ELR Citation: ELR 20176
No(s). 91-C-1074 (D. Colo. Apr 8, 1992)

The court holds that to be "in existence" for purposes of obtaining interim status under Resource Conservation and Recovery Act (RCRA) §3005(e)(1)(A)(ii), a facility's operations must be lawful as well as ongoing. An environmental group brought a RCRA §7002(a)(1)(A) citizen suit against a company that stores and imports hazardous waste and blends such waste into fuel. The U.S. Environmental Protection Agency (EPA) authorized the state to regulate much of the hazardous waste at issue, but subsequent to that authorization, EPA revised the federal regulations governing toxicity characteristic (TC) waste. The state had determined that the company would not need a RCRA permit for certain activities involving waste storage but, subsequently, the state changed its determination and informed the company that a permit was required. A state court entered a consent decree between the state and the company providing that the facility had RCRA interim status, that the company would refrain from certain waste management practices, and that state denial of the company's permit application would render the consent decree void. Following the environmental group's filing of its citizen suit against the company in federal district court, the state denied the company's permit application and the state and a local government filed additional lawsuits against the company in state courts.

The court first grants the environmental group's motion for voluntary dismissal of its allegations concerning certain RCRA regulations that are the subject of the state's newly filed lawsuit in state court. The court denies the company's request for attorneys fees and dismisses the claim without prejudice. Next, the court rules that the environmental group has standing to prosecute the citizen suit, based on affidavits that establish factual allegations that the court had previously held, in 22 ELR 20108 (1991), were sufficient to establish standing. Next, the court grants the company summary judgment on the environmental group's allegations of RCRA violations with respect to waste regulated by the state pursuant to §3006(b), because the relevant portions of the federal RCRA program have been superseded by the state program. In a footnote, the court notes that it takes no position on the group's ability to proceed under RCRA §7002(a)(1)(A) by alleging violation of the state program.

Next, the court holds that RCRA §7002(b)(1)(B) does not bar the citizen suit because the state was not diligently prosecuting an action about the issues raised in the environmental group's complaint at the time the suit was filed. The company had announced to EPA a settlement of the state's action before the environmental group filed suit. The court next rules that the company has not established the existence of exceptional circumstances that would cause the court to abstain from exercising federal jurisdiction over the issue of whether the company has interim status to store TC waste. The court next holds that the environmental group is not collaterally estopped by the state court consent decree. The company has conceded that the consent decree is void. Next, the court holds that RCRA §7002(a) authorizes an award of civil penalties to the U.S. Treasury in citizen suits for RCRA violations.

The court grants the environmental group summary judgment that the company violated RCRA §3005 by storing TC waste without a permit or interim status. Although EPA wrote the company a letter stating "[Y]ou have qualified for interim status," interim status is a statutorily conferred, grandfathering status that EPA does not grant or confer. Under long-standing EPA policy, the EPA letter is not a grant of interim status, is not binding on the court, and does not prevent the environmental group from seeking judicial resolution of the issue. The court rules that the company did not obtain interim status as an "existing facility," because the company was storing hazardous waste without a permit or interim status and with knowledge that the state was no longer sanctioning its operation on the effective date of EPA's regulations governing TC waste. The state court consent decree, which stated that the company had interim status, had not yet been entered on the effective date of the TC regulations and has since been rendered void by the state's permit denial. To allow unlawful operations to gain interim status would undermine the "primary intent" of RCRA that operators obtain permits or interim status to store or dispose of hazardous waste.

[Related decisions are published at 22 ELR 20108 (two decisions), [second decision], 23 ELR 20814, and 24 ELR 20180.]

Counsel for Plaintiff
Adam Babich
Environmental Law Institute
1616 P St. NW, Ste. 200, Washington DC 20036
(202) 939-3803

Counsel for Defendant
Phillip S. Figa
Burns, Figa & Will
5251 DTC Pkwy, Penthouse Three, Englewood CO 80111
(303) 796-2626