ELR Citation: ELR 20876
No(s). 92-2415 (4th Cir. Mar 23, 1993)

The court holds that a federal district court lacks subject matter jurisdiction over a collateral challenge to the validity of state and federal permits for an Ohio hazardous waste incinerator brought under the Resource Conservation and Recovery Act (RCRA) §7002(a) citizen suit provision. The court holds that RCRA §7006(b) forbids a collateral attack by plaintiffs on prior permitting decisions by the U.S. Environmental Protection Agency (EPA) in place of a direct appeal. Plaintiffs failed to appeal directly from the U.S. Environmental Appeals Board's decision rejecting their challenge, as required by §7006(b). The court holds that the district court lacks jurisdiction over plaintiffs' separate challenge to the permitting decisions of the Ohio Environmental Protection Agency under the U.S. Supreme Court's decision in Burford v. Sun Oil Co., 319 U.S. 315 (1943), in which the Court abstained from reviewing a complex state regulatory scheme where the state established a specialized tribunal to review the scheme. Ohio has taken great care to provide for specialized adjudication of its complicated environmental law scheme.

The court next holds that plaintiffs' complaint is a collateral attack on the permitting decisions of the federal and Ohio Environmental Protection Agencies. Plaintiffs' first four counts allege essentially technical violations in the EPA permitting process. On their face, the counts do not give rise to any imminent and substantial endangerment to health or the environment, and plaintiffs should have raised them on direct appeal or with the relevant regulatory bodies. The court holds that plaintiffs' fifth count, which challenges the federal and state agencies' decision to give defendants time to bring their incinerator into compliance with the terms of their permits, should also have been raised on direct appeal, either from the federal agency's permit modification decision or from the state agency's parallel decision. The court holds that plaintiffs' sixth and seventh counts, which allege that the federal and state agencies failed to require defendants to comply with a reference air concentration for lead and secondary ambient air quality standards for sulfur dioxide, are simply expressions of plaintiffs' displeasure with the agencies' review and should have been raised either with the appropriate agencies or on direct appeal from the agency permitting decisions. The court holds that plaintiffs' last count, which alleges that the operation of the incinerator will pose a public nuisance under either federal or state common law, is little more than an omnibus count, reiterating under the guise of a common-law claim plaintiffs' dissatisfaction with the agencies' permitting decisions.

Turning to policy considerations, the court holds that adding another layer of collateral review for agency decisions threatens to put at naught the administrative process established by Congress. Plaintiffs who sue collaterally in a federal district court would be able to avoid the deferential standard of review that circuit courts must apply under the Administrative Procedure Act when hearing a direct appeal from an agency decision. Plaintiffs would be able to circumvent the limitations period during which they were required to post a direct appeal. And the district court, as plenary fact finder, would not be limited to the evidentiary record that the agency has accumulated during the months of permit proceedings held prior to the issuance of the permit.

[The district court's opinion is published at 23 ELR 20414.]

Counsel for Plaintiffs-Appellees
Richard L. Gottlieb
Lewis, Friedberg, Glasser, Casey & Rollins
One Valley Sq., Ste. 700, P.O. Box 1746, Charleston WV 25326
(304) 345-2000

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

Before ERVIN, Chief Judge, and WIDENER and WILKINSON, Circuit Judges.