ELR Citation: ELR 20414
No(s). 92-0072-W(S) (N.D. W. Va. Oct 9, 1992)

The court denies motions by companies constructing and proposing to operate a hazardous waste incinerator in Ohio to dismiss claims by West Virginia's citizens under the Resource Conservation and Recovery Act (RCRA) and common law challenging the incinerator's construction and operation. The court first grants the plaintiffs' motion to amend their complaint to add the director of the West Virginia Department of Environmental Protection as a plaintiff, to add language for jurisdiction and liability under RCRA, and to correct the name of a partner of one of the defendants. The court also grants the plaintiffs' supplemental motion to amend the complaint to assert an independent ground for subject matter jurisdiction under RCRA §7002(a)(1)(A). The court holds that the defendants failed to demonstrate how they would be unfairly prejudiced by the court granting the motions to amend the complaint. The court holds that it will consider any submissions by the defendants concerning the motions to amend as supplements to their motions to dismiss the original complaint.

The court holds that it has subject matter jurisdiction under RCRA §7002(a)(1)(B) to review claims against the companies, because a jurisdictional basis for suit under RCRA §7002 exists in situations where there are allegations that a person's acts or omissions may present an imminent and substantial endangerment to health or the environment. The court holds that it has personal jurisdiction over the companies, because the plaintiffs made a prima facie case under West Virginia's long-arm statute. The imposition of personal jurisdiction does not offend traditional notions of fair play and substantial justice, because the companies established an office in West Virginia to provide brochures, pamphlets, and similar publications to interested members of the public on the construction and eventual operation of the incinerator. Also, the companies' conduct and connection with West Virginia are such that they should reasonably anticipate being haled into court there. The court holds that the companies' due process rights have been satisfied, because they have purposefully directed their activities toward West Virginia. The court also holds that the plaintiffs have sufficiently alleged venue in both their complaint and amended complaint. The court holds that the West Virginia attorney general has standing to bring suit under RCRA §7002(a) in a parens patriae capacity, because it is reasonable for a proper public official such as the attorney general to bring such suits in that manner, and Congress did not limit that right by its statutory language. The court next holds that the city of Chester, West Virginia, has properly filed its complaint and amended complaint, even though the city did not sign the complaint, because the attorney general and members of his office signed the complaint and amended complaint as counsel for the city. The court holds that if this issue becomes a matter of great concern, it will conduct a hearing and consider whether further amendment of the pleadings is necessary or desirable.

On the substantive issues, the court holds that the plaintiffs' complaint and amended complaint state claims on which relief may be granted for violations of RCRA's permitting requirements. The court dismisses the plaintiffs' claim that the U.S. Environmental Protection Agency (EPA) and the Ohio Environmental Protection Agency (OEPA) failed to conduct a proper floodplain/wetland assessment in violation of an executive order, because an alleged failure to comply with the executive order is not enforceable against federal agencies by private entities. The court also dismisses the plaintiffs' claim that EPA violated the National Environmental Policy Act (NEPA) by not preparing an environmental impact statement. Such NEPA requirements need not be met because of RCRA's comprehensive regulatory scheme. The court denies the companies' motion to dismiss the plaintiffs' claim of common-law nuisance, because the plain language of RCRA indicates Congress' intent to leave untrammeled the right of an individual to invoke principles of statutory or common law in damage actions pendant to RCRA's claims. The court further holds that this claim is ripe for review.

The court next holds that it lacks subject matter jurisdiction over RCRA's claims against EPA, because RCRA §7002(a)(1)(B) does not permit RCRA's citizen suits against EPA where EPA merely performed, or allegedly failed to perform, certain regulatory functions under RCRA. Further, there is no claim that EPA was directly involved in waste management. Also, there is no basis for a claim that EPA failed to perform any act or duty that is not discretionary. The court also holds that it lacks subject matter jurisdiction over RCRA's claims against the OEPA, because it acted in its regulatory capacity and is not a contributor to any imminent and substantial endangerment created by the companies. Also, the federal question statute does not give the court jurisdiction over claims against the OEPA. Finally, the court holds that the plaintiffs did not state a claim on which relief may be granted against the OEPA for common-law nuisance, because the plaintiffs' complaint and amended complaint do not assert a nuisance claim against the OEPA.

Counsel for Plaintiffs
William Hill, Ass't Attorney General
Attorney General's Office
State Capitol, Rm. 26-E, Charleston WV 25305
(304) 558-2021

Counsel for Defendants
Randolph Wiseman, Charles Waterman
Bricker & Eckler
100 S. Third St., Columbus OH 43215
(614) 227-2300