ELR Citation: ELR 20814
No(s). 91-C-1074 (D. Colo. Feb 17, 1993)

The court holds that an environmental group may bring a citizen suit under §7002(a)(1)(A) of the Resource Conservation and Recovery Act (RCRA) against a corporation for alleged violations of the Colorado hazardous waste program, which does not contain a citizen suit provision, because the state program was authorized by the U.S. Environmental Protection Agency (EPA) under RCRA. The environmental group originally brought this action seeking injunctive and declaratory relief, and civil penalties under RCRA for the corporation's alleged storing of hazardous waste at its Bloomfield, Colorado, facility without a permit or interim status in violation of RCRA §3005(a). However, subsequent to the group's suit, Colorado amended its law and received authorization to operate a hazardous waste program under RCRA, which superseded the group's complaint. Thereafter, the environmental group filed motions to amend its complaint to allege violations of the Colorado hazardous waste program and for reconsideration.

The court first denies plaintiff's motion for reconsideration of the court's earlier ruling granting the chemical corporation summary judgment on the grounds that the environmental group's claims have been superceded by Colorado law. The court next grants plaintiff's motion to amend its complaint. Although the amendment is outside the deadline set for amending pleadings, it will not prejudice the defendant because the defendant has had notice of the nature of the plaintiff's claims since the filing of the complaint. The court holds that because Colorado's hazardous waste program was authorized by RCRA and became "effective" pursuant to RCRA, the citizen suit provision of RCRA §7002(a)(1)(A) applies. EPA has adopted this interpretation of RCRA. In granting interim and then final authorization to Texas' hazardous waste program, EPA stated that a RCRA citizen suit may be brought after a state has received authorization to operate its program in lieu of the federal program. Moreover, this interpretation is supported by the important role that citizen suits play in enforcing RCRA.

[Two previous decisions in this litigation are published at 22 ELR 20108 [second opinion].]

Counsel for Plaintiff
Joshua B. Epel
Gablehouse & Epel
1050 17th St., Ste. 1730, Denver CO 80265
(303) 844-3433

Counsel for Defendant
Norman W. Higley
Burns, Figa & Will
5251 DTC Pkwy., Penthouse 3, Englewood CO 80111
(303) 796-2626