPA Administrator, who is required to simply provide notice to the affected state. The state order therefore did not preclude the group’s suit. The court went on to find that, despite defendants’ assertions otherwise, the group had standing to sue, its claims were not moot and the doctrines of abstention and primary jurisdiction did not warrant dismissal of the case.