If You Thought That State RCRA Enforcement Order Was a Bar to Any Citizen Suit, Think Again

Posted on June 21, 2010 by Karen Aldridge Crawford

Natural Resource Defense Council, Inc. v. County of Dickson, Tennessee, 2010 U.S. Dist. LEXIS 32423 (M.D. Tenn. Apr. 1, 2010).

A district court denied Defendants’ motion to dismiss an environmental group’s claims under the citizen suit provisions of RCRA to abate an alleged imminent and substantial endangerment to human health and the environment posed by trichloroethylene and perchloroethylene disposed at a landfill.  The state agency had issued an order addressing this issue, and so Defendants, among other defenses, asserted that the group’s claims should be dismissed pursuant to 42 U.S.C. § 6972(b)(2)(B)(iv) which bars citizen suits where a court order or administrative order has been issued.  According to the Court, "Administrator" is defined as the "Administrator of the Environmental Protection Agency," and thus the Court was not persuaded by Defendants' argument that Tennessee had stepped into the shoes of the EPA administrator for purposes of enforcing the federally-mandated hazardous waste program based on a memorandum of understanding (MOU) between the state and EPA.  According to the Court, the MOU referenced Subchapter III, while the provision governing "imminent hazards" is located in Subchapter IV.  Therefore, the MOU did not authorize the state to step into the shoes of the EPA administrator for purposes of bringing an action or issuing an order regarding an imminent hazard. That authority is retained by the EPA administrator.  The Court also found that despite Defendants’ assertions otherwise, the group had standing to sue, its claims were not moot, and the doctrines of abstention and primary jurisdiction did not warrant dismissal of the case.



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