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Comite Pro Rescate de la Salud v. Puerto Rico Aqueduct & Sewer Auth.

Citation: 19 ELR 20143
No. No. 87-1643 (JP), 693 F. Supp. 1324/28 ERC 1769/(D.P.R., 07/10/1988)

The court holds that the Resource Conservation and Recovery Act's (RCRA's) domestic sewage exclusion applies to hazardous wastes discharged into an industrial park's sewer system, even though the wastes never reach a treatment plant, but that plaintiff's have made good-faith allegations of continuing violations in their citizen suit claims under the Federal Water Pollution Control Act (FWPCA) and the Clean Air Act. The court first holds that the domestic sewage exclusion in RCRA §1004(27) applies to defendants' wastes, although defendants are required to comply with the FWPCA's pretreatment standards for sewer discharges that lead to treatment plants. Section 1004(27) specifically excludes from the definition of solid waste "solid or dissolved materials in domestic sewage," and the Environmental Protection Agency (EPA) defines domestic sewage as untreated sanitary wastes that pass through a sewer system. The court holds that wastes are excluded when they first enter the sewer system, as stated by EPA in its preamble to the domestic sewage regulation, and thus the exclusion does not apply only to wastes that actually reach the treatment plant for storage or treatment. To hold otherwise would require defendants to consider their sewer discharges to be both hazardous waste under RCRA and pollutants under the FWPCA and would impose on defendants double regulation whenever a functioning sewer system broke down. A contrary holding would also result in other RCRA provisions imposing conflicting and illogical requirements on defendants. The court holds that the domestic sewage exclusion bars not only plaintiffs' claims under RCRA §§3005 and 3010, but also their claims under §7003. Although plaintiffs have alleged that defendants' activities present an imminent and substantial endangerment to the environment, mixtures of hazardous chemicals with domestic waste are not solid waste and thus cannot be hazardous waste subject to §7003. The court dismisses plaintiffs' state-law pendent tort claims, since the RCRA claims predominated.

The court rules that technical noncompliance with the citizen suit notice provisions of the FWPCA and the Clean Air Act is excused where, as in this case, defendants had actual notice of the alleged violations. The court holds that allegations of continuing intermittent violations of the statutes in the past and a contiuation of the conditions that led to those violations are sufficient to establish jurisdiction within the meaning of the Supreme Court's decision in Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, 18 ELR 20142. The court holds that defendants' parent corporations may be held liable for defendants' conduct if the parents assumed responsibility for environmental management at the subsidiaries' plants and denies motions to dismiss the parents for lack of personal jurisdiction. The court holds that service by mail on two defendants was improper, since no federal or state law specifically provides for service by mail, but grants plaintiffs leave to serve the defendants properly. Finally, the court declines to certify a class consisting of past and present workers in the industrial park and residents of the commuity, in light of the court's dismissal of plaintiffs' RCRA and pendent claims.