Posted on December 18, 2017 by Edward F. McTiernan
In 1972, Congress adopted the Clean Water Act (CWA) prohibiting discharges of pollutants from point sources without a permit. Four years later, when Congress enacted the Resource Conservation and Recovery Act (RCRA), it included two notable provisions. First, Congress excluded from the definition of “solid waste”—and thereby from regulation under RCRA—“industrial discharges which are point sources subject to permits under” CWA Section 402 (i.e., NPDES permits). Second, Congress barred RCRA from applying to “any activity or substance which is subject to” various environmental statutes (including the CWA), “except to the extent that such application (or regulation) is not inconsistent with the requirements of such” other environmental statutes. The net effect of these two RCRA “anti-duplication” provisions prevents RCRA from encroaching upon activities regulated by the CWA. While much of this year’s Clean Water Act action seemed to focus on the WOTUS rule, 2017 may ultimately be remembered as the year in which plaintiffs were able to break through RCRA’s anti-duplication provisions and use endangerment claims to regulate point source discharges.
In Tennessee Riverkeeper, Inc. v. 3M Co., plaintiffs convinced a district court that they were entitled to pursue RCRA endangerment claims to regulate discharges of perfluorinated chemicals. The court refused to dismiss the case because, in its view, the defendants had failed to provide ‘‘any authority stating that a citizen cannot bring an RCRA claim to try to impose stricter limits on the disposal of hazardous waste than those imposed by an EPA-approved State permit or to supplement the terms of such a permit.” Slip Op. at 20. On November 2, the Ninth Circuit reached a similar result. Ecological Rights Foundation v. Pacific Gas & Electric Company, (“ERF”). Following an extensive (and largely unnecessary) analysis of RCRA’s non-duplication provisions, the Ninth Circuit stated: “RCRA’s anti-duplication provision does not bar RCRA’s application unless the specific application would conflict with identifiable legal requirements promulgated under the CWA or another listed statute.” Slip op. at 25. In other words, plaintiffs may use RCRA to impose discharge limits on any substance not specifically named in a Clean Water Act permit, and perhaps to lower the discharge limits of substances that are.
By encouraging exactly the sort of dual regulation of a single discharge under both the CWA and RCRA that the RCRA non-duplication provisions appear intended to prevent, these decisions appear to be inconsistent with a proper reading of RCRA’s non-duplication provisions. They may allow a judge to set discharge limits, displacing the limits (or the lack thereof) established by agency scientists following a public process. This is problematic for several reasons. A CWA permitted discharge may contain tens or hundreds of pollutants, but the permit typically regulates only those of most concern. According to the Ninth Circuit, however, the rest can now be regulated by RCRA. Indeed, these recent decisions may open the door to using RCRA to cover pollutants already regulated under the permit, as long RCRA imposes “stricter limits” (in the words of the Tennessee Riverkeeper court) than the CWA permit. If the sole criterion is that RCRA endangerment claims must impose “stricter limits” than the CWA permit, plaintiffs may now have a legal basis for rewriting permits to contain whatever regulatory standards, technology requirements or procedural measures they can convince a court to impose.