ELR Citation: ELR 20802
No(s). 86-2573 (D.D.C. Jul 9, 1987)

The court holds that plaintiffs' citizen suit under the Resource Conservation, and Recovery Act (RCRA) and the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) cannot be maintained to compel the Environmental Protection Agency (EPA) to bring an enforcement action against a company allegedly responsible for a hazardous waste site. The court first holds RCRA §7002(a)(1) does not authorize plaintiffs' suit since they did not allege that EPA was managing the hazardous waste site. The suit is also not authorized under RCRA §7002(a)(2) because plaintiffs have not alleged that EPA failed to execute a mandatory duty. The court next holds that the plaintiffs may not bring suit to require EPA to enforce the open dumping provision of RCRA Subtitle D, since EPA lacks enforcement power under that provision until 1989. Plaintiffs may, however, file suit directly against the alleged violators of this provision. The court holds that the action against the corporate defendants for alleged violations of the federally approved, state-administered hazardous waste regulations must be dismissed because that action is a state claim that should be brought in a Wisconsin court. The court holds that the CERCLA citizen suit action must also be dismissed because plaintiffs failed to provide defendants the 60-day notice required by §310. Even if the 60-day notice requirement had been met, the CERCLA citizen suit would still fail because §310 can only be used to compel the enforcement of mandatory duties. Finally, the court holds that plaintiffs' claims for CERCLA response costs must be dismissed since they did not allege that they incurred any cleanup costs.

Counsel for Plaintiffs
Lawrence E. Blatnik
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2338
Caroline Wehling
Office of General Counsel
U.S. Environmental Protection Agency
401 M St. SW, Washington DC 20460
(202) 475-8040

Counsel for Defendants
John E. Heintz
Popham, Haik, Schnobrich, Kaufman & Doty
1800 M St. NW, Washington DC 20036
(202) 828-5300