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Coalition for Health Concern v. LWD, Inc.

ELR Citation: 25 ELR 21408
Nos. Nos. 93-6575, -6576, 60 F.3d 1188/41 ERC 1748/(6th Cir., 07/27/1995) Rev'd

The court holds that a district court should have dismissed, under the abstention doctrine set forth in Burford v. Sun Oil Co., 319 U.S. 315 (1943), environmental groups' claims under §7002(a)(1)(A) of the Resource Conservation and Recovery Act (RCRA) that a company is violating state law and RCRA §3005 by operating a Kentucky hazardous waste incineration facility without a final Part B permit. The groups also alleged that the Secretary of Kentucky's Cabinet for Natural Resources and Environmental Protection failed to perform his statutory duty to either grant or deny the company's final Part B permit by RCRA's November 8, 1989, deadline. The Cabinet and the company entered into an agreement that established the conditions under which the company would operate the incinerators until the Cabinet's final decision on the company's Part B permit applications . The groups then filed administrative petitions alleging that the company was violating §3005 by operating under interim status when it had not been granted or denied its final Part B permit by the deadline. Although the Secretary remanded the case for further administrative hearings, the groups abandoned their proceedings before the Cabinet, filed this action in federal district court, and asked the Cabinet to stay its proceedings until resolution of the federal action. The court first dismisses for lack of jurisdiction the groups' RCRA §7002(a)(1)(B) claim that the incinerators pose an imminent and substantial endangerment to the public and the environment. The allegation cannot reasonably be interpreted as anything but a collateral attack on Kentucky's hazardous waste permitting process in order to enjoin the issuance of an operating permit, and RCRA §7002(b)(2)(D) bars all actions to restrain or enjoin the issuance of a permit. The court next dismisses without prejudice the groups' claims that the company failed to comply with the Comprehensive Environmental Response, Compensation, and Liability Act's (CERCLA's) notice provisions concerning the handling and release of hazardous materials into the environment. The claims arise under CERCLA §310, which authorizes citizen suits against any person alleged to be in violation of CERCLA. This provision has been interpreted to require allegations of continuous or intermittent violations. The groups, however, did not allege that the company's failure to comply with the notice provisions is continuous or intermittent. The court next holds that Burford abstention from the groups' remaining §7002(a)(1)(A) claims is appropriate. Kentucky has an overriding interest in protecting its environment from the effects of unregulated hazardous waste, and the exercise of federal review at this juncture would disrupt Kentucky's efforts to establish a coherent policy for the licensing of hazardous waste facilities. Moreover, the groups' remaining §7002(a)(1)(A) claims do not and cannot arise in isolation from state law issues, nor are they premised solely on alleged violations of federal law, because Kentucky's authorized program incorporates the RCRA provisions, and each of the remaining claims seeks relief for alleged violations of both state and federal RCRA requirements. The court hold that it cannot decide the groups' claims without interfering with Kentucky's policies governing the issuance of hazardous waste incineration permits. The court thus reverses and remands the district court's decision that Burford abstention is inappropriate.

[A prior decision in this litigation is published at 24 ELR 20458.]

Counsel for Plaintiffs
Mack G. Harrison
Government Accountability Project
810 First St., NE, Ste. 630, Washington DC 20002
(202) 408-0034

Counsel for Defendants
Virginia H. Snell
Wyatt, Tarrant & Combs
Citizens Plaza, Louisville KY 40202
(502) 589-5235

Before: KEITH and NELSON, Circuit Judges; HORTON, District Judge.*